GOPAL CHANDRA MUKHOPADHYA Vs. PROBHAT CHANDRA BISWAS

JUDGEMENT

(1.) WE are not disposed to accept the argument whereby a restricted scope is attributed by the appellant to Section 4 of the Partition Act of 1893. The interpretation he seeks to put upop the section is that it has no application when the person, who claims partition of a dwelling- house, has also obtained a transfer of a share of other property. This limited construction was negatived in the case of Khirode Chandra v. Saroda Prosad 7 Ind. Cas. 436 : 12 C.L.J. 525. In our opinion the effect of Section 4 is to exclude the dwelling-house from the partition suit if one or other member of the family is willing to pay the price thereof and purchase it as provided in that section. This was the contingency which happened in this case. It was faintly argued, as a last resort, that the application of Section 4 was excluded by reason of the rent sale. Mr. Justice Walmsley has conclusively shown that the rent sale did not, for any practical purpose, affect the mutual rights and obligations of the parties. Consequently Section 4 is applicable and in that view there is no doubt that the decree of Mr. Justice Walmsley is correct.

(2.) THE result is that this appeal is dismissed with costs.