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J U D G M E N T 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.

In order to answer this moot question, it has to be kept in view what the legislature intended while enacting the Act and specially Section 4 thereof. The legislative intent as reflected by the Statement of Objects and Reasons, as noted earlier, makes it clear that the restriction imposed on a stranger transferee of a share-of one or more of the co-owners in a dwelling house by Section 44 of the T.P. Act is tried to be further extended by Section 4 of the Partition Act with a view to seeing that such transferee washes his hands off such a family dwelling house and gets satisfied with the proper valuation of his share which will be paid to him by the pre-empting co-sharer or co-sharers, as the case may be. This right cf pre-emption available to other co-owners under Section 4 is obviously in further fructification of the restriction on such a transferee as imposed by Section 44 of the T.P. Act. It is true that amongst other conditions, Section 4 requires for its applicability that such stranger transferee must sue for partition and only in that eventuality the right of pre- emption envisaged by Section 4 can be made available to the other contesting Co-owners. In this connection, great emphasis was placed by Dr. Ghosh on the words such transferee sues for partition as employed by Section 4. However, it has to be noted that this section does not provide as a condition for its applicability that such stranger transferee must file a suit for partition. The words transferee sues for partition are wider than the words transferee filing a suit for partition . The latter phraseology is conspicuously absent in the section. The Partition Act does not define the words "suing for partition". The connotation of the term "sue" can be better appreciated by looking at certain standard works defining such a phrase. In Black's Law Dictionary, Sixth Edition, at page 1432 the meaning of the word "sue is mentioned as under

In Satya Narayan Chakravarty vs. Biswanath Paul & Ors. (1974 Calcutta Weekly Notes 871), a Division Bench of the Calcutta High Court observed that so long as the stranger purchaser of decretal rights of one of the co-owners has not taken possession of his allotted share by execution of the said decree, application under Section 4 of the partition Act is maintainable In this connection, it was observed by the Division Bench, speaking through Laik, J., as under :-

"Having considered the scheme of the Partition Act including its object which is to prevent the introduction of any foreign element into the group of family members and its aim which is to maintain homogeneity in respect of the entire family and particularly the provisions of section 4 thereof, which does not indicate a contrary intention and after giving anxious consideration to the principles laid down but following the principle that the residence in a dwelling house of an undivided family should not, if possible (but not contrary to law), be thrown open to a stranger to the family and remembering that the terms of section 4 of the Act are quite general and distinct from a decree passed in a partition suit and holding further the rule that the executing court should not go behind the decree, is inapplicable in an application under section 4 of the Partition Act and not ignoring the provisions of section 44 of the Transfer of Property Act and the rules of pre- emption governing the Muhammandans, Buddhists, Jews, Romans and others and agreeing with respect to the dictum of the judicial committee in 42 IA 10-ILR 37 AM 129 (141) R.C. that the right of pre-emption is a "valuable right" - the object of such a right being the avoidance of a disagreeable stranger (though some may think it an archaism and a clog on freedom of contract) the court held that an application under Section 4 of the Partition Act is maintainable even after the final decree is passed...."

This offer was made by learned counsel for the respondents in consultation with Respondent No 1 who was present in the Court. Dr. Ghosh, learned senior counsel for the appellant, was also agreeable to the said course being adopted. In our view this is a fair stand taken by both the parties to put an end to this litigation which was triggered off as early as on 5.9.1960. It is high time that it reaches its final terminus at least after 36 years. We, therefore, grant application of Respondent No.1 under Section 4 of the Partition Act and direct him to pay Rs.four lakhs to the appellant in full and final satisfaction of his claim and on payment of Rs.four lakhs by Respondent No.1 to the appellant, the appellant shall convey his right, title and interest in the suit house to Respondent No.1 as per Section 4 of the Partition Act. Rupees four lakhs shall be paid by Respondent. No.1 to the appellant by instalments as under :-