Nuruddin Shamsuddin Khatib vs Abdul Mirsaheb Khatib
2021 Latest Caselaw 4831 Bom

                                                  23. SA 186-2017 w CAS 426-2017.doc




         IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CIVIL APPELLATE JURISDICTION


                         Second Appeal No. 186 / 2017
                                       With
                         Civil Application No. 426 / 2017


Nuruddin Shamsuddin Khatib and Others                          .. Appellants
         Vs.
Abdul Mirsaheb Khatib and Others                               .. Respondents


                                        ****

Smt. Anjali R.S. Baxi a/w Mr. Nitesh Zimur, Advocate for Appellants.

Mr. Tejpal S. Ingale, Advocate for Respondents.

                                        ****

                                CORAM    : SANDEEP K. SHINDE J.

                                DATE     : 17th MARCH, 2021.

P.C. : -

         Heard.

1. Appellants - Original Defendant Nos. 1 to 4 in Regular Civil

Suit No. 38 / 2010 have preferred this appeal.

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2. Suit property is a dwelling-house, bearing CTS No. 225.

Defendant Nos. 5 to 8 and 10, 11 sold their specifed undivided

share in the dwelling house, to the Plaintif (Respondent No.1

herein) vide registered sale deed dated 29 th November, 2005.

Soon, thereafter, the Appellants had fled Regular Civil Suit No.

34/2006 against the Respondent No.1 for perpetual injunction. It

was decreed on 1st January, 2010, wherein the following order

was passed;

"1. Suit is hereby decreed with costs.

2. Defendant is hereby restrained from obstructing and interfering to the possession of plaintif and further restrained from entering into suit property forcibly without due process of law.

3. Decree be drawn up accordingly."

(emphasis supplied).

3. Taking recourse to the order afore-stated, the Respondent

No.1 fled RCS No. 32/2010 and sought partition of the dwelling

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house. The suit was decreed. The Appellate Court confrmed the

decree of the trial Court by a judgment and decree dated 29 th

November, 2016.

4. Feeling aggrieved by the decree passed in appeal, this

appeal is preferred.

5. Learned Counsel for the Appellants submitted that the

pending suit, appellants had fled an application under Section 4

of the Partition Act at Exhibit 41 alongwith an undertaking at

Exhibit - 14. However, neither the trial Court, nor the Appellate

Court dealt with an undertaking. The reliance was placed on the

provision of Section 4 of the Partition Act, 1893. It reads as

under:

"S.4. Partition suit by transferee of share in

dwelling house -

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(1) Where a share of a dwelling-house belonging to

an undivided family has been transferred to a

person who is not a member of such family and

such transferee sues for partition, the court shall, if

any member of the family being a shareholder shall

undertake to buy the share of such transferee, make

a valuation of such share in such manner as it thinks

ft and direct the sale of such share to such

shareholder, and may give all necessary and proper

directions in that behalf.

(2) If in any case described in sub-section (1) two

or more members of the family being such share,

the court shall follow the procedure prescribed by

sub-section (2) of the last foregoing section."

6. It is contended that the appellants were willing to purchase

undivided share in the dwelling house, purchased by the

respondents - Plaintifs, from the co-sharers, eventually

Defendant Nos. 5 to 8 and 10, 11.

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7. It appears appellants' right under Section 4 has not been

acknowledged by the two Courts, for the reason, that the

appellants were not occupying the dwelling house. In fact, the

fnding recorded in a suit instituted by the appellants, shows

appellants were occupying the dwelling house.

8. Mr. Ingale, learned Counsel for Respondents would submit

that the dwelling house was not in-existence since the sale deed

itself described the property, being in dilapidated condition.

9. Be that as it may, the object of Section 4 of the Partition Act,

is to prevent the dis-integration of the family of dwelling house

by preventing to introduce the stranger therein and stranger

being adequately compensated by market value of the property

purchased, so that the dwelling house of the family is preserved.

10. In the case at hand, the appellants had Exhibit-44 and 45 do

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suggest that the appellants were ready and willing to purchase

Plaintifs' undivided share in the dwelling house.

11. In view of the facts of the case, appeal is admitted, on the

following substantial question of law;

. Whether Courts below were justifed in refusing substantial

right of the appellants in terms of Section 4 of the Partition Act, in

view of their undertaking to buy share of Plaintifs in terms of

applications below Exhibit-41 and 40 fled by them before the

trial Court?

12. Call Record and Proceedings from the trial Court.

13. The Respondent is granted liberty to fle appropriate

application seeking remand on an issue, relating to rights of the

appellants under Section 4 of the Partition Act.

                                     (SANDEEP K. SHINDE, J.)

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