Section 4 of the Partition Act, 1893, can be invoked by a member of an undivided family to repurchase a portion of the family property sold to a stranger, even after the passing of the final decree in a partition suit.

A.N.Mukharji, J.

1. This appeal by defendant No. 3 of a partition suit arises out of an application filed by him u/s. 47 of the Code of Civil Procedure.

2. Facts giving rise to this appeal, briefly stated, are as follows:-

- Respondent No. 2 instituted Title Partition Suit No. 35 of 1954 in the court of the Subordinate Judge I, Patna against his brothers the appellant and defendants 1 and 2 for partition of the family property. A preliminary decree for partition was passed on 3-5-1955. The final decree was passed on 10-9-1959. On 18-9-1959, Execution Case No. 73 of 1959 was filed by respondent No. 2 for taking delivery of possession in accordance with the final decree. On 4-2-1962 he executed a sale deed in favour of Shyam Sunder Kuer, respondent No. 1 in respect of two rooms and 2 Kathas of land out of the family property which had been allotted to his share by the final decree. The appellant then filed before the executing court the petition from which this appeal has arisen on 13-9-1963 praying that he be allowed to purchase back the share of respondent No. 2 which he had sold to respondent No. 1. This prayer of the appellant was opposed by respondent No. 1.

3 The learned Subordinate Judge who heard the parties on merit and demerit of the said application dated 13-9-1963 by the appellant rejected it. The grounds which the learned Subordinate Judge has given for rejecting the aforesaid prayer of Defendant No. 3 were:

(i) No suit by anybody far less by the purchaser or the transferee had been filed or was pending on the date of the application.

(ii) The sale deed in favour of Shyam Sunder Kuer, respondent No. 1, was executed long after the passing of the final decree when the partition suit has come to a close and that the undivided character of the family property ceased to exist.

4. Mr. S.C. Chose, learned counsel appearing on behalf of the appellant has urged that there is no substance in the reasons which the court below has given for rejecting the application of the appellant and that the court below was in error in not permitting the appellant to purchase back the property transferred to respondent No. 1 on payment of the proper price to be fixed by the Court.

5. On a perusal of Sec. 4 of the Partition Act (IV of 1893) (hereinafter to be referred to as the Act), it will appear that four conditions should co-exist before an application under that section could succeed. The conditions are: (i) The house should be owned by an undivided family, (ii) The share of a co-sharer should have been transferred to a stranger to the family, (iii) The purchaser should have sued for partition, and: (iv) A member of the family being a share-holder claims or undertakes to buy the share of the stranger transferee. It is necessary to find if all these conditions have been fulfilled in the present case. There is no dispute that defendant No. 3 is a member of the family and that he claims to purchase the share of respondent No. 1 who is a stranger to the family and to whom another member of the family had transferred his share. So two of the conditions mentioned above appear to have been fulfilled in the instant case.

6. Sri Rameshwar Prasad II, learned counsel appearing for respondent No. 1 has, however, urged that in the instant case the suit for partition was instituted by a member of the family of the appellant and not by the transferee, respondent No. 1 and, as such, Sec. 4 of the Act is inapplicable in this case. This is also one of the grounds which the court below has given for rejecting the prayer of the appellant. In my opinion, the court below was in error in holding that Section 4 of the Act is inapplicable in this case as the suit for partition was not filed by the transferee. It may be observed that though on the language Section 4 of the Act applies to a suit for partition filed by a transferee, by judicial decisions this section has been extended to apply to a suit for partition filed by a member of the family as well