- (1.) ATMA Ram filed a suit for partition of a dwelling house and land appurtenant thereto on November 1, 1950. He claimed one third share being a pur chaser from the co-sharer of that share. The suit was contested, inter alia on the ground that the defendants were the owners of the remaining two third share and were entitled to the benefit of Sec tion 4 of the Partition Act, 1893 (Act 4 of 1893). The suit was decreed in June 1959. It appears that the benefit of Sec tion 4 of the Partition Act was not given to the defendants. On appeal filed by them that benefit was given by the ap pellate Court on April 16. 1960. The de cree passed on April 16. 1960 contained a direction to the effect that the valua tion of the plaintiff's share which is one third in the property in suit be deter mined while preparing such final decree. Atma Ram filed a second appeal in this Court which was dismissed on October 17, 1966. A review petition filed by him was dismissed on August 22, 1968 There after, in proceeding which were initiated for preparation of the final decree an ap plication was made by the plaintiff Atma Ram wherein it was stated that in view of the fact that the defendants had sub sequent to the passing of the preliminary decree sold away portions of the land appurtenant to the house to strangers they were consequently not entitled to the benefit of S- 4 of the Partition Act. It was also asserted in the said application that in case the defendants were still held entitled to the benefit of Section 4 aforesaid the value of the plaintiff's share should be determined in accordance with the market value of the property sought to be partitioned as it existed on the date of the preparation of the final decree in asmuch as the prices had considerably gone up during the last about 20 years, that is since the institution of the suit. The trial Court decided this application by its judgment dated April 5, 1971. It repelled the contention of the plaintiff that the defendants were not entitled to the benefit of Section 4 on account of their having sold portions of the land ap purtenant to the dwelling house. It, however, upheld the plaintiff's claim that the value of his share should be deter mined on the basis of the market value of the property in despite an it existed on the date of the preparation of the final decree. Both the parties have at tacked the said judgment the defendants by filing Civil Revision No. 510 of 1971 and the plaintiff by filing Civil Revision No. 616 of 1971. Both these revisions have been heard together.
(2.) SECTION 4 of the Partition Act reads: "4. Partition suit by transferee of share in dwelling house:- Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such trans feree sues for partition, the Court shall, if any member of the family being a share-holder shall undertake to buy the share of such transferee make the valua tion of such share in such manner as it thinks fit and direct the sale of such share to such share- holder and may give all necessary and proper directions in that behalf. (2) If in any case described in sub- section (1) two or more members of the family being such share-holders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section." Sub-section (2) of the last foregoing section, namely, of Section 3 reads: "2. If two or more share-holders severally apply for leave to buy as pro vided in sub-section (1). the Court shall order a sale of the share or shares to the share-holder who offers to pay the highest price above the valuation made by the Court". The principle underlying the| provisions of S. 4 is that the members of a family to which a house belonged should have an opportunity of buying off the stranger who has become a co-sharer in the house. See Lala Dwarka Das v. Godhana. AIR 1939 All 313 and Salim Ullah v. Faqir Ullah, AIR 1948 All 142.
(3.) WHILE interpreting the provi sions of Section 4 it has to be kept in view, as has been observed by a Bench of this Court in Iliyas Ahmad v. Bulaqi Chand. (1917) 15 All LJ 677 = (AIR 1917 All 2) that even though this section was enacted for the benefit of the defen dants in a partition suit it is equally true that it involved a statutory interference with the legal rights of the plaintiff and it is not unreasonable it should be strict ly construed so as to limit that interfer ence. In order to claim the benefit of Section 4 the defendants are under an obligation to pay to the plaintiff such value for his share as may be determin ed by the Court. It is in this background that the respective contentions made by counsel for the parties have to be con sidered.;