M.M. Dutt, J.
1. This appeal is at the instance of the defendant No. 10 in a suit for partition. The plaintiff is a purchaser of 4 annas share of Bhupendra Nath Das and others who were admittedly co-sharers of the properties in suit. So far as the plaintiff's share is concerned, there is no dispute that the plaintiff acquired the said 4 annas share. The defendant No. 10 in his written statement submitted that he was entitled to pre-empt the plaintiff's 4 annas share Under Section 4 of the Partition Act inasmuch as the suit property was home-stead of the parties, namely, the defendant No. 10 and his co-sharers. The learned Judge framed an issue being issue No. 2 as follows:--
Is the contesting defendant No. 10 entitled to get relief under Section 4 of the Partition Act?'
The defendant No. 10, however, did not make any application for pre-emption under Section 4 of the Partition Act.
2. By his judgment dated July 20, 1964, the learned Judge determined the shares of the parties. As to issue No. 2, the learned Judge was of the view that the said issue need not be decided at that stage and that it would be decided later at the instance of the contesting defendant No. 10.
3. Under Section 4 of the Partition Act, the shareholder may ask forpurchasing the share of the stranger-purchaser and the court shall make a valuation of such share in such manner as it thinks fit if the shareholder gives an undertaking to court to purchase the share of the stranger-purchaser who is the plaintiff. The defendant No. 10 did not make any such application or give any undertaking in terms of Section 4 of the Partition Act. In our view, the learned Judge was right in observing that the question whether the defendant No. 10 was entitled to relief under Section 4 of the Partition Act would be decided later at the instance of the defendant No. 10. It is obvious that by the observation, the learned Judge meant that the defendant No. 10 was to make an application giving an undertaking to court that he would purchase the share after the valuation was made. It was submitted on behalf of the appellant that the learned Judge was not right in passing the preliminary decree before deciding that issue. We are unable accept the said contention. Unless a undertaking is given by the party claiming to pre-empt under Section 4 of the Partition Act the court is not bound to determine the valuation of the property. The defendant No. 10 could have made the application under Section 4 of the Partition Act even after the preliminary decree but he did not do so. Even now he can make an application under Section 4 giving an undertaking to purchased the share of the plaintiff. In our view the appeal is mis-conceived. We affirmed the judgment and decree of the learned Subordinate Judge and dismiss the appeal with costs.
Arun K. Mukherjea, J.
4. I agree.