BHAGWANTI LAL Vs. BHORE LAL

JUDGEMENT

(1.) THIS appeal raises an interesting question as to the interpretation of sec. 4 (1) of the Partition Act (IV of 1893) which will hereinafter be referred to as 'the Act' ).

(2.) PLAINTIFF Moola and defendant No. 1 and 2 Potu and Loahrey were members of an undivided family. Moola's father Bholuram and defendants Potu and Lohrey's father Kundan were first cousins. The family owned a house in Karauli. Moola had half share and Potu and Loharey had jointly half share in the house. Defendants Nos. 1 and 2 mortgaged their undivided half share with Fakiralal and Ghisiya!al for a sum of Rs. 1500/- by a registered mortgage deed dated 17. 5. 1967. The whole of the house was, however, in possession of Gannulal and Devilal whom it had been rented out, about 10 years prior to the mortgage. PLAINTIFF Moola filed the present suit in the Court of Munsiff, Karauli on 22-1-1968 for partition and separate possession of his half share in the house. On 16 3 1968, defendants Nos. 1 and 2 redeemed the mortgage and sold their half share to Bhagwatilal and his brothers Harcharanlal and Gopal Prasad, sons of the erstwhile tenant Devilal by a registered sale deed dated 16-3-1963. Consequently the plaintiff amended the plaint on 6-5-1968 by substituting the aforesaid purchasers Bhagwatilal, Haricharanlal and Gopal Prasad as defendants 3, 4 respectively in place of the mortgagees Fakiralal and Ghisiyalal. All the defendants resisted the plaintiff's suit. Defendants Nos. 3, 4 and 5 pleaded inter alia in their joint written statement the defendants Nos. 1 and 2 had offered to sell their half-share in the house to the plaintiff and in the alternative also offered to purchase his share, but the plaintiff remained silent and thereupon defendants Nos. 1 and 2 sold their share to them after redeeming the mortgage. The trial court framed 5 issues on 30-8-68. On 30-7-1968 the plaintiff made an application under sec. 4 of the Act that the halfshare of defendants Nos. 1 and 2 sold by them to defendants Nos. 3 to 5 may be directed to be sold to him for a price to be assessed by the Court. This application was opposed by both sets of defendants, who filed separate replies to the application. Defendants Nos. 3, 4 and 5 stated that the valuation of the whole house was not less than Rs. 10,000/-and, therefore, the suit was not triable by the Munsiff Court. They further pleaded that they were prepared to purchase the plaintiff's halfshare in the house for Rs. 5000/ -.

(3.) ON the other hand Mr. Agarwal learned counsel for the respondent-plaintiff has contended that sec. 4 of the Act would be applicable even where the suit for partition is brought by a member of an undivided family against a stranger transferee and the latter may not have specifically claimed a share in the residential house.