R.P. Mookerjee, J.
1. This appeal is on behalf of the defendants and arises out of a suit for partition of a tank.
2. The plaintiffs' case is that there were other lands near about the tank belonging to the parties, there had been a previous partition of those other lands, but the tank was left Ejmali. The plaintiffs claim two-third share and defendant 1 one-third share in the disputed tank.
3. The defence was that the watery portion of the tank could not be partitioned. Some of the other contentions raised in the plaint which are not material for the present appeal were also contested.
4. The learned Munsif held in favour of the plaintiffs and came to the conclusion that it was not possible to possess the tank in two separate portions. The only way of partitioning the tank was by selling it under the provisions of the Partition Act. The Court further directed that if the parties failed to settle the price of the tank amicably among themselves, a Commissioner would be appointed on the plaintiffs' petition for holding a bid amongst the parties after a valuation was fixed by the Court. The tank would then be sold amongst the parties to the suit and the sale proceeds would be divided amongst them according to their respective shares.
5. After the passing of this preliminary decree, the defendants filed a petition under Section 3, Partition Act on 28th September 1945, for leave to purchase the share of the plaintiffs who had asked for the sale of the tank under Section 2, Partition Act. The learned Munsif, by his order dated 30th November 1915, allowed the defendants' prayer under Section 3(1), Partition Act. The Commissioner was thereupon directed to ascertain the value of the two-third share belonging to the plaintiffs.
6. The plaintiffs preferred an appeal before the Court of the District Judge and the only question agitated was whether the application under Section 3, Partition Act, as made by the defendants, was maintainable in law and also whether the direction given by the learned Munsif for the sale of the two-third share belonging to the plaintiffs was according to law. The learned District Judge came to the conclusion that the defendants' application under Section 3, Partition Act, was not maintainable after the passing of the preliminary decree. The application was accordingly rejected.
7. The defendants have preferred the present appeal before this Count and the only question in issue is as to the scope of Section 3, Partition Act, and the point of time when the defendants must make the application under that section.
8. There is prima facie a broad distinction between the provisions contained in Section 2 and Section 3 read with Section 6, Partition Act, forming practically one group and Section 4 of the same Act on the other. Section 4 applies to the case of a dwelling house, a share of which has been transferred to a stranger and there are certain conditions which must be fulfilled before S. 4 comes into operation. As explained in the case of Kshirode Chunder v. Saroda Prosad, 12 C. L. J. 525 : (7 I. C. 436), the claim must relate to a dwelling house of an undivided family; secondly, some share in it must have been transferred to a stranger; and thirdly, that stranger mast have sued for partition. If reference is made to the provisions contained in Sections 2 and 8 of the Act, it will appear that one of the parties to the dispute may or may not be a stranger to the family. Even if the subject of the dispute is a dwelling house, unless there be a stranger, Section 4 will not be attracted. Section 3 contemplates a request by a party with certain qualifications for the sale of the entire property, in suit. It is significant that this section favours the smaller share-holder at the expense of the larger and the fact of a person owning a larger share is a disability under the section, since such a person is precluded from offering to buy up the interest of the party owning the smaller share.
9. It has been repeatedly held that the application by a party to attract the provisions contained in Section 4 of the Act may be made at any stage of the proceedings. As explained in the case of Kshirode Chunder v. Saroda, Prosad, 12 C. L. J. 525 : (7 I. C. 436), the section does not provide that the application contemplated by it should be made before the passing of the preliminary decree; on the other had, it is obvious that the application cannot be made till the rights of the parties have been determined by the preliminary decree. The question whether a particular property alleged to be joint really possesses that character must be determined before the preliminary decree is made and all questions involving the title of the parties and their eight to any relief within the issues are judicial in character. They must be determined by the Court and such determination is to be made ordinarily by the Court and incorporated in the preliminary decree before any partition can be made or directed. An application under Section 4 cannot therefore, be properly made before it has been declared by the preliminary decree that the plaintiff who is not a member of the family has acquired a valid title to a share thereof and isentitled to claim partition. This view has been accepted by this Court in the case of Hiramoni v. Radha Churn, 5 C. W. N. 128, and also by other Courts, Kadir v. Abdul Rahiman, 21 Mad 639; Abdus Samad v. Abdul Razzak, 21 ALL. 403 and BAI Hirakore v. Trikamdas, 52 Bom 103 : (10 Bom. L. R. 23).
10. An application under Section 2 of the Act can also be made after the passing of the preliminary decree. A Division Bench of this Court had held to the effect in the case of Hiramoni v. Radha, Churn, 5 C. W. N. 128. It was held that the passing of a preliminary decree would not bar an application being made under Section 2 of the Act.
11. Section 3 of the Act, in so fat as it is relevant for the present appeal, is in the following terms :
'If in any case, in which the Court is requested under the last foregoing section to direct a sale, any other share-holder applies for leave to buy at a valuation the share or shares of the party or parties asking for sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sale the same to such share-holder at the price so ascertained and make all necessary and proper directions in that behalf.'
12. The foundation for attracting the provisions contained in Section 3, therefore, is the earlier application under Section 2 of the Act. As already pointed out, an application under Section 2 of the Act may be preferred after the passing of the preliminary decree. It is incontestable accordingly that the procedure laid down under Section 3 may be initiated after an application is made under Section 2 of the Act. The passing of a preliminary decree will not be a bar to S. 3 being attracted.
13. Mr. Sarkar, appearing on behalf of the respondents, however, points out that even if 'this principle be accepted, the election by the defendant afforded under s. 3 of the Act must be exercised immediately after an application under S. 2 of the Act is made and before the order for sale It is contended that as the plaintiffs had, before the passing of the preliminary decree, suggested the sale of the entire property, the tank, and on such suggestion the Court had passed an order for the sale of the property, it was not competent for the defendants to mike an application under 8. 3 of the Act after the preliminary decree had been passed. There is no direct authority of this Court on this point. Reference may, however, be made to the case of Subbamma v. Veerarya, 61 M. L. J. 552: (A.I.R. (19) 1932 Mad. 15), where the Madras High Court observed that as this section favoured the smaller share-holder at the expense of the larger and as under Section 3 of the Act, the plaintiff, although the owner of the larger share, is not entitled to get the property, the Court, should, wherever possible, strive to avoid this result. I do not see any expression used in Section 3, justifying the interpretation put by the Madras High Court on this section. It is not for the Court to enter into a discussion as to the reasonableness or otherwise of a clear and direct provision made, by which one particular party is given an advantage over the other. As indicated in the different cases, while interpreting Section 4 of the Act, the provisions of the Partition Act are to be liberally interpreted so as to apply those provisions to cases which come within the purview of those provisions. There is no reason why a similar interpretation should not be put on the provisions contained in Section 3 of the Act. I do not see any reason why before the sate actually takes place, it will not be open to the defendant to exercise the option which is given to him under Section 3 of the Act.
14. In the case now before me, the plaintiffs had suggested that as they were not in a position to use beneficially the water of the tank, they would rather have the entire tank sold and such a direction was given. If after the expression of such a desire by the plaintiffs, and the preliminary decree is passed by the Court, the defendants make an application under Section 3(1) of the Act, it is not only competent for the Court but the section makes it incumbent on the Court to issue the necessary orders, provided the conditions mentioned in that section are satisfied.
15. Reference may in this connection be made to a decision of this Court in the case of Atual Chandra v. Bhusan Chandra, 44 C. L. J. 47 : (A. I. R. (13) 1926 Cal. 1190), where it was pointed out that Section 2 provides that whenever it appears to the Court that a division cannot reasonably or conveniently be made, the Court, if it thinks fit, on the request of any such shareholder, provided such share-holder is the owner of one moiety or upwards share, may direct the sale of the property. If such a request is made under Section 2, any other co-sharer may apply for leave to buy at a valuation the share of the party asking for sale. There is no restrictive clause in Section 3 limiting the point of time when this application must be made.
16. The difficulty of accepting the contention raised on behalf of the plaintiffs may be further explained if we take an extreme case. The plaintiff in a particular case may contest the title of the defendants or some of them. Until the question of title is decided in the preliminary decree, there can be no question of the defendant exercising the opportunity given to him under Section 3 of the Act in spite of the fact that in the plaint the plaintiff had suggested the sale of the entire property as it was incapable of being used in separate shares by the parties.
17. This appeal is accordingly allowed; the judgment and decree passed by the lower appellate Court are set aside and the direction given by the learned Munsif by his order dated 30th November 1945, is restored.
18. Each party, in the circumstances of this case, will bear the costs of this Court.
19. Leave to appeal under Clause 15, Letters Patent is granted.