KRISHNAMOORTHY Vs. GULAM RASOOL

JUDGEMENT

(1.) First defendant is the revision petitioner. Plaintiff (first respondent) purchased 1/4 right in the plaint schedule property from one of the brothers of the first defendant. First defendant had purchased 1/4 right from his another brother and so he is entitled to half share. Another brother who is having 1/4 share is stated to be residing along with the first defendant. The suit filed by the plaintiff was decreed. During the final decree proceedings a commission was sent to divide the property by metes and bounds. Commissioner stated that it is not possible to divide the property. It was thereafter that the impugned order was passed by the Additional Sub Judge directing the commissioner to auction the property among the parties and that the highest bidder should be given the property.

(2.) The above order is challenged by the first defendant on the ground that it is in violation of S.4 of the Partition Act. S.4 has been enacted to meet a situation where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of the family, and such transferee sues for partition. The section provides that in such a case if any member of the family being a shareholder undertakes to buy the share of the transferee the Court shall make a valuation of the share in such manner as it thinks fit and direct the sale of such share to the shareholder and may give all necessary and proper directions in that behalf. S.4 (2) provides that if two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by S.3(2). S.3(2) envisages that if two or more shareholders severally apply for leave to buy the property the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court.

(3.) The essential conditions to be fulfilled for invoking S.4 are that the suit must relate to a dwelling-house of an undivided family, that a transfer of a share has been made to a stranger, that the stranger transferee has sued for partition and that the members of the family who are shareholders shall undertake to buy the share of the transferee. Then it is for the Court to make a valuation of the share and direct the sale of such share to such shareholder. The main objection of S.4 is that a coowner should not be compelled to have a stranger purchaser in the dwelling-house in which he is entitled to be in possession to the exclusion of any stranger. Of course, he must be prepared to buy the stranger's, share-A purchaser from a coparcener does not get the status of a tenant in common with the other coparceners A stranger who purchased a share from one of the family members is not entitled to be put in joint possession with the other family members. His right is only to sue for partition, and to have an equitable right of the allotment of the share of his vendor-Section 4 is intended to preserve the integrity of the family dwelling-house. It enables the members of the family to keep the dwelling-house for themselves as far as possible. The Courts are always inclined to give a liberal construction of S.4 so that the object behind it is achieved. The wholesome principle of S.4 is to keep any stranger away from the dwelling-house if the family members who owned the dwelling-house are willing to keep it to themselves by paying the value of the share to the stranger as determined by the Court. The Sub Judge has obviously overlooked S.4 of the Partition Act when he passed the impugned order.