P.N. Mukerjee, J.
1. This appeal is directed against a concurrent decree of the two courts below, allowing the plaintiff-respondent's alternative claim for pre-emption under Section 4, Partition Act.
2. The suit properties (C. S. plot No Section 113, 114 and 116) which constitute the undivided family dwelling house of the plaintiff and his brother Kangsari Mohan Karmakar, the predecessor of respondents Nos. 2 and 3, belonged to them in equal moiety shares. In 1930, the present defendant-appellant (who was a stranger to the family) auction-purchased Kangsari's . half share of the suit properties. He got symbolical possession sometime in April, 1930, but he failed to get actual possession. Thereupon, he brought a suit (Title Suit No. 55 of 1931) against Kangsari and the present plaintiff for 'inter alia' joint possession of the suit properties along with the present plaintiff and, having recovered an 'ex parte' decree on 30-11-1931, he took joint possession by removing the huts of Kangsari, sometime in 1946. In the meantime, the present plaintiff had instituted a suit (Title Suit No, 280 of 1945) for the settingaside of the above 'ex parte' decree but it was unsuccessful up to the appellate Court which dismissed his appeal on 1-3-1947. He then brought the present suit on 28-2-1948.
3. In the suit, the plaintiff's prayers were for declaration that the present appellant who was the principal defendant (No. 1) was not entitled to have joint possession of the suit properties and for an appropriate injunction and, alternatively, for pre-emption of Kangsari's half share, purchased by this stranger defendant (No. 1), under Section 4, Partition Act in the course of a partition proceeding,
4. The suit was resisted by defendant No. 1 and various defences, including pleas of limitation and adverse possession as also previous amicable partition and separate possession, at least, since 1947, were raised on his behalf. At the earlier stages, it was also contended by the defence that the suit properties did not constitute the undivided family dwelling house of the two brothers, Kangsari and the present plaintiff, but this contention has rightly been given up before me. The defence pleas of limitation and adverse possession and of previous amicable partition and separate possession since 1947 have also been concurrently negatived by the two Courts below and, in view of the materials on record, which overwhelmingly support the said findings, these pleas have not been repeated in this Court. The appellant has now concentrated on his other two defences, namely, 'res judicata' and the inapplicability of Section 4, Partition Act to the present case and the rejection of these two defences by the Courts below in the facts of this case has been seriously assailed before me and they are the only points, requiring consideration in this appeal.
5. Before taking up the two points, enumerated above, I ought to mention here that the plaintiff's first prayer for declaration and injunction has been refused by the lower Courts and his suit has succeeded only on his alternative prayer under Section 4, Partition Act. As the plaintiff is making no protest and as the plaintiff's first prayer appears to be barred by 'res judicata' also, it is unnecessary for me to consider the conflict between the two decisions of this Court, reported in -- 'Lal Behari Samanta v. Gourhari, Dawn', : AIR1952Cal253 and -- 'Jogendra Nath v. Adhar Chandra', : AIR1951Cal412 or to examine the exact scope and effect of the earlier decision in the case of -- 'Rajani Kanta Sen v. Sita Kumari', 46 Cal WN 407 (C).
6. The defence plea of 'res judicata' is certainly available but only to a limited extent. It is undoubtedly an effective answer so far as the plaintiff's first prayer is concerned. In view of the 'ex parte' decree in Title Suit No. 55 of 1931which the present plaintiff has failed to dislodge in his subsequent suit (Title Suit No. 280 of 1945), it is no longer open to him to resist the defendant's claim for joint possession and his only remedy, if any, lies under Section 4, Partition Act. Thedeclaration, therefore, sought for in the plaintiff's first prayer, has been rightly refused by the two Courts below and his claim for injunction must also necessarily fail. Section 44, Transfer of Property Act, read with the relevant Hindu Law, cannot assist the plaintiff in the face of the 'exparte' decree, referred to above, after which it is no longer open to the plaintiff to rely upon the said provisions of law. That, however, cannot prejudice the plaintiff's claim, made in his alternative prayer, and, so far as that claim is concerned, the plea of 'res judicata' is not available to the defendant appellant. This claim was plainly outside the scope of the 1931 suit and the pre- , sent plaintiff was certainly not obliged to put it forward as a defence in that proceeding. It was, to say the least, inappropriate, if not premature, at, that stage. The decision of the two Courts below, granting the plaintiff a decree on his alternative prayer, cannot, therefore, be successfully challenged on the plea of 'res judicata' and Mr. Mitter's first contention must' fail.
7. The other point also appears to he concluded against the appellant by authorities and on principle, too, that view appears to be more acceptable.
8. True, he obtained joint possession, in 1946. That, however, will be unavailing against a claim under Section 4, Partition Act. Joint possession is no bar to a claim for partition. On the other hand, it is really the foundation for such a claim andthe aim of partition is to break up this joint possession and convert it into separate possession. The utmost that can be claimed is that, if this joint possession of the stranger defendant-appellant has assumed such a character that he may be regarded as a member of the family, referred to in Section 4, Partition Act, he will place himself outside the mischief of that section and will not be bound to submit to pre-emption thereunder (vide -- 'Bhuban Mohan v. Brojendra Chandra : AIR1941Cal311 ). In the present case, however, the appellant never lived in the homestead and his possession of the suit properties was never acquiesced in. In such circumstances, it is difficult to hold that hehas become a member of the family, as contemplated in the case, just cited.
9. More difficult is the other question, namely, whether Section 4, Partition Act is at all attracted when the suit for partition is brought not by the stranger purchaser but by a member of the family who is a co-sharer or 'share-holder'. The section says 'and such transferee sues for partition' and, at first sight, therefore, it seems to have application only when the stranger purchaser is the plaintiff in the partition action. A closer examination, however, in the light of the relevant principles, discloses sufficient warrant for a broader view of the section and judicial opinion has definitely favoured a wider and liberal construction. The section, as it seems to me, has to be liberally construed, though in so doing the Court is not entitled to disregard or sacrifice its terms. It shall have as full a scope as its language permits and, within limits, set by the statutory language, the rule of liberal, construction ought to prevail in the matter of construction of the section.
10. The whole object of this statutory provision is to prevent the intrusion or introduction of a stranger into the family dwelling house. That object is liable to he frustrated -- it will certainly be fully achieved -- if the narrower interpretation is adopted. The language again, though not quite happy, is not altogether incapable of a widermeaning. 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 a partition proceeding where each party who is a co-sharer or 'share-holder', 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 within 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.
11. It has to be remembered also, as pointed out in the cases of -- 'Laxman Dhondopant v. Mt. Lahana Bai', AIR 1937 Nag 4 (E) and --'Abu Isa Thakur v. Dinabandhu Banik : AIR1947Cal426 that the words 'to sue' signify not only 'to prosecute' but also 'to defend' or 'to do something which the law requires for the better prosecution or defence of the cause' Vide Stroud's Judicial Dictionary, Third Edition (1953), Vol. 4, page 2912 where it is said further that 'to sue' is 'sufficiently significant of a defendant and, although, 'generally speaking', those words mean 'to bring actions' and refer to the plaintiff, they 'may be applied' indifferently either to the plaintiff or to the defendant, for the suit of one party or of the other must be followed'. The wider interpretation, suggested above, thus sufficiently satisfies the plain literal test as well and the rule of strict grammatical construction does not necessarily exclude it,
12. Authority again -- at least the trend of recent decisions -- is largely in favour of this connotation and the view that Section 4 applies as well to cases where the stranger purchaser figures as a defendant in the suit for partition has been accepted in at least, three recent cases of this Court, namely, -- 'Satyabhama De v. Jatindra Mohan Deb : AIR1929Cal269 ; -- 'Ram Dulal v. Benode Behari AIR 1949 Cal 245 (H) and : AIR1947Cal426 and also by the Patna and Allahabad High Court in the cases of -- 'Sheodhar Prosad v. Kishun Prasad', AIR 1941 Pat 4 (1) and -- 'Rukmi Sewak v. Mt. Munesari', : AIR1953All332 . by the Nagpur High Court in the case of AIR 1937 Nag 4 (E) and by the Orissa High Court in the case of -- 'Banchhanidhi v. Balaram', : AIR1951Ori180 . The only two reported cases which may be said to have taken a different view are to be found in -- 'Balshet Gopalshet v. Miransaheb', 23 Bom 77 (L) and -- 'Khanderao v. Balkrishna', AIR 1922 Bom 121 (M) but the observations on this point in the Bombay cases are really opposed to the views of this Court, as expressed in the case of AIR 1929 Cal 269 at p. 271 (G), and, although the later of the said two Bombay cases was cited and distinguished by the learned Judges of this Court (Suhrawardy and Jack JJ.), it is perfectly clear that they were not inclined to accept the Bombay view of a limited scope of the section. There are also some observations, apparently to the contrary, in -- 'Kshirode Chunder v. Saroda Prosad', 12 Cal Lj 525 at p. 530 (N); --'Masitullah v. Umrao', : AIR1929All414 and -- 'Subbamma v. Veerayya', AIR 1932 Mad 15 at p, 16 (P) but they were more or less of an incidental character, just casually made when: the particular phrase 'and such transferee sues for partition' was not in dispute and did not strictly come up for consideration.(13) I am quite alive to the fact that, in the above Calcutta case AIR 1929 Cal 269 (G) and also in the Nagpur case AIR 193V Nag 4 (E), cited the transferee defendant had applied for allotment & the decisions were rested on that ground also on the additional reason that it brought the defendant transferee technically within the phrase 'sues for partition' but, in my opinion, the presence or absence of this additional factor does hot make any real difference and the basic reason of the two decisions was the 'reasonable construction' (vide : AIR1929Cal269 ) which obviously meant the wider interpretation of the section (vide : AIR1929Cal269 and AIR 1937 Nag 4 at p. 6 (E)) in the light, of course, of the peculiar nature of a partition suit, as pointed out above. In the other decisions cited, the defendant transferee does not appear to have applied for allotment in the partition suit, brought by the co-sharer, and still the section was held applicable.
14. It may be pointed out further that, in the present 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 a separate allotment for the same and that, the plaintiff and the transferee defendant being the only co-sharers, partition and allotment in the plaintiff's favour would have the automatic effect of partition and allotment of the defendant's share. From this point of view, the suit may be regarded as the transferee defendant's suit for partition, thus bringing him technically also within the phrase 'and such transferee sues for partition.'
15. Before concluding I need only add that the respondent's claim under Section 4, Partition Act is not affected also by any observation in the cases, reported in 46 Cal WN 407 (C) and : AIR1951Cal412 , which were solely concerned with Section 44, Transfer of Property Act.
16. I, accordingly, hold that a member cosharer's suit for partition is well within the ambit of Section 4, Partition Act and the section is not restricted in its application only to suits for partition, actually brought by the stranger purchaser as plaintiff, and is not unavailable against such stranger purchaser simply because he is in the category of defendants in the suit for partition: The same view of the section has been taken by the learned Judges in the Courts below, Their decision, therefore, ought to be affirmed.
17. The appeal thus fails and it is dismissedbut, in the circumstances of this case, I woulddirect the parties to bear their own costs in thisCourt.