1. This revision is directed against an order of the Second Munsif, Cuttack refusing to apply Section 4 of the Indian Partition Act to the proceedings before him.
2. The facts are briefly these. The property in question is a dwelling house belonging to four branches of a family: one-fourth share belongs to defendant No. 1, a stranger; one-fourth share belongs to defendant No. 5 in his own right; one-fourth to defendants 2, 3 and 4, and the remaining one-fourth was purchased by the wife of defendant No. 5, who filed the suit for partition in order to buy off the share of defendant No. 1. A preliminary decree was granted and before the final decree was drawn, up defendant No. 5, applied under Section 4 of the Partition Act to buy up the share of defendant No. 1, who was a stranger to the family. The learned Munsif rejected the petition on the ground that as the suit was not instituted by the stranger-transferee, section 4 of the Act did not, in terms, apply. Hence this revision..
3. It is contended by Mr. Das Gupta appearing for the petitioner that Section 4 of the Partition Act can be applied in a case where the stranger-transferee is arrayed as a party-defendant as in this case and that the strict interpretation put upon it by the learned Munsif would result in frustrating the object of the Act. The Act was designed to prevent the intrusion of strangers into the dwelling-house of an undivided family and enable the Court to make a valuation if any shareholder under-took to buy the transferred share; and the shareholder offering to buy it shall be offered such valuation as the court may fix. This was certainly a beneficient provision intended to allow members of an undivided family to enjoy their property uninterrupted by strangers. But the language of the Section easily lends itself to the strict interpretation put upon it by the learned Munsif. The words 'and such transferee sues for partition' are however capable of the Wider meaning sought to be put upon them by Mr. Das Gupta. The word 'sues' is applicable not only to a suitor who figures as plaintiff, but is equally applicable to a defendant who carries on his defence as a suitor. The words 'to sue' not only signify 'to prosecute' but also 'to defend' or 'to do something which the law requires for the better prosecution or defence of the cause' - See Stroud's Judicial Dictionary. I am therefore inclined to accept the argument of Mr. Das Gupta that the language of Schedule does not preclude a defendant from availing himself of the provisions of that Section if the stranger-transferee happens to be arrayed as a party-defendant and should not be strictly limited only to those cases where the transferee figures as the plaintiff.
4. Secondly, in a suit for partition every one of the parties is in the nature of a plaintiff in so far as each one of them wants his share to be partitioned off; and it is only by accident that one of them figures as a defendant and it is open to him to be substituted as the plaintiff; and even as defendant it is open to him to press his claim and have his share divided and allotted to him. Mr. Das Gupta has invited my attention to a case reported in 'Sheodhar Prasad v. Kishun Prasad', AIR (28) 1941 Pat 4: (190 IC 117) where Dhavle, J., took the same view. The latest case which is very much in favour of Mr. Das Gupta's contention is the one reported in 'Abu Isa v. Dinabandhu', AIR (34) 1947 Cal 426: (51 CWN 639). Mr. Sinha appearing for the opposite party relies upon 'Subbamma v. Veerayya', AIR (19) 1932 Mad 15: (136 IC 203), but I am satisfied that is no authority for the point raised by the petitioner here. I am of opinion that Section 4 of the Partition Act is equally applicable to all cases where a partition suit is brought and where a stranger-transferee is a party thereto. There does not appear to be any justification for confining the operation of Section 4 only to cases of partition suits filed by a stranger transferee alone.
5. Mr. Sinha, however, points out that this point had once been taken by one of the parties and had been decided against. All that I am able to gather from the representations made at the Bar is that on a prior occasion, before the preliminary decree was passed, defendants 2, 3 and 4 contended that the plaintiff was not a stranger-transferee being the wife of defendant No. 5 and that, therefore, Section 4 of the Partition Act 'would not be available to her. The court upheld this contention and held that the plaintiff, being a member of the family, could not invoke the provisions of that Section. Mr. Sinha relies upon this circumstance and urges that the point which has been once concluded cannot be agitated over again at the instance of defendant No. 5 the present petitioner. Unfortunately, this argument was not specifically raised before the Munsif on the ground of 'resjudicata' nor does the Munsif base his order on that ground. In any event, the question whether the decree could be passed against a stranger-transferee when he is a defendant, was not specifically raised or decided. Furthermore, as at present advised, I am not prepared to say that the finding against the plaintiff would operate as 'res judicata' as between two co-defendants, viz. defendants 1 and 5 unless defendant 5 also raised the point.
6. I have, therefore, arrived at the conclusion that the petitioner must succeed on both the contentions and direct the court to make a valuation of the share of defendant 1 and sell his share to such of the shareholders as may be willing to purchase it.
7. The order of the Munsif is set aside and this revision is allowed. The petitioner shall have the costs of this revision. Counsel's fee one gold mohur.