1. This appeal arises out of an order passed in a partition suit. The plaintiffs sued for partition of certain property alleging that they were the purchasers of 1/4th share. The suit was contested by defendants Nos. 3 to 5 mainly on the ground that their father was the sole owner of the property. The plaintiff's suit was decreed after contest and the plaintiff's title to 1/2th share of the property in suit was declared. It was farther directed that the plaintiff's share should be valued and the defendants Nos. 3 to 5 would then elect either to purchase that share on that valuation or allow the property to be divided. Against that decree defendants Nos. 3 to 5 preferred an appeal to this Court and the plaintiffs-respondents in that appeal took a cross-objection, one of the grounds of which was ' that the option, restricted to defendants Nos. 3 to 5 alone is not in accordance with law.' The appeal was dismissed in this Court; and the cross-objection was not pressed and was accordingly dismissed. When the case went back to the Sower Court the defendant No. I, who was declared entitled to half the property under the decree, filed a petition expressing readiness to purchase the plaintiff's share, After hearing the arguments on both sides the learned Subordinate Judge directed that if defendant No. 1 and defendants Nos, 3, 4 and 5 both want to buy, the bid of that buyer whose bid would be highest over the valuation made by the Commissioner would be accepted, This order was passed on the 7th September 1920, and it is the order against which the appeal is preferred.
2. The contention on behalf of the appellant is that the order in the preliminary decree restricted the option of purchase to defendants Nos. 3 to 5, and that order having been confirmed on appeal to this Court must be held to be final and binding on defendant No. 1 who was a party to the suit and appeal. In our opinion there is no substance in this contention. We are unable to hold that the Preliminary decree in the suit could take away from defendant No. 1 the option of purchase which was given to him under Section 4 of the Partition Act, 1893. The authority cited by the learned Subordinate Judge Khirode Chandra Ghoshal v. Saroda Prosad Mitra 1 Ind. Cas. 436 : 12 C.L.J. 525 shows that the option of a co-Sharer under Section 4 of the Partition Act can be properly exercised after the preliminary decree. This decision was followed in Fran Krishna Bhaduri v. Keshab Chandra Boy 45 Ind. Cas. 604 : 45 C. 373 : 22 C.W.N. 515 where it was held that the option can be exercised even while the final decree was the subject of appeal in the Appellate Court. The fact that the objection taken by the plaintiffs in appeal was dismissed, is of no assistance to the appellant. The objection was not taken by the defendants, so on the cross-objection not being pressed it would, noli have been open to them to insist on an objection that had been taken by the plaintiffs, Further, as the decree stood, there was no reason why they should take any objection to it, The decree merely declared the right of defendants Nos. 3 to 5, but it did not and could nail take away the right from defendant No. 1.
3. We accordingly hold that the order passed by the lower Court is right and dismiss the appeal wish costs. We assess the hearing fee at five gold mohurs.