Partition — Right of pre-emption against stranger purchaser — Transfer of Property Act, Section 44.

One Shri Kali Prasad Basu and Shri Goutam Basu filed a title suit alleging that Manorama Bose, mother of present plaintiffs and defendants No. 1-4 was owner of a two-storeyed building and that on her death on 19th of October, 1974 the plaintiffs and defendant Nos. 1-4 inherited the said property each having 1/6th share in said undivided two-storeyed building having four flats, two in each row. It is stated that on 5th of September, 1976 the defendant No. 1 produced a typed paper for signature of other brothers and sisters for the proposal of construction of the said flat by the defendant No. 1 for accommodation of his family members. Other co-sharers signed in the said paper in good faith, but later on the defendant No. 1 illegally sold out the said flat to an outsider (defendant No. 5) though the said flat was an accretion to said joint property. The defendant No. 1 had no right to sell out a part of the joint dwelling house to a stranger (defendant No. 5) as there was oral agreement between the co-sharers that before selling to an outsider by a co-sharer, other cosharers should be approached first for purchase. Accordingly the plaintiffs filed suit for partition as well as for purchase of the flat sold to an outsider (defendant No. 5) by invoking section 4 of the Partition Act. The Trial Court decreed the suit and allowed the prayer of plaintiff and the defendant No. 2 for purchase of the property.

The Court observed that a mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give other co-shares a right of pre-emption. In the case in hand admittedly the defendant No. 5 being stranger purchaser did not claim any partition. As such, section 4 of Partition Act had no application in the facts and circumstances of this case. It is true that the stranger purchaser (defendant No. 5) was put into possession of his vendor’s (defendant No. 1) flat since her purchase in 1990, and other co-sharers of the said dwelling house including the plaintiffs had a right to resist the said possession u/s.44 of the Transfer of Property Act, 1882. But that does not mean other co-sharers can exercise their right of pre-emption u/s.4 of the Property Act when the precondition of application of the said right as mentioned in the said Section was absent. The appeal filed by the defendant No. 5 (stranger purchaser) was allowed.