Pre Emption and partion limitations
4 years ago
Legal advice and legal services
Pre-emption & partition
Is pre emtion applicable on my attach case.??
property is sold by co sharer in 2013 .we went to court for partition deed and in 2017 court ordered partition and parmanent injunction for 4 lakh.till today property is not transfered to buyer and we enjoy our homstead and partition is not completed.nither party go to court for commissioner.
i want pre emtion ? ..is there any legal validity?
if partion happened, should buyer get path way through our homestead?there is also another direction of path out through vaccant palce of another buyer( buy from our another family co shareer).nither buyer party get there position tilll today.As they buy (.08,.02,.02,.04).16acre in different plot.
is there any legal way to get back the family property by pre emtion or any othrt way.
the partition is not completed after the order by lower court as nither party demand for commissioner.
Sale Deed in December,2013.
We go to court for partition in August, 2014.
Court Ordered for permanent injunction and partion for 4lakh in April 2017.
Qestion:1)
Now is the Pre Emption application being amended with the ongoing Partion Deed case in September 2019?
Question (2):
Is the pre emption value same as stated in Sale deed or it will be enquired to fix the value
Please read the following and apply to your case.
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Right To Joint Possession And Right of Pre-emption
There are two views in this matter. The purchaser has no right to joint possession of the property compelling partition. He can sue all other coparceners for that purpose. [32]
If the vendee has obtained possession, the other coparceners can get him ejected by a suit. All that the purchaser is entitled to in such a suit is a declaration that he is entitled to the share of the coparcener against whom the decree has been passed.
The Bombay High Court has a different approach. It gives some discretion to the court in the matter of ejectment of a stranger purchaser. In Bhau Laxman v. Budha Manku [33] the court laid down three rules:
First, if a purchaser stranger of the undivided interest of a coparcener in a joint family property is out of possession, he should not be given joint possession with the other coparceners but should be left to his remedy of a suit for partition.
Secondly, on the other hand if the purchaser has obtained possession of the property, a coparcener who has been excluded may obtain joint possession with the purchaser.
Thirdly, the purchaser in possession need not be ejected in a suit for recovery of possession brought by an excluded coparcener. The matter should be decided on merits because he is not a trespasser. In a suitable case he may be declared to be entitled to hold (pending partition) as a tenant-in-common with other coparceners.
The issue came to be discussed by Supreme Court in M.V.S. Manikayala Rao v. M. Narasimhaswami [34] . The court held that it is well settled that a purchaser in such a case cannot claim to be put in joint possession with the other coparceners. He has only the right to ask for general partition of the joint property.
Rameshwar Dadhe
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