PARVATHY AMMA Vs. LAKSHMIKUTTY AMMA

JUDGEMENT

(1.) This petition arises out of an application under S.4 of the Partition Act filed by defendants 1 and 2 in the suit. Defendants 1 to 11 were members of an undivided family which possessed only a homestead. Defendants 3 to 11 transferred their undivided shares in the homestead to the plaintiff, a stranger to the family. Afterwards the plaintiff brought the suit for partition and a preliminary decree was passed for partition and separate possession of 9 out of 11 shares to the plaintiff and the balance 2 shares to defendants 1 and 2. The plaintiff filed an application for passing a final decree, when defendants 1 and 2 filed the application, M.P. No. 2969 of 1956, under S.4 of the Partition Act offering to buy the share of the plaintiff at a price fixed by the Court. This was filed on 16-10-1956. Afterwards on 31-1-1957 the 8th defendant in the suit got a transfer of the rights of the plaintiff and subsequently got herself transposed as an additional plaintiff in the suit. Thereafter on 12-7-1958 the additional plaintiff herself filed another application purporting to be under S.4 of the Partition Act for the purchaser of the shares of defendants 1 and 2. She also opposed M.P. No. 2969 of 1956 filed by defendants 1 and 2. The lower court dismissed the application filed by the additional plaintiff holding that it was not maintainable and allowed M.P. No. 2969 of 1956 filed by defendants 1 and 2. The present Revision is-filed by the additional plaintiff against the order allowing M.P. No. 2969 of 1956. It may be also stated that the additional plaintiff has got preferred any revision against the dismissal of her own application under S.4 of the Partition Act.

(2.) It is now urged before me on behalf of the petitioner that the lower court erred in holding that the petitioner could not resist the defendants claim as she was only a transferee of the rights of the stranger plaintiff pending suit. The petitioners learned counsel relies on a decision of the Calcutta High Court, Boto Krishna Ghose v. Akhoy Kumar Ghose & others AIR 1950 Calcutta 111. In that case one Upen sold his undivided share in the homestead to a stranger. After this sale his brother, Nabin sold his share to another stranger, the plaintiff. Afterwards Upen, repurchased his share from the stranger to whom he sold it originally. Several years after such repurchase the plaintiff filed a suit for partition and in that action Upens children, who were defendants in the suit, filed an application under S.4 of the Partition Act, which was dismissed in appeal by Chakravarti, J. In a further appeal by the defendants under Clause.15 of the Letters Patent, Mookerjee and Mitra, JJ., allowed the appeal. The learned Judges observe in Para.18 of their judgment at page 115:-

(3.) The qualification of the applicant to make the application under S.4 must be judged with reference to his position at the time of his application. The alienation by him of his share previously does not disentitle him, if, as a matter of fact, he owns it at the time of his application. It may be that he owns it at the time by virtue of his repurchase.