Section 4 of the Partition Act applies to suits for partition by family members against stranger transferees, even if the stranger transferee does not claim a partition of his share.

C.M. Lodha, J.-This appeal raises an interesting question ,as to the interpretation of Section 4 (1) of the Partition Act (IV of 1893) (which will hereinafter be referred to as ‘the Act’).

2. Plaintiff Moola and defendants Nos. 1 and 2 Potu and Loharey were members of an undivided family. Moola’s father Bholuram and defendants Potu and Loharey’s father Kundan were first cousins. The family owned a house in Karauli. Moola had half share and Potu and Loharey had jointly half share in the house. Defendants Nos. 1 and 2 mortgaged their undivided half share with Fakiralal and Ghisiya Lal for a sum of Rs. 1,500 by a registered mortgage deed dated 17-5-1967. The whole of the house was, however, in possession of Gannulal and Devilal whom it had been rented out, about 10 years prior to the mortgage, Plaintiff Moola filed the present suit in the Court of Munsiff Karauli on 22-1-68 for partition and separate possession of his half share in the house. On 16-3-1968, defendants Nos. 1 and 2 redeemed the mortgage and sold their half share to Bhagwatilal and his brothers Haricharanlal and Gopal Prasad, sons of the erstwhile tenant Devilal by a registered sale deed dated 16-3-1968. Consequently the plaintiff amended the plaint on 6-5-1968 by substituting the aforesaid purchasers Bhagwatilal, Haricharan Lal and Gopal Prasad as defendants 3, 4 and 5 respectively in place of the mortgagees Fakiralal and Ghisiya Lal, All the defendants resisted the plaintiffs suit. Defendants Nos. 3, 4 and 5 pleaded inter alia in their joint written statement that the defendants Nos. 1 and 2 had offered to sell their half share in the house to the plaintiff and in the alternative also offerred to purchase his share, but the plaintiff remained silent and thereupon defendants Nos. 1 and 2 sold their share to them after redeeming the mortgage. The trial Court framed 5 issues on 30-7-1968. On 30-8-1968 the plaintiff made an application under Section 4 of the Act that the half share of defendants Nos. 1 and 2 sold by them to defendants Nos. 3 to 5 may be directed to be sold to him for a price to be assessed by the Court. This application was opposed by both sets of defendants, who filed separate replies to the application. Defendants Nos. 3, 4 and 5 stated that the valuation of the whole house was not less than Rs. 10,000/-, and, therefore, the suit was not triable by the Munsif Court. They further pleaded that they were prepared to purchase the plaintiffs half share in the house for Rupees 5,000/-.

3. After recording the evidence produced by the parties the learned Munsiff , Karauli by his judgment dated 3-6-1970 allowed the plaintiffs application under Section 4 of the Act and directed defendants Nos. 3 to 5 to execute a sale deed in favour of the plaintiff in respect of the 1/2 share, and get the same registered for a consideration of Rs. 5,000/-on or before 22-7-1970 and fixed 7-7-1970 for deposit of the sale price Rs. 5,000/-by the plaintiff .

4. Aggrieved by the judgment of the trial Court defendants Nos. 3 to 5 filed appeal but the learned Additional District Judge. Gangapur City by his judgment dated 12-9-1970 affirmed the judgment of the trial Court. Hence this second appeal by defendants Nos. 3 to 5 Bhagwatilal and others.

5. Thefollowing two points have been urged by Mr. Rastogi, learned Counsel for the appellants:-(i That Section 4 of the Act does not apply to the present case as the transferee has not sued for partition, and, therefore, one of the essential conditions of the section has not been fulfilled; and (ii) that the house in question is not ft ‘dwelling house’ and therefore too Section 4 does not apply.

6. I may observe straightway that there is a sharp cleavage of judicial opinion on the first question. Of course, the present suit has not been instituted by the transferees for partition. They are defendants in the case. The contention of the learned Counsel for the appellants is that Section 4 applies only in a case where the transferee b