LODHA, J. - (1.) THIS appeal raises an interesting question as to the interpretation of sec. 4 (1) of the Partition Act (IV of 1893) which will hereinafter be referred to as 'the Act' ).
(2.) PLAINTIFF Moola and defendant No. 1 and 2 Potu and Loahrey were members of an undivided family. Moola's father Bholuram and defendants Potu and Lohrey's father Kundan were first cousins. The family owned a house in Karauli. Moola had half share and Potu and Loharey had jointly half share in the house. Defendants Nos. 1 and 2 mortgaged their undivided half share with Fakiralal and Ghisiya!al for a sum of Rs. 1500/- by a registered mortgage deed dated 17. 5. 1967. The whole of the house was, however, in possession of Gannulal and Devilal whom it had been rented out, about 10 years prior to the mortgage. PLAINTIFF Moola filed the present suit in the Court of Munsiff, Karauli on 22-1-1968 for partition and separate possession of his half share in the house. On 16 3 1968, defendants Nos. 1 and 2 redeemed the mortgage and sold their half share to Bhagwatilal and his brothers Harcharanlal and Gopal Prasad, sons of the erstwhile tenant Devilal by a registered sale deed dated 16-3-1963. Consequently the plaintiff amended the plaint on 6-5-1968 by substituting the aforesaid purchasers Bhagwatilal, Haricharanlal and Gopal Prasad as defendants 3, 4 respectively in place of the mortgagees Fakiralal and Ghisiyalal. All the defendants resisted the plaintiff's suit. Defendants Nos. 3, 4 and 5 pleaded inter alia in their joint written statement the defendants Nos. 1 and 2 had offered to sell their half-share in the house to the plaintiff and in the alternative also offered to purchase his share, but the plaintiff remained silent and thereupon defendants Nos. 1 and 2 sold their share to them after redeeming the mortgage. The trial court framed 5 issues on 30-8-68. On 30-7-1968 the plaintiff made an application under sec. 4 of the Act that the halfshare of defendants Nos. 1 and 2 sold by them to defendants Nos. 3 to 5 may be directed to be sold to him for a price to be assessed by the Court. This application was opposed by both sets of defendants, who filed separate replies to the application. Defendants Nos. 3, 4 and 5 stated that the valuation of the whole house was not less than Rs. 10,000/-and, therefore, the suit was not triable by the Munsiff Court. They further pleaded that they were prepared to purchase the plaintiff's halfshare in the house for Rs. 5000/ -. After recording the evidence produced by the parties the learned Munsiff, Karauli by his judgment dated 3-6-1970 allowed the plaintiff's application under sec. 4 of the Act and directed defendants Nos. 3 to 5 to execute a sale deed in favour of the plaintiff in respect of the 1/2 share, and get the same registered for a consideration of Rs. 5000/- on or before 22-7-1970 and fixed 7-7-70 for deposit of the sale price Rs. 5000/- by the plaintiff. Aggrieved by the judgment of the trial court defendants Nos. 3 to 5 filed appeal but the learned Additional District Judge, Gangapur City by his judgment dated 12-9-1970 affirmed the judgment of the trial court. Hence this second appeal by defendants Nos. 3 to 5 Bhagwatilal and others. The following two points have been urged by Mr. Rastogi, learned counsel for the appellants: (i) That sec. 4 of the Act does not apply to the present case as the transferee has not sued for partition, and, therefore, one of the essential conditions of the section has not been fulfilled; and (ii) That the house in question is not a 'dwelling house' and therefore too sec. 4 does not apply. I may observe straight-away that there is a sharp cleavage of judicial opinion on the first question. Of course, the present suit has not been instituted by the transferees for partition. They are defendants in the case. The contention of the learned counsel for the appellants is that sec. 4 applies only in a case where the transferee brings a suit for partition. Alternatively he has argued that at any rate if the transferee does not suit file the for partition, he must, even in the position of a defendant, make a claim for partition, but, that in the present suit the appellants who are transferees did not make even a claim for partition. His argument in a nutshell is that sec. 4 of the Act cannot in any case apply to a suit where the transferee does not make a claim for partition either as plaintiff or as a defendant but resists the prayer for partition. In this connection he has argued that the right conferred by sec. 4 of the Act is one of pre-emption which is a weak right, and, therefore, the provisions of sec. 4 must be strictly construed.
(3.) ON the other hand Mr. Agarwal learned counsel for the respondent-plaintiff has contended that sec. 4 of the Act would be applicable even where the suit for partition is brought by a member of an undivided family against a stranger transferee and the latter may not have specifically claimed a share in the residential house. As I have already observed above, the case law is not uniform on the point, and there have been conflicting decisions in the same High Court. Since there is no decided case of our Court and the learned counsel for both the parties have taken pains to place before me ail the relevant case law on the point, I think it proper to discuss some of these cases. In Palshet Gopalshet Sonar vs. Miransahab Valad Badesaheb Daruwale (l) Parsons J. observed that "the District judge applied sec. 4 of the Partition Act (IV of 1893) to this case apparently without noticing that that section in its terms relates only to cases where the transferee sues for partition. " It was held that sec. 2 and not sec. 4 was applicable to the case in as much as the parties were agreed that a division of the house could not conveniently be made, and the Court at the request of the largest share-holder, directed a sale of it. With these observations the case was remanded to the District Court with a direction to determine the market value of the house by a sale by auction and to order sale of the shares to the share-holder, who offered to pay the highest price above that valuation and distribute the purchase money in the proportion of the share owned by each. There is, however, no discussion on the point as to what is meant by the phrase 'sues for partition'. ;