A stranger transferee who makes a claim for partition of his share in an undivided family dwelling house, whether as a plaintiff or as a defendant in a partition suit, is considered to have "sued for partition" within the meaning of Section 4 of the Partition Act, and the co-sharers have the right to pre-empt the transferee's share.

Shib Sadhan Sadhu, J.

1. The instant appeal is against an order dated 16.05.2007 passed by the Learned Civil Judge (Senior Division), 9th Court, Alipore, 24 Parganas (South) in Misc Case No.9 of 1999 arising out of Title Suit No.33 of 1997.

2. The factual background leading to this appeal stated in brief is as follows:-

The respondent Nos.1, 2 and 3 namely Smt. Ajanta Dutta, Smt Bipasa Raha and Smt. Monisha Chowdhury respectively had filed a suit (Plaintiffs of Title Suit No.33 of 1997) for partition of their eight (8) anas share in the suit property which is an undivided dwelling house originally owned by two brothers Dilip Kumar Dutta and Pradip Kumar Dutta. Dilip died leaving behind the respondents 1, 2 & 3 as his sole legal heirs while Pradip died leaving behind respondent Nos. 4 & 5 Smt. Gayatri Dutta and Sumit Dutta (defendant Nos.1 & 2 in Title Suit No.33 of 1997). The present appellant Mihir Kumar Das was made Proforma Defendant in that Title Suit No.33 of 1997. After closure of evidence in that suit he produced a certified copy of sale deed showing that he had purchased the share of Pradip in the suit property for Rs.1,80,000/-. Accordingly, he was transposed as defendant No.3. Thereafter, the suit was decreed in preliminary form declaring the eight (8) anas share of the plaintiffs i.e. present respondents 1,2 & 3 in the suit house.

3. During pendency of the suit the respondents 1, 2 & 3 filed an application under Section 4 of the Partition Act for enforcing their claim for pre-emption against the appellant stranger transferee in respect of ½ undivided interest of the original title-holder Pradip Dutta, predecessor-in-interest of the defendants 1 & 2 Smt. Gayatri Dutta and Sumit Dutta. The said application was contested by the appellant by submitting that it was not maintainable. The Learned Trial Judge after taking evidence and hearing the parties allowed the application under Section 4 of the Partition Act holding that the suit house is an undivided family dwelling house, that the ½ share of it was transferred by one of the co-owners in favour of the appellant who is a stranger to the family and that the respondents 1,2 & 3 being the co-sharer members of the family are competent to claim pre-emption and so they are entitled to pre-empt the share of the appellant stranger purchaser and passed order accordingly. Being dissatisfied, the appellant has come up with the present appeal.

4. We have heard Mr. Sudhish Dasgupta, Learned Senior Counsel appearing for the appellant and Mr. Gopal Chandra Ghosh, Learned Counsel appearing for the respondents. Mr. Dasgupta contended that the respondents filed the suit for partition as plaintiffs and the appellant was made a defendant therein. Thus, it cannot be said that the appellant at all “sued for partition”. He vehemently contended further that Section 4 could only be invoked when the stranger transferee “sues for partition”. Therefore, according to him one of such essential conditions for applicability of Section 4 being not satisfied, the Learned Trial Court erred in law in allowing the application under Section 4 of the Partition Act and accordingly, submitted that the impugned judgment is liable to be set aside on this count alone. He relied on the decisions reported in AIR 1957 Allahabad 356 (Sakhawat Ali V. Ali Husain and Others.; (2000) 8 Supreme Court Cases, 330 (Gautam Paul V. Debi Rani Paul and others); and (2002) 9 Supreme Court Cases 477 (Gyan Chand and another V. Sumat Rani and Ors.) in support of his contention.

5. On the other hand Mr. Ghosh in reply submitted that settled legal position is that to invoke Section 4 of the Partition Act, the transferee need not necessarily sue as plaintiff and the word ‘to sue’ may be applied indifferently 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. He submitted furth