MANICK LAL SINGH Vs. GOURI SANKAR SHAH

JUDGEMENT

(1.) This is a second appeal from the decision of the subordinate Judge, Alipore in a suit for partition. The plaintiff is a purchaser from one of the co-sharers a brother of the defendant. The plaintiff instituted the suit for partition claiming one half share in the disputed property. The defendant filed a petition under Section 4 of the Partition Act and applied for a relief under that section on the ground that the property was a dwelling house. It belonged to an undivided family and it has been transferred to a person who is not a member of such family. The application under Section 4 was allowed by the trial court; against that there was an appeal and the appeal has been dismissed. The appeal to this Court is against the decision of the appellant court. At an earlier stage of the proceeding we sent the matter to the court below for enquiry as to whether whole of the property was a dwelling house or not and whether the portion which has been in use and occupation of the tenant is a separate and distinct portion from that which has been used for the purpose of residence of the members of the family. The second point for which the matter was sent to the court below was to find out whether the two brothers were the members of an undivided family for not.

(2.) After taking evidence the trial court reported in favour of the defendant on both the points. The first point urged by Mr. Monomohan Mukherjee, on behalf of the plaintiff-appellant, is as there was a previous partition, the present application is not maintainable. It is enough to say that the plaintiff himself filed the partition suit on the allegation that the property was not partitioned and the plaintiff now wants to say that there was a previous partition. The plaintiff cannot be heard to say so. The defendant again at the time of the argument in the trial court admitted that the suit property was not partitioned before and that each of the members of the family had eight annas share. The point must, therefore, require no further consideration and the point is overruled.

(3.) We now come to the real question as to whether the petition under Section 4 of the Partition Act should be allowed. Section 4(1) of the Partition Act is as follows: ?Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall if any member of the family being shareholder shall undertake to buy the share of such transferee make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder and may give al necessary and proper directions in that behalf.?