Syesta Bibi and others V Juma Sha and others 1 BLT ( AD) 1993 34

Fact in brief: 

Once Hadu shah and Nadu shah, two brothers, had taken a lease the southern part of the disputed homestead. Then Nadu alone took northern half part alone. So Hadu got 1/4 and Nadu got 3/4 share. Hadu left two daughters and the brother Nadu. The plaintiff being heir of Nadu, claimed 5/6 share of the property. As there was no previous partition, the plaintiff filed for amicable partition. Further fact that the plaintiff claimed to purchase the   share of defendant -1 who was a strange purchaser.

Trial court held that defendant no-1 was a strange purchaser and the plaintiff was allowed to purchase defendant-1’s share. 

Subordinate Judge held that the defendant was not a strange purchaser as he already was in specific portion of homestead and for this he should give a separate Saham. The high court division affirmed the judgment of trial court and appellate division also the judgment of trial court dismissed the appeal. 

Issues:

Whether the defendant was a strange purchaser for dwelling homestead. 

Whether the plaintiffs were allowed to purchase the defendant’s share.

Rule of law:

Section- 4 of the Partition act. 

Section- 44 of Transfer of property Act, 1882. 

Referred cases 

Md. Majdu Bhuiya v. Jabbann Huq 

 Habibullah Patwari v. Ballav Bhakta 

Application to the fact: 

The property in the said suit was an undivided dwelling house of undivided family. In the instant case, the property never lost its character of an undivided homestead because there had admittedly been no partition by mete and bound by any previous agreement so the character of suit property remained undisturbed. The plaintiff’s contention was supported with the principles of two land mark cases of Md. Majdu Bhuiya v. Jabbann Huq and Habibullah Patwari v. Ballav Bhakta. Then his contention was allowed.

And when the defendant was allowed to purchase under section-4 of the Partition Act it involves a kind of force sale.   

Decision: 

 It was held that the defendant was a strange purchaser and as the homestead was undivided dwelling homestead the defendants were not allowed to purchase the suit land.

Conclusion 

In case of undivided land, no stranger is allowed to buy such land and  the co sharer is not also allowed to sell this without the consent of other co share