A co-sharer of an undivided family dwelling house is entitled to a decree of pre-emption under Section 4 of the Partition Act only if the stranger purchaser seeks partition or separate possession of his share.

TARUN KUMAR GUPTA, J.

1. The defendants are the appellants against the impugned judgment of concurrence. Respondent as the plaintiff filed a title suit being Title Suit No.47 of 1991 in the Court of learned Assistant District Judge, Baruipur 24 Parganas (S) praying for a preliminary decree of partition as well as a decree of pre-emption under Section 4 of the Partition Act, 1893. The plaint case in short is that the suit property and non-suit properties originally belonged to one Satya Prasad Ghosh and others. They partitioned their properties through a partition deed dated 21st September, 1930. AS per said partition deed, the suit properties and some other properties were allotted to Manmotho Nath Ghosh and another. Manmotho Nath Ghosh executed a will dated 29th November, 1931 appointing Satyendra Kumar Ghosh his executor. Sudhir Kumar Ghosh was the beneficiary under said will, which was duly probated.

2. As per partition deed dated 21st September, 1930 and the will dated 29th November, 1931 the suit properties and non-suit properties devolved upon Sudhir Kumar Ghosh, father of the plaintiff Samarendra Kumar Ghosh and defendant No.1 Ramendra Nath Ghosh. After death of their father, plaintiff and defendant No.1 used to reside in their working place but kept the suit dwelling house as a joint property. The suit property was a joint undivided dwelling house of the plaintiff and the defendant No.1. They appointed one Chapal Kumar Ghosh as caretaker for looking after the suit dwelling house. Defendant No.2 to 4 are the heirs of Chapal Kuamar Ghosh. Said Chapal Kumar Ghosh along with his family members used to reside in the suit property. Later on, defendant No.1 sold out his undivided share in said family dwelling house (bastu) to defendant No.2 to 4 who were nothing but strangers to the family. As defendant No.1 did not agree to partition the suit property and rather sold out his share of undivided dwelling house to the strangers the plaintiff filed this suit praying for a decree of partition in the preliminary form and also for a decree of pre-emption for purchase of the sold out share of the undivided dwelling house from the defendant No.2 to 4.

3. The defendant No.1 filed a written statement admitting, inter alia, that as he was in urgent need of money, he sold out his share of suit dwelling house to defendants No.2 to 4. He has further admitted that though the plaintiff demanded partition but he could not comply said request as he already sold out his share to defendants No.2 to 4. Defendants No.2 to 4 contested the suit by filing a joint written statement. In the written statement, they alleged inter alia that the ancestral property of the plaintiff and the defendant No.1 was already partitioned between them by a partition deed on the strength of which the suit property fell in the share of the defendant No.1. Their father Chapal used to reside in the suit property with his family members as a caretaker at a salary of Rs.1,200/- p.a. Their father used to repair the house at his own cost and that their father was entitled to get Rs.49,500/- from the plaintiff as his remuneration and cost of repairing of the suit house. Both plaintiff and defendant No.1 had an agreement with their father for selling out the suit property to him. Being close relations they were regarded as family members of the plaintiff and the defendant No.1. Defendant No.1 sold out his portion to those defendants taking market price and that plaintiff is not entitled to get any decree of partition and / or pre-emption.

4. At the time of hearing of the second appeal, substantial questions of law are recasted as follows:-

(a) Whether the learned courts below substantially erred in law by granting a decree of pre-emption under Section 4 of the Partition Act, 1893 in a co-owner's suit though the alleged stranger purchaser did not sue for or claimed partition.

(b) Whether the learned courts below substantially erred in law by declaring the suit property as an