The main legal point established in the judgment is the jurisdiction of the lower Appellate Court to pass orders u/s 4 of the Partition Act and the refusal to lend countenance to actions aimed at avoiding the provisions of the Partition Act.

JUDGMENT

1. This is an appeal by the plaintiff Niranka Sashi Roy against an order of the lower Appellate Court passed u/s 4 of the Partition Act.

2. The facts of the case are that the plaintiff as a purchaser from a co-sharer of the defendant brought a suit for partition of several plots of land one of which was the homestead of the defendant. The Trial Court dismissed the suit on the finding that the plaintiff and his vendor had failed to prove their title to the lands in suit. On appeal the learned Subordinate Judge held that the plaintiff had succeeded in establishing his title and ordered that the partition should be made. Thereupon a preliminary decree for partition was passed by the Court of Appeal below on the 28th January 1922. On the 18th April 1922 the respondent presented an application before the Court of Appeal below purporting to be one for a review of its judgment praying that an order may be passed u/s 4 of the Partition Act of 1893 enabling the defendant-respondent to purchase the share in the homestead from the plaintiff. In the lands in suit the share of the plaintiff was 8-annas and that of the defendant Swarga Nath Banerjee the remaining 8-annas. The learned Subordinate Judge considered the matter and allowed the defendant's prayer and ordered that the "respondent be permitted to purchase the share of the appellant in the homestead land on payment of the valuation of the share to be found by the lower Court". It appears that before this application was made the record had gone down to the Trial Court and certain steps were taken towards the appointment of a Commissioner for partition. Against the order passed by the lower Appellate Court this appeal has been preferred by the plaintiff, and the order of the lower Appellate Court has been assailed on two grounds, first that there was no sufficient ground in law for the review of the judgment and the lower Appellate Court has acted illegally in granting the review and passing the order above referred to; and secondly the case as having gone back to the Trial Court the Court of first appeal had lost its seisin of the case and, therefore, had no jurisdiction to pass the order under the Partition Act.

3. With regard to the first ground we do not feel called upon to express an opinion as to the regularity or otherwise of the proceedings in review taken before the lower Appellate Court. Admitting that these proceedings were irregular we do not think that there is any substance in the objection of the appellant to induce us to interfere with the order passed by the Court below. Section 4 of the Partition Act as have been held in Khirode Chandra Ghosal v. Saroda Prasad 7 Ind. Cas. 436 : 12 C.L.J. 525 requires the presence of 3 conditions before the Court can take action under it: first, that the dwelling house should belong to an undivided family: secondly, that a share thereof should have been transferred to a person who is not a member of such family, and thirdly, that the transferee should sue for partition. All these three requisites exist in the present case. The section directs that if any member of the family being a share-holder undertakes to buy the share of a transferee who is a person not being a member of such undivided family the Court shall direct the sale of such share to such share-holder. It seems to us that the operation of Section 4 of the Partition Act comes into play after the Court has found that the stranger transferee is entitled to partition. In fact no order can be passed under the Partition Act before the Court has found that such a transferee has succeeded in establishing his claim for a partition of the undivided homestead. The provisions of Section 4, therefore, seem to us to be separate and distinct from the decree in the suit. It may be said that it really follows the decree establishing the plaintiff's claim to partition. In our judgment, therefore, though the lower Appellate Court may not be correct in treating the defendant's applicat