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HPA International4 , thus, have no considerable bearing on the case in hand.

25. Mr. A.T.M. Sampath, learned counsel for vendor's wife also argued that she had offered as joint owner to the undivided entire property to purchase the half share of her husband under the Partition Act, 1893 and Hindu Succession Act, 1956. He would submit that at the earliest point of time both in a notice as well as in the written statement she has raised the plea of pre-emption to buy her husband's share and demanded the vendee as well as her husband to sell undivided half share to her. In this regard, he further submitted that the property is an undivided dwelling house and the court should not grant specific performance against the co-owners of the family dwelling house. He relied upon Ghantesher Ghosh v. Madan Mohan Ghosh & Ors.5, Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors.6 and Shanmughasundaram & Ors. v. Diravia Nadar (Dead) By LRs. & Anr.7.

26. The above submission was also canvassed before the High Court. The High Court considered this aspect in the following manner :

"It is too premature for the defendant to have invoked the provisions of section 4 of the Partition Act. The plaintiff's right has not been crystallized yet and he cannot at this stage be considered as a purchaser of the undivided interest of the first defendant. In order to validly invoke section 4 of the Partition Act, the following five conditions have to be satisfied :

In our opinion, the High Court has rightly concluded that at the present stage, Section 4 of the Partition Act, 1893 is not attracted. It is only after the sale deed is executed in favour of the vendee that right under Section 4 of the Partition Act, 1893 may be available. Similarly, insofar as vendee is concerned, he has right to apply for partition of the property and get the share demarcated only after sale deed is executed in his favour. Section 44 of the T.P. Act is also of no help to the case of vendor's wife.