Section 4 ofthe partition act
purushottaman
(Querist) 16 October 2013
This query is : Resolved
My father had settled a dwelling house in favour of his three sons (inclusive of me) and he had given portions of the house to each of the three sons but with the specific mentin that the kitchen will be common the toilet will be common.One brother got the rear portion of the two storied house (ground floor and 1st floor) The kitchen was in this portion in the first floor. The other two brothers were given the front portion - the ground floor to one son and the 1st floor to the second brother again with the condition that the passag was common, which means the brother who got the rear portions (both floors) had to be given access through the the front portion.
One brother sold his shar I.e. the front portion in the 1st floor to a third person, not connected with the family, anabsolute stranger. As per the provisions of SEction 44 of the TRansfer of Property ACt and section 4 of the Parition ACt, he was not given possession to the said portion by obtain a pemanent injuction. AFter three years he has filed a suit for partition under sEc.4. We have offered to purchase his share as per the value to be determined by the court. In the mean while, this stranger has sold his share t another stranger at four times the consideration that he had paid to my brother.
Will this second sale deed be valid when he has files a suit for partition and we have offered to purchase back asfamily members ?
What would be method to calculate the value since the original consideration was RS. 9lakhs and the secnd sale is for 34 laksh ? Will 9 lakhs be the base for calculation ?
I require your valuable advice.
ABDUL RAZIQUE
(Expert) 16 October 2013
in this matter you appeal to ld court to appoint a valuer.
purushottaman
(Querist) 17 October 2013
thanks sir - as mentioned earlier, we have asked the court to determine the pirce. Hwever, since my brother sold his share 5 years back, will the valuation be based on that year or on the pesent. date. The provisions of SEc. 44 of transfer of property act and SEc. 4 Partition act have the nature of protecting the family members, a stranger has made an investment knowing fully well the provisions which prtect the family members. Has the family members to pay for the folly of the stranger who has made a bad investment
ABDUL RAZIQUE
(Expert) 17 October 2013
you are one of the share holder of same plot and the stranger has no link with that plot so you have right to purchase the said plot.
the Ld Court may be determine present value of said plot.
No, you fight fro your right, the stranger is not foolish,
Raj Kumar Makkad
(Expert) 17 October 2013
The current cost of the property shall be taken into consideration in the given facts while making partition instead of 5 years earlier.
purushottaman
(Querist) 18 October 2013
The intention of the law is to give benefit to the family member stay united. The strangr has invested in the share knowing fully well the provisions of Section 44 of the TRansfr of Property Act and SEction 4 of the Partition ACt. He has taken a major risk why should the family members lose for an unwise investtment. A per the provisions of SEction 4 of partition ACt, the stranger has to file the suit for partition and ifhe delays the purposely filing of this suit the delay will mean the value of property is increasing.The result is that the stranger benefits by delaying the filing f the suit which would not have been the intention of the legislation. And if this argument is accepted, then every family member can sell to stranger so as to get betrtr retuns at the cost of the other family members. Please consider this view and enlighten me if I am wrong.,
Rajendra K Goyal
(Expert) 21 October 2013
Law and merits of the case are to be considered by the court. The same may not be considered justified by any of the parties.
ABDUL RAZIQUE
(Expert) 21 October 2013
Well advised by R.K.Goyal, Nothing more to add.
