An application under Section 4 of the Partition Act, 1893, for the purchase of the share of a transferee must be filed before the final decree in a partition suit is passed and not later.

ORDER :- The defendant in O.S. No. 439 of 1967, Sub-Court, Coimbatore, is the petitioner in this civil revision petition. That suit was instituted by the respondent herein for partition and separate possession of his 66/80 share in respect of a house The petitioner, his mother, his two brothers and four sisters were the owners of that property and all of them, excepting the petitioner, executed sales of their shares in the house in favour of the respondent herein, who was stranger to the family. Pursuant to such sales and claiming that the respondent was in joint possession of the house along with the petitioner, the suit for partition, referred to earlier, was instituted by the respondent herein on 5-9-1967. On 16-12-1968, the parties put into court a joint memo to the effect that a preliminary decree for partition may be passed; but the question of past and future mesne profits may be relegated to the final decree proceedings. In accordance with that, the learned Subordinate Judge, Coimbatore, passed a preliminary decree as under :

"(1) That the plaint mentioned properties more fully described hereunder be divided into 80 equal shares and the plaintiff be allotted 66 such shares and the possession of the same be delivered to the plaintiff and

(2) that question of past and future mesne profits be relegated to final decree proceedings and that each parties do bear his own costs".

Pursuant to the preliminary decree, a Commissioner was appointed and he had submitted a report and in accordance therewith, lots were cast and a final decree was also passed on 23-12-1969. Nearly eight years thereafter on 22-11-1977, the petitioner filed an application purporting to be under Section 4 of the Partition Act, 1893, praying that the share of the respondent may be valued and directed to be sold to the petitioner. That application was opposed by the respondent herein on the ground that inasmuch as the final decree in the suit had been passed and an allotment of properties had also been made, the application under S.4 of the Partition Act would not lie. The learned Subordinate Judge sustained this objection of the respondent and held that the petition filed by the petitioner herein under Sec. 4 of the Partition Act is not maintainable and dismissed the same.

2. In this civil revision petition, the learned counsel for the petitioner contends that an application under Section 4 of the Partition Act can be filed at any time, even after the passing of the final decree, but before possession of the properties allotted thereunder is taken. On the other hand the learned counsel for the respondent contends that the passing of a final decree in a partition suit puts an end to the lis before the court and the title of the parties to whom the properties have been allotted thereunder becomes indefeasible and therefore, no application would lie after the passing of the final decree in the suit. Before proceeding to consider these rival contentions, the relevant statutory provision viz., Section 4 of the Partition Act may be noticed. That Section runs as under :

"4 (1). Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a share-holder shall undertake to be the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.

(2) If in any case described in Sub-Section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by Sub-Section (2) of the last foregoing Section ".

Before an application under Section 4 can be successfully maintained, the following conditions must be satisfied : (1) the suit must relate to the dwelling house of an undivided f