Act/Law wise: Judgment of Supreme Court of Bangladesh

ALL A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



Partition Act, 1893
Section/Order/Article/Rule/Regulation Head Note
Section 2

The High Court Division has rightly found that the suit is maintainable in its present form also found that the suit property was a part of joint property of the Hindu joint family which has correctly came to the hand of Govinda Banik through amicable settlement and that ejmali property situated in any part of the world may be brought in the hotch-pots of the suit according to Section 2 of the Partition Act, 1898. Provas Chandra Banik vs Naresh Chandra Banik 16 BLC (AD) 62. ....View Full Judgment

Section 4

Buy the share of a stranger purchaser in the undivided commercial place under the guise of undivided dwelling house–
The Appellate Division observed that the High Court Division held that The expression ‘dwelling house belonging to an undivided family’ appearing in Section 4 has been borrowed from Section 4 of the Transfer of Property Act and bears the same meaning, a commercial business place cannot be termed as a dwelling house under section 4 of the Partition Act.” From the materials evidence on record the High Court Division found that the suit land is not a dwelling house but it is a commercial business place which includes restaurant and hotel run by the petitioner and many shops rented to different shop keepers for running business as commercial place. The High Court Division also found that the application under section 4 of the Partition Act does not show any specific identification of the dwelling house that covers the specific area of the suit land. From a clear reading of the plaint of the miscellaneous case it does not appear that a specific and definite case on dwelling house has been made out. The High Court Division rightly found that there are many shops and restaurant in the suit plot and that the petitioners failed to prove that the suit land is a dwelling house. Considering the facts and circumstances of the case, the High Court Division rightly held that one cannot invoke section 4 of the Partition Act to buy the share of a stranger purchaser in the undivided commercial place under the guise of undivided dwelling house. Accordingly, the High Court Division rightly found that the trial court has arrived at a correct decision upon proper appreciation of pleading and evidence that the case of dwelling house is not proved in evidence and the property is a commercial one. Thus, there is nothing to interfere with the impugned order. .....Hossain Shahid =VS= Abdul Wahab & others, (Civil), 2016-[1 LM (AD) 394] ....View Full Judgment

Section 4

We find from the judgement and decree of the trial Court that the plaintiff was found to be member of an undivided family and that the defendants were strangers. It was also found that the earlier title suit No. 42 of 1998 did not create any bar upon the plaintiff in establishing her right under section 4 of the Partition Act– The Appellate Division observed that although the discussion by the trial Court and appellate Court was rather scanty, we find from the impugned judgement that the High Court Division has discussed the matters arising in great detail. The High Court Division, referring to Title Suit No. 42 of 1998, observed that that case was instituted by Lutfa Begum, who is the daughter of the plaintiff, against her brother for specific performance of contract, and that that suit had no connection with the present suit. Appellate Division finds that after elaborate discussion of the law and facts the High Court Division upheld the judgement and decree of the appellate Court. We find no reason to interfere with the impugned judgement and order of the High Court Division. Accordingly, the civil petition for leave to appeal is dismissed. .....Mozibur Rahman(Md.) =VS= Shafia Khatoon, (Civil), 2017 (2)– [3 LM (AD) 419] ....View Full Judgment

Section 4

read with
The Transfer of Property Act
Section 44
In a suit filed by the stranger purchaser for partition, a co-sharer of the undivided family dwelling houses can apply for pre-emption under Section 4 of the Partition Act at any stage of the suit. But when a suit for partition is filed by a co-sharer against the other co-sharers and the stranger purchaser, the right to apply for preemption would only arise when the stranger purchaser seeks separate allotment of the share. So long as such step is not taken, the co-sharer’s petition filed under sec.4 of the Act is not tenable. When in a partition suit filed by the cosharer, the stranger purchaser after passing of the preliminary decree applied for appointment of the commissioner for partition of the undivided family dwelling house by metes and bounds and allotment of his share to him on such partition, then the filing of the application for pre-emption after such steps had been taken by the stranger purchaser is maintainable. In the meantime, the right of the co-sharer shall be protected by the second part of sec 44 of the Transfer of Property Act and the stranger purchaser shall be resisted by injunction to take possession or even if he has taken possession, he can be evicted in an appropriate proceeding under the law.
Our considered opinion is that the instant prayer for pre-emption under section 4 of the Partition Act at that stage of the proceeding was not at all maintainable. The appeal is allowed without any order as to cost. …Jahanara Hossain(Mrs.) =VS= Surajit Kumar Das, (Civil), 2020 (1) [8 LM (AD) 79] ....View Full Judgment

Section 4

Legislative intent behind making the provisions of section 4—Mores of the people and co-sharers' attachment to their ancestral house and their anxiety to preserve purdah and privacy of the members of the undivided dwelling house taken into consideration.
Expression "a dwelling house belonging to an undivided family" is to be liberally construed—A co-sharer's prayer to buy up a stranger-purchaser may not be refused on technical ground. There being no partition by metes and bounds by any previous arrangement the impartible character of the suit properly remained undisturbed when the suit was filed—Plaintiffs claim is sustainable.
There is no time limit for filing an application under section 4 of the Partition Act.
The claims of the parties in a case are to be determined with reference to their respective position existing at the time of the filing of the suit.
When an applicant's prayer is allowed under section 4 of the Partition Act, it involves a kind of forced sale for the stranger-purchaser. The Court would in equity determine the valuation of the transferred share on the date of the filing of the application for permission to purchase the share of the stranger-purchaser.
Sayesta Bibi and others vs Juma Sha and others 42 DLR (AD) 53. ....View Full Judgment

Section 4

Suit for partition filed by the defendant Nos. 1 and 3 who are appellants in this appeal by leave—Suit decreed in preliminary form subject to payment of ad valorem Court fee by the trial Court—The High Court Division modified the decree of the trial Court by holding that the plaintiff does get saham of 1062—1l2 acre of land out of a schedule property on partition by metes and bounds—Question arose as to whether the High Court Division has committed substantial error of law in failing to direct to identify and demarcate. 2125 acre of CS plot No 17 in order to effect partition of the suitland.
Held : The demarcation of the plaintiff's share out of SA plot No. 1162 will be done by the Advocate Commissioner having regard to all principles of partition and the defendants can take objection, if any, before the decree is made final. Waliullah and another vs Abdul Wahab and others 42 DLR (AD) 55. ....View Full Judgment

Section 4

The concept of dwelling house had received a liberal construction (Ref. AIR 1960 Cal 467). The terms "house" or "dwelling house" are ambiguous terms and for the purpose of section 4 of the Partition Act, must be liberally construed. High Court Division exceeded the jurisdiction in setting aside the decree. Sree Jugal Kishori Sarker vs Azizur Rahman 40 DLR (AD) 150. ....View Full Judgment

Section 4

The purpose of section 4 is to see that a transferee outsider does not force his way into a dwelling house in which other members of the transferor's family have right to live. Once the partition decree is made in preliminary form, the rest is for the Commissioner. But the Court at that stage is not concerned as to what direction should be given to the Commissioner for completing the partition. The Court can only give a limited direction after perusing the Commissioner's report as to which plot is to be partitioned. Sree Jugal Kishori Sarker vs Azizur Rahman 40 DLR (AD) 150. ....View Full Judgment

Section 4(a)

Section-4(a) ‘Dwelling house’-co-sharer’s attachment to ancestral house intention of the legislators to make the provisions of S. 4 of the Partition Act
After considering the modes of our people, the co-sharers attachment to their ancestral house and their anxiety to preserve the purdah and privacy of the members and inmates of the undivided dwelling house, the legislators made the provisions of section 4 of the Partition Act. The expression a dwelling house belonging to an undivided family is to be liberally construed. We have done so in Sree Jugal Kishori Sarker Vs. Azizur Rahman & Ors. 40 DLR (AD) 150. A co-sharer’s prayer to buy up a stranger-purchaser may not be refused on a technical ground. [Para-10]
(b) There is no time limit for filing an application under section 4 of the Partition Act - The appellate Court’s finding that “That suit land is no doubt a homestead, but is not a dwelling house of an undivided family” is utterly misconceived. In the suit land an undivided dwelling house is situated. The defendant himself claimed to be residing in a portion there. The suit property never lost its character of an undivided homestead because there had admittedly been not partition by metes and bounds by any previous arrangement. The impartible character of the suit property remained undisturbed when the suit was filed in 1962. There is no time limit for filing an application under section 4 of the Partition Act. In the instant case, the plaintiffs claim cannot be called sale, [Para-11]
(c) To buy-out a stranger purchaser— Inordinate delay in filing application under S-4 of Partition Act from the date of purchase consequences—What involves a kind of forced sale for the stranger purchaser
If an application under section 4 of the Partition Act is filed to buy out a stranger purchaser after an inordinate delay from the date of the purchase, then the applicant himself may suffer. When an applicant’s prayer is allowed under section 4 of the Partition Act, it involves a kind of forced sale for the stranger purchaser. And hence, the court would, in equity, determine the valuation of the transferred share on the date of the filing of the application for permission to purchase the share of the stranger purchaser. [Para- 11]
Syesta Bibi and Other’s Vs. Juma Shah and Other’s 1 BLT (AD)-34 ....View Full Judgment

Section 4

Partition of undivided family dwelling house—Procedure to be followed by the Court in deciding the prayer for purchase of the share from the strange—purchaser----Whether High Court Division is justified in setting aside concurrent decision of the Courts below allowing the prayer for repurchase of the share of the stranger purchaser by a member of the undivided, family dwelling house—The jurisdiction of the Court is limited to questions relating to the rights of the co sharers of the original undivided family to compel the stranger transferee to sell to the former the portion of the dwelling house purchased by the latter—The purpose of section 4 of the Partition Act is to see that a transferee outsider does not force his way into a dwelling house in which other members of the transferor’s family have right to live. Once a partition decree is made in preliminary form the rest is for the Commissioner but the Court at that stage is not concerned as to what direction should be given to the Commissioner for completing the partition—The Court can only give a limited direction as to which plot is to be partitioned. The rest will be decided at the stage when the Commissioner submits his final report and the Court proceeds to consider the same—--Code of Civil Procedure (v of 1908) Or,20 r. 18 & Or.26 r. 14. Sree Jugal Kishori Sarker Vs. Azizur Rahman & others;8BLD(AD)11 ....View Full Judgment

Section 4

Dwelling house—Meaning of —What it clues—The term ‘house’ or dwelling house are ambiguous terms and for the purpose of section 4 of the Partition Act must be liberally construed—The term should be taken to mean not only the structure or building but also adjacent buildings, gardens, courtyard, orchard and all that is necessary for the convenient occupation of the house. Sree Jugal Kishori Sarker Vs. Azizur Rahman & others, 8BLD (AD) 1 ....View Full Judgment

Section 4

Right of a cosharer to purchase parcel of homestead sold to stranger—
Unless the defendant-cosharer in a partition suit succeeds in establishing that the parcel of the homestead of their joint family is sold to the stranger and he needs the same for convenient living in the said house, he can not claim to buy the said part of land. When he did not raise any objection to the other stranger purchasers on the plea of their being compromising, he can not claim to purchase the land sold to the plaintiff on a different plea. Maleka Khatun and others Vs. Amena Khatnn and others 12 MLR (2007) (AD) 169. ....View Full Judgment

Section 4

Suit for partition among the cosharers is maintainable— Amicable partition is no bar—
Suit for partition of the shares of suit properties among cosharers by mets and bounds is maintainable notwithstanding that there was amicable partition. A cosharer in possession of land in excess of his share is bound to part with the excess land. Abdul Noor (Md.) @ Chimnu Mia and another Vs. Makhan Mia @ Md. Laisitzzamrifi and others 12 MLR (2007) (AD) 347. ....View Full Judgment

Section 4

The High Court Division found that the suit land under partition was not a dwelling house
and, as such, section 4 of the Partition Act was not applicable in the case as claimed by the defendant Nos. 1 and 2 of the suit. The High Court Division also found that the trial Court rightly decided the matter in controversy and hence did not commit any error of law resulting in an error in the decision occasioning failure of justice in passing the judgment and decree. Sohrab AH Molla vs Md Ataur Rahman Talukder 14 BLC (AD) 103. ....View Full Judgment

Section 4

Under section 4 of the Partition Act three condition are to be fulfilled, i.e. (1) the property must be dwelling house, (2) it must be the undivided family and then (3) the purchasers must file the partition suit. That is one of the basic conditions for applicability of section 4 of the Partition Act.
In that case section 4 of the Partition Act comes into play. In the case of Dorab Cowasji Warder V. Loomi Sorab Warder reported in (1990) 2 SCC 117 it was observed that even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property, that is, the property had not been divided by metes and bounds, it would be within the provisions of section 44 of the Transfer of Property Act.
The judgment and decree passed by the courts below are hereby set aside. However, since the instant suit is a suit for partition, the plaintiff is entitled to get his share to the extent of .08 acre and the defendant No.4 is entitled to get saham to the extent of .07¼ acre as allotted by the trial Court. ...Haji Shamsul Alam =VS= Dr. Ashim Sarker, (Civil), 2019 (1) [6 LM (AD) 135] ....View Full Judgment

The Appellate Division is of the view that the High Court Division rightly found that the suit land is not an undivided dwelling house rather it is admit tedly a commercial place on which petitioners and other co-sharers have been conducting their business treating the suit land as commercial premises. Since the suit land is not a undivided dwelling house but a commercial place an application under section 4 of the Partition Act cannot be invoked to buy out the share of a stranger purchaser in the suit land. .....Hossain Shahid =VS= Abdul Wahab & others, (Civil), 2016-[1 LM (AD) 394] ....View Full Judgment

Partition with declaration of Title Suit– Remand the Court for trial–
The learned Senior Assistant Judge, Feni Sadar, Feni after holding trial, decreed the suit in the preliminary form in favour of the plaintiffs by his judgement and decree passed on 13.10.2002. Against the said judgement and decree of the trial Court, the defendants as appellants preferred Title Appeal No.118 of 2002 before the learned District Judge, Feni. Subsequently the said appeal was heard by the learned Joint District Judge, 2nd Court, Feni who after hearing the same by his judgement and decree dated 28.05.2007 allowed the appeal and sent the suit back to the trial Court for retrial.
Being aggrieved by and dissatisfied with the aforesaid judgement and order of remand, defendant Nos.1-3 filed Civil Revision No.3726 of 2007 before the High Court Division whereupon Rule was issued. A Single Bench, by the impugned judgement and order, made the Rule absolute, set aside the order of remand while upholding that part of the judgement and decree of the appellate Court setting aside the judgement and decree of the trial Court, thereby dismissing the suit.
In view of the above facts and circumstances of the case, the judgement and order of the High Court Division as well as the judgement and decree of the appellate Court are hereby set aside. The case is remanded to the appellate Court only for the purpose of allowing the parties to prove their respective khatians by calling the relevant record volumes as well as for the appellate Court to give its finding on the commission report which is on record. The appellate Court is directed to dispose of the appeal within 4 (four) months from the date of receipt of this judgement. ...Abdul Gofran =VS= Hafezer Rahman, (Civil), 2019 (1) [6 LM (AD) 212] ....View Full Judgment

Partition on determination of title and also for recovery of khas possession– Concurrent findings of fact arrived by the Courts below interference by the High Court are set-aside–
Considered the judgments of all the Courts below, we are of the view that the High Court Division illegally interfered with the concurrent findings of fact arrived at by the Courts below although we do not find any misreading or non consideration of evidence warranting interference by the High Court Division. We find substance in this appeal. Accordingly, this appeal is allowed and the impugned judgments and decrees delivered by the trial Court and the appellate Court are hereby restored. .....Sukendra Bikas Das =VS= Anil Baran Das, (Civil), 2018 (2) [5 LM (AD) 327] ....View Full Judgment

Partition Suit–
The Advocate Commissioner prepared his report after actual physical measurement of the land on the basis of possession and title. The finding of the Courts below the Advocate Commissioner rightly allocated saham to the parties. …Monowara Begum(Most.) =VS= Wahed Ali(Md.), (Civil), 2020 (1) [8 LM (AD) 320] ....View Full Judgment

Partition Suit— joint ownership and ejmali possession are the pre-requisites of a partition suit to be maintainable—
Unless the plaintiff is a cosharer of the jote and is in ejmali possession a suit for partition is not maintainable. In the instant suit the properties claimed to be partitioned are recorded in separate Khatian and the plaintiff and the defendants have been possessing the same separately for long time by amicable partition and as there remains nothing to be partitioned the suit for partition is held by the apex court not maintainable. Shaficjiir Rahman and others Vs. Mahbnb All and others 11 MLR (2006) (AD) 113. ....View Full Judgment