SAKTU MAL Vs. HAR PRASAD

JUDGEMENT

(1.) The appellant is a purchaser who claims partition of a one-third of a's dwelling house on the basis of a purchase. The Courts below, have allowed the defendants to purchase his share under Section 4 of the Partition Act. He objects to this part of the decree. When the appeal was first argued under Order XLT, Rule 11, three ;pleas only were urged on behalf of the appellant as noted in my order of 22nd April, 1926.

(2.) They are- (1) That the house is not a dwelling house within the meaning of Section 4 of the Partition Act. (2) That it does not belong to an undivided family. (3) That there was no offer by any member of the family to purchase it as required by Section 4.

(3.) I allowed the record to be sent for to find out if the third plea was correct. It shows that a distinct offer to purchase was made by the defendants in their written statement. The appellant suggests that this was not a good offer because the defendants denied the plaintiff's right to the one-third share which he claimed, but said that if he was found to have the right they were ready to purchase his share. There is nothing improper or illegal in this. The defendants were not obliged to admit the plaintiff's claim in order to take advantage of Section 4 of the Act. Their offer came into operation when the preliminary issue as to title was decided in the plaintiffs favour.