LexBABULAL versus HABIBNOOR KHAN (DEAD) BY LRS. AND ORS.
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A BABULAL k ' v. HABIBNOOR KHAN (DEAD) BY LRS. AND ORS. APRIL 26, 2000 .. B [S.B. t\1A1MUDAR AND U.C. BANERJEE, JJ.] \ Pa11ition Act, 1893 : S. 4-Memberof an undivided family-Share in family property, a dwell- c ing house-One p011ion of house sold to a stranger-Suit for partition by the member-Stranger neither filing suit for partition nor was he made a party in pa11ition suit.filed by one of the members-Said member filing application u/s. 4 for purchasing the share transfetTedto stranger-Held, application not main- tainable-Before s. 4 can be pressed in service by any of the co-owners of the -.il_ dwelling house, it has to be shown that occasion had arisen'tor him to move u/ D s. 4 because of the stranger transferee himself moving for partition and sepa- rate possession of the share of the other co-owner which he would have pur- chased-T11e condition is totally lacking in present case as purchaser was nei- ther plaintiff nor defendant in the suit-Jn a partition suit defendants are as good as plaintiffs and court has to ascertain their respective shares in the joint E pmperty and subsequently has to separate them by metes and bounds. ~ Ghantesher Ghosh v. Madan Mohan Ghosh and Others, [1996] 11 SCC 446, relied on. - ' AlekhaMant1i v. Jagabandhu Mantri & Ors., Am (1971) Orissa 127, F held, inapplicable. CIVIL APPELLATE JURISDICTION Civil Appeal No. 1549 of 1980. From the Judgment and Order dated 3.5.80 of the Madhya Pradesh G High Court in C.R. No. 147 of 1977. S.K. Gambhir, Anil K. Sharma, (Awanish Sinha) for T.Y. Singh for the Appellant. ... The following Order of the Court was delivered H The shmt qu~stion posed for our consideration in this appeal on grant ---- 684 - BABULAL v. H. KHAN 685 of special leave under Article 136 of the Constitution of India is as to A whether application moved under Section 4 of the Partition Act, 1893 (for short 'the Act') by respondent No. 1, who was the decree-holder in the partition suit, was maintainable in law. A few facts leading to this appeal are required to be noted at the outset to appreciate this controversy between the parties. Respondent No. 1 had brought a suit for partition and separate posses- sion of his I/4th share in a dwelling house situated at Indore in the State of Madhya Pradesh. The said dwelling house consisted of two portions belong- ing to an undivided family. One portion out of the two portions of the house had been sold to non-applicant No. 3 before the High Court Babu Lal who was a stranger to the family and the rest portion of it had been bought in a court auction in execution of a mortgage decree by one Kundanbai, whose legal representative is the present appellant Babu Lal. The suit filed by respodnent No. 1 was dismissed by the Trial Court, but, in appeal a prelimi- nary decree was passed for partition and separate possession of plaintiff- respondent No. l's share in the suit property. Pursuant to the said preliminary decree a Commissioner was appointed to effect partition by metes and bounds and to apportion mesne profits among the claimants. One Afzalnoor Khan, the younger brother of respondent No. 1, who was one of the defendants, did not raise any objection, with the result that a final decree in terms of the preliminaiy decree came to be passed on 5th September, 1967. On 5th May, 1968 respondent No. I-original plaintiff initiated execution proceedings for effecting the partition by metes and bounds on spot. Certain objections were raised by the appellant. They were overruled and it was found by the Trial Judge on 7th November, 1973 that a supplementary final decree was yet required to be passed. In the meantime, the Commissioner submitted his rep01t along with the site plans recommending the partition of the dwelling house. It is pertinent to note that respondent No. 1 raised no objections to B c D E F the said report of the Commissioner or the plans submitted by him. It was G 1 at the stage when the Court was about to close the proceedings by passing appropriate final orders that respondent No. 1 on 18th June, 1976 moved an application under Section 4 of the Act undertaking to buy the share of the appellant stranger transferee of the interest of other defendant Afzalnoor Khan. The said applications was contested by the appellant by submitting H 686 SUPREME COURT REPORTS [2000] 3 S.C.R. A that it was not maintainable. The learned Trial Judge accepted th~ sa
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