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Ramaswami Pillai Vs. Subramania Pillai by Power-of-attorney Agent Karuppanna Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1966)2MLJ132
AppellantRamaswami Pillai
RespondentSubramania Pillai by Power-of-attorney Agent Karuppanna Pillai and anr.
Cases ReferredRamayya v. Venkatasubba Rao
Excerpt:
- - on this application, the learned district munsif held that, as it was clear from the evidence that there was division in status in the family, there was no undivided, family and the first condition for the application of section 4 of the partition act was not satisfied. and 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 case. 494 in a suit for partition each co-owner, as against another, occupies in himself the role of the plaintiff as well as defendant. .this view is supported by the well-known principle that a party in a partition suit whether a plaintiff or a defendant is at the same time a plaintiff as well as a defendant. in a partition suit each party is in the.....m. natesan, j.1. this revision raises the question as to the scope of the jurisdiction of the court under section 4 of the partition act (iv of 1893):whether a sharer can claim to buy out a stranger-transferee of a share in a family dwelling house, in a suit for partition instituted not by the stranger-transferee but by a member of the family? 2. the facts of the case and the proceedings that have led to the controversy may be briefly set out. the revision petitioner is the 3rd defendant in a suit for partition of three items of house properties. one pancha piilai and the 3rd defendant in the suit were brothers. the first defendant is the widow of pancha pillai and the second defendant, their son. the 4th defendant is a purchaser from the 2nd defendant of the western half-share in item.....
Judgment:

M. Natesan, J.

1. This revision raises the question as to the scope of the jurisdiction of the Court under Section 4 of the Partition Act (IV of 1893):

Whether a sharer can claim to buy out a stranger-transferee of a share in a family dwelling house, in a suit for partition instituted not by the stranger-transferee but by a member of the family?

2. The facts of the case and the proceedings that have led to the controversy may be briefly set out. The revision petitioner is the 3rd defendant in a suit for partition of three items of house properties. One Pancha Piilai and the 3rd defendant in the suit were brothers. The first defendant is the widow of Pancha Pillai and the second defendant, their son. The 4th defendant is a purchaser from the 2nd defendant of the western half-share in item (3) of the suit properties, a family dwelling house, under a registered sale deed Exhibit B-3 dated 12th November, 1956. There is some evidence that the two brothers attempted a division of the properties without reference to their mother Deivanai Ammal and she thereupon filed the suit O.S. No. 125 of 1959 on the file of the District Munsif, Turaiyur, and it is out of that the present revision arises. Deivanai Ammal, mother, claimed one-third share in the suit properties. A preliminary decree was passed on 1st March, 1960, for partition of plaintiff's one-third share and there was a direction in the decree that as far as possible, the western half in item 3 purchased by the 4th defendant may be allotted to the vendor's share. Subsequent to the preliminary decree, the plaintiff executed a settlement deed in respect of her one-third share in the suit properties in favour of the 3rd defendant's wife. Before any further proceedings were taken in the suit, she died. It is in these circumstances that the 4th defendant filed I.A. No. 703 of 1962 in the suit for a final decree for partition in terms of the preliminary decree, claiming equitable allotment of the western half of item 3 to him. He brought on record the settlee from the original plaintiff as a supplemental second plaintiff in the suit and a party respondent in his application for final decree. In his counter to this application, the 3rd defendant inter alia maintained that under the provisions of the Partition Act, the application was not maintainable and that himself and his wife were residing in the dwelling house in the western portion. Similar objections were filed by the supplemental second plaintiff as respondent. She had no objection to be impleaded as a party to the proceedings, but she contended that the claim was opposed to the principles of the Partition Act, the house being a residential one and the applicant a stranger to the family. Opposing the claim of the 4th defendant to a share in the property, the 3rd defendant, the revision petitioner, took out an independent application, I.A. No. 66 of 1963 under Section 4 of the Partition Act, claiming for the valuation of the one-third share of the 4th defendant in the western moiety of the 3rd item and sale of the share to him and for necessary directions in that behalf. His wife as the 2nd plaintiff joined in that application. On this application, the learned District Munsif held that, as it was clear from the evidence that there was division in status in the family, there was no undivided, family and the first condition for the application of Section 4 of the Partition Act was not satisfied. Proceeding he held that as the suit for partition was not filed by the transferee-4th defendant, a sharer in the family had no locus standi to apply under Section 4 of the Partition Act for buying out the transferee. In deciding this way, the learned District Munsif purports to follow a decision of this Court in Ramayya v. Venkata Subba Rao : (1949)2MLJ639 as one on all fours to the facts of this case. In view of findings in I.A. No. 66 of 1963 the learned District Munsif held that the transferee would be entitled to equitable allotment claimed by him in his application I.A. No. 703 of 1962 for final decree and directed partition accordingly. Hence this revision by the 3rd defendant.

3. Section 4, Sub-section (1) of the Partition Act with which we are concerned reads thus:

Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is hot a member of such family, and such transferee sues for partition, the Court shall, if any member of the family being a share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder, and may give all necessary and proper directions in that behalf.

The first finding of the learned District Munsif that there is no undivided family, for Section 4 of the Partition Act to apply, does not present any difficulty as ' undivided family' in the section has been held by a series of decisions to mean, simply a family, which has not divided the dwelling house by metes and bounds. A Hindu joint family divided in status will still be an undivided family qua dwelling house, if there has been no division of the dwelling house by metes and bounds for the purposes of the Act. The only finding in this case is that the family was divided in status. At any rate, a preliminary decree has been passed for the division of the house and on the basis of the preliminary decree, the several sharers had not divided the same and partitioned it among themselves.

4. The real difficulty is in interpreting one of the conditions for the applicability of Section 4, the clause ' and such transferee sues for partition.' The argument on behalf of the transferee is that for the sharer in the family getting the option of buying out a stranger-transferee, the transferee himself must have instituted the suit for partition. While the suit has been filed not by the transferee, but by a member of the family, it is contended that Section 4 of the Partition Act has no application. The learned Counsel for the contesting respondent submits that as the application of Section 4 of the Partition Act involves a statutory interference with the legal rights of a transferee, it should be strictly construed so as to limit such interpretation. Reference is made in this connection to Subramania v. Sheik Ghannu : AIR1935Mad628 . But in the same decision, it is observed by Walsh, J., that it is the cardinal principle of interpretation of a statute that we must first look to the words of the statute itself and ifthese words are plain, it is not permissible to consider what was the intention of the statute, or the previous history of the law.

5. It may be stated that there is also a body of judicial opinion favouring a liberal construction, for the interpretation of the provision in such a way as would promote and fulfil the object of the Partition Act, which is to preserve the integrity of a family dwelling house and enable the members of the family to keep it for themselves as far as possible. In my view, no straining of the language one way or the other is required in this case and it would be enough, for giving effect to the intention of the Legislature, if full scope is given to the meaning of the word ' sues.' The object of the provision in Section 4 of the Act is apparent, namely, the members of the family should not be forced to have a stranger-purchaser living with them in the family dwelling house, provided they are prepared to buy him out. The provisions of Section 4 of the Partition Act are just complementary to the second part of Section 44 of the Transfer of Property Act. Under the second part of Section 44 of the Transfer of Property Act, a transferee of a share of a dwelling house belonging to an undivided family, who is not a member of the family is not entitled to joint possession or other common or part enjoyment of the house, a right recognised in the first part of the section to the transferee from a co-owner. While Section 44 of the Transfer of Property Act disentitled such transferee to joint possession, Section 4 of the Partition Act enables a member of the family to buy off the stranger-purchaser, if the transferee seeks partition and possession of his share. The protection afforded by Section 44 of the Transfer of Property Act will be of no avail, if the purchaser from the co-owner seeks partition and separate possession. Hence the protection in the Partition (Act, provided, however, a sharer in the family is prepared to buy off the stranger.

6. In Stroud's Judicial Dictionary, 3rd Edition, Vol. IV, at page 2912, it is noticed that the words ' to sue ' may be applied indifferently either to the defendant or plaintiff or to the tenant or defendant, for the suit of one party or of the other must be followed; and 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 case.' In Webster's New Twentieth Century Dictionary, among the meanings given to the words, 'to sue'are to appeal; to petition; to beseech; and in law, to petition a Court for justice or redress through legal action. The Legislature has used any the words,' sues for partition.' While it does involve the idea of some action by a transferee to secure a partition, it does not, in my view, necessarily mean that the transferee himself must institute a suit for partition. The word ' sues ' is not just and only the equivalent' brings a suit.' It conveys also something more; any pleading or petitioning or application for partitioning and allotment of his share would be covered by the word ' sues for partition.' And, as observed in Assan v. Rathumma (1899) 9 M.L.J. 37 : I.L.R. 22 Mad. 494

In a suit for partition each co-owner, as against another, occupies in himself the role of the plaintiff as well as defendant. It is in consequence of this reciprocal character of the right which co-owners have in the matter of partition that even those who are not actual plaintiffs can claim that their shares also be allotted to them by the decree.

As I look at it, even though the stranger-transferee might not have himself instituted the suit for partition, if in a suit for partition, wherein he is made a party-defendant, he asserts and applies for his share and seeks relief from Court in recognition of his rights it could properly be stated that he sues for partition. In so construing his act, there will be no undue extension of the meaning of the word or any strained construction of the language. As observed by Lord Goddard C.J., in Barnes v. Jarvis (1953) 1 W.L.R. 649.

A certain amount of commonsence must: be applied in construing statutes. The object of the Act has to be considered.

7. I shall now examine the decisions cited by the learned Counsel on both sides. Mr. K. Parasaran, leaned Counsel appearing for the revision petitioner, refers me to the decision in Satyabhama v Jatindra Mohan : AIR1929Cal269 . In that case, the alienee defendants 14 to 19, strangers to the family, who had purchased shares in the dwelling house from some of the co-sharers filed an application in Court in which they prayed that their possession might be maintained and that they might be given a separate saham including the portion in their possession. They prayed for an allotment of the portion that has been sold to them. The claim to purchase the shares of defendants 14 to 19 was disallowed by the lower Court, as these stranger-purchasers were not plaintiffs in the case and they had not brought the suit for partition. The learned Judges observed:

Section 4, Partition Act, is a logical sequel of or corollary to Section 44, Transfer of Property Act. The latter Act denies the right of joint possession to stranger-purchaser who is left only with the right to sue for possession. It was felt that the partition of a dwelling house especially of small dimension would divide it into unsuitable parcels, and may in some cases introduce undesirable neighbours. Partition Act of 1893 accordingly came to the rescue of the members of an undivided family and gave them the right to purchase the shares obtained by strangers to the family. If effect is given to the respondents' (stranger-purchasers) contention, the result will defeat the object of the legislature to secure indivisibility of a dwelling house. It is possible that two persons outside the family buy two shares of two members of the family and one of them brings a suit for partition making the other a defendant and if his right to purchase a share of the dwelling house fails on any account the stranger-defendant may yet be given a share in the dwelling house because he does not happen to be a plaintiff in the suit. This is certainly not what the legislature intended and we must try to put a reasonable construction on the Acts of the legislature.

Proceeding, it is observed:

The respondents applied for saham in the dwelling house and it will not be stretching too much the language of the law to treat the respondents as plaintiffs within the meaning of Section 4, Partition Act. .This view is supported by the well-known principle that a party in a partition suit whether a plaintiff or a defendant is at the same time a plaintiff as well as a defendant. This dual capacity of a party in a partition suit does not preclude even a defendant who claims a share in the dwelling house from being treated as plaintiff for the purposes of Section 4, Partition Act. By their application of 5th December, 1921, the respondents claimed a share in the dwelling house and they should be treated as suing for partition of the dwelling house.

8. The decision in Lakshman v. Lahana Bar A.I.R. 1937 Nag. 4 follows the above case and proceeds on the same principle. Stone, C.J., after observing that the matter can be disposed' of by considering what is meant by the word ' sues' and that ' to sue ' is a verb, which is not restricted to bringing a suit, ultimately concludes thus:

I think, bearing in mind the clear intention of the Act, where in the course of another suit, the defendant applied to have a partition under the Partition Act, is correctly regarded as having 'sued' for partition within the meaning of Section 4.

9. A few decisions have been referred to where even the requirement of a claim for share by a stranger-transferee has not been considered necessary. In all the decisions, reference is made to Satyabhama v. Jatindra Mohan : AIR1929Cal269 and Sheodhar Prasad v. Rishun Prasad : AIR1941Pat4 refers to Satyabhama v. Jatindra Mohan : AIR1929Cal269 as authority for the position that:

in a partition suit each party is in the position of a plaintiff as well as defendant and that therefore even if the transferee be on the record as a defendant, and the person who has a share in the-undivided property as a plaintiff, the latter is entitled to avail himself of the provisions of Section 4.

10. Das, J., as he then was, observes in Abuisa Thakur v. Deenabandhu Banik : AIR1947Cal426 thus:

The object of the section is to prevent intrusion of strangers into the dwelling house of an undivided family. This object would be frustrated if a stranger-purchaser forces himself into the dwelling house of an undivided family and drives the other co-owner to file a suit as plaintiff and then figuring as a defendant is allowed to defeat the claims for pre-emption under Section 4 of the Act on a narrow and literal interpretation of the section. In a suit for partition, the parties to the suit are in the position of counter claimants and it can very well be predicated of a defendant in a suit for partition that he is suing for partition. In my opinion, the present case is within the ambit of the section.

11. The decision of Henderson, J., in Ramulal v. Bmode Behari A.I.R. 1949 Cal. 245 is also to the same effect. In that case it was contended that the transferee-defendant did not actually ask for an allotment and the learned Judge observed that he did not file a written statement at all and he therefore accepted the case made in the plaint that he had a certain share and that he was entitled to an allotment.

12. Reference was also made by Counsel to Benchhanidhi v. Balaram : AIR1951Ori180 and Haradhone haldar v. Ushacharan : AIR1955Cal292 . In the latter case it is observed:

The language again, though not quite happy, is not altogether incapable of a wider meaning. The section refers to a suit for partition and it is well-known that a party in a partition suit, whether a plaintiff or a defendant, is at the same time a plaintiff as well as a defendant. This dual capacity arises from the very nature of partition proceedings where each party who is a co-sharer or shareholder be he in the category of the plaintiff or of the defendant, is entitled to ask for partition of his share and separate allotment. It will, therefore, be not very inappropriate to speak of a defendant in a partition suit as 'suing for partition ' and thus the transferee-defendant in the partition action may well come withing the phrase ' and such transferee sues for partition '. This wider interpretation of the section, quite legitimate in spite of its inartistic phraseology will undoubtedly promote the object of the statute and that is a strong reason why it should have preference over the other.

13. It may further be pointed out that in the above case the transferee-defendant-appellant claimed title to a moiety share of the suit properties as the plaintiff's sole co-sharer and asserted right to separate allotment of the same. In the circumstances, it was observed:

From this point of view, the suit may be regarded as a transferee-defendant's suit for partition thus bringing him technically also within the phrase ' and such transferee sues for partition.

14. The decision in Ramayya v. Venkatasubba Rao : (1949)2MLJ639 relied upon by the lower Court is clearly distinguishable on its facts. In that case, there was an earlier suit by a stranger-purchaser for partition of his one-third share. Therein, the members of the family offered to buy up the share of this stranger-purchaser but did not avail1 themselves of it. The son of one of the members of the family subsequently filed a suit for partition as plaintiff and claimed to buy up the share of the stranger-purchaser whom he impleaded as the 6th defendant in his suit. The other members of the family figured as defendants 1 to 5. The learned Judge observed with reference to Section 4 thus:

The view that I take of the section is that there must be a suit at the instance of a transferee of a share of dwelling house for partition and then, if any member of the family being himself a share-holder in respect of the dwelling house, undertakes to buy the share of the transferee-plaintiff, the Court shall make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder.

Reference is made in this case to the decision of the Bombay High Court in Khanderao Dattatreya v. R. Krishna Mahadev I.L.R. (1922) 46 Bom. 341 which would be considered presently. Referring to the cases of Calcutta and Nagpur High Courts Salyabhama v. Jatindra Mohan : AIR1929Cal269 and Lakshman v. Lahana Bai A.I.R. 1937 Nag. 4 the learned Judge observed:

I have examined the two decisions and I do not think that they afford any real assistance to the learned Counsel for the respondents with reference to the contention that he has advanced, namely, that although there is no suit pow and here by a stranger-transferee of a share, his client may be allowed to buy up the 6th defendant's share on the spirit, if not on the letter, of the section. Even without deciding that a more liberal construction of the section is permissible than is warranted by its letter as virtually held in those cases, I am still of opinion that the present case can well be distinguished from them on the facts. In fact, neither of the cases actually dissents from the case in Khande Rao Dattareya v. Bala Krishna Mahadev I.L.R. (1922) 46 Bom. 341. The Nagpur case makes no reference at all to the Bombay case while the Calcutta case which refers to it does not disapprove of it but only distinguishes it. In both the cases, there is one peculiar feature which distinguishes them from the case before me, namely, that the stranger-transferee happened in those cases himself to apply for partition with the result that it became open to the Court notionally and virtually to regard him as plaintiff as himself or herself entitled to ask for the relief under Section 4 on the basis that there was a suit in the eye of law by the stranger-transferee himself for a partition. I am not sure that this sort of strain put upon the situation in those cases was rightly put. It is hardly necessary for me however to pronounce on the exact soundness in this respect of the two cases which, as I have pointed out, are on the view of facts taken therein distinguishable.

The learned Judge proceeding remarked:

The equity of the statute, as it is sometimes called, cannot override its plain language and the: contention of the respondents' learned Counsel must accordingly be repelled.

This judgment, and particularly the observations therein are strongly relied upon by the learned Counsel for the respondent. But, for one thing, the question whether in circumstances like the present one, where the transferee himself moves for a final decree for partition and claims a share against the other co-sharers, the transferee could not be considered to be one who 'sues for partition ' did not arise for consideration before Raghava Rao, J. and secondly the present case is in the line of cases distinguished by the learned Judge. The other Judgment of this Court in Subbamma v. Verayya : AIR1932Mad15 does not interpret the scope and factual requirements of the condition in Section 4 that the stranger-transferee must have sued for partition.

15. The decision of the Bombay High Court in Khonderao Dattatreya v. Balakrishna Mahadev I.L.R. (1922) 46 Bom. 341 which has been referred to with approval in the above case Ramayya v. Venkatesubba Rao : (1949)2MLJ639 may now be considered. I do not find any support for the respondent's contention in that case. In that case two out of the three sharers in an undivided dwelling house sold their respective shares todifferent persons. The transferee of one sharer obtained a decree for partition of the house against the remaining sharer-member of the family (2nd defendant in that case), and the transferee of the other share, the 3rd defendant in the case. The family member, the 'second defendant applied under Section 4 of the Partition Act to have the share of both the transferees, that is, the plaintiff and the 3rd defendant in the property valued. The Courts below granted the application of the 2nd defendant both as regards the share of the plaintiff as well as of the 3rd defendant. With reference to the purchase by the 2nd defendant, of the 3rd defendant's share, after observing that it certainly could not be said that he, the third defendant was suing for partition, Macleod, C.J., observed thus:

The object of Section 4 of the Partition Act is to enable the members of a family in the case of one of their members having transferred his share to an outsider who seeks partition, to buy out that outsider by having his share valued; and in ordinary cases such an application would be made before any preliminary decree was passed in the suit. That would then put an end to the suit unless one of the defendants wished to continue and apply to have his name inserted as plaintiff in the place of the plaintiff who had been bought out.

In this case the proceedings had gone so far that the Courts decided the question of partition, but the method of partition has not been decided. That, however, does not make any difference, as it is not suggested that the application of the 2nd defendant is too late. But it seems to me the result must be that if the plaintiff's share is valued under Section 4, and defendant No. 2 pays ils value, then there is an end to the partition suit, as there is no longer any plaintiff to the suit, and unless one of the deiendants applies to be made a plaintiff in his place, the proceedings must necessarily abate. However,, that is a matter for consideration when the valuation of plaintiff's share has been made and the 2nd defendant has paid the amount of the valuation. At present this appeal must be allowed to this extent, that the share of the 3rd defendant cannot be dealt with under Section 4 of the Partition Act.

The other learned Judge, Shah, J., observed:

I do not desire to express any opinion as to what the effect of the application of defendant No. 2 being granted against the plaintiff under Section 4 would be upon the suit at the stage at which the right to buy out the plaintiff is asserted by the defendant No. 2. That question does not arise at present.

The learned Judge, proceeding further, observes:

But I feel quite clear that Section 4 is limited to the transferee who sues for partition The right given to a sharer to buy out a transferee who is not a member of the family is limited to a transferee who sues for partition and cannot be extended to any defendant-co-sharer who may claim his share in a partition suit.

In my view, the latter observations of Shah, J., are obiter, and the question in the form in which it has arisen for consideration now did not come up in that case, Baishet v. Hiransaheb I.L.R. (1899) 23 Bom. 77 is another decision of the Bombay High Court which is relied upon for the respondent. I do not think that this decision is of any help as in that case the property in question had been sold away by the brother and mother of the plaintiff to the 3rd defendant in the suit and the 4th defendant A.I.nee from the 3rd defendant, was in possession of the property and the claim was by the plaintiff challenging the alienation during his minority of his half share therein. It may be seen that it was held in that case that it was not Section 4 but Section 2 of the Act which applied.

16. The learned Counsel for the respondent referred to the decision in Sakhawat Ali v. Ali Hussain : AIR1957All356 (F.B.) a Full Bench case. The question referred to the Full Bench itself distinguishes that case from the instant case under consideration. The question is:

Whether a shareholder in a dwelling house belonging to an undivided family can take adyantage of Section 4 of the Partition Act in a suit for possession of the entire house and/or for partition in which he is a plaintiff and the transferred in possession is a defendant?

The following observations of Mootham, C.J., bring out the principles:

It is a well-established principle that a party to a partition suit whether plaintiff or defendant is for many purposes at the same time a plaintiff as well as a defendant, and it has been held that if a defendant-transferee in a suit for partition claims a share in the dwelling house, he can be treated as a plaintiff for the purposes of Section 4. In Ramazan Baksha v. Nizamuddin : AIR1956All687 this principle was affirmed by this Court but it was held that a defendant transferee who had neither entered into possession of the dwelling house nor had claimed a share therein was not and could not be deemed to be a transferee who sues for possession within the meaning of Section 4. The correctness of that decision is not challenged in this reference.

The Full Bench had to deal with the contention whether Section 4(1) could apply even where a transferee himself made no claim to a separate share, though the transferee had possession of the whole or part of the dwelling house. Answering the reference the opinion was given thus:

Where however a word or phrase has more than one meaning, that which is to be attributed to it in a particular case must depend on the context in which it is used. In the context in which the word ' sues ' is used in Section 4(1), we do not think the Legislature intended this word to mean also or is a defendant in a suit'. In our opinion it was clearly the intention of the Legislature that the right conferred by Section 4 should accrue to the member of an undivided family only in the event of the transferee seeking to obtain partition of his share in the dwelling house and we hold therefore that the provisions of Section 4(1) will not apply to suit for partition in which stranger-defendant does not himself claim for separation of his share.

Proceeding, the learned Judges observe:

A suit for possession of the entire dwelling house is not a suit for partition. When such a suit is brought by a co-sharer against a transferee of another co-sharer, it is in the nature of a suit for pre-emption and although Section 4(1) does confer a right of pre-emption on a co-sharer against a stranger-transferee, that right is limited in its scope. It can be claimed in our opinion if the transferee either sues for partition himself or makes the same claim when he is impleaded as a defendant in such a suit.

In my opinion, the Full Bench decision is authority only for the position that the stranger-defendant who does not even claim separation of his share cannot be considered to be a transferee suing for partition under Section 4(1) of the Act. This case is in fact an authority for the position that a transferee could be considered to be one who sues for partition, even though a defendant in a suit for partition, when he claims his share in the suit and prays for allotment of his share. The Full Bench, it must be noticed refers to the decision of this Court in Ramayya v. Venkatasubba Rao : (1949)2MLJ639 .

17. For the purpose of the present case, it is unnecessary to go further. The trans feree-4th defendant has himself come out with an application under Order 20, Rule 18, Civil Procedure Code for partition of the properties and for passing of a final decree. In the light of the above decisions, he is certainly suing for partition and it will be open to a sharer in the family to buy him off under the provisions of Section 4 of the Partition Act. There can be no doubt that the revision petitioner is entitled to buy out the 4th defendant.

18. It was argued for the contesting respondent that the petitioner had made only an independent application and the counter-affidavit filed in the transferee's application for final decree no undertaking has been given as contemplated in Section 4 of the Partition Act. This contention is devoid of merits. The transferee applied for partition of the property and for the passing of a final decree. The petitioner contending naturally that Section 4 is not available to the applicant came out with his petition for relief under Section 4 of the Partition Act. The affidavit filed in support of his application contains the necessary undertaking to buy the share of the transferee in terms of Section 4 of the Act.

19. The revision therefore succeeds.

20. The order rejecting I.A. No. 66 of 1963 is set aside and the matter remitted back. The trial Court will take up the application under Section 4 of the Partition Act for further steps in the light of the above observations.

21. This petition is allowed and the petitioner will have his costs.


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