A co-sharer cannot maintain an application under Section 4 of the Indian Partition Act, 1893 in a suit for partition filed by him, unless the stranger-purchaser sues for partition.

( 1 ) THE plaintiff-appellant filed a partition suit on 16-2-1977 along with the prayer for relief under Section 4 of the indian PARTITION ACT, 1893 in respect of the purchase made by the defendant Nos. 1 and 2 on 25-1-1977. The plaintiff alleged that the properties described in Schedule 'ka' and 'kha' of the plaint constituted their ancestral dwelling house and the defendant Nos. 1 and 2 had purchased a portion of the same by the aforesaid deed dated 25-1-1977. Since the respective shares of the parties were not in dispute, so the suit was decreed in its preliminary form on contest but the petition under Section 4 of the INDIAN PARTITION ACT, 1893 as filed by the plaintiff appellant was dismissed on merits. Such dismissal by the trial Court was challenged in appeal. The Court of appeal below affirmed the said order of dismissal. The present second appeal arises out of the judgment and order of dismissal of the said petition under Section 4 of the INDIAN PARTITION ACT, 1893 as filed by the plaintiff appellant. This Court for the purpose of disposal of the above appeal formulated the following substantial questions of law :" 1. Whether the co-sharer plaintiff can maintain the application under Section 4 of the INDIAN PARTITION ACT, 1893 when the said co-sharer himself sues for partition. 2. Whether the Judgment passed by the learned Courts below can be said to be perversed. "

( 2 ) AT the outset, it may be stated that if on the first question it is held that the application by a co-sharer plaintiff in the said partition suit was not maintainable, then the 2nd question need not be answered.

( 3 ) THE first question of law as formulated by this Court obviously arises in view of the recent Supreme Court decision reported in (2000) 8 SCC 330 : (AIR 2001 SC 61) (Gautam Paul v. Debi Rani Paul) wherein it has been held that the right to pre-empt a purchase made by stranger does not arise till such stranger purchaser sues for partition.

( 4 ) MR. Abhijit Banerjee, learned senior advocate appearing on behalf of the plaintiff-appellant sought to distinguish the said decision upon reference to the facts of this case and Section 44 of the Transfer of Property act. Mr. Banerjee referred to that Section 44 of the said Act which provides as under:"transfer by one co-owner where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. "

( 5 ) ACCORDING to him a stranger purchaser of a share of an undivided family dwelling house shall not be entitled to a joint possession of the same by virtue of his purchase as per the 2nd part of Section 44 of the said Act. But if such stranger-purchaser is actually in physical possession of a share of an undivided family dwelling house upon purchase by him, then he is placed in a different footing which will enable the co- sharers of the said undivided family dwelling house to seek relief under Section 4 of the INDIAN PARTITION ACT, 1893 in respect of the sale made in favour of a stranger-purchaser, because the underlying purpose under Section 44 of the Transfer of TRANSFER OF PROPERTY ACT, 1882 is to prevent a stranger-purchaser to come into possession of an undivided family dwelling house. Such provision of Section 44 having been complemented in the provision of Section 4 of the INDIAN PARTITI