1. This appeal is at the instance of defendants 1 and 2 and is directed against the decision of C.C. Basu Esqr., Additional District Judge, Tippera Chittagong.
2. The disputed lands bear C.S. plots 6020, 6021, 6022 and comprise homestead, tank and garden. They belonged to Shib Chandra Banik and Balai Charan Banik. The plairitiff is the only son of Balai and has 8 annas share in the said three plots, Shib Chandra left an only son Jagabandhu. Jagabandhu died in 1338 B.s., leaving his daughter Brahmamayee, pro forma defendant 3, as his sole heiress. The principal defendants, who are Mahomedans purchased the 8 annas share o Brahmamayee; on the allegation that the principal defendants on the strength of their purchase erected certain huts on the disputed lands and cut down some trees the plaintiffs brought the present suit for purchase of the share of the defendants or in the alternative for partition of the disputed plots and for temporary injunction.
3. The defences material for the decision of this appeal are that the suit as framed was not maintainable and that the prayer for purchase of the defendants' share is not permissible in law, and that there was a previous partition amongst the Baniks.
4. The trial Court found that the disputed plots formed the dwelling house of the Baniks, the story of partition was not true; that there was forcible possession by the defendants and that the plaintiff could buy up the 8 annas share of the defendants at a proper value of Rs. 1000. The trial Court, therefore, decreed the suit in a preliminary form and declared the plaintiff's right to buy up the 8 annas share of the defendants for Rs. 1000 and directed the plaintiff to deposit Rs. 1000 on or before 7-4-1945; in default, the plaintiff's right to purchase will stand rejected, if the deposit was made, the 16 annas title in the disputed lands would vest in the plaintiff; the defendant will execute a kobala at the plaintiff's cost in respect of the 8 annas share and thereupon the defendants will be entitled to withdraw the sum deposited. The plaintiff will get khas possession of the disputed land in 16 annas share on eviction of the defendants and removal of structures. The prayer for partition will be allowed if the deposit is not made as directed and a Commissioner will be appointed to effect a partition, the present possession of the parties being maintained as far as possible. Parties were directed to bear their costs up to the preliminary decree.
5. The defendants preferred an appeal to the Court of the District Judge. A cross-objection was filed by the plaintiff on the question of value of the lands. The learned Additional District Judge who heard the appeal affirmed the findings of the trial Court and the appeal and cross-objection were both dismissed without costs.
6. The defendants preferred this second appeal and on their behalf Mr. Sen Gupta has raised only two points, viz. that the suit as framed was not maintainable and that the plaintiff cannot get an order for purchase of the defendants' share.
7. As regards the first point, I do not see why the plaintiff cannot claim the alternative prayers as set forth in the plaint. His main relief is for pre-emption and in case he fails to get this relief he claims his undoubted right to claim partition on the strength of his moiety share. This point has no substance.
8. The second point raised depends on the interpretation of Section 4, Partition Act (Act 4 [IV] of 1893). Mr. Sen Gupta has accepted the finding of fact, that the disputed plots form the dwelling house of an undivided family; that there was no previous partition, that the defendants forcibly entered upon the disputed lands and cut down trees and erected structures and that the defendants transferees are not members of the undivided family and that the fair price of defendants' 8 as share was Rs. 1000. He however contends that Section 4 of the Act does not apply as the suit is not by the transferee but by the co-owner, the transferee being a defendant in the suit. He distinguishes the decisions in Satyabhama De v. Jatindra Mohan Deb : AIR1929Cal269 and Laxman Dhondopant v. Mt. Lahana Bai ('37) 24 A.I.R. 1987 Nag. 4 referred to by the Additional District Judge on the ground that they are based on a different set of facts.
9. Mr. Roy appearing for the respondent relies on the said decisions and also on the decision in Sheodhar Prosad Singh v. Kishun Prosad ('41) 28 A.I.R. 1941 Pat. 4
10. Section 4 of the Partition Act reads as follows:
(1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not 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 shareholder and may give all necessary and proper directions in that behalf.
(2) If in any case described in Sub-section (1) two or more members of the family being such share-holders severally undertake to buy such share, the Court shall follow the procedure prescribed by Sub-section (2) of the last foregoing section.
11. It has been pointed out in Nil Kamal v. Kamakshya : AIR1928Cal539 that the section should be liberally construed. In Strouds' Judicial Dictionary the words 'to sue' have been defined thus:
These words 'to sue' may be applied indifferently either to the defendant or plaintiff.... 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 'cause'.
12. 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 claim 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.
13. In Khanderao Dattatraya v. Balkrishna Mahadeb 9 A.I.R. 1922 Bom. 121, the dwelling house was owned by Bbikaji Balwant, defendant 2, and Gangadhar. The plaintiff had purchased the share of Bhikaji. Defendant 8 had purchased the share of Gangadhar. A suit for partition was filed and a preliminary decree was passed. Thereafter defendant 2 claimed to purchase the share of the plaintiff and defendant 3, under Section 4, Partition Act. The High Court (Macleod C.J. and Shah J.) held that the appellant could not succeed so far as the share of defendant 3 was concerned; the latter though a transferee could not be said to have sued for partition. This case was distinguished in Satyabhama De v. Jatindra Mohan Deb : AIR1929Cal269 and it was observed that it did not appear from the report if defendant 3 (one of the stranger transferees) appeared in the suit and claimed a share in the dwelling house. It was further pointed out that Macleod C.J. based his judgment on the ground that once defendant 2 was allowed to purchase the share of the plaintiff, the suit came to an end and there could be no further question of defendant 2 purchasing the share of defendant 3. It would seem, therefore, that the observations were in the nature of obiter dicta. In the case reported in Satyabhama De v. Jatindra Mohan Deb : AIR1929Cal269 , the facts were these. The plaintiff instituted a suit for partition. Subsequent to the passing of the preliminary decree, defendant 9 applied for purchase of the share of the plaintiff as also of defendants 14 to 19 who were stranger purchasers of shares in the dwelling house. The lower appellate Court allowed defendant 9 to purchase the share of the plaintiff but disallowed his claim to purchase the share of defendants 14 to 19. Against this decision, defendant 9 preferred an appeal. In allowing the appeal, Suhrawardy J. (with whom Jack J. concurred) observed that:
Section 4, Partition Act, is a logical sequel of or corollary to Section 44, T.P. Act. The latter Act denies the right of joint possession to a stronger purchaser who is left only with the right to sue for partition. It was felt that the partition of a dwelling house, specially of small dimensions, would divide it into unsuitable parcels and may in some cases introduce undesirable neighbours. The 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 of the family. It is possible that if two persons outside the family buy two shares of the members of the family and one of them brings a suit for partition, making the other a defendant and if his right to purchase the 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 that one must try to put a reasonable construction on the acts of the Legislature.
His Lordship went on to observe:
The respondents applied for a Saham in the dwelling house and it will not be stretching too much language of the law to treat the respondents as plaintiffs within the meaning of Rule 4, Partition Act. This view is supported by the well-known principle that a party in a partition suit whether a plaintifi or a defendant is at the same time a plaintiff as well as a defendant.
In Laxman Dhondopant v. Mt. Lahana Bai ('37) 24 A.I.R. 1987 Nag. 4 Stone C. J. in repelling the contention that Section i, Partition Act, did not apply as the transferee was a defendant and not a plaintiff observed that 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, he is correctly described as having 'sued' for partition within the meaning of Section 4. In Sheodhar Prosad Singh v. Kishun Prosad ('41) 28 A.I.R. 1941 Pat. 4 the facts were somewhat similar. Khush Narain had four sons. The plaintiffs were descendants from one of the sons, defendants 1, 2 were the descendants of another son, defendants 3, 6 were descendants of another son, defendants 7, S were descendants from another, defendants were transferees of the share held by defendants 1, 2, It was admitted that there was a previous partition but according to the plaintiff a portion of the dwelling house viz., Sirighar, privy and angan (court-yard) and passage remained in joint, while defendants 1, 2 alleged that the Sirighar belonged'- toj defendants 1, 2 exclusively. The plaintiff prayed for partition of the said joint lands. The lower appellate Court held that the privy, Sirighar and the passage were incapable of partition. The plaintiffs appealed and one of the points urged by the plaintiff was that relief should have been given to the plaintiff under Section 4, Partition Act. In dealing with this contention, Dhavle J. observed:
The section certainly speaks of the transferee suing for possession, but the learned advocate has argued on the authority in Satyabhama De v. Jatindra Mohan Deb : AIR1929Cal269 that in partition suit each party is in. the position of a plaintiff as well as of defendant and that, therefore, even if the transferee be on the record as a defendant, and the plaintiff who has a share in the undivided property as a plaintiff, the latter is entitled to avail himself of the provisions of the section. The contention is fully supported by the authority cited by the learned advocate.
From the above discussion it follows that the plaintiff is entitled to relief under Section i, Partition Act.
14. In my opinion, therefore, the second point urged by the appellant is not of substance. The appeal accordingly fails and must be dismissed with costs. Leave to appeal prayed for is refused.