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3. The opposite party No. 2 being the stranger purchaser has opposed the application. Though in the trial Court no plea was raised that the application was not entertainable on the ground that the opposite party No. 2 neither filed the suit for partition nor prayed for separate allotment, such a contention was raised for the first time in revision before the Division Bench and the Learned Judges of the Division Bench have referred the revision application to be disposed of by the larger Bench. Before us Learned Advocate for the petitioners has made two-fold submissions. Firstly there is no question of waiver of the right of preemption because the alleged offer which the petitioners very much dispute was made prior to the transfer and cannot prevent the petitioners from claiming the right of preemption under Section 4 of the Partition Act, which right accrues to petitioners after a co-sharer Bells his share in the undivided family dwelling house to die stranger. Secondly, the series of the decisions of Calcutta High Court beginning from Satyabhama v. Jatindra, AIR 1929 Cal 269 has consistently taken the view that the right of pre-emption is available to a co-sharer even in a case when the stranger purchaser does not himself file the suit for partition and is arraigned as a defendant in a partition suit filed by the co-sharer and that the Division Bench decision of Netai Das v. Hari Das, ILR (1967) 2 Cal 301 should not be accepted as the said decision is against the series of decisions of this High Court Mr. Arun Kr. Matilal learned Advocate for opposite party No. 2 has submitted that plea of waiver can be raised by the opposite party in a proceeding under Section 4 of the Partition Act and if the plaintiffs did not intend to purchase the share of the defendant No. 1 when offered prior to sale to stranger purchaser, they must be deemed to have waived the right and the Learned Subordinate Judge did not commit jany illegality in taking that view. He has also relied upon the Division Bench decision of Netai Das v. Hari Das (supra) but has concluded that in this case the stranger purchaser has in the written statement claimed his share in the property and should be presumed to have prayed for separate allotment and often on the basis of Netai Das's case the claim of the petitioners cannot be refused on that ground

9. The Full Bench of Allahabad High Court in Sakhawat AH v. Ali Husain, has, however, struck a different note. The Full Bench does not fully (Sic) the co-sharer the right under Section 4 even when the stranger purchaser is arraigned as defendant in the suit for partition but the Full Bench has expressed the view that Section 4 does not entitle a co-sharer of an undivided family dwelling house to-buy the share purchased by the stranger purchaser whenever he likes and he cannot exercise such power unless the stranger purchaser is claiming partition of his share in the dwelling house either as a plaintiff or as a defendant.

10. The Division Bench of Calcutta High Court in Netai Das v. Hari Dass, ILR (1967) 2 Cal 301 has followed the Full Bench decision of Allahabad High Court in Sakhawat Ali v. Ali Husain, . The learned Judges have noted that the Calcutta High Court consistently expressed the view that Section 4 should be liberally construed in favour of the co-sharer of the undivided family dwelling house and that the co-sharer has the right to buy the share of the stranger whatever in the said dwelling house irrespective of the fact that the stranger purchaser is the plaintiff or a defendant. The learned Judges have also noted that the Calcutta High Court consistently rejected the narrow interpretations of section 4 of the Partition Act. The learned Judges were also aware that the Full Bench decisions of Allahabad High Court never found favour with the Calcutta High Court. Even then the learned Judges have expressed that it must appear to the court that the stranger purchaser has claimed partition or separate allotment and that application of section 4 in a case where the stranger purchaser does not claim or is not claiming partition and separate allotment is unwarranted by the language of section 4 of the Partition Act. The learned Judges overruled the view expressed in series of decisions beginning from (1910) 12 Cal LJ 525 (Kshirode v. Saroda) that regard being had to the object of section 4 it must be liberally construed. The learned Judges have for the first time observed that Section 4 providing for invasion of legal right of the stranger purchaser must be strictly construed.

12. We are in full agreement with the view expressed in B. Karmakar v. S.N. Pramanik (supra). When from Kshirode v. Saroda (1910) 12 Cal LJ 525 this High Court constantly held that Section 4 should be liberally construed so that the object of Section 4 is not frustrated the learned Judges in Netai Dass's case (ILR (1967) 2 Cal 301) have for the first time struck a different note that Section 4 should be strictly construed as it affects the legal right of the stranger purchaser. The object of Section 4 is to prevent the disintegration of the family dwelling house by preventing to introduce stranger therein. The stranger is adequately compensated by the market value of the property purchased so that dwelling house of the family be preserved. The view that it must be strictly construed and that until and unless the stranger either sues for partition as a plaintiff or asks for separate allotment as defendant (Sic) be accepted then the whole object of Section 4 would be frustrated. In a suit for partition parties are interchangeable. The defendant can, at any time before the decree for partition is finally passed, ask for separate allotment. The right Under Section 4 is available to the co-sharer as soon as a preliminary decree is passed. The defendant may frustrate the right of the co-sharer to buy out the share by not asking for separate allotment up to the last moment. The possibility cannot be ruled out that after the co-sharer's right of pre-emption under Section 4 is rejected on the ground that the defendant has not asked for separate allotment, the defendant could ask for separate allotment. In this way if the view of Netai Dass's case be accepted great injustice will be caused to the co-sharer of an undivided family dwelling house. On the other hand the consistent view of Calcutta High Court is that the words "to sue" would include both "to prosecute" and "to defend" and only if such a view is taken the object of Section 4 is not frustrated. Otherwise there is every possibility of object of Section 4 being frustrated When the liberal interpretation of Section 4 is made that the right would be available to the co-sharer even when the stranger is a defendant, then there is no scope for further limiting the right of the co-sharer that if the stranger purchaser is arraigned as defendant he must apply for separate allotment to give the co-sharer the right to apply under Section 4. In Netai Dass's case the learned Judges appear to accept the view that the right is also available to the co-sharer when the stranger purchaser is impleaded as defendant. In that case there is no reason why any further limitation not contemplated by Section 4 would be placed in exercise of such right.