The valuation of a share of a dwelling house transferred to a stranger for the purpose of purchase by a co-sharer under Section 4 of the Partition Act, 1893, should be based on the market value at the time of the suit for partition.

DAS, J.

( 1 ) DEFENDANT No. 1 has filed this appeal against a decision dated the 16th May, 1959 of Sri R, C. Kar, Second Additional Subordinate Judge of Cuttack, in Title Suit no. 21/55.

( 2 ) THE facts giving rise to this appeal may be stated as follows : One Madhab behera bad three sons, Kapila, husband of Hira (D-3), Bhikari (D-1) and durjodhan (D-2 ). The disputed property is admittedly a residential house situated on the main road at Ranihat, in the town of Cuttack. Madhab Behera was residing in the said premises and on his death his three sons were in possession of the same. Kapila the husband of defendant No. 3 died sometime in 1942 leaving his widow Hira Bewa (defendant 3 ). Dharmananda Natia the plaintiff in this case obtained a Kabala from defendant No. 3 on 15-6-44 for a consideration of Rs. 100/- in respect of one third share of the disputed dwelling house, his case being that there was a previous partition between Kapila and his two brothers and kapila, was given the eastern block, Bhikari the, present appellant the western block and Durjodhan was given the middle block and Kapila's widow being in separate possession of the specific one-third-interest sold the same to the plaintiff for legal necessity and delivered possession thereof in usual course. After the sale deed was executed by Hira, Durjodban instituted a suit in the Court of the Munsiff of Cuttack (O. S. No. 194/47) for setting aside the Kabala executed by Hira in favour of the plaintiff. The said suit having been dismissed both in the trial court as well as in the appellate Court, ultimately came up in Second Appeal (No. 72/50) before Mohapatra, J. who while delivering the judgment on 14-4-54 held that there was no partition by metes and bounds between Kapila and his brothers and that the plaintiff having purchased an undivided interest in the homestead, his only remedy lay in filing a suit for partition in which event defendants Nos. 1 and 2 will have an opportunity of exercising their option to purchase the share of Kapila as contemplated under Section 4 of the Partition Act. In pursuance of the said decree in second appeal, defendant Nos. 1 and 2 started execution Case No. 28/55 in the Court of the Munsif of Cuttack, for delivery of possession of the suit property from the present plaintiff and the plaintiff being faced with such a situation filed the present suit on 29-3-55 praying for partition by metes and bounds the one third interest purchased by him from defendant No.

( 3 ) IN the said suit the plaintiff also claimed that the price of the land having sufficiently gone up, since its purchase, the present price of the land was fixed at rs. 3000/- so far as the share of the plaintiff is concerned. He further claimed Rs. 2000/- for the improvements made by him on the old house standing previously on the suit land.

3. The defendants resisted the claim on the ground that the valuation and the improvement claimed by the plaintiff were exhorbitant and the plaintiff had not made any improvement so as to entitle him to a sum of Rs. 2000/- as claimed by him. Their further contention was that the disputed property being part of their residential house and the plaintiff-purchaser being a stranger to the family, cannot get possession of the same under Section 44 of the Transfer of Property Act; and in case the plaintiff's Kabala (Ext. 2) is held to be valid and legal, this being a residential house, under Section 4 of the Partition Act, the defendants had a right to purchase the property in suit and were ready and willing to pay such price as may be fixed by the Court under this section.

( 4 ) THE learned trial court held the suit property to be a residential house and the plaintiff to be a stranger-purchaser and the defendants had every right to purchase the share and fixed a sum of Rs. 2000/- as value thereof, Rs. 1300/-, being the price of the homestead and Rs. 700/- being the valuation of the house standing thereon and directed defendant No. 1 to dep