Anil K. Sen, J.
1. This is an appeal from an appellate decree. The subject matter of challenge is the judgment and decree dated June 19, 1978, passed by the learned Subordinate Judge, Midnapore in Title Appeal No. 300 of 1975 reversing those dated Aug. 2. 1975, passed by the learned Munsif. Ghatal in Title. Suit No. 125 of 1972. That was a suit for partition and the defendant is the appellant before this court. The only question which has been agitated in this appeal before us is 'as to whether the plaintiff is entitled to claim pre-emption under Section 4 of the Partition Act when the stranger purchaser has neither sued for partition nor has prayed for partition and separate allotment of the share purchased by him.
2. The suit property consists of three plots being Dag Nos. 2010, 2011 of Khatian No. 676 and Dag No. 2012 of Khatian No. 897 of Mouza Kharar set out in Schedules Ka and Kha to the plaint. On the settlement records all those plots are non-agricultural in nature and while plot No. 2011 is the bastu or homestead plots Nos. 2010 and 2012 ore patit or waste and adjoining the said bastu. The suit property admittedly was inherited by three brothers Ram Tarak. Rammoy and Shyamacharan from their father Churamoni. On the concurrent findings of the two courts below while plaintiff, Sailendra one of three sons of Rammoy had inherited 1/9th share in the suit land and l/3rd share in the structures (Schedule Ga) built by his father Rammoy, the defendant, who is a stranger to the family of the plaintiff has by purchase acquired the balance 8/9 share in the suit land and 2/3 share in the structures. This has been: found concurrently by the two courts below and that has not been challenged before us in this second appeal.
3. According to the plaintiff his father Rammoy and uncle Shyamacharan had to leave their original homestead and they built a mud-walled house on Dag No. 2011 about 40 years back and lived there. Later Shyamacharan left the place and settled in Calcutta. When that mud-walled house fell down plaintiff's father Rammoy built a two roomed housed on the said plot, lived there and died and after his death, plaintiff and his brothers continued to live there until they for their professional work viz., goldsmithy went over to Puri, Plaintiff's case further was that he went over to Puri about 5 years prior to the suit. The plain-tiff claimed the house situate on plot No. 2011 to be the family dwelling house and the other two Plots constitute a part thereof, since the other co-sharers sold off their share to the defendant, the defendant took possession thereof and enclosed the entire area by a boundary wall built by him. Hence the plaintiff instituted the suit for declaration of his title as a co-sharer and partition along with a prayer for pre-emption under Section 4 of the Partition Act.
4. The defendant contested the suit by filing a written statement. He claimed that there was previous partition between the co-sharer (which the defendant failed to substantiate at the trial) and what he purchased was the separated portion and not a share in the undivided dwelling house. It was further pleaded that the dwelling house ceased to be the family dwelling house since the plaintiff abandoned the same 40 years back and began to stay in his father-in-law's house as a permanent member of that family. The defendant on such grounds challenged the plaintiffs claim for pre-emption.
5. On the pleadings as aforesaid several issues were raised including an issue as to whether the plaintiff was entitled to claim right of pre-emption under Section 4 of the Partition Act.
6. The learned Munsif decided the aforesaid issue against the plaintiff. But in doing so it has been rightly pointed out by the court of appeal below he failed to arrive at any firm or clear finding as to the ground for doing so. The principal reason assigned by the learned Munsif was that when the plaintiff left the dwelling house being a Ghar Jamai or a domesticated son-in-law in his father-in-law's family and when the brothers too left for Puri the suit property was abandoned and it ceased to be the family dwelling house the parties having no intention to use it as such. Having overruled the claim for pre-emption the learned Munsif went on to pass a money decree for a sum of Rs. 605/- in favour of the plaintiff by way of compensation on the value of the plaintiffs share of the suit property. On the ground that the suit property was not partible on the fractional share claimed by the plaintiff. The value was assessed on the basis of the valuation of the suit property earlier made in the suit.
7. The plaintiff preferred an appeal and the learned Subordinate Judge in the court of appeal below has reversed the decision of the learned Munsif. According to the learned Subordinate Judge the defendant was a stranger purchaser. He further found that the suit property was the dwelling house of the father of the plaintiff and his co-sharers and continued to remain as such even after his death. Though the plaintiff and his brothers were living at Puri for the time being for carrying on their profession in gold-smithy there was no indication that the plaintiff or the co-sharers ever abandoned the dwelling house altogether or gave up the intention of using it as such. He found that the plaintiff never alienated himself from his father's family by marriage. On the other hand on careful consideration of the evidence, the learned Subordinate Judge came to the conclusion that evidence clearly indicated existence of an intention of the plaintiff to maintain the dwelling house as such. The family not having divided qua the dwelling house, the learned Subordinate Judge held that the plaintiff was entitled to claim Preemption under Section 4 of the Partition Act. He held further that when the defendant himself had made an application for sale under Section 2 of the Partition Act, the plaintiff was entitled to have the defendant's share purchased under Section 3 or the valuation as made by the learned Munsif. The learned Subordinate Judge accordingly decreed the claim for pre-emption and directed that on plaintiff depositing a sum of Rs. 4,545/- being the value of the share of the defendant, that share would be transferred in favour of the plaintiff. Feeling an grieved the defendant has preferred the present second appeal.
8. Mr. Roychowdhury appearing in support of this appeal has raised four points. Firstly it has been contended by Mr. Roychowdhury that in order to attract Section 4 of the Partition Act, the stranger purchaser must sue for partition. According to Mr. Roychowdhury, though the term 'sue for partition' does not necessarily mean that such a purchaser must himself be the plaintiff but even as a defendant he must claim partition on separate allotment in order to bring him within the mischief of Section 4 of the Partition Act. In the present case, according to Mr. Roychowdhury the defendant not having either sued for partition nor having claimed partition on separate allotment, the plaintiff is not entitled to claim a right of pre-emption under Section 4 of the Partition Act. Strong reliance is placed by Mr. Roychowdhury on a Bench decision of this court in the case of Netai Das v. Hari Das. ILR (1967) 2 Cal 301. Secondly, it has been contended by Mr. Roychowdhury that on the evidence on record the learned Munsif was right in his conclusion that the suit property ceased to remain the family dwelling house of the plaintiff and, therefore, he can no longer claim a right of preemption as against third party purchaser of a share thereof. Thirdly, it has been contended by Mr. Roychowdhury that there is no evidence to indicate that the two Plots. Dag Nos. 2010 and 2012 really constitute a part of the dwelling house so that the plaintiff can claim any right of pre-emption in respect of those plots. Lastly, it has been contended by Mr. Roychowdhury that the defendant's application had been wrongly treated as an application under Section 2 of the Partition Act by the learned Judge in the court of appeal below and as such, the learned Judge is in error in invoking the provision of Section 3 thereof and directing sale in favour of the plaintiff of the defendant's share in the suit property.
9. Mr. A. N. Banerji appearing on behalf of the respondent has strongly contested all the points thus raised by Mr. Roychowdhury. According to Mr. Banerji on the earlier decisions of this court a co-sharer of a family dwelling house even as a plaintiff in a suit for partition can claim a right of preemption under Section 4 of the Partition Act as against a third party purchaser where such third party purchaser by virtue of such purchase is entitled to a share therein irrespective of whether he sues for partition or claims separate allotment in respect of the share so purchased. Mr. Banerji has contended that such had been the construction of Section 4 of the Partition Act well settled by the consistent decisions of this court and the departure therefrom as indicated in the decision relied on by Mr. Roychowdhury is not consistent with the principle so settled. So far as the second point raised by Mr. Roychowdhury is concerned, according to Mr. Banerji the learned Judge in the court of appeal below had rightly found the suit property to be the family dwelling house of the plaintiff on the evidence on record and there is no reason why such a finding should be interfered with in a second appeal. Similar is the contention of Mr. Banerji with regard to the third point raised by Mr. Roychowdhury. In answering the last point raised by Mr. Roychowdhury, Mr. Banerji has contended that both the courts had concurrently held that the defendant had filed an application under Section 2 of the Partition Act which would necessarily attract Section 3 thereof. According to Mr. Banerji the learned Munsif wrongly refused to give benefit of that provision to the plaintiff on the view that the defendant being the major share holder he is entitled to purchase of the share of the plaintiff.
10. So far as the first point raised by Mr. Roychowdhury is concerned, one must take note of the fact that the different High Courts in India had not construed Section 4 of the Partition Act on the point at issue in a uniform manner. While some had taken the view that the purchaser himself must sue, others had taken a modified view that such a purchaser must at least ask for partition even as a defendant and separate allotment in order to attract the provision. So far as the Calcutta High Court is concerned, it has consistently been held that in order to promote and fulfil its object the section should be liberally construed and irrespective of whether the transferee is the plaintiff or the defendant where the third party transferee is entitled to a share in the family dwelling house by virtue of his purchase, the other co-sharers family members have been held to be entitled to claim the benefit of pre-emption under the said section. In the case of Satyabhama v. Jatindra. AIR 1929 Cal 269. Suhrawardy and Jach. JJ. were called upon to decide this point specifically. In that case one of the co-sharers a defendant in the suit for partition claimed pre-emption not only in respect of the share of the plaintiff but also of the defendants 14 to 19 all of whom were stranger purchasers. The trial court allowed the said claim but on an appeal the learned District Judge set aside the order for pre-emption in respect of the shares of defendants 14 to 19 holding that the trial court was in error in permitting the co-sharer claimant to pre-empt the shares of the other defendants. That decision of the learned District Judge being challenged in this court the learned Judge upheld the claimant co-sharer's claim of preemption in respect of the share of defendants 14 to 19 as welt. In dealing with an objection raised on behalf of the respondents in the said appeal to the effect that the respondents not having brought a suit for partition Section 4 of the Partition Act can have no application the learned Judges observed : 'If effect is given to the respondent's 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 the share of 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.' The basic reason given by the learned Judges in arriving at the aforesaid conclusion is 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 and this dual capacity of a party in a partition suit does not preclude even defendant who claims a share in the dwelling house from being treated as plaintiff for the purpose of Section 4 of the Partition Act. In a number of cases following this decision, this court pointed out that the expression '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'. In that sense even where the third party purchaser is defending a suit for partition his share is liable to be pre-empted under Section 4 of the Partition Act. In defending such a suit such a defendant need not necessarily himself claim partition or separate allotment.
11. Earlier to the aforesaid decision in the case of Khirode v. Saroda Pd. (1910) 12 Cal LJ 525 Sir Ashutosh Mookerjee clearly pointed out that the object of Section 4 of the Partition Act is to prevent a transferee from a member of a family who is an outsider from enforcing his way into the dwelling house in which the other members of the family to which the transferor belongs have a right to live. Sir Ashutosh Mookerjee was, therefore, of the view that the said provision should have a liberal construction so that its object can be fulfilled, it being a logical sequel to Section 44 of the Transfer of Property Act. Since then so far as this court is concerned, it had always been consistent in its view that Section 4 should have a liberal construction having regard to the object of it. Reference may be made to the decisions in the cases of Boto Krishna v. Akhoy Kumar. : AIR1950Cal111 . Nilkamal v. Kamakshya. AIR 1928 Cal 539, Haradhone v. Ushacharan, : AIR1955Cal292 . Satyendu v. Amar Nath, : AIR1964Cal52 and Santosh Kumar Mitra v. Kalipada Das. : AIR1981Cal278 .
12. In still later years a question was further raised as to whether in order to attract the provision of Section 4 of the Partition Act to a suit where the stranger purchaser was a defendant, it was necessary that such a defendant should expressly claim a share on partition and allotment. Here again the consistent view expressed by this court had been that it is not necessary that the stranger purchaser as defendant must necessarily claim partition and allotment. In the case of Ramdulal v. Benode Behari. AIR 1949 Cal 245. Henderson. J. expressly held as such when he upheld the claim of preemption by a co-sharer defendant as against defendant No. 1 who was a stranger purchaser but who was not appearing a contest. In the case of Abu Isa Thakur v. Dinabandhu, AIR 1947 Car 426. G. N. Das. J., held as such when the learned Judge referring to the object of the section as pointed out by Sir Ashutosh Mookerjee observed that the said object would be frustrated if by chance a stranger forces himself to the dwelling house and drives a co-sharer to file a suit as the plaintiff. In the case of Haradhone v. Ushacharan (supra) P. N. Mookerjee. J. expressed the same view. In that case, the third party purchaser having obtained an ex parte decree for possession entered into joint possession in execution of the decree with the co-sharer who then claimed a right of pre-emption which was ultimately upheld by his Lordship.
13. Next we proceed to refer to a decision rendered at or about the time when the decision relied on by Mr. Roychowdhury was rendered. This was a Bench decision of P. N. Mookerjee and A. C. Gupta. JJ. in the case of Sunil Kumar Mukhopadhya v. Provash Chandra Mazumdar. : AIR1969Cal88 . Dealing with the same question specifically raised before them it was observed. 'A point has been raised by Mr. Mitra appearing on behalf of the defendant-respondent in this case that the interpretation would be applicable or available only where the defendant himself was claiming a share of the disputed property and not in a case where the defendant's claim was. as in the instant case, that the property was not undivided joint property but had already been partitioned between the parties or their predecessors. This argument, however, having regard to the concurrent findings of the two courts below that the defence of previous partition was unacceptable cannot be accepted as a relevant distinction. The property, if it is really joint or undivided, would entitle the defendant (stranger purchaser) to his share, acquired by him by purchase, as aforesaid, and he is actually claiming the same, and so the mere fact, that he raised the defence of previous partition, which is ultimately negatived would not alter the position.
14. That was the view of this court and the consistent view too as pointed out in the case of Surendra N. Achar v. Ram Chandra Hazra (19711 75 Cal WN 195, until a note of inconsistency had unfortunately been introduced by the decision relied on by Mr. Roychowdhury in the case of Netai Das v. Hari Das (ILR (1967) 2 Cal 301) (supra). The view earlier taken by this court was not shared by the Bombay and Madras High Courts. In its later decisions this court was quite aware of the said position but still the said principle was consistently adhered to. In the case of Netai Das v. Hari Das, the learned Judges in para. 7 expressly took note of the fact that the view of this court was different not only from the view of Bombay and Madras High Courts but also from the view expressed by the Allahabad High Court in the case of Sakhawat Ali v. Ali Hossain, : AIR1957All356 (FB). It is, however, difficult for us to appreciate how even after taking note of such a different view of this court in existence, the learned Judges without any reference being made to any larger bench went on to adopt the view of the Allahabad High Court in their conclusion. In the concluding part of the decision (vide para 17, the learned Judges observed that in order to attract Section 4 of the Partition Act 'it must appear to the court that the stranger transferee has claimed or is claiming partition and separate allotment,' and that application of the said section in a case in which the stranger transferee does not claim or is not claiming partition and separate allotment is unwarranted by the language of the statute. In our view, the learned Judge introduced a limitation in the matter of construction of Section 4 of the Partition Act, which is not only not consistent with but is contrary to the earlier decisions of this court. Though most of the earlier decisions were referred to they were being distinguished on grounds which are not really grounds for distinction. Thus the decision in Satyabhama's case was distinguished on the ground that there the stranger purchaser had applied for a share in the dwelling house. But the fact that the stranger purchaser had applied for a share was not the real foundation for the decision in that case as rightly pointed out by a Division Bench of the Orissa High Court in the case of Alekha Mantri v. Jagabandhu. AIR 1971 Orissa 127. The contrary view, on express consideration of the point by Henderson, G. N. Das and P. N. Mukherji, JJ. was not overruled.
15. Moreover, in interpreting Section 4 of the Partition Act, the learned Judges expressed themselves to say that it should receive a strict construction since that section provides for invasion of legal and private right just contrary to what this court had consistently held earlier as referred to hereinbefore. With great respect for the Judges we are unable to share the view expressed in the case of Netai Das v. Hari Das (ILR (1967) 2 Cal 301) (supra) and we would rather agree with the contrary view expressed in the other bench decision in the case of Sunil Kumar Mukhopadhyay v. Pravash Chandra Mazumdar : AIR1969Cal88 (supra). In construing the provision, the learned Judges added a gloss to restrict its operation which is not warranted in view of the consistent earlier decisions of this court approved and followed by the Orissa, Patna and Nagpur High Courts. Though we are unable to share the view expressed by the learned Judges in the above case, if we really need to differ from them and base our decision in the present case on such difference of view we would have made a reference to a larger bench. But in the facts of the present case we find that the stranger purchaser himself filed an application on July 29, 1975, in the suit asserting his right of partition as a co-sharer and seeking a further right to purchase the share of the plaintiff by virtue of the position that he was the major shareholder. The fact of making such an application brings the case squarely within the scope of Section 4 of the Partition Act even on the principle enunciated in Netai Das's case. In that view we must overrule the first point raised by Mr. Roychowdhury that the stranger purchaser in the present case being a defendant in a suit for partition, the provision of Section 4 of the partition Act, can have no application.
16. So far as the second point raised by Mr. Roychowdhury is concerned, it should again be pointed out that this court had uniformly held that co-sharer can claim partition in respect of a dwelling house so long the dwelling house itself has not been partitioned irrespective of whether the family itself had been divided or not. So long as the family remains undivided qua the dwelling house, every co-sharer has a right to pre-empt the share sold to a stranger by any other co-sharer. In the present case it appears from the evidence on record that the disputed homestead was admittedly the dwelling house of the parties and their predecessors. As a matter of fact Rammoy, the father of the plaintiff and his two brothers lived there throughout his life. Plaintiff might have been married in the same Place but it has been the finding of the learned Judge in the court of appeal below that he never opted in-law's family as his family. According to the learned Munsif since the parties had migrated to Puri, the homestead ceased to be the family dwelling house. But that obviously was not the correct conclusion to draw from facts found as rightly pointed out by the learned Judge in the court of appeal be-low. They went over to Puri for the purpose of carrying on their profession but there is no indication that the Homestead which was left unpartitioned was totally abandoned. The learned Judge in the court of appeal below had rightly pointed out the material evidence to indicate that at least the plaintiff clearly intended to maintain the homestead so that it remained the family dwelling house of the plaintiff and his co-sharers. The second point raised by Mr. Roychowdhury, therefore, must fail and is overruled.
17. So far as the third point raised by Mr. Roychowdhury is concerned, it is primarily a question of fact as to whether the other two plots constitute a part of the homestead or not and the finding is against the defendant. In a second appeal it is difficult for us to interfere with such a finding of fact. It is, however, contended by Mr. Roychowdhury that there is no evidence to support such a finding. We are, however, unable to accept such a contention. It is not in dispute that those two plots adjoin the homestead and constitute a part of the non-agricultural holding which is not being used for any other purpose. Upon the defendant's own showing after his purchase he had put a boundary wall enclosing all the three plots as one unit constituting the homestead. This obviously indicates that the three plots formed the unit of homestead and the same was consolidated by walling up the whole area. The evidence of the plaintiff further goes to show that these plots were necessary for the beneficial use of the homestead itself. Therefore, it is not a case where there is no evidence to support the findings of the learned Judge in the court of appeal below. So far as the learned Munsif is concerned, he had not arrived at any contrary finding. In these circumstances we are unable to accept the extreme contention of Mr. Roychowdhury that the finding of the learned Judge in the court of appeal be-low in this regard is not supported by any evidence on record.
18. So far as the last point raised by Mr. Roychowdhury is concerned, there is much substance in his contention that the defendant's application dated July 29, 1975, could not have been treated as an application under Section 2 of the partition Act. In that application the defendant never asked for any open sale. On the other hand, what he claimed is that by virtue of his position of being the major shareholder he should be allowed to purchase the share of the plaintiff as the property is not otherwise partible according to shares. Such a prayer not being a prayer within the meaning of Section 2 of the Partition Act, certainly Section 3 could not have been invoked.
19. Though the last point thus raised by Mr. Roychowdhury succeeds, in our view the conclusion of the learned Judge of the appeal court can otherwise be sustained. Though the plaintiff is not entitled to purchase the share of the defendant under Section 3, he is entitled to pre-empt the said share under Section 4 as held by the learned Judge in the lower appellate court and which we have just upheld. Such pre-emption is to be effected on a valuation to be made by the court. This court in the case of Subol Chandra Modak v. Gostha Behari (1956) 60 Cal WN 829 held that such valuation should be made in a manner which should be equitable to both the preemptor and the stranger purchaser. In the present case, the plaintiff asserted his right to pre-emption when he filed the suit in. 1972. But for the contest he would have been entitled to pre-empt the share of the defendant on the valuation to be made by the court in the year 1972. It is not in dispute that for the purpose of determining the jurisdiction of the court the court determined the value of the property upon thorough adjudication on evidence by an order dated 21-6-1975. The said valuation had not been disputed. It was valued at Rs. 5,000/- for the land and Rs. 150/- for the structure. Assessed on that basis the valuation of the defendant's share in the property would be Rs. 4,545/- as assessed by the learned Judge in the court of appeal below. Therefore, when he directed transfer of the share of the defendant to the plaintiff on deposit of a sum of Rs. 4,545/-we cannot but uphold the said decision though by way of pre-emption under Section 4 of the Partition Act and not under Section 3 thereof.
20. In the result, the appeal fails and is dismissed. There will be no order for costs.
21. Let operation of the order remain stayed for a period of two months from this date.
S.N. Sanyal, J.
22. I agree.