1. This is an appeal by the plaintiff Niranka Sashi Roy against an order of the lower Appellate Court passed under Section 4 of the Partition Act.
2. The facts of the case are that the plaintiff as a purchaser from a co-sharer of the defendant brought a suit for partition of several plots of land one of which was the homestead of the defendant. The Trial Court dismissed the suit on the finding that the plaintiff and his vendor had failed to prove their title to the lands in suit. On appeal the learned Subordinate Judge held that the plaintiff had succeeded in establishing his title and ordered that the partition should be made. Thereupon a preliminary decree for partition was passed by the Court of Appeal below on the 28th January 1922. On the 18th April 1922 the respondent presented an application before the Court of Appeal below purporting to be one for a review of its judgment praying that an order may be passed under Section 4 of the Partition Act of 1893 enabling the defendant-respondent to purchase the share in the homestead from the plaintiff. In the lands in suit the share of the plaintiff was 8-annas and that of the defendant Swarga Nath Banerjee the remaining 8-annas. The learned Subordinate Judge considered the matter and allowed the defendant's prayer and ordered that the 'respondent be permitted to purchase the share of the appellant in the homestead land on payment of the valuation of the share to be found by the lower Court'. It appears that before this application was made the record had gone down to the Trial Court and certain steps were taken towards the appointment of a Commissioner for partition. Against the order passed by the lower Appellate Court this appeal has been preferred by the plaintiff, and the order of the lower Appellate Court has been assailed on two grounds, first that there was no sufficient ground in law for the review of the judgment and the lower Appellate Court has acted illegally in granting the review and passing the order above referred to; and secondly the case as having gone back to the Trial Court the Court of first appeal had lost its seisin of the case and, therefore, had no jurisdiction to pass the order under the Partition Act.
3. With regard to the first ground we do not feel called upon to express an opinion as to the regularity or otherwise of the proceedings in review taken before the lower Appellate Court. Admitting that these proceedings were irregular we do not think that there is any substance in the objection of the appellant to induce us to interfere with the order passed by the Court below. Section 4 of the Partition Act as have been held in Khirode Chandra Ghosal v. Saroda Prasad 7 Ind. Cas. 436 : 12 C.L.J. 525 requires the presence of 3 conditions before the Court can take action under it: first, that the dwelling house should belong to an undivided family: secondly, that a share thereof should have been transferred to a person who is not a member of such family, and thirdly, that the transferee should sue for partition. All these three requisites exist in the present case. The section directs that if any member of the family being a share-holder undertakes to buy the share of a transferee who is a person not being a member of such undivided family the Court shall direct the sale of such share to such share-holder. It seems to us that the operation of Section 4 of the Partition Act comes into play after the Court has found that the stranger transferee is entitled to partition. In fact no order can be passed under the Partition Act before the Court has found that such a transferee has succeeded in establishing his claim for a partition of the undivided homestead. The provisions of Section 4, therefore, seem to us to be separate and distinct from the decree in the suit. It may be said that it really follows the decree establishing the plaintiff's claim to partition. In our judgment, therefore, though the lower Appellate Court may not be correct in treating the defendant's application as an application for a review of its judgment which it undoubtedly purported to be, that Court had jurisdiction to pass the order under Section 4 even after the passing of the decree.
4. The next objection taken should not also prevail. It is said that the lower Appellate' Court had lost jurisdiction over the case after it had pronounced its judgment and passed the decree in the plaintiff's appeal. As has been held in the case of Pran Krishna Bhaduri v. Keshab Chandra Roy 45 Ind. Cas. 604 : 22 C.W.N. 515 : 45 C. 873 a Court of Appeal is as much entitled to pass an order under Section 4 of the Partition Act as the Trial Court. In that case the prayer was made in the written statement before the Trial Court. But that Court made no order on the prayer. The Appellate Court confirmed the decree of the First Court and passed an order under Section 4 of the Partition Act. An objection was taken that the Appellate Court had no jurisdiction after the final decree in the suit had been made to make an order under Section 4. The learned Judges thought that the word 'Court' is not confined to the Trial Court, but the power conferred by the section may be exercised even by an Appellate Court. This being conceded it now remains to be seen if the lower Appellate Court in this case has lost its jurisdiction to pass the order merely because the record was sent back to the Trial Court and that Court had taken some action in the matter. It is said that the proper Court to which an application under Section 4 of the Partition Act should be made now is the Trial Court. We do not say that that is not the Court to which such an application might be made. In our judgment the right conferred by Section 4 may be exercised at any time before the final allotments take place. But we think in the present case the learned Subordinate Judge did not lose his jurisdiction under Section 4. In the circumstances that have arisen in this case we can not say that the defendant was wrong in inviting the Court of Appeal to pass an order under Section 4 of the Partition Act. The Trial Court, if the application were made to it, might have said that it was bound to carry out the decree of the Appellate Court which was to effect partition of all the properties in suit. If, as has been held, the Appellate Court had jurisdiction to pass the order, we think the defendant has taken the easier course in the matter. The section does not indicate as to when the willingness of a member of a family should be signified to the Judge to enable him to pass an order under Section 4. In the present case we do not think that there was any unusual delay. The defendant considered his position with regard to exercising his right of appeal against the lower Appellate Court's decree and having decided that he should not prefer such an appeal he made the application to that Court under the Partition Act.
5. Conceding for argument's sake that the -proceedings before the Appellate Court have been irregular', as we have found that that Court had jurisdiction under Section 4 of the Partition Act to make the order it did, we think that under Section 99 of the C.P.C. we should not interfere with the order of the Court below as on the merits the plaintiff's case is extremely weak. The homestead is a small plot of land with the requirements for the use of the family. The plaintiff is an Ugra-Kshatriya and the defendant is a Brahmin. It will not be conducive to the happiness of either party to allow them to live side by side with partition walls erected between their rooms.
6. It further appears that after the order was passed by the lower Appellate Court under the Partition Act the plaintiff has reconveyed this property to his vendor presumably, as has been suggested, with a view to avoid the provisions of the Partition Act. We do not think that we should lend countenance to this course.
7. In the above view of the matter we dismiss the appeal with costs. Hearing fee three gold mohurs.
8. There, is an application by respondent No. 2 Radharani Debi who had originally sold her share in the homestead in suit to the plaintiff and who has re-purchased it from him praying that she may be substituted in the circumstances of this case. We have directed under Order XXII, Rule 10 that she be added as an appellant and permitted to continue the appeal.