The main legal point established in the judgment is that for Section 4 of the Partition Act, 1893 to be applicable, the transferee must sue for partition, and the co-sharer cannot seek a pre-emptory right to purchase if the transferee has not sued for partition.

Hemant Gupta, J. - The plaintiff-decree holder filed a suit for partition of the joint property on 11.3.1998. The suit was decreed and the plaintiff; defendant Nos. 1 to 4 and defendant Nos. 5 & 6 were found entitled to 1/6th share each in the suit property vide judgment and decree dated 5.4.1994.

2. In an application for appointment of Local Commissioner, so as to prepare a final decree, the objections were filed by the respondent Heera Lal. The objections were though in the preliminary decree the plaintiff was declared entitled to the extent of 1/6th share in the suit property, but now the plaintiff claims 3/4th share. It was contended that such share could not be claimed by the decree holder without getting the preliminary decree modified. It may be noticed that the petitioner claimed ownership in respect of the share of his sisters on the basis of consent decree suffered by them in his favour. Such objections were dismissed by the learned Executing Court on 31.8.1999 and the plaintiff was found entitled to claim 3/4th share in the suit property.

3. It may be noticed that in the intervening time, the objector Heera Lal has effected sale of his share of the property in favour of Smt. Savitri- respondent No. 2 on 26.2.1997. An application filed by the plaintiff-decree holder to implead the transferee as party in the proceedings for preparation of the final decree was earlier declined by the learned trial Court on 5.2.2000. But later on during the proceedings, the learned trial Court found that the presence of Smt.Savitri would be necessary as the petitioner has filed an objection under Section 4 of the Partition Act, 1893 and that the relief in terms of Section 4 of the Partition Act cannot be granted without hearing the transferee, she was ordered to be impleaded. After considering the stand of the transferee i.e. Smt. Savitri-respondent No. 2, the learned trial Court dismissed the application filed by the petitioner to purchase the share of the transferee i.e. respondent No. 2 as it was found that there is no way to compel the respondent No. 2-Smt. Savitri for taking the consideration amount for the property which was purchased by her from Heera. The said order is subject matter of challenge in the present revision petition.

4. Section 4 of the Partition Act, 1893 (hereinafter referred to as the Act) contemplates that 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 undertakes to buy 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 the willing members of the family.

5. Learned counsel for the petitioner has vehemently argued on the strength of Section 4 of the Act that since respondent No. 2 is purchaser of a dwelling house belongs to undivided family, therefore, the petitioner has a right to buy such share on payment of sale consideration on which the respondent No. 2 has purchased the property. It is contended that right of petitioner to purchase the property is in terms of Section 44 of the Transfer of Properties Act, 1882 (hereinafter referred to as the TP Act) and Section 4 of the Act. Reliance is placed on the Honble Supreme Court judgment reported as "Ghantesher Ghose v. Madan Mohan Ghose and others, 1996(11) SCC 446". On the other hand, learned counsel for the respondent has argued that neither Section 44 of the TP Act nor Section 4 of the Act is applicable in the facts of the present case in as much as the transferee has not sought the partition. It is only in the event of transferee suing for partition, the other co-sharer gets an opportunity to purchase the property. It was pointed out that the principles laid down in Ghantesher Ghose case (supra), are not applicable in the present case as in the aforesaid case, it was the transferee who