ORDER :- Section 4 of the Partition Act, IV of 1893 is very clear that, when the transferee of a share of a dwelling house belonging to an undivided family, who is not a member of that family, sues for partition, the Court is bound to value that share, and to have it conveyed to any member of the family, who is prepared to buy out the transferee. In the present case, the argument on behalf of the transferee, who has instituted this revision proceeding, is that the commissioner who made a report in March 1964, has specifically stated that the two third share purchased by the transferee can be easily severed and enjoyed as a separate share, without disturbing the enjoyment of the one-third share by the other co-parcener or coparceners. In other words, certain features of this dwelling house render it practicable that the two third share may be thus separately enjoyed, by the member of the family to whom it is allotted at the partition, or even by a transferee.

2. But this argument does not really help the revision petitioner. The manifest intention of S. 4 (1) of Act IV of 1893 is that where a transferee sues for partition in respect of an undivided share in a dwelling house, which he has purchased, the members of the family have an option to buy him, because it is in accord with equity and justice that they need not suffer a third party or a stranger to live as a co-dweller, in the same family house. The question has nothing to do with the degree to which that undivided share could be separately enjoyed, or conveniently admits of such enjoyment. The section is perfectly clear, and the transferee of such an undivided share has no right to resist an application by any of the members of the family, who are parties to the partition suit, and who undertakes to buy out the transferee on a just and proper valuation.

3. But, as observed by McLeod, C. J. in Khanderao Dattatraya v. Balkrishna Mahadeo, ILR 46 Bom 341 : (AIR 1922 Bom 121), such an application should be promptly made, and there is no justification for undue delay in making it. The learned Judge stated that "in ordinary cases such an application would be made before any preliminary decree was passed in the suit". In the present case, the application was made only a year thereafter. That does not affect the maintainability of the application, however, for instances are brought to my notice where relief under S. 4 of the Act has been granted even in second appeal.

4. However, it may certainly affect the terms upon which the petitioner in such an application should be permitted to buy out the transferee. After an evaluation of this share by the commissioner, the Court may consider whether the value would have been the same, or lower, at the time of the preliminary decree in 1963. If the present value is higher, the transferee is actually benefited by the delay in making the application, and nothing further need be done. But, if the present value is the same as the value at the time of the preliminary decree, the Court may consider whether the transferee would not be entitled, in equity, to interest on the same at six per cent per annum from the date of the preliminary decree itself. With these observations, the revision proceeding is dismissed. No order as to costs.

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