IMPORTANT POINT
Before Section 4 of the Partition Act can be pressed in service by any of the other co-owners of the dwelling house, it has to be shown that the occasion had arisen for him to move under Section 4 of the Act because of the stranger transferee himself moving for partition and separate possession of the share of the other co-owner which he would have purchased.

Headnote:Partition Act, 1893-Section 4-Application to purchase stranger transferee s interest - Condition precedent-Before Section 4 can be pressed into service it must be shown that stranger transferee himself moving for partition and separate possession either as a plaintiff or as a defendant-Suit for partition and separate possession by a family member-Stranger transferee of a part of house not a party to suit-During proceedings for final order after final decree application by family member under Section 4 to purchase interest of stranger transferee-Held, application not maintainable.
       Held : One of the basic conditions for applicability of Section 4 as laid down by the aforesaid decision and also as expressly mentioned in the section is that the stranger transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned. It is, of course, true that in the said decision it was observed that even though the stranger transferee of such undivided interest moves execution application for separating his share by metes and bounds it would be treated to be an application for suing for partition and it is not necessary that a separate suit should be filed by such stranger transferee. All the same, however, before Section 4 of the Act can be pressed in service by any of the other co-owners of the dwelling house, it has to be shown that the occasion had arisen for him to move under Section 4 of the Act because of the stranger transferee himself moving for partition and separate possession of the share of the other co-owner which he would have purchased. This condition is totally lacking in the present case. To recapitulate, respondent No. 1 decree holder himself, after getting final decree, had moved an application under Section 4 of the Act. Appellant, who was a stranger purchaser, had not filed any application for separating his share from the dwelling house, either at the stage of preliminary decree or final decree or even thereafter in execution pro ceedings. Only on this short ground, therefore, the application under Section 4 of the Partition Act has to be treated as not maintainable as held by the Trial Court. (Paras 10 & 11)
       It must be noted that in a partition suit even defendants are as good as plaintiffs and the Court has to ascertain their respective shares in the joint property and subsequently has to separate them by metes and bounds. The Trial Court in the present case has clearly noted that the transferee Kundanbai or Babu Lal were not parties to the suit. Consequently, it could not be said that the transferee stranger purchaser of co-owners interest in the joint property was suing for partition either as a plaintiff or even as a defendant in the suit for partition. Therefore, the application under Section 4 was not maintainable. (Para 12)

ORDER

The short question posed for our consideration in this appeal on grant of special leave under Article 136 of the Constitution of India is as to whether application moved under Section 4 of the Partition Act, 1893 (For short the Act ) by respondent No. 1, who was the decree-holder in the partition suit, was maintainable in law.

2. A few facts leading to this appeal are required to be noted at the outset to appreciate this controversy between the parties.

3. Respondent No. 1 had brought a suit for partition and separate possession of his 1/4th share in a dwelling house situated at Indore in the State of Madhya Pradesh. The said dwelling house consisted of two portions belonging to an undivided family. One portion out of the two portions of the house had been sold to non-applicant No. 3 before the High Court Babu Rao who was a stranger to the family and the rest portion of it had been bought in a court auction in execution of a mortgage decree by one Kundanbai, whose legal representative is the present appellant Babu Lal. The suit filed by respondent No. 1 was dismissed by the Trial Court, but, in appeal a preliminary decree was passed for partition and separate possession of plaintiff-respondent No. 1 s share in the suit property. Pursuant to the said preliminary decree a Commissioner was appointed to effect partition by metes and bounds and to apportion mesne profits among the claimants. One Afzalnoor Khan, the younger brother of respondent No. 1, who was one of the defendants, did not raise any objection, with the result that a final decree in terms of the preliminary decree came to be passed on 5th September, 1967. On 6th May, 1968 respondent No. 1 original plaintiff initiated execution proceedings for effecting the partition by metes and bounds on spot. Certain objections were raised by the appellant. They were overruled and it was found by the Trial Judge on 7th November, 1973 that a supplementary final decree was yet required to be passed. In the meantime, the Commissioner submitted his report alongwith the site plans recommending the partition of the dwelling house.

4. It is pertinent to note that respondent No. 1 raised no objections to the said report of the Commissioner or the plans submitted by him. It was at that stage when the Court was about to close the proceedings by passing appropriate final orders that respondent No. 1 on 18th June, 1976 moved an application under Section 4 of the Act undertaking to buy the share of the appellant stranger transferee of the interest of other defendant Afzalnoor Khan. The said applications was contested by the appellant by submitting that it was not maintainable. The learned Trial Judge accepted the said objection by dismissing the application as not maintainable. The Trial Court took the view that the application under Section 4 of the Act was not maintainable as the appellant-transferee had not sued for partition. In a revision application moved under Section 115, Code of Civil Procedure, 1908 a learned Single Judge of the High Court took a contrary view and held that the application was maintainable as the object of the enactment was to enable member of a family to buy out a stranger transferee from one of the members. The Court further observed that as regards the transferee having not sued for partition, it was not necessary that the transferee as such should have filed a suit. For coming to that conclusion the learned Judge of the High Court relied on a decision of the Orissa High Court in the case of Alekha Mantri v. Jagabandhu Mantri & Ors.1. Accordingly the application was held to be maintainable and the order of the Trial Court was set aside with a direction that the record may be sent to the Trial Judge for making a valuation of the transferee s share in such manner as he may think fit and proceed to deal with the matter as laid down in Section 4 of the Act.

5. It is this decision of the High Court which has been challenged in the present appeal on grant of special

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2000 Supreme(SC) 868

Cases Referred (1)