- (1.) THE plaintiff-revisionists filed a Civil Suit No. 166 of 1961 in the Court of Munsif Havali, Lucknow claiming partition of the house in dispute alleging that they were the owners of 2/3rd share in the said house and the defendants-opposite-parties were owners of the remaining one-third share (therein. A preliminary decree for partition was passed by the trial Court on 1st December, 1964. THE plaintiffs applied on 4th March, 1965 for making a final decree for partition. Consequently, a Commissioner was appointed to determine the valuation of the house in dispute. According to the opinion of the Commissioner the valuation of the house was Rs. 10. 245/ -. Smt. Mehrunnissa filed an application under S. 4 of the Partition Act praying that she be permitted to purchase the share of the plaintiffs on payment of the value of their share in the house in suit according to the valuation determined by the Commissioner. Smt. Mehrunnissa had also filed an objection against the report of the Commissioner. THE learned Munsif Havali, Lucknow by his order dated 28th October, 1967, disposed of the objections raised against the Commissioner's report as well as the application under Section 4 of the Partition Act. THE operative part of his order was as follows: - "i accordingly confirm the report of the Commissioner regarding valuation of the property in suit which is supported by data. THE property in suit is the entire house and is thus valued at Rs. 10,245/ -. In case the contesting defendant wants to purchase the share of the plaintiffs, they shall pay the price of that portion of the house in suit according to the above valuation. In case the contesting defendant is not prepared to purchase the share of the plaintiffs, the share of the plaintiffs shall be separated according to partition scheme subject to the objection against the same having been disposed of. THE contesting defendant shall intimate his option within a week, failing which the objections against partition scheme shall be disposed of on 25-11-1967. "
(2.) THE opposite-party No. 3 filed a revision against the order dated 28th October, 1967 in this Court being Revision No. 225 of 1967. That revision was dismissed on 9th May, 1973. THE operative part of the order was in the following terms: - "the order of the Court below therefore does not suffer from any jurisdictional error. THE revision has no force and is dismissed. THE applicant is given two week's time to deposit the amount of plaintiff's share, failing which proceedings for partition shall proceed. " Srimati Mehrunnissa then filed a review application which was dismissed for default on 11th September 1974. Smt. Mehrunnissa then moved an application in the Court of Munsif Havali, Lucknow in Suit No. 166 of 1961 for extension of time for depositing the money in the said Court. That application was supported by an affidavit wherein the delay in not making the deposit within the period of two weeks was sought to be explained. The learned Munsif dismissed that application on 14th September, 1976. Smt. Mehrunnissa again filed an application on 21st October, 1976, for reviewing and recalling the order dated 14th September, 1976. This application was allowed by the learned Munsif Havali on 23rd December, 1977. Smt. Mehrunnissa then deposited a sum of Rs. 7,345. 75/- the value of the share of the plaintiffs in the said house. Aggrieved by the order dated 23rd December, 1977, the plaintiffs filed the instant revision petition. In the application for review filed before the trial Court it was contended on behalf of Smt. Mehrunnissa that she came to know of the order only on 26th September, 1974. Thus there was delay of three days, which she tried to explain in the affidavit. The plaintiff however, contested that application on the ground that the defendant No. 3 had failed to deposit the money within the period allowed by the High Court and that the previous application for extension of time had also been rejected by the trial Court. The trial Court observed that the High Court had decided the revision petition on 9th May, 1973 and had granted two week's time to the defendant No. 3 to deposit the amount in question. However, the defendant No. 3 had filed a review application before the High Court which was ultimately rejected on 11th September, 1974. The defendant No. 3 therefore, did not deposit the amount during the pendency of the review application hoping that the order in question might be reviewed in her favour. Her review application was, however, rejected in her absence. Her counsel was also not present. She came to know of the order passed on the review application only on 26th September, 1974 and in the meantime two week's period calculated from 11th September, 1974, expired on 25th September, 1974 but the defendant No. 3 filed an application on 28th September, 1974 and thus there was a delay of three days. The trial Court having found that the delay had been explained condoned it. In my view the Court below had exercised its discretion properly in condoning the delay in making the deposit of the money in question.
(3.) THE learned counsel for the plaintiffs, however, submitted that the Court below had no jurisdiction to condone the delay and extend the period granted by this Court to make the deposit. THE defendant No. 3 with a view to meet this objection had moved an application seeking extension of time and condonation of delay. Section 4 of the Partition Act prevents a transferee of a member of a family who is an outsider from seeking partition of a dwelling house belonging to an undivided family. It provides that where a share of a dwelling house belonging to an undivided family has been transferred to a stranger and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. It is not in dispute in the instant case that the plaintiffs are the transferees of a share of a dwelling-house belonging to an undivided family. The defendant No. 3 has a share in that house which belongs to an undivided family. She, therefore, applied under Section 4 of the Partition Act to buy the share of the plaintiffs. The trial Court had got the valuation of the entire house made. The valuation of the share of the plaintiffs in the said house has thus been determined. The trial Court granted one week's time to the defendant No. 3 to purchase the share of the plaintiffs. The defendant No. 3, however, disputed the valuation of the house determined by the trial Court and challenged the same in revision in this Court. The revision was dismissed and the defendant No. 3 was given two week's time to deposit the amount of the plaintiff's share failing which the proceedings for partition were to proceed. As pointed out in Birendra Nath Banerji v. Smt. Snehalata Devi (AIR 1968 Cal 380), the right of pre-emption under S. 4 of the Partition Act is a fight given by the statute and it subsists so long as the suit remains pending, in other words so long as the suit has not been concluded or terminated by an effective final decree for partition. The defendant No. 3 was asked to deposit in Court the purchase money within two weeks. She, however, did not deposit the amount within that period because in the meantime she filed an application seeking a review of the order. That review application was ultimately rejected on 11th September, 1974. From that date two week's period would have expired on 25th September, 1974. She moved an application on 28th September, 1974 for extension of time to deposit the amount. She has in fact subsequently deposited the amount in the Court below. The trial Court has extended the time. No doubt this Court was not at that stage moved to extend the time but on the advice of the learned counsel for the defendant No. 3 the trial Court was approached to extend the time which was ultimately allowed. The defendant No. 3 had also moved this Court also for extension of time. Keeping in view the facts any circumstances of the case I am of the opinion that the time should have been extended.;