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The learned judge ruled that Woodland was not entitled to specific performance of the agreements. The preferential right of Shankar to purchase the interest of Woodland in Lots 1 and 3 of the subject property described in the schedule to the plaint in Suit No. 324 of 1987 under Section 4 of the Partition Act, 1893 was allowed. Woodland was directed to transfer and convey its right, title and interest in those Lots to Shankar at a price to be determined by the Registrar of Assurance, Kolkata. Shankar would have to apply to the Registrar to let him know the market value of the suit premises as on the date of filing the application under Section 4 of the Partition Act. This application had to be made within 7 days from the date of the decree. Within a fortnight from receipt of the market value of the property from the Registrar, Shankar would have to notify this to Woodland. Simultaneously, with the communication of the decision of the Registrar, Shankar would have to forward to Woodland the draft conveyance required to be executed by them. Woodland would have to execute the conveyance within seven days of this communication. Shankar was to make over the consideration simultaneously with registration of the conveyance. There was a default clause if Woodland made default but there was no default clause if Shankar was in default.

In the impugned final decree there was no time limit upon the Registrar to make the determination of market value of the property. The Registrar could not make the determination within reasonable time. At the intervention of the court in a writ the determination was finally made valuing the property at Rs.9,44,69,457/- on 7th August, 2017. In the absence of a time limit upon Shankar to make the payment of the consideration, the decree was flawed, learned counsel submitted. Woodland was not bound by the much delayed determination made in 2017. In those circumstances, Woodland was entitled to partition of the property, he argued. The decisions cited by Mr. Chowdhury will be discussed at a later point of time. Mr. Siddhartha Mitra, learned senior counsel appearing for Shankar submitted that there was a difference between a partition suit and a pre-emption suit. In a suit for pre-emption, usually the plaintiff sues on the basis of a pre-emption right contained in an agreement. That is not the case here. The respondents had made an application under Section 4 of the Partition Act, 1893 in the partition suit filed by Woodland on their purchasing the undivided share of Shankar in the partition suit. In those circumstances, Order 20 Rule 14 of the Code of Civil Procedure did not apply. Going by Woodland's argument, the suit had been instituted by them. Applying the said rule on non- receipt of consideration, their suit had to be dismissed. Furthermore, Woodland had filed a separate suit (CS 267 of 2017) for partition, after filing of the appeal. In those circumstances, this appeal had become academic. Whether the appellant was entitled to partition or not in the above facts and circumstances of the case would be decided in the said suit. That was the reason, according to Mr. Mitra why Woodland had not filed the paper books in these appeals for a long time and took extension of time from this court to file the same. Shankar had also filed a suit (CS 247 of 2017) against the Registrar of Assurances and Woodland (as proforma defendant) for valuation of the undivided share in the said premises in terms of the impugned decree.

This is provided in Section 4 of the Partition Act, 1893. If the transferee sues for partition, any member of the undivided family can buy his share upon the court making a valuation thereof and upon payment of such value as consideration. These provisions of different statutes are interconnected.

In my opinion, Order XX rule 14 is inter alia about a pre-emption suit by a co-sharer of a property which is not owned by an undivided family to buy the share of a transferee who has obtained possession under the first part of Section 44 of the said Act. The co-sharer can buy out the transferee by paying the agreed consideration. If such payment is made by the specified day he gets possession. If the payment is not made, the suit is dismissed.

"2. In so far as the first point urged in support of the Rule is concerned, it is clear that the application, under Section 4, of the Partition Act, has been made at the proper stage. Section 4 does not provide that the application contemplated by it should be made before the preliminary decree; on the other hand, it is obvious that the application cannot be made till the rights of the parties have been determined by the preliminary decree. To take one illustration it is conceivable that there may be a dispute between the parties as to whether the plaintiff has really acquired any interest in the dwelling house or not, and whether, he is entitled to demand a partition of it. Such question must, clearly, be determined before a defendant can be expected to make an application under Section 4. As was pointed out by this Court in the case of Satya Kumar v. Satya Kirpal 10 C.L.J. 503 : 3 Ind. Cas. 247, the question, whether a particular property alleged to be joint really possesses that character, must be determined before the preliminary decree is made; all questions involving the title of the parties and their right to any relief within the issues, are judicial in character, and must be determined by the Court, such determination to be made ordinarily by the Court, and incorporated in the interlocutory decree before any partition is made or directed. An application, under Section 4, therefore, cannot be properly made, before it has been declared by the preliminary decree, that the plaintiff, who is not a member of the family, has acquired a valid title to a share thereof, and is entitled to claim partition. This view has been adopted in the cases of Hira Moni v. Radha Charn 5 C.W.N. 128; Kadir v. Abdul Rahiman 24 M. 639, Abdus Samad v. Abdur Razzaq 21 A. 409 and Bai Hirakore v. Trikamdas 32 B. 103 : 10 Bom. L.R. 23 : 3 M.L.T. 141, where it was ruled that an application, under Section 2 or Section 4 of the Partition Act, may be made after the preliminary decree. The case of Kali Kumar v. Brahmananda 7 C.L.J. 98, where the earlier authorities do not appear to have been brought to the notice of the Court, may, at first sight, seem to lend some support to the contrary view. The case, however, is really distinguishable, because there the parties had proceeded, not merely beyond the preliminary decree, but also be-yond execution proceedings based thereon, and had actually found it necessary to institute a suit under Section 331 of the Civil Procedure Code of 1882, by reason of an obstruction by a claimant in good faith other than the judgment-debtor. It is needless for us to express any opinion upon the question, whether, even at such stage, it may not be open to one of the parties to avail himself of the benefit of Section 4 of the Partition Act. There can, however, be no room for controversy that the application in the case before us, made immediately after the confirmation of the preliminary decree by the Court of appeal, was amply in time, and ought to have been considered on the merits. We may add, further, that the mere circumstance that this matter had been mentioned in the memorandum of appeal presented against the preliminary decree, is no bar to this application. The ground could not have been entertained at that stage, and, as a matter of fact, was not considered. We hold, therefore, that the first ground urged by the learned Vakil for the petitioners in support of the Rule, must prevail."