JUDGMENT B.K. Rathi, J.
1. This second appeal arises out of the judgment and decree, dated 31.5.1989 passed by the IVth Additional District Judge, Azamgarh in Civil Appeal No. 53 of 1985.
2. The facts giving rise to this appeal are as follows :
The house in dispute was owned by Nazir Ahmad, All Ahmad and Smt. Shamsunnisha. Nazir Ahmad and All Ahmad each have 40 seham share in the disputed house and Smt. Shamsunnisha was having 20 seham share. The Original Suit No. 71 of 1976 was filed by Mohd. Ramjan, respondent No. 1, for specific performance of contract for sale alleging that Nazir Ahmad, who was defendant No. 1 in the suit and had died during the pendency of the suit agreed to sell his 40 seham share in the disputed house to the plaintiff for consideration of 3.500 and a registered agreement to sale was executed on 24.9.1973. A sum of Rs. 2,000 was given in advance and the balance amount of Rs. 1,500 was to be given at the time of the execution of the sale-deed. The appellant Seraj Ahmad is alleged to be a subsequent purchaser with notice. It is alleged that he is of the family of Nazir Ahmad and purchased the house by a sale-deed, dated 19.5.1976. The suit was decreed by the trial court. The first appellate court maintained the decree. Therefore, the present appeal was filed. The appeal was admitted on the following substantial question of law :
"As to whether view taken by the courts below regarding applicability of Section 4 of the Partition Act, as prayed by the appellant, before passing of the preliminary decree is incorrect?"
3. I have heard Sri S.N. Singh, learned counsel for the appellant and Sri M. D. Singh 'Shekhar', learned counsel for the respondent No. 1.
4. The appellant is a subsequent purchaser with notice of the agreement in favour of the respondent No. 1. He alleges that there was an agreement for sale in his favour dated 22.11.1971, but that agreement has been discarded by both the courts below and it has been held that it was got prepared subsequently. There is also finding that the appellant is of the family of Nazir Ahmad and had notice of agreement in favour of the respondent No. 1.
5. After narrating the facts, the learned counsel for both the parties have confined their arguments on the above substantial question of law, on which the appeal was admitted. Therefore, I consider the same.
6. Clause 1 of Section 4 of the Partition Act. 1893, on which the learned counsel relied upon, reads as follows :
"Partition suit by transferee of share in dwelling house.--(1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder, and may give all necessary and proper directions in that behalf."
7. It has been argued by Sri S.N. Singh, learned counsel for the appellant that the trial court on this point has recorded the finding that this plea is not available to the appellant as he is not member of the undivided family of Ali Ahmad. It is contended that the first appellate court has not recorded any finding on this point. The first appellate court has only observed that this matter can be raised when the suit for partition is filed. I agree with the finding of the first appellate court that Section 4 of the Partition Act, mentioned above, has no application in a suit for specific performance. This section does not bar a suit or decree for specific performance. The relief for specific performance cannot be refused for the bar of Section 4, of the Partition Act. The bare perusal of the section show that it applies only to the suits for partition. Therefore, Section 4 shall come into play when after the execution of the sale-deed, the respondent No. 1 applies for partition in this suit, Section 4 of the Partition Act have been wrongly invoked.
8. I, accordingly, decide that the courts below have rightly interpreted Section 4 of the Partition Act that it has no application in the present case. The suit cannot be dismissed for this reason.
9. No other point has been pressed before me in this appeal.
10. The appeal, therefore, fails and is, hereby, dismissed with costs. Stay order, if any, stands vacated.