IMPORTANT POINT
Section 4 of the Partition Act can validly be pressed in service by any of the co-owners of the dwelling house belonging to undivided family pending the suit for partition till final decree is passed and thereafter even at the stage of execution of the final decree for partition so long as the execution proceedings have not effectively ended and the decree for partition has not been fully executed.

JUDGMENT

Majmudar, J.-A short question falls for determination of this Court in this appeal by special leave against the decision of the Division Bench of the High Court of Calcutta in Civil Revision Application No. 2250 of 1987. The question is whether Section 4 of the Partition Act, 1893 (hereinafter referred to as the Act ) can be pressed in service in execution proceedings arising out of a final decree for partition, by one of the co-owners of a dwelling house belonging to an undivided family against a stranger transferee of a share therein belonging to another erstwhile co-owner of the said dwelling house. The learned Second Assistant District Judge, Howrah, before whom the said application was moved took the view that Section 4 of the Partition Act could not be pressed in service against the stranger purchaser of such share. The said view was not accepted by the Division Bench of the High Court of Calcutta by the impugned judgment.

2. In order to appreciate the correct contours of the controversy in respect of the aforesaid question, it is necessary to glance through a few background facts leading to the proceedings. The premises in question are a residential house situated at No. 6/1 Ghoshal Bagan Lane, Howrah. It was originally owned by one Kalipada Ghosh and on his death his three surviving sons, namely, Pran Krishna, Gour Mohan and Kamal Krishna became owners of 1/3rd share each. On 7.9.1948, Kamal Krishna died leaving behind him his widow Smt. Radha Rani. Thus, she inherited 1/3rd undivided share of her husband in the said dwelling house. On the coming into operation of the Hindu Succession Act, 1956, Smt. Radha Rani became full owner of 1/3rd share of her deceased husband in the said house. She filed a suit for partition on 5.9.1960 claiming separation of her 1/3rd share in the said house amongst other properties. In the present proceedings, we are concerned only with the aforesaid family dwelling house. The suit was filed against the other two co-owners, namely, Pran Krishna and Gaur Mohan. Ultimately, after the preliminary decree a final decree came to be passed in favour of Smt. Radha Rani on 31.8.1971. Accordingly, she became entitled to partition and separation of her 1/3rd share in the said dwelling house. She made an abortive attempt to get the final decree executed but therein she did not get any relief of actual possession for number of years. In the meanwhile, on 8.10.1979 she executed and got registered a deed of gift in favour of her brother, the present appellant, gifting her 1/3rd undivided interest in the said dwelling house as decreed to her pursuant to the final decree for partition. Armed with that gift deed, the appellant-donee who obviously was a stranger to the joint family, filed execution petition on 14.12.1981 for executing the final decree obtained by his predecessor in interest, namely, the donor Smt. Radha Rani. Pending the execution proceedings taken out by the appellant-donee, one of the judgment-debtors Pran Krishna, original first defendant, died in July 1983. In his place, his son present Respondent No. 1, Madan Mohan Ghosh was brought on record as his legal heir in the execution proceedings. The executing court by its order dated 17.1.1985 issued a writ of possession by appointing a Pleader Commissioner to undertake the task of suggesting partition of the suit house by metes and bounds. Then in September 1985, pending the execution proceedings original judgment debtor Defendant No. 2 Gaur Mohan also died. It appears that thereafter the real contest remained between the appellant on the one hand and Respondent No. 1 on the other. Respondent No. 1 filed an application on 12.12.1986 before the executing court under Section 4 of the Act for enforcing his claim of pre-emption against the appellant stranger transferee of 1/3 rd undivided interest of the original title-holder Smt. Radha Rani. The executing court by its order dated 13.8.1987 dismissed the said application of Respondent No. 1