A co-sharer in an undivided family dwelling house can sue for partition and claim pre-emption under Section 4 of the Partition Act, 1937, even if he is not the transferee suing for partition. The character of an undivided family dwelling house is not lost merely because a portion of it is given on tenancy or used for commercial purposes.

( 1 ) THIS second appeal has been preferred against concurrent judgments of the Courts below. In a suit for partitian by a co-sharer both the Courts below granted him a decree for pre-emption under Section 4, Partition Act.

( 2 ) THE property comprised of two rooms, one on the Ground Floor and another on the First Floor, and a chalaghar on a piece of land measuring 3 decimals only.

( 3 ) THE property originally belonged to one Sashi Bhusan Mondal who died leaving behind him two sons, the plaintiff and Kanai Charan Mondal. Kanai died leaving his son Amarnath. Amarnath sold his eight annas share to defendants on 13. 7. 63. The plaintiff filed this suit for partition and pre-emption.

( 4 ) ADMITTEDLY the property was recorded in the record of right as bastu comprising two rooms and a chalaghar. In the deed of purchase of the defendants the property has been described as bastu. There is no dispute that the property originally belonged to Sashibhusan who died leaving behind him the plaintiff and Kanaicharan. It is not disputed that Sashi's original homestead was swept away by flood in 1320 B. S. and that he lived in this suit homestead thereafter. Evidently the defendants are in occupation of half share of the disputed property as tenants since long and that they are carrying on business there. It is not disputed either that the plaintiff is living in the other half of the suit house with his family since twelve or thirteen years before the institution of the suit.

( 5 ) IT is urged on behalf of the appellant that the plaintiff cannot sue for partition in order to take advantage of the provision of pre-emption as contained in Section 4, Partition Act. A plain reading of Section 4 of course may lend some assurance to the view that a co-sharer can ask for pre-emption only if the stranger purchaser sues for partition. 'the Section reads as follows: "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 sums for partition, the Court shall, if any member of the family being a share holder shall undertake to buy the share of such transferee, 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".

( 6 ) THE words "to sue" may be applied indifferent either to the defendant or the plaintiff and it signifies not only "to protect" but also "to defend" or to do something which the law requires for the better prosecution or defence of the cause (Stroud's Judicial Dictionary ). This interpretation has been adopted in Haradhone Halder v. Umacharan Karmakar (AIR 1955 Cal 292) and Abu Isha Thakur v. Dinabandhu Banik (51 Calwn 639 ). In Haradhone Halder (supra) there were only two co-sharers, one original and another by purchase as we find in the instant case. It was held that the original co-sharer can sue for partition and still ask for pre-emption. As pointed out in Abu Isha Thukur (supra), "the object of the section is to prevent intrusion of strangers into the dwelling house of an undivided familly" and that "this object would be frustrated if a stranger purchaser forces himself into the dwelling house of an undivided family, drives other co-owner to file a suit as plaintiff and then figuring as a defendant is allowed to defeat the claim for pre-emption under Section 4". Similar view was subscribed in Satyendu Kundu v. Amar Nath Ghosh and Others, reported in AIR 1964 Cal. 54. It was held that even where a suit for partition was not brought by the transferee but by a member of the joint family Section 4 would apply. In the division Bench decision in Santosh v. Kalipada (AIR 1981 Cal. 278 at 280) Anil Kumar Sen, J. held that a co-sharer can ask for pre-emption whether he is arrayed as a plaintiff or a defendant in a partition suit. In a later Division Bench decision in Goal v. Kalipada (1987- 1 CH