BANCHHANIDHI Vs. BALARAM

JUDGEMENT

(1.) THIS revision is directed against an order of the Second Munsif, Cuttack refusing to apply Section 4 of the Indian Partition Act to the proceedings before him.

(2.) THE facts are briefly these. The property in question is a dwelling house belonging to four branches of a family: one -fourth share belongs to defendant No. 1, a stranger; one -fourth share belongs to defendant No. 5 in his own right; one -fourth to defendants 2, 3 and 4, and the remaining one -fourth was purchased by the wife of defendant No. 5, who filed the suit for partition in order to buy off the share of defendant No. 1. A preliminary decree was granted and before the final decree was drawn, up defendant No. 5, applied under Section 4 of the Partition Act to buy up the share of defendant No. 1, who was a stranger to the family. The learned Munsif rejected the petition on the ground that as the suit was not instituted by the stranger -transferee, section 4 of the Act did not, in terms, apply. Hence this revision..

(3.) SECONDLY , in a suit for partition every one of the parties is in the nature of a plaintiff in so far as each one of them wants his share to be partitioned off; and it is only by accident that one of them figures as a defendant and it is open to him to be substituted as the plaintiff; and even as defendant it is open to him to press his claim and have his share divided and allotted to him. Mr. Das Gupta has invited my attention to a case reported in 'Sheodhar Prasad v. Kishun Prasad', AIR (28) 1941 Pat 4: (190 IC 117) where Dhavle, J., took the same view. The latest case which is very much in favour of Mr. Das Gupta's contention is the one reported in 'Abu Isa v. Dinabandhu', AIR (34) 1947 Cal 426: (51 CWN 639). Mr. Sinha appearing for the opposite party relies upon 'Subbamma v. Veerayya', AIR (19) 1932 Mad 15: (136 IC 203), but I am satisfied that is no authority for the point raised by the petitioner here. I am of opinion that Section 4 of the Partition Act is equally applicable to all cases where a partition suit is brought and where a stranger -transferee is a party thereto. There does not appear to be any justification for confining the operation of Section 4 only to cases of partition suits filed by a stranger transferee alone.