RAJANI KANTA PAL Vs. KRISHNA PRASAD ASH

JUDGEMENT

(1.) The property in suit originally belonged to-the members of a Hindu joint family. At one stage, that joint family consisted of the Defendants 1 to 4 (who are the Appellants in this Court) and one Madhusudan. Defendants 1 to 4 were the owners of a two-third share and Madhusudan of the remaining one-third of the joint properties. Madhusudan's one-third share devolved on his two grandsons, Badal and Sadhan. Badal sold his one-sixth share in the joint homestead to the Plaintiff. Sadhan also sold his one-sixth share but to Defendants 6 to 9. The Plaintiff brought the suit, out of which the present appeal arises, for partition of the property purchased by him impleading Defendants 1 to 4, as also Defendants 6 to 9, who now represent the interest of Sadhan. Certain questions of title were raised in the suit and those were decided in a preliminary judgment, which declared the shares held by the different parties and directed the appointment of a commissioner of partition to make the allotments.

(2.) At this stage, an application was filed by the Defendants 1 to 4 under Section 4 of the Partition Act. It was claimed by them that, as the Plaintiff and Defendants 6 to 9 were outsiders, the Defendants 1 to 4 were entitled to invoke the provisions contained in Section 4 of the Act and to buy out the shares declared in favour of both the sets of outsiders. It is beyond doubt that in respect of the share held by the Plaintiff, the Defendants 1 to 4 are so entitled. The only question on which the parties have differed is whether Defendants 1 to 4 may buy out the shares allotted to the Defendants 6 to 9. The trial court held in favour of Defendants 1 to 4 and gave a direction accordingly. The learned District Judge on appeal has held otherwise. Hence this Second Appeal on behalf of the Defendants 1 to 4. The rights of the parties are to be determined under Section 4 of the Partition Act, which is in the following terms:

(3.) That an application under this section may be preferred even after a preliminary decree is passed is now settled in a long line of decisions beginning from Hiramoni Dassi v. Radha Churn Kar,1899 5 CalWN 128and subsequently re-affirmed in Kshirode Chunder Ghosal v. Saroda Prosad Mitra,1910 12 CLG 525and other cases.