KHANDERAO DATTATRAYA WAKDE; BALKRISHNA MAHADEO PHULAMBRIKAR Vs. BALKRISHNA MAHADEO PHULAMBRIKAR; KHANDERAO DATTATRAYA WAKDE

JUDGEMENT

(1.) In this case a decree was passed in a partition suit instituted by one Phulambrikar asking for partition of his one-third share of a certain house in Poona. The house is owned by the following persons in equal shares, Phulambrikar who had bought one-third from Bhikaji, a member of the original family of owners, Balvant the second defendant a member of that family, and Khanderao the third defendant who derives his title through Gangadhar, a member of the original family. After the partition decree was passed, applications were made by the second defendant, under Section 4 of the Partition Act, asking the execution Court to take action under that section with regard to the shares of the plaintiff and the third defendant.

(2.) The lower Court granted the application and an appeal against that decision was dismissed. Undoubtedly the second defendant is entitled to have a valuation made of the share of the plaintiff who is a transferee from a member of the original family. But the lower Courts have also granted the application of the second defendant with regard to the share of the third defendant. That could only be done if the third defendant could be considered as a transferee from a member of the family suing. for partition. He is a transferee from a member of the family, but it certainly cannot be said that he is suing for partition.

(3.) The object of Section 4 of the Partition Act is to enable the members of a family in the case of one of their member having transferred his share to an outsider who seeks partition, to buy out that outsider by having his share valued; and in ordinary cases such, an applicaiion would_ be made before any preliminary decree was passed in the suit. That would then put an end to the suit unless one of the defendants wished to continue and apply to have his name inserted as plaintiff in the place of the plaintiff" who had been bought out.