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10. So far as the first point raised by Mr. Roychowdhury is concerned, one must take note of the fact that the different High Courts in India had not construed Section 4 of the Partition Act on the point at issue in a uniform manner. While some had taken the view that the purchaser himself must sue, others had taken a modified view that such a purchaser must at least ask for partition even as a defendant and separate allotment in order to attract the provision. So far as the Calcutta High Court is concerned, it has consistently been held that in order to promote and fulfil its object the section should be liberally construed and irrespective of whether the transferee is the plaintiff or the defendant where the third party transferee is entitled to a share in the family dwelling house by virtue of his purchase, the other co-sharers family members have been held to be entitled to claim the benefit of pre-emption under the said section. In the case of Satyabhama v. Jatindra. AIR 1929 Cal 269. Suhrawardy and Jach. JJ. were called upon to decide this point specifically. In that case one of the co-sharers a defendant in the suit for partition claimed pre-emption not only in respect of the share of the plaintiff but also of the defendants 14 to 19 all of whom were stranger purchasers. The trial court allowed the said claim but on an appeal the learned District Judge set aside the order for pre-emption in respect of the shares of defendants 14 to 19 holding that the trial court was in error in permitting the co-sharer claimant to pre-empt the shares of the other defendants. That decision of the learned District Judge being challenged in this court the learned Judge upheld the claimant co-sharer's claim of preemption in respect of the share of defendants 14 to 19 as welt. In dealing with an objection raised on behalf of the respondents in the said appeal to the effect that the respondents not having brought a suit for partition Section 4 of the Partition Act can have no application the learned Judges observed : "If effect is given to the respondent's contention the result will defeat the object of the legislature to secure indivisibility of a dwelling house. It is possible that two persons outside the family buy two shares of two members of the family and one of them brings a suit for partition making the other a defendant and if his right to purchase the share of dwelling house fails on any account the stranger defendant may yet be given a share in the dwelling house because he does not happen to be a plaintiff in the suit. This is certainly not what the legislature intended and we must try to put a reasonable construction on the acts of the legislature." The basic reason given by the learned Judges in arriving at the aforesaid conclusion is that a party in a partition suit whether a plaintiff or a defendant is at the same time a plaintiff as well as a defendant and this dual capacity of a party in a partition suit does not preclude even defendant who claims a share in the dwelling house from being treated as plaintiff for the purpose of Section 4 of the Partition Act. In a number of cases following this decision, this court pointed out that the expression 'to sue' may be applied indifferently either to the defendant or plaintiff and the words 'to sue' not only signify 'to prosecute' but also 'to defend'. In that sense even where the third party purchaser is defending a suit for partition his share is liable to be pre-empted under Section 4 of the Partition Act. In defending such a suit such a defendant need not necessarily himself claim partition or separate allotment.

12. In still later years a question was further raised as to whether in order to attract the provision of Section 4 of the Partition Act to a suit where the stranger purchaser was a defendant, it was necessary that such a defendant should expressly claim a share on partition and allotment. Here again the consistent view expressed by this court had been that it is not necessary that the stranger purchaser as defendant must necessarily claim partition and allotment. In the case of Ramdulal v. Benode Behari. AIR 1949 Cal 245. Henderson. J. expressly held as such when he upheld the claim of preemption by a co-sharer defendant as against defendant No. 1 who was a stranger purchaser but who was not appearing a contest. In the case of Abu Isa Thakur v. Dinabandhu, AIR 1947 Car 426. G. N. Das. J., held as such when the learned Judge referring to the object of the section as pointed out by Sir Ashutosh Mookerjee observed that the said object would be frustrated if by chance a stranger forces himself to the dwelling house and drives a co-sharer to file a suit as the plaintiff. In the case of Haradhone v. Ushacharan (supra) P. N. Mookerjee. J. expressed the same view. In that case, the third party purchaser having obtained an ex parte decree for possession entered into joint possession in execution of the decree with the co-sharer who then claimed a right of pre-emption which was ultimately upheld by his Lordship.

14. That was the view of this court and the consistent view too as pointed out in the case of Surendra N. Achar v. Ram Chandra Hazra (19711 75 Cal WN 195, until a note of inconsistency had unfortunately been introduced by the decision relied on by Mr. Roychowdhury in the case of Netai Das v. Hari Das (ILR (1967) 2 Cal 301) (supra). The view earlier taken by this court was not shared by the Bombay and Madras High Courts. In its later decisions this court was quite aware of the said position but still the said principle was consistently adhered to. In the case of Netai Das v. Hari Das, the learned Judges in para. 7 expressly took note of the fact that the view of this court was different not only from the view of Bombay and Madras High Courts but also from the view expressed by the Allahabad High Court in the case of Sakhawat Ali v. Ali Hossain, (FB). It is, however, difficult for us to appreciate how even after taking note of such a different view of this court in existence, the learned Judges without any reference being made to any larger bench went on to adopt the view of the Allahabad High Court in their conclusion. In the concluding part of the decision (vide para 17, the learned Judges observed that in order to attract Section 4 of the Partition Act "it must appear to the court that the stranger transferee has claimed or is claiming partition and separate allotment," and that application of the said section in a case in which the stranger transferee does not claim or is not claiming partition and separate allotment is unwarranted by the language of the statute. In our view, the learned Judge introduced a limitation in the matter of construction of Section 4 of the Partition Act, which is not only not consistent with but is contrary to the earlier decisions of this court. Though most of the earlier decisions were referred to they were being distinguished on grounds which are not really grounds for distinction. Thus the decision in Satyabhama's case was distinguished on the ground that there the stranger purchaser had applied for a share in the dwelling house. But the fact that the stranger purchaser had applied for a share was not the real foundation for the decision in that case as rightly pointed out by a Division Bench of the Orissa High Court in the case of Alekha Mantri v. Jagabandhu. AIR 1971 Orissa 127. The contrary view, on express consideration of the point by Henderson, G. N. Das and P. N. Mukherji, JJ. was not overruled.

15. Moreover, in interpreting Section 4 of the Partition Act, the learned Judges expressed themselves to say that it should receive a strict construction since that section provides for invasion of legal and private right just contrary to what this court had consistently held earlier as referred to hereinbefore. With great respect for the Judges we are unable to share the view expressed in the case of Netai Das v. Hari Das (ILR (1967) 2 Cal 301) (supra) and we would rather agree with the contrary view expressed in the other bench decision in the case of Sunil Kumar Mukhopadhyay v. Pravash Chandra Mazumdar (supra). In construing the provision, the learned Judges added a gloss to restrict its operation which is not warranted in view of the consistent earlier decisions of this court approved and followed by the Orissa, Patna and Nagpur High Courts. Though we are unable to share the view expressed by the learned Judges in the above case, if we really need to differ from them and base our decision in the present case on such difference of view we would have made a reference to a larger bench. But in the facts of the present case we find that the stranger purchaser himself filed an application on July 29, 1975, in the suit asserting his right of partition as a co-sharer and seeking a further right to purchase the share of the plaintiff by virtue of the position that he was the major shareholder. The fact of making such an application brings the case squarely within the scope of Section 4 of the Partition Act even on the principle enunciated in Netai Das's case. In that view we must overrule the first point raised by Mr. Roychowdhury that the stranger purchaser in the present case being a defendant in a suit for partition, the provision of Section 4 of the partition Act, can have no application.