The question is whether Section 4 of the Partition Act, 1893 hereinafter referred to as the Act can be pressed in service in execution proceedings arising out of a final decree for partition, by one of the companyowners of a dwelling house belonging to an undivided family against a stranger transferee of a share therein belonging to another erstwhile companyowner of the said dwelling house.
The executing companyrt by its order dated 17.1 1985 issued a writ of possession by appointing a Pleader Commissioner to undertake the task of suggesting partition of the suit house by metes and bounds.
In the meanwhile, on 8.10.1979 she executed and got registered a deed of gift in favour of her brother, the present appellant, gifting her 1/3rd undivided interest in the said dwelling house as decreed to her pursuant to the final decree for partition.
The executing companyrt by its order dated 13.8.1981 dismissed the said application of Respondent No.1 on the ground that the said application was number maintainable after the final decree was passed in the partition suit.
Armed with that gift deed, the appellant donee who obviously was a stranger tc the joint family, filed execution petition on 14.12.1981 for executing the final decree obtained by his predecessor in interest, namely, the donor Smt.
It took the view that the said petition under the Act was maintainable as still the final decree had number got fully executed and satisfied by actual division of the property by metes and bounds and delivery of actual possession to the stranger transferee who had taken out the execution proceedings.
Respondent No.1 filed an application on 12.12.1986 before the executing companyrt under Section 4 of the Act for enforcing his claim of pre emption against the appellant stranger transferee of 1/3rd undivided interest of the original title holder Smt.
It was originally owned by one Kalipada Ghosh and on his death his three surviving sons, namely, Pran Krishna, Gour Mohan and Kamal Krishna became owners of 1/3rd share each.
The learned Second Assistant District Judge, Howrah, before whom the said application was moved took the view that Section 4 of the Partition Act companyld number be pressed in service against the stranger purchaser of such share.
In his place, his son present Respondent No.1, Madan Mohan Ghosh was brought on record as his legal heir in the execution proceedings.
The suit was filed against the other two company owners, namely, Pran Krishna and Gaur Mohan.
MAJMUDAR, J A short question falls for determination of this Court in this appeal by special leave against the decision of the Division Bench of the High Court of Calcutta in Civil Revision Application No.2250 of 1987.
On 7.9.1948, Kamal Krishna died leaving behind him his widow Smt.
Radha Rani became full owner of 1/3rd share of her deceased husband in the said house.
She filed a suit for partition on 5.9.1960 claiming separation or her 1/3rd share in the said house amongst other properties.
The premises in question are a residential house situated at No.6/1 Ghoshal Bagan Lane, Howrah.
As stated earlier, the said view of the executing companyrt was number approved by the Division Bench of the Calcutta High Court in the revision application.
It is the aforesaid order of the High Court which is challenged in the present appeal by special leave, as numbered earlier.
Then in September 1985, pending the execution proceedings original judgment debtor Defendant No.2 Gaur Mohan also died.
She made an abortive attempt to get the final decree executed but therein she did number get any relief of actual possession for number of years.
The said view was number accepted by the Division Bench of the High Court of Calcutta by the impugned judgment.
Pending the execution proceedings taken out by the appellant donee, one of the judgment debtors Pran Krishna, original first defendant, died in July 1982.
Ultimately, after the preliminary decree a final decree came to be passed in favour of Smt.
On the companying into operation of the Hindu Succession Act, 1956, Smt.
Thus, she inherited 1/3rd undivided share of her husband in the said dwelling house.
Accordingly, she became entitled to partition and separation of her 1/3rd share in the said dwelling house.
In the present proceedings, we are companycerned only with the aforesaid family dwelling house.
Radha Rani on 31.8.1971.
Radha Rani.
Radha Rani.
Radha Rani.
It appears that thereafter the real companytest remained between the appellant on the one hand and Respondent No.1 on the other.
In order to appreciate the companyrect companytours of the companytroversy in respect of the aforesaid question, it is necessary to glance through a few background facts leading to the proceedings.
