HIGH COURT OF ORISSA
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PANIGRAHI, J. -
(1.) THIS revision is directed against an order of the Second Munsif, Cuttack refusing to apply Section 4 of the Indian Partition Act to the proceedings before him.
(2.) THE facts are briefly these. The property in question is a dwelling house belonging to four branches of a family: one -fourth share belongs to defendant No. 1, a stranger; one -fourth share belongs to defendant
No. 5 in his own right; one -fourth to defendants 2, 3 and 4, and the remaining one -fourth was purchased
by the wife of defendant No. 5, who filed the suit for partition in order to buy off the share of defendant
No. 1. A preliminary decree was granted and before the final decree was drawn, up defendant No. 5,
applied under Section 4 of the Partition Act to buy up the share of defendant No. 1, who was a stranger to
the family. The learned Munsif rejected the petition on the ground that as the suit was not instituted by the
stranger -transferee, section 4 of the Act did not, in terms, apply. Hence this revision..
It is contended by Mr. Das Gupta appearing for the petitioner that Section 4 of the Partition Act can be applied in a case where the stranger -transferee is arrayed as a party -defendant as in this case and that the
strict interpretation put upon it by the learned Munsif would result in frustrating the object of the Act. The
Act was designed to prevent the intrusion of strangers into the dwelling -house of an undivided family and
enable the Court to make a valuation if any shareholder under -took to buy the transferred share; and the
shareholder offering to buy it shall be offered such valuation as the court may fix. This was certainly a
beneficient provision intended to allow members of an undivided family to enjoy their property
uninterrupted by strangers. But the language of the Section easily lends itself to the strict interpretation
put upon it by the learned Munsif. The words 'and such transferee sues for partition' are however capable
of the Wider meaning sought to be put upon them by Mr. Das Gupta. The word 'sues' is applicable not
only to a suitor who figures as plaintiff, but is equally applicable to a defendant who carries on his
defence as a suitor. The words 'to sue' not only signify 'to prosecute' but also 'to defend' or 'to do
something which the law requires for the better prosecution or defence of the cause' - See Stroud's
Judicial Dictionary. I am therefore inclined to accept the argument of Mr. Das Gupta that the language of
Schedule does not preclude a defendant from availing himself of the provisions of that Section if the
stranger -transferee happens to be arrayed as a party -defendant and should not be strictly limited only to
those cases where the transferee figures as the plaintiff.
(3.) SECONDLY , in a suit for partition every one of the parties is in the nature of a plaintiff in so far as each one of them wants his share to be partitioned off; and it is only by accident that one of them figures as a
defendant and it is open to him to be substituted as the plaintiff; and even as defendant it is open to him to
press his claim and have his share divided and allotted to him. Mr. Das Gupta has invited my attention to
a case reported in 'Sheodhar Prasad v. Kishun Prasad', AIR (28) 1941 Pat 4: (190 IC 117) where Dhavle,
J., took the same view. The latest case which is very much in favour of Mr. Das Gupta's contention is the
one reported in 'Abu Isa v. Dinabandhu', AIR (34) 1947 Cal 426: (51 CWN 639). Mr. Sinha appearing for
the opposite party relies upon 'Subbamma v. Veerayya', AIR (19) 1932 Mad 15: (136 IC 203), but I am
satisfied that is no authority for the point raised by the petitioner here. I am of opinion that Section 4 of
the Partition Act is equally applicable to all cases where a partition suit is brought and where a
stranger -transferee is a party thereto. There does not appear to be any justification for confining the
operation of Section 4 only to cases of partition suits filed by a stranger transferee alone.;
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