T.C. Raghavan, J.
1. This petition arises out of an application under Section 4 of the Partition Act filed by defendants 1 and 2 in the suit. Defendants 1 to 11 were members of an undivided family which possessed only a homestead. Defendants 3 to 11, transferred their undivided shares in the homestead to the plaintiff, a stranger to the family. Afterwards the plaintiff brought the suit for partition and a preliminary decree was passed for partition and separate possession of 9 out of 11 shares to the plaintiff and the balance 2 shares to defendants 1 and 2. The plaintiff filed an application, for passing a final decree, when defendants 1 and 2 filed the application, M. P. No. 2969 of 1956, under Section 4 of the Partition Act offering to buy the share of the plaintiff at a price fixed by the Court, This was filed on 16-10-1956. Afterwards on 31-1-1957 the 8th defendant in the suit got a transfer of the rights of the plaintiff and subsequently got herself transposed as an additional plaintiff in the suit.
Thereafter on 12-7-1958 the additional plaintiff herself filed another application purporting to be under Section 4 of the Partition Act for the purchase of the shares of defendants 1 and 2. She also opposed M. P. No. 2969 of 1956 filed by defendants 1 and 2. The lower court dismissed the application filed by the additional plaintiff holding that it was not maintainable and allowed M. P. No. 2969 of 1956 filed by defendants 1 and 2. The present Revision is filed by the additional plaintiff against the order allowing M. P. No. 2969 of 1956. It may be also stated that the additional plaintiff has not preferred any revision against the dismissal of her own application under Section 4 of the Partition Act.
2. It is now urged before me on behalf of the petitioner that the lower court erred in holding that the petitioner could not resist the defendant's claim as she was only a transferee of the rights of the stranger plaintiff pending suit. The petitioner's learned counsel relies on a decision of the Calcutta High Court, Boto Krishna v. Akhoy Kumar, AIR 1950 Cal 111. In that case one Upen sold his undivided share in the homestead to a stranger. After this sale his brother, Nabin sold his share to another stranger, the plaintiff. Afterwards Upen, repurchased his shave from the stranger to whom ho sold it originally. Several years after such repurchase the plaintiff filed a suit for partition and in that action Upen's children, who were defendants in the suit, filed an application under Section 4 of the Partition Act, which was dismissed in appeal by Chakravarti, J. In a further appeal by the defendants under Cl. 15 of the Letters Patent, Mookerjee and Mitra, JJ., allowed the appeal. The learned Judges observe in paragraph 18 of their judgment at page 115:--
'Nor can we find anything in the section which disqualifies a member who, having previously alienated his share, has reacquired it and is owning it at the time he makes his claim under Section 4'.
This observation appears to be in favour of the petitioner in the present case. But on a closer scrutiny of the facts o the above case and a consideration of the law on the point it becomes clear that this decision does not help the petitioner. On the other hand the decision is helpful to the respondents in the present case.
3. The qualification of the applicant to make the application under Section 4 must be judged with reference to his position at the time of his application. The alienation by him of his share previously does not disentitle him, if as a matter of fact, he owns it at the time of his application. It may be that he owns it at the time by virtue of his repurchase.
4. In the Calcutta case when the stranger purchaser plaintiff filed the suit Upen's children, the defendants, were qualified to apply as they were then sharer members of the family, though previously during the time of the plaintiff's purchase from Nabin, Upen had no share in homestead. Likewise in the present case on 16-10-1956, when defendants 1 and 2 made the application, M. P. No. 2969 of 1956, the original stranger purchaser plaintiff was seeking to get a partition o the homestead and on that date the defendants were entitled to an order under Section 4.
5. Another argument that is advanced before me on behalf of the petitioner is that the petitioner herself has applied on-12-7-1958 under Section 4 and her application ought to have been allowed. This argument ignores the fact firstly there is no revision before me against the dismissal of the petitioner's application under Section 4 and secondly, at the time when she made the application under Section 4, there was no attempt by any stranger puachaser to force his way into the dwelling house the original, stranger plaintiff's rights having already passed to the petitioner. Hence this argument must also fail.
6. In the result the Revision falls and is dismissed with costs.