Section 4 of the Partition Act is only attracted when a stranger-purchaser is suing for partitioning off his share as against the joint family. In cases, of partition instituted at the instance of the stranger-purchaser where all the other co-sharers also claim to partition off their shares as well, the right of pre-emption will stand extinguished.

Judgement

RAY, J. :- This second appeal has been filed by defendant 1 against the concurrent judgement of the courts below decreeing the plaintiff's suit.

2. Plaintiff, defendants 1, 4 and 5 are members of a joint Hindu family as would appear from the genealogy given below.

3. The suit-property, sought for partition, comprises of paddy-lands and the homestead of the family, 0.25 decimals in extent. The dispute in the appeal between the parties is confined to the homestead, plot No. 1355, with an area of 0.20 decimals covered by lot No. 2, schedule Kha of the plaint, in respect of which the plaintiff has been allowed relief under S. 4 of the partition Act by the Courts below.

4. The point raised here is whether Section 4 of the Partition Act is applicable to the homestead covered by lot No. 2 schedule Kha as stated above. To decide this question a few facts, which are no longer in dispute, have to be stated.

5. Defendant 1 sold her entire share in the homestead and her interest in other properties of the family to defendant 5 by a Kabala dated 16-2-60. A few months later on 20-5-60, defendant 5 in her turn, sold all the lands got from her mother (D-1) to defendants 2 and 3 under Ext. A. It is admitted by the plaintiff that defendant-1 despite her alienation in favour of defendant-1 and the second alienation made by defendant-5, continued to remain in possession of her share in the homestead. Defendant 1 in her written statement avers that after defendants 2 and 3 purchased her share of the homestead from her daughter (D-5), she continued to live there as a tenant under them by entering into an agreement to that effect with them. The plaintiff filed the present suit for partition and for relief under S. 4 of the Partition Act in respect of the homestead land on 24-6-60 on which date defendant 1 was in possession of her share, though she ascribed that possession of hers as a tenant under defendants 2 and 3. Thus both parties admit the physical possession of the house by defendant 1, though they differed as to the character of such possession. Defendants 2 and 3 in their written statement filed on 26-10-60 while admitting defendants No. 1's permissive possession under them as tenant aver that they do not claim partition of their share equivalent to defendant No. 1's share which they had acquired from defendant No. 5 and on that basis assert that relief under Section 4 of the partition Act is not available to the plaintiff.

6. During the pendency of the suit, defendant 1 took a reconveyance of the suit homestead from defendants 2 and 3 under Ext. B dated 3-2-61. The decree of the trial court directed that the homestead, lot No. 2 of schedule Kha, shall be divided into three equal parts between plaintiff, defendant 1 and defendant 4 and a commission will value the share of defendant No. 1 and upon acceptance of such valuation, the plaintiff was given the right to purchase the same. He. however, found that the defendants 2 and 3 were the real contestants behind the scene and held that Ext. B is not a genuine document. The lower appellate court affirmed this decree and findings of the trial court. He also confirmed the decision of the trial court even on the assumption that Ext. B is a valid and operative document of sale.

7. The appellant raised the following legal contentions : (i) Section 4 of the Partition Act does not apply to the facts of the case, as the conditions imposed by the said section viz., it is only when a transferee from a cosharer institutes a suit for partition that the contesting co-sharers may apply for getting benefit of this provision of the law, is not fulfilled in this case; and (ii) where a transferring cosharer recovers his share in the homestead property after institution of the partition suit no relief under Section 4 of the partition Act can be granted as the basis condition for the application of that law disappears and as such, the court loses its jurisdiction to apply it.

8. On the other hand, it is contende