P L D 1960 Dacca 15 (PLP)

3. The suit was contested by defendants Nos. 3 and 4 alleging inter alia that by amicable partition two‑thirds of Plot No. 194, and the whole of Plot No. 196 were used to be possessed by Taheran and Mainuddin ; that they sold one‑third of Plot No. 194, and the whole of Plot No. 195 to the defendants in Sravan, 1350 B. S., that on the very date Taheran and Mainuddin executed a bond of security for their share in Plot No. 195 ; that the defendants are entitled to get 42J acres of land at all events; that Mainuddin sold his remaining one‑third of Plot No. 194 to Elahi Bux, father of defendants loos. 3 and 4 in Bhadra, 1350 B. S., that Elahi Bux sold '25 acres of land of it to defendant No. 5 ; and that defendants Nos. 3 and 4 pre‑empted the said '25 acres, and took delivery of possession through Court, and, as such, they are entitled to get '661 acres of land ; and that the defen?dants are entitled to get the full quota of their purchase from Plot No. 195 under the terms of the security deed, as the sale by Taheran and Mainuddin has been challenged by the children of Bhanu.

4. The defence of defendant No. 5 was that the suit was not maintainable as there was ‑no community of interest among the parties to the suit ; that the suit was bad as all the properties had not been brought into hotchpot ; and that the shares specified were not fully correct.

5. Defendant No. 2, son of Kera, filed a petition praying for being transposed as plaintiff No. 4, and for getting a saham jointly with the plaintiffs for his share to the extent of 8 gandas, 2 karas, 2 krantis, which was granted. He also prayed for inclusion of Plot No. 174, which is a tank, in the Partition Suit.

6. The trial Court decreed the suit in preliminary form for partition according to the shares found by it, holding that the plaintiffs were entitled to buy the share in the homestead in Dag No. 195 acquired by defendants Nos. 3 to 5 at a price to be deter?mined by the Commissioner appointed by the Court. `

7. On appeal by defendant No. 5, the lower Appellate Court dismissed the appeal with the modification that C. S. Dag No. 194 should be left out of partition, and that the plaintiffs would not be entitled to buy the share of the defendants in the homestead. It may be noted here that Plot No. 174, a tank, was excluded from partition, to be enjoyed by all the co‑sharers, by both the Courts. Hence, the present appeal at the instance of defendant No. 5, and also a cross‑objection at the instance of the plaintiffs.

8. Mr. Birendra Nath Chowdhury, the learned Advocate for the appellant, contends that the lower Appellate Court erred in law in holding that defendants Nos. 3 and 4 had an interest in Plot No. 195 inasmuch as they had never any occasion to enforce the security bond in respect of Plot No. 195, as no proceedings have been instituted for enforcement of the security bond, Exh. B (1). In order to understand this point, it is necessary to refer to the facts. Taheran, the widow of Bhanu, and Mainuddin transferred the right, title and interest of the minor children of Bhanu agreeing that if the minors, being of age, would refute this transfer, then defendants Nos. 3 and 4 would be compensated out of the share of the transferors in Plot No.

195. In the present suit, the transfer on behalf of the minors has been challenged, and it has been found by the learned Judge that neither the mother nor the uncle Mainud?din had any right to transfer the interest of the minors, and the sale of their interest by these persons void. I fully endorse this view. Hence, I find that it cannot be said that the minor sons did not avoid the sales and there was no occasion to enforce the security bond.

9. Next, it is urged by the learned Advocate that this question has not been properly dealt with by the learned Judge, namely, to what extent defendants Nos. 3 and 4 will be entitled to get a share in Plot No. 195, as the minor children of Bhanu have refuted the sale of their shares. It seems to me that this contention is a sound one, as this aspect of the case has not been properly dealt with. I am of opinion that this case should go back to the lower Appellate Court for determination, the sale by Taheran and Mainuddin of the shares of the minor children, that is, of the plaintiffs being void, whether defendants Nos. 3 and 4 are entitled to get any share out of the homestead Plot No. 195 in view of the security bond exe?cuted by Taheran and Mainuddin in their favour.

10. In the result, the appeal is allowed, but I make no order as to costs. The case is sent back on remand to the lower Appel?late Court to dispose of the appeal only on the question whether defendants Nos. 3 and 4 are entitled to be compensated out of Plot No. 195.

11. Next comes the cross‑objection filed by the plaintiffs. The lower Appellate Court has excluded C. S. Dag No. 194 from the Partition Suit on the finding that there is no community of interest inasmuch as all the parties have no right, title and interest in this plot with which view I am unable to agree. The partition in a suit is an equitable relief, and it should be seen, while decree?ing a Partition Suit, how much equity can be done to the parties without asking them to go to another suit. In this case, it has been found by the learned Judge that some of the parties have no right and title in Plot No. 194, but all the persons having interest have been impleaded in the suit. In my opinion, that finding alone will not exclude Plot No. 194 from partition. The land will be partitioned among the co‑sharers and may be allotted to one or more of the co‑sharers while taking into consideration their shares in other properties. If it be done, the parties will not have a small share in Plot No. 194, but the co‑sharers will have a better and greater slice on partition. Hence, I hold that C. S. plot No. 194 should be included in the Partition Suit.

12. Next point urged is that the lower Appellate Court erred in law in rejecting the application of the plaintiffs under section 4 of the Partition Act, which provides: "Partition suit by transferee of share in dwelling house.‑

(1) 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 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 transferree, make a valuation 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 subsection (1), two or more members of the family being such share‑holders severally under?take to buy such share, the Court shall follow the procedure prescribed by subsection (2) of the last foregoing section."

13. The learned Advocate for the cross‑objectors urges that as the suit for partition has been instituted, not by the transferee, but by a member of the joint family, the plaintiff's application under section 4 of the Partition Act is not maintainable, and, in support of his contention, he has relied on the cases of Kshirode Chunder Ghosal and another v. Sarada Prasad Mitra (12 C L J 525), Latifan?nessa Bibi and others v. Moulvi Abdul Rahman and others (58 C L J 174) and Mian Jaffar Shah v. Mst. Bibi Gulla, daughter of Mohd. Shah (A I R 1943 Pesh. 79), wherein it has been held that the elements which must co‑exist to attract the operation of section 4 of the Partition Act are, first, that the dwelling‑house should belong to an undivided family ; secondly, that a share thereof should have been transferred to a person who is not a member of such family ; and, thirdly, that the transferee should sue for partition.

14. In my opinion, the provision of section 4 of the Partition Act was enacted only to safe‑guard the interest of the members of the undivided family giving an opportunity to purchase the share in the homestead sold by one of the co‑sharers to a stranger. If the contention that section 4 will only come into play when the suit has been instituted by the stranger purchaser, then, in that case, section 4 of the Act will be nugatory inasmuch as when a suit is instituted by a member of joint family for partition, then in that case the stranger‑purchaser will have a share in the dwelling‑house which is not the intention of the Legislature at all. In my opinion, the criterion to decide whether section 4 of the Act will apply or not will be whether the stranger‑purchaser is going to have a share in the dwelling‑house belonging to an undivided family. Secondly, in the present case, as the co‑sharer has instituted the suit for partition, then if application under section 4 of the Partition Act be not allowed, then a stranger will get a share, and he will be able to create disturbance in the peaceful possession of the house, which is not the intention of the Legis?lature. Thirdly, in a suit for partition, all the parties are in the capacity of plaintiff. When a Partition Suit is instituted, every co‑sharer will be entitled to have a share in the joint properties, and will be in a position to proceed with the suit. In this view of the matter, I am inclined to had that section 4 of the Act will come into play not only in the case of a suit instituted by a stranger ?purchaser, but also in a suit instituted by any other co‑sharer of the dwelling‑house. This view of mine finds support in the case of Sheodhar Prasad Singh and others v. Kishun Prasad Singh and others (A I R 1941 Pat. 4) and Satyabhama De v. Jatindra Mohan Deo and others (A I R 1929 Cal. 269).

15. In the result, the appeal is allowed, and the judgment and decree of the lower Appellate Court so far as C. S. Plot No. 194 are set aside and those of the trial Court restored, and, so far as C. S. Plot No. 195, the judgment and decree of the lower Appellate Court are modified to the extent that the plaintiffs are entitled to purchase the share under section 4 of the Partition Act either from defendants Nos. 3 and 4 or 5 or from 3, 4 and 5 and those of the trial Court restored.

16. In the circumstances of the case, I do not make any order as to costs. The parties are to bear their own costs.

17. Leave under Clause 15 of the Letters Patent prayed for by Mr. Bhagirath Chandra Das on behalf of Mr. Chowdhury is refused. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.