Deoki Nandan, J. - (1.) This is a defendants second appeal in a suit for partition. The plaintiff-respondent has been found entitled to 3/4th share in the property in. suit. It has, however, been held that the defendant Ghanshyam Dass, who is the appellant in this Court, is entitled to the benefit of Section 4 of the Partition Act and is as such entitled to purchase the plaintiff's 3/4 share in the property on payment of the price of that share, which has been assessed at Rs. 7650/-. Two questions were raised before the lower appellate court, and they have been reiterated in this Court by the learned counsel for the defendant-appellant. The first question relates to the valuation of the plaintiffs share. The second question is whether the plaintiff is entitled to only 1/2 share in the property or 3/4 share as decreed by the lower appellate court.
(2.) As to the first question, the question about the valuation of the plaintiffs share is obviously a question of fact. The finding of the two courts below is based on an appraisal of the evidence on the record and it has not been shown to me that it suffers from any error of law. As to the second question the plaintiff was admittedly purchaser of 1/2 share of the property but during the pendency of the litigation he purchased the shares of Smt. Javitri Devi and her minor son Rajesh, which were ⅛ each. It was contended that even if the sale of Smt. Javitri Devis l/8th share was valid, that of the minors l/8th share was invalid, because the permission of the District Court was not obtained. That was a contravention of subsection (2) of Section 8 of the Hindu Minority and Guardianship Act. The lower appellate court has, however, held that the transfer of the minors share could not be invalidated on that ground because a transfer in contravention of sub-sec. (2) of Section 8 is, according to sub-sec. (3), only voidable at the instance of the minor or a person claiming under him. The defendant-appellant was not such a person.
(3.) Having heard the learned counsel for the appellant, I find no good reason for differing from the view taken by the lower appellate court. The transfer is only voidable at the instance of the minor. The defendant-appellant was not a person claiming under the minor. The transfer could not, therefore, be avoided at his instance. Moreover, the fact of the transfer does not make any difference to the defendant-appellant. He has been required to pay for and to purchase only the shares of tire co-sharers other than him.;