- (1.) This is an appeal under Clause 15, Letters Patent, from a judgment of Chakravartti J. It is on behalf of defendant 1 in a suit for partition of a dwelling house and certain other properties. Our learned brother in concurrence with the Courts below has rejected the appellant's prayer under Section 4, Partition Act, to buy up the plaintiff's share in the dwelling house, and it is the propriety of this decision that is in question before us in this appeal.
(2.) The facts, which are not now in dispute, are these. One Fakir Ghose and his three brothers Dwarik, Tarini and Ambika held a raiyati holding under a ganti tenure which was owned by one Kalidhan Debi, and their dwelling house stood on a portion of this holding. The ganti tenure was purchased by Fakir. He thereafter died leaving two sons Upen and Nabin as his heirs, who obtained by inheritance each an eight annas share of the ganti and a two annas share of the holding including the homestead. On 12th June 1920, Upen sold his undivided share in both the tenures and the holding including the homestead to one Troilakya who was a stranger to the family. After this sale, Upen left the homestead and Troilakya came to occupy the hut or huts in which Upen used to live. Thereafter, on 11th July 1921, Nabin, the other son of Fakir, sold to the plaintiff Akshoy Kumar Ghosh his undivided share of the tenure and the holding together with the homestead. On 3rd January 1923 Upen, however, repurchased the properties he had sold to Trailokya and came again to live in his old huts in the homestead.
(3.) The plaintiff brought the present suit on 4th March 1940, for partition of the tenure and the holding including the dwelling house except certain khas lands which bad previously been partitioned between the parties. Upen was then dead and his share had devolved on his sons defendant 1 and his brothers. They were joined as defendants, as also the heirs of the brothers of Fakir. In his written statement defendant 1 made a prayer under Section 4, Partition Act for buying up the plaintiff's share in the dwelling house. The learned Munsif refused it on two grounds. Firstly, he said the plaintiff Akshoy was an agnatic relation of the family and a neighbour and therefore not a stranger to the family, and as such the section could not be invoked against him. Secondly, he held that as Upen had sold away his share to a stranger, defendant 1 as the heir of Upen "cannot claim pre-emption at a subsequent period against the purchaser of another co-sharer's interest, viz. the plaintiff in the present case". On appeal by defendant 1, the lower appellate Court put this ground of rejection of the claim of defendant 1 in this way. It said that as Upen had sold away his share to a stranger, there was no joint family property at the date of the plaintiff's purchase, and re-purchase by Upen of his share subsequently did not convert the property again into joint family property. The lower appellate Court did not allude to the ground that the plaintiff was an agnatic relation of the defendants and therefore not a stranger, but assigned an additional reason of its own that as the co-sharers had separate huts of their own, there was no common dwelling house which could attract the operation of Section 4, Partition Act.;