Partition — Co-owner — Possession of vendee — Transfer of Property Act, S. 44 & Partition Act, S. 4.

5 Partition — Co-owner —
Possession of vendee — Transfer of Property Act, S. 44 & Partition Act, S. 4.

[Ram & Ors. v. Ram Kishan
& Ors., AIR 2010 Allahabad 125.]

The plaintiffs and
defendants were co-owners of house. The defendants sold their share in the house
in favour of defendant No. 1, namely, Shri Ram Kishan who took possession
forcibly. Therefore
the plaintiff filed the suit for cancellation of the sale and prayed for
mandatory injunction against the defendant No. 1.

The Allahabad High Court
observed that when the stranger to the family acquires an interest in an
immovable property or dwelling house of an undivided family, he has the right to
seek partition. S. 4 of the Partition Act gives a right to a member of the
family, who has not transferred his share, to purchase the transferee’s share,
when the transferee files a suit for partition.

These are two valuable
rights of the members of the undivided family. Particularly when the right to
joint possession is denied to a transferee in order to prevent a transferee who
is an outsider from forcing his way into a dwelling house in which the other
members of the transferor’s family had a right to live. Without there being any
physical formal partition of an undivided immovable property, a co-sharer cannot
put his vendee in possession. It was a settled law that the purchaser of a co-parcener’s
undivided interest in the joint family property was not entitled to the
possession of what he had purchased. He can only claim a right to sue for
partition of the property and seek allotment of that which on partition might be
found to fall to the share of the co-parcener whose share he had purchased. It
was therefore obvious that even if the sale deed whereby the undivided share has
been alienated was legally permitted to be executed, the transferee cannot force
his way into the dwelling house of the co-owners until and unless he files a
suit for partition and obtains an order from the Court or makes a settlement
with the
co-owners who have not transferred their shares.