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.

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

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

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 admittedly 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

There is no misreading and non-consideration or misrepresentation in the evidence on record and decision in the judgments of all the Courts. So Appellate Division does not find any illegality the impugned judgment– Appellate Division hesitated in hesitation in holding as to whether the plaintiffs have obtained any right title interest in the suit land from Maleka Khatun. Whether Maleka Khatun was divorcee or not is a question of fact and all the Courts of fact including the last one have come to a concrete decision that Maleka Khatun was a divorcee and as such, this Division has no avenue to reopen such matter of fact at this stage of the case. The Courts below discussed about the kabala of plaintiffs and defendants and arrived at a concrete decision that Badsha Kazi and Maleka Khatun inherited nothing from the CS tenant-Sabed Ali. This Division finds no misreading and non-consideration or misrepresentation in the evidence on record and also that discussion and decision in the judgments of all the Courts appears to be in true perspective and also based on the evidence on record. The appeal is dismissed, without any order as to costs. .....Abdus Samad Kazi =VS= Abdus Sobhan Kazi, (Civil), 2022(2) [13 LM (AD) 185] ....View Full Judgment

It is observed that to get an order of pre-emption 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 which has been expressly mentioned in the section is that the stranger transferee must sue for partition and separate possession of the undivided share transferred to him by the co-sharer. If the stranger moves execution application for separating his share by metes and bounds it would be treated to be application for suing for partition and it is not necessary that separate suit should be filed by such stranger transferee. “Such transferee sues for partition” includes idea of some action by transferee to secure partition even praying saham in suit for partition paying necessary court fees. …Haji Shamsul Alam Vs. Dr. Ashim Sarker & ors., (Civil), 11 SCOB [2019] AD 7 ....View Full Judgment

Partition Act
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

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.

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.

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.

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.

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

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

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, 8 BLD (AD) 1

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 Khatun and others 12 MLR (2007) (AD) 169.

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.

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 Ali Molla vs Md Ataur Rahman Talukder 14 BLC (AD) 103.

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

Partition–
The High Court Division did not decide the issues regarding defect of party and hotchpot. But relied upon decisions of this Division to the effect that the findings of the appellate Court as the last court of fact are binding on the revisional Court. However, the High Court Division did not consider the cited decisions of this Division where it has been held that a suit for partition will not be defeated for reason of defect of party and hotchpot. On the point of the quantum of land for which saham was claimed, the High Court Division followed the appellate Court’s reasoning and held that the plaintiffs could not get saham for 44 decimals in respect of ⅓ share of the plaintiffs’ predecessor.
We find that the decisions of the appellate Court and the High Court Division are based on misreading of the schedule to the concerned deed of sale. The issues relating to defect of party and hotchpot are covered by the decisions of this Division. We need not revisit those here. We find merit in the appeal which is allowed. The impugned judgement and order is set aside. The judgement and decree of the trial Court is restored. ...Mohammad Sayed =VS= Majuma Begum, (Civil), 2021(1) [10 LM (AD) 109] ....View Full Judgment

Partition–
Without amicable partition established amount the co-sharers the suit is not maintainable without the prayer for partition– The story of amicable partition as claimed by the parties has not been established and that the parties claimed their shares from admitted co-sharers of plot and holding, we are of the view, that the instant suit was not maintainable without the prayer for partition. The parties may effect partition of their lands by bringing properly instituted suit. ...Ali Amzad Khan =VS= Md. Titan Khan, (Civil), 2021(1) [10 LM (AD) 153] ....View Full Judgment

Partition Suit– Notice–
The Court of facts, on considering the evidence on record, particularly, considering the Vokalatnama executed by the defendant No.46-respondent No.1 and her prayer for time for filing written statement, came to the conclusion that the notice of the suit was duly served upon her. Said finding of the fact has not been reversed by the High Court Division.
Without reversing the finding as to the service of notice upon the defendant No.46, is erroneous, particularly, when the defendant No.46 herself appeared in the suit filing vokalatnama. Considering the aforesaid facts and circumstances, we find substance in the appeal. The judgment and order passed by the High Court Division in Civil Revision No.4713 of 1998 is hereby set aside. ...Rowshan Akhtar Rahman(Md.) =VS= Most. Shilu Begum, (Civil), 2021(1) [10 LM (AD) 179] ....View Full Judgment

Partition suit–
The appellate Court, being the last court of facts– The appellate Court observed that on assessment of the evidence of the witnesses, it does not appear that the plaintiff was ill at the time of execution and registration of the disputed partition deed. It was further observed that the plaintiff admitting the deed of partition transferred land which he had acquired by dint of the deed of partition to various people and copies of those deeds were produced by the defendants. Views of the appellate Court, being the last court of facts, were rightly upheld by the High Court Division in its revisional jurisdiction. Clearly, the petitioner having accepted the deed of partition sold off some of his land which had devolved upon him through the partition. The partition was thus acted upon as evidenced by the action of the petitioner himself. The petitioner, therefore, cannot now deny the legality of the deed of partition. We do not find any error in the impugned judgement and order of the High Court Division. ...Ali Akber(Md.) =VS= Shahanara Khatun, (Civil), 2021(1) [10 LM (AD) 702] ....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. Shafiur Rahman and others Vs. Mahbub Ali and others 11 MLR (2006) (AD) 113.