- (1.) THIS is a plaintiff's Second Appeal in a suit for partition of a small double storeyed house, the division of which, according to the common case of the parties, cannot be reasonably and conveniently made. The plaintiff wanted that the first defendant be directed to sell one-half share, which the latter had purchased from the plaintiff's brother for Rs. 3,000/- by a sale-deed dated the 20th July, 1970. The plaintiff claimed that Section 4 of the Partition Act was applicable and the trial Court having accepted the plaintiff's contention decreed the suit giving the plaintiff benefit of Section 4 of the Partition Act by directing the first defendant to sell his share to the plaintiff on deposit of Rs. 3,500/- to be made by the latter within two months from the date of the trial Court's decree. It may be noticed that the second defendant, who is the second defendant-respondent in this Court, was a tenant of a shop forming part of the property, and had thus no direct interest in the litigation.
(2.) THE lower appellate Court found that Section 4 of the Partition Act was not applicable; inasmuch as the present suit was not by the transferee stranger to the family, but by the remaining coparcener member of the family. Having reached that conclusion, the provisions of Sections 2 and 3 of the Partition Act were invoked by the plaintiff who was the respondent before the lower appellate Court. THE lower appellate Court found that the counsel for the parties had conceded that the property is not partible, and that the sale of the property as provided for by Section 2 of the Partition Act, would be more beneficial to the share-holders, and the lower appellate Court proceeded to hold that the proper mode of partition would be to order a sale of the property, as provided in Section 2; but, while dealing with the plaintiff's claim to a prior right to purchase the share of the defendant No. 1 the lower appellate Court held that "the question of offering to purchase the share of defendant No. 1 to the other co-sharers would arise only when a sale is ordered", and that "an order or direction for sale under Section 2 is yet to be made in the decree by this Court and it will be after such a decree is passed that it would be open to the share-holder under Section 3 to offer for buying the share of the other co- sharers. " According to the lower appellate Court, all the co-sharers are entitled, under sub-sec. (2) of Section 3 of the Partition Act, "to make offer to buy the share and the Court will accept the offer of the co-sharers who pays the highest price", and the "the plaintiff has no preferential right of buying property under Section 3. " THE further contention that the plaintiff having already made an offer, the first defendant had no right now to make the offer, was rejected by the lower appellate Court. In the result, the lower appellate Court allowed the appeal and modifying the decree of the trial Court ordered that the property shall be got valued and it shall be offered for purchase to the share-holders, namely the plaintiff and defendant No. 1 and the party offering highest price above the valuation made by the Court shall be allowed to purchase the share of the other party and that "in case non of the parties offer to purchase or the price offered falls short of the market value of the property assessed by the Court, it shall be sold by public auction and the sale proceeds thereof shall be distributed equally amongst plaintiff and defendant No. 1. ". Learned counsel for the appellant first contended that the Full Bench decision of this Court in Haji Sakhawat Ali v. Ali Husain, 1957 All WR (HC) 342 : (AIR 1957 All 356) had been misapplied by the lower appellate Court to the facts of the present case; inasmuch as it was observed by the Full Bench that the benefit of Section 4 could be claimed "if the transferee either sues for partition himself or makes the same claim when he is impleaded as a defendant in such a suit and clarified the position further by saying that the section does not entitle a co-sharer to buy out the stranger tranferee whenever he likes unless the transferee has claimed a partition of his share either as a plaintiff or as a defendant". Learned counsel pointed out that the case of the first defendant was not that the house was not capable of partition; but that by mutual partition between the plaintiff and his brother Raj Narain, who was the first defendant vendor, the property was partitioned into two equal shares some time in the year 1968, by which the shop and half portion of the house adjoining the shop towards the north was allotted to Raj Narains share and the remaining half portion comprising of the double storeyed building of equal value was allotted to the share of the plaintiff and his sons. According to the defendants' case, the plaintiff and his brother Raj Narain had been in actual possession of their respective share. The suit for partition was thus sought to be defeated not on the ground that the house was incapable of partition, but on the ground that it was already divided into two portions and the first defendant was in possession of a separate specific portion sold to him by the plaintiff's brother, of which he was in exclusive possession; and, even in the alternative, the first defendant claimed that in case of fresh partition by Court, the answering defendant would be entitled to get the shop and the adjoining portion of the house allotted to his share on payment of owelty to equalise the share, if necessary. The defendant's case that the house had already been divided in the manner alleged by him was not accepted by either of the two Courts below and it was conceded before the glower appellate Court that the house was not capable of being reasonably or conveniently divided into two equal portions.
(3.) IT was found by both the Courts below that there was no partition as alleged by the first defendant. That finding is of fact and being based on evidence, its correctness cannot be assailed in this Court. The first question, which, therefore, arises for determination in this Second Appeal, is whether Section 4 of the Partition Act could be said to be applicable. The property consists of a shop, which was admittedly tenanted by the second defendant, but it was said that originally the shop was the Baithak or the front sitting room of the family dwelling house and that has been found to be so by the trial Court. The trial Court found that the house was a dwelling house and taking the view that every party to partition suit was in the position of a plaintiff, it held the plaintiff entitled to the benefit of S. 4.;