P L D 1952 Dacca 419 (PLP)

CHOWDHURY, J.

‑ This appeal is by the plaintiff decree- holder in a partition suit. It arises out of an order of the Subordinate Judge, Bogra, passed on the 28th April 1947, in execution proceeding, giving effect to the prayer of the defendants Nos. 1‑4 to purchase the share of the plaintiff under section 4 of the Partition Act (IV of 1893). The disputed properties consisting of several pucca build ings including pucca cook sheds and pucca privies surrounded by a boundary wall, constituted the homestead and dwelling house of one Abul Hasanat Baharuddin Ahmad who died leaving his widow, minor son and daughters. The appellant who is a stranger to the family, purchased a share in the said dwelling house and the homestead along with other properties. He instituted the Partition Suit No. 42 of 1942, in the Court of the Subordinate Judge, Bogra, for partition against the present respondents and others. The defendants Nos. 1 to 4, the heirs of Abul Hasanat Baharuddin Ahmad, filed an appli cation under section 4 of the Partition Act of 1893, praying for permission to purchase the share of the plaintiff in the dwelling house and the homestead. That application was allowed and a decree in preliminary form was passed by the trial Court directing partition by a Commissioner of the properties in suit and passed the following order : "At the time of partition the Commissioner will ascertain the value of the share in the homestead of the plaintiff in schedule Uma and allot it to the defendant No. 1 if the latter pays its value to the plaintiff." The Commissioner prepared the Saham of the plaintiff in the homestead and valued the same at Rs. 2,310 and submitted his report. The defendants Nos. 1 to‑ 4 took time on two occasions to deposit the said valuation money but could not deposit the same. Thereupon, on the 18th November 1943, the Court passed the following order "Valuation money under the partition has not been deposited by the defendants Nos. 1 to

4. The decree made final according to the Commissioner's report." On the 28th November 1943, the final decree was drawn up and signed. Thereafter the plaintiff, put the decree into execution being other Execution Case No. 80 of 1946 for delivery of possession of his share of the dwelling house. The defendants Nos. 1 to 4 filed an application for permission to deposit Rs. 2,310 the value of the share of the plaintiff, ascertained by the Pleader Commissioner, for purchasing that share under section 4 of the Partition Act (IV of 1943). That application was described as one under section 47 of the Code of Civil Procedure. The Court by its order, dated the 8th March 1947, granted the application and allowed the defendants Nos. 1 to 4 to deposit the amount which was deposited on the 15th March 1947, and the Court by its order, dated the 28th April 1947, directed the plaintiff‑decree‑holder to receive the money on his executing a conveyance in favour of the defendants Nos. 1 to 4 in respect of his share in the homestead holding that relief under section 4 of the Partition Act can be given even after the final decree and the learned Subordinate Judge has relied on the case of Dwarka Das v. Godhana and others 182 I C

55. Against these orders dated the 8th March, 1947 and the 28th April 1947, the plaintiff decree‑holder has preferred this appeal. Mr. Khondkar, the learned Advocate for the appellant, contended that the orders of the lower Court during the execution of the final decree in the partition suit were illegal and without jurisdiction inasmuch as relief under section 4 of the Partition Act could not be given after the final decree, more particularly when the defendant did not avail of the opportunity given to them before the final decree. Section 4 of the Act provides " 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 a transferee sues for partition, the Court shall, if any member of the family, being a share‑holder, shall undertake to buy the share of such a transferee, make a valuation of such a share in such a manner as it thinks fit and direct the sale of such a share to such a share‑holder and may give all necessary and proper directions in that behalf." The terms of section 4 are quite general and the section itself fixes no stage up to which alone the application can be made. Section 4 of the Petition Act has been considered by various High Courts in a series of cases with reference to the facts of each particular case. In none of them the question whether relief under that section can be given after the final decree and during the execution of that decree directly arose and decided. In some cases it was held that an application under section 4 of the Partition Act, should be made before the preliminary decree but in later decisions such as in the case of Kirode Narain Basu and others v. Srimati Mrinalini Dasi and another A I R 1922 Cal. 129, and in the case of Kshirode Chandra Ghosal v. Saroda Prasad Mitra 12 C L J 525, it is held that the option of purchase given under section 4 of the Act is not taken away by the preliminary decree and an application under that section can be made after the right of the parties have been determined by prelimi nary decree. In the case of Pran Krishna Bhandar v. Sarat Chandra Roy and others 22 C W N 515, it is held that the word "Court" in section 4 is not confined to the trial Court but includes appellate Court and the appellate Court like the trial Court is bound to make an appropriate order in pursuance of which the steps necessary to carry out the provisions of the section may be taken either in the one Court or in the other. In that case it appears that the preliminary decree was made on the 20th November, 1913, and then a Commissioner was appointed who made the plan and carried out the division of the property which was subsequently adopted by the Court in the final decree, dated the 28th November, 1913. Though the defendant No. 1 claimed his right to purchase the share in the written statement, he did not take part in the proceeding up to the final decree. From the final decree, however, he preferred an appeal and in the memorandum of appeal a ground was taken and insisted on his right of purchase under section 4 of the Act. It was held by Richardson and Walmsley, JJ. that the defendant was entitled to get the relief under section 4 of the Act. In the case of Bhuvan Mohan Guha and another v. Bro jendra Chandra Ghosh 45 C W N 74, it is held that if an application under section 4, filed after the preliminary decree, is rejected by the trial Court and no step is taken to vacate that order and final decree is passed thereafter, even then the appellate Court in appeal against the final decree can grant the relief under section 4 of the Act and the order rejecting the application, not being a decree, can be challenged in the appeal against the final decree. Of course these are cases where relief under section 4 was granted either after the preliminary decree or after the final decree when that decree was pending in appeal. But the question for our consideration is whether relief can be granted under section 4 of the Act after the decree has become final and during the execution of that decree. The case of Dwarka Das v. Godhana and others (supra), relied on by the learned Subordinate judge and cited in his judgment also does not cover the point under consideration. In that case the applica tion under section 4 of the Act was made after preliminary decree but before the final decree was passed. It was held in that case by the High Court of Allahabad that an application under the section can be made at any stage of the suit and even after a decree is passed. The decree spoken of, with reference to the fact of the case, means the preliminary decree and not the final decree. There is no direct authority on the point under consideration. But the trend of the ratio decidendi is not to limit the operation of that section to any particular stage of the partition proceeding. This question was incidentally referred to in the case of Kshirode Chandra Ghosal v. Saroda Prosad Mitra mentioned above ; but the question was left ‑undecided, as it was not necessary to decide that point in that case. Their Lordships Mukherjee and Carnduff, JJ:, while dealing with the case of Kali Kumar v. Brahmananda 7 C L J 98, referred 'to them in course of argument in support of the view that relief under section 4 cannot be given after the preliminary decree, after discussing other authorities, observed : "The case may at first sight, seem to lend support to the contrary view. The case, however, is really distinguishable, because there the parties had proceeded not merely beyond the preliminary decree but also beyond execution proceeding based thereon and had actually found it necessary to institute a suit under section 331 of the Civil Procedure Code of 1882 by reason of obstruction by a claimant in good faith other than the judg ment‑debtor, it is needless for us to express any opinion upon the question, whether even at such a stage it may not be open to one of the parties to avail himself of the benefit of section 4 of the Partition Act." In the case reported in 7 C L J 98 (sutra), it was held " It is only when the suit is for partition, that a member of a joint family may buy out the plaintiff: under section 4 of the Partition Act. He is not entitled to do so when the suit has been decreed and the decree for possession is being executed." In the case of Khanderao Datta Raya Wakde v. Balkrishna Mahadeb Phulanmbrihar and others I L R 46 Bom. 341, the plaintiff obtained a decree to have his share in the house partitioned. After the partition decree, the defendant No. 2 filed an application under section 4 of the Partition Act asking the execution Court to take action under that section with regard to the share of the plaintiff in the dwelling house. McLeod, C. J. and Shah, J. held " The object of section 4 of the Partition Act is to enable the members of a family to buy out that outsider who seeks partition by having the share valued; and in ordinary cases such an application would be made before any preliminary decree was passed in the suit. In this case the proceeding had gone so far that the Courts decided the question of partition but the method of partition has not been decided. That, however, does not make any difference, as it is not suggested that the application of the 2nd defendant is too late." The two cases cited above indicate, though not specifically, that relief under section 4 of the Act can be given in execution of the decree before possession is delivered to the decree‑holder in the partition suit. In our opinion that should be the limit of the operation of section 4 of the Partition Act, which itself does not fix the stage up to which alone relief can be granted to the applicant, In a partition suit, proceeding continues till delivery of possession is given to the decree‑holder of the share allotted to him in the decree. Till then the plaintiff's title to the specific portion is not perfected. He cannot bring a separate suit for possession, because it would be barred under section 47 of the Code of Civil Procedure as it relates to the execution, discharge and satisfaction of the decree. We do not see any reason to limit the operation of the section up to the stage of final decree in the suit and there is no reason to limit the word " Court " to the trial Court or appellate Court and not to include the executing Court. No authority has been cited before us in support of the view that relief under section 4 of the Act, cannot be given after the final decree. In view of the object and the provisions of section 4 of the Act, we are of opinion that the time for relief under that section is co‑extensive with the partition proceeding which commences from the kuit and terminates with the delivery of possession and can be granted at any stage of the said proceeding in any Court, namely, trial, appellate or executing Court, till it is terminated by delivery of possession of the share of the dwelling house allotted to the plaintiff and the proceeding is finally terminated between the parties. That also seems to be the intention of the Legislature which provides, "When the transferee sues for partition the Court shall make a valuation of such a share . . . . . and direct the sale of such a share to such a co‑sharer and may give all necessary and proper direction in that behalf" and does not limit the operation of that provision to any Court or up to any particular stage of the partition proceeding. The object of the section as observed by Mukherjee and Carnduff, JJ., in the case reported in 12 C L J 525, at page 533 (supra), is to prevent a transferee from a member of a family, who is an outsider, from forcing his way into a dwelling house in which other members of the family, to which his transferor Act, which provides that when the transferee of a share of a dwelling house belonging to an undivided family, is not a member of the family, nothing in the section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. Section 44 of the Transfer of Property Act, denies the right of joint possession to a stranger purchaser who is left only with the right to sue for partition. As this provision was subsequently thought not sufficient to prevent a stranger purchaser from forcing his way to the dwelling house of a family, division of it into unsuitable parcels and introduction A a stranger to the family and an undesirable neighbour, the Partition Act of 1893 was introduced `to the rescue of the members of an undivided family and gave them the right to purchase the shares obtained by a stranger to the family. This view was also taken in the case of Sreemati Satyabhama De v. clatindra Mohan Dey and others 49 C L J 136, following .the case reported in 12 C L J 525 (supra). From this it appears that the intention of the Legislature is to give the members of joint family a relief against the purchaser of the dwelling house who is a stranger to the family. In order that relief may be available to them at any stage of the partition proceeding, the Legislature purposely did not say at what stage relief can be claimed, intending thereby that members of such a family may exercise the option at any stage of the partition proceed ing till it is terminated finally by delivery of possession of the share of the dwelling house to the stranger purchaser. If that be the intention of the Legislature, we do not find any reason to limit the operation of section 4 of the Partition Act up to any particular Court or stage of the partition proceeding which does not dispose of the partition proceeding finally between the parties after delivery of possession of the share of the dwelling house allotted to the stranger purchaser in the final decree. In the case of Sheodhar Prasad Singh and others v. Kishone Prasad Singh and others 190 I C

117. Dhavle, J. of the Patna High Court held : "It has been repeatedly held that an applica tion under section 4 of the Partition Act may be made at the appellate stage or at any stage before the final decree. From the report it appears that relief under section 4 of the Partition Act was claimed for the first time in the Court of appeal. It is clear that the appeal was against the preliminary decree. Though the learned judge observed that it was repeatedly held that an application under section 4 may be made at any stage before the final decree, he does not refer to any authority on the point. It is also clear from the report that the question whether relief under section 4 of the Act, can be given after the final decree or not was not before him. So we take obser vation of the learned judge as obiter dictum which is contrary to the provisions of section 4 as construed above. In the present case the application for relief under section 4 was granted at the time of preliminary decree. But as the defendants Nos. 1 to 4 could not deposit the valuation money, a final decree was drawn up and it appears from the order sheet that the relief was nowhere expressly refused to them. The defendants Nos. 1 to 4 simply prayed for permission, in this execution proceeding, to exercise the option already Granted to them by the Court. In the view taken by us of the provisions of section 4of the Act, we are of opinion that the option of purchase given under that section is not taken away by the final decree aid can be exercised in the executing Court till the execution proceeding of that decree is finally terminated between the parties. There is no question of going behind the decree by the executing Court, as contended by the learned Advocate. The decree is there. The Court is granting relief under section 4of the Partition Act and for that purpose the Court is empower ed under section 4 to give all necessary and proper directions in that behalf. Under section 8 of the Act, any order for sale made by the Court under section 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure. In the order under consideration the learned Subordinate Judge ordered the amending of the final decree and directed the plaintiff: decree‑holder to execute a convey ance on receiving the valuation money deposited by e defendants. That order could not be passed, by the executing Court. The decree will remain as it is, but the decree‑holder will execute the conveyance as directed by the Court in favour of the defendants within the time to be specified by the Court, failing which the Court will execute a conveyance at the cost of the defendants. The order of the Subordinate Judge is to be modified accordingly to the extent stated above and the decree‑holder appellant is hereby directed to execute a con veyance in favour of the defendants Nos. 1‑4 within 3 months from today, failing which the lower Court will execute a conveyance in favour of the defendants Nos. 1‑4 at their cost. Therefore, in view of the conclusion, we have arrived at on the construction of section 4 of the Act, we dismiss the appeal and confirm the judgment and order of the Subordinate judge subject to the modification stated above. In the circumstances of the case, we make no order as to costs. ISPAHANI, J.

‑ I agree. A. H Appeal dismissed.