JUDGMENT N.K. Mehrotra, J.
1. This is a second civil appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 23.1.1982 passed by the District Judge, Bahraich dismissing the appellant's appeal against the judgment and decree of first Additional Munsif, Bahraich, dated 7.11.1981 in Regular Suit No. 216 of 1970 allowing the plaintiffs' application under Section 4 of the Indian Partition Act.
2. I have heard Shri Mohd. Arif Khan, the learned counsel for the appellants and Ms. Veena Sinha, the learned counsel for the respondents on the substantial questions of law formulated in the memo of the appeal.
3. It appears that Samson Claudius, Wilson Claudius, Churchill Claudius and Mrs. Pyari Claudius, four persons had filed a suit for partition against Smt. Ester Zondin and Miss Ruth Claudius as defendant Nos. 1 and 2 and Zamir Ahmad, a stranger to the family being purchaser of the share of the defendants for partition of a house detailed at the foot of the plaint. This suit was decreed after passing of the preliminary decree for partition an application for final decree was moved but it was not pressed. Thereafter, Samson Claudius and others the plaintiffs of the suit moved an application under Section 4 of the Indian Partition Act. This application has been allowed against which an appeal was filed by the appellant Zamir Ahmad and that appeal has also been dismissed by the impugned judgment dated 23.1.1982. At the time of hearing of the application under Section 4 of the Indian Partition Act, the appellant filed objections to oppose the application under Section 4 of the Indian Partition Act. The appellant raised two objections ; firstly that the disputed house was not a dwelling house but it is only a 'khandahar' and secondly, the application under Section 4 of the Indian Partition Act moved by the plaintiff is not maintainable. The learned Munsif held that the disputed house is a dwelling house. The learned Munsif also rejected the contention of the appellant about the maintainability of the application under Section 4 of the Indian Partition Act moved by the plaintiff. After relying on a decision of Calcutta High Court in Satish Kumar Mitra v. Kaliappa, AIR 1981 Cal 278, in which it was held that Section 4 of the Partition Act applies even where the suit for partition was not filed by the transferee (stranger) himself.
4. The learned District Judge also agreed with the finding recorded by the learned Muhsif and dismissed the appeal. Zamir Ahmad who is admittedly not a family member and who is a transferee of the share of one of the partners filed this second appeal. This appeal was admitted on the following three substantial question of law :
I. Whether on the facts and circumstances established in the case, the application under Section 4 of the Indian Partition Act could be allowed?
II. Whether Section 4 of the Indian Partition Act is applicable when the appellant is in possession of his portion (half house) since its purchase in the year 1966 without any objection from anybody?
III. Whether the courts below have committed a manifest error of law in not making an inquiry in respect of actual possession of different co-sharers and whether the house was in occupation by the members of an undivided family?"
5. At the time of hearing both the learned counsel for the parties though argued only on the following two points :
(i) Whether the application under Section 4 of the Indian Partition Act is maintainable in case the disputed property is not a dwelling house and is a 'khandahar' only?
(ii) Whether in a suit for partition, which has not been filed by the purchaser of a share being stranger to the family, the application of the plaintiff under Section 4 of the Indian Partition Act is maintainable? -
6. Section 4 of the Indian Partition Act is as follows :
"4. 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 shareholders, and may give all necessary and proper directions in that behalf.
(2) If in any case described in Sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share the Court shall follow the procedure prescribed by Sub-section (2) of the last foregoing section."
7. In view of the aforesaid provisions, it is clear that following four conditions should be fulfilled for the application of Section 4 of the Indian Partition Act :
I. There must be a dwelling house in existence belong to an undivided family.
II. A share thereof to be transferred to a person who is not a member of such family.
III. The transferee should sue for partition and ;
IV. That a member of family being a shareholder claims or undertakes to buy the share of a stranger transferee.
8. The learned counsel for the appellants Shri Mohd. Arif Khan has submitted that in this appeal, the Condition Nos. 1 and III are not available because the disputed house is not a dwelling house and it is a 'khandahar'. So far as this condition is concerned, it cannot be entertained in this second appeal because the two courts below have recorded the finding that the disputed house is a dwelling house. This finding being finding of fact, it cannot be disturbed in second appeal.
9. The second argument of the learned counsel for the defendant-appellant is that the suit was filed by few co-sharers. It "was not filed by the appellant who is a transferee of the share of one of the co-sharers, therefore, the aforesaid condition No. III is not available in this case and in a suit for partition if it has not been filed by the transferee, the application under Section 4 of the Indian Partition Act is not maintainable. The two courts below have allowed the application under Section 4 of the Indian Partition Act moved by the plaintiff who is one of the co-sharers after relying on the decision of Calcutta High Court in Satish Kumar Mitra v. Kaliappa, AIR 1981 Cat 278. The learned counsel for the appellant, has referred a decision of this Court in Masitullah and Anr. v. Umrao and Ors., AIR 1929 All 414, in which it has been held that for the application of Section 4, four conditions ought to be fulfilled :
(1) The house should be owned by an undivided family.
(2) The share of a co-sharer should have been transferred to a person who was a stranger to the family.
(3) The purchaser should, have sued for partition ; and (4) A member of the family being a share holder claims or undertakes to buy the share of the stranger transferee.
10. In the instant case, admittedly the aforesaid third condition is not available.
11. In Sakhawat Ali v. Ali Hussain and Ors., AIR 1957 All 356, a Full Bench of this Court held as follows :
"A share-holder in a dwelling house belonging to an undivided family cannot take advantage of Section 4 of the Partition Act in a suit for possession of the entire house and/or for partition in which he is the plaintiff and the transferee in possession is a defendant.
A suit for possession of the entire dwelling house is not a suit for partition. Section 4 of Partition Act does not entitle a co-sharer to buy out the stranger transferee whenever he likes unless the transferee is claiming a partition of his share either as a plaintiff or as a defendant."
12. The learned counsel for the appellants has also referred another decision of this Court in Krishna Chandra and Ors. v. Smt. Kaneez Fatima and Ors., AIR 1983 All 146 in which it was held that Section 4 of the Partition Act provides that where a share of a dwelling house belonging to an undivided family has been transferred to a stranger 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 valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper direction in that behalf.
13. The learned counsel for the appellants has also referred a decision of Apex Court in Cyan Chand and Anr. v. Sumat Rani and Ors., (2002) 9 SCC 477, in which it has been settled by the Apex Court that in a suit for partition brought by a co-sharer, another defendant-co-sharer cannot claim right of preemption under Section 4 in respect of a portion of the property which has been alienated in favour of another person. That right of pre-emption of a co-sharer under Section 4 will be available only if, the transferee files a suit for partition. It was also held that the view taken by Supreme Court in Gautam Paul v. Debi Rani Paul, (2000) 8 SCC 330, has to be followed.
14. In view of the aforesaid settled law that an application under Section 4 of the Indian Partition Act will be maintainable only if the transferee files the suit, the view taken by the two courts below relying on the decision of the Calcutta High Court is not a correct legal position.
15. Ms. Veena Sinha, the learned counsel appearing for the respondents has placed reliance on a decision in J.C. Chatterjee and Ors. v. Maung Mye and Ors., AIR 1940 Rang 53. I am of the view that in view of the decision of the Apex Court of the country cited above! the decision of Rangoon High Court shall be of no help to the respondent.
16. Since the suit was not filed by the transferee of the share of a co-sharer and application under Section 4 of the Indian Partition Act has also not been moved by the appellant, the transferee, the application under Section 4 of the Indian Partition Act is not maintainable.
17. In view of the above, the instant second appeal is allowed with costs and the judgment dated 7.11.1981 passed by the First Additional Munsif, Bahraich in Regular Suit No. 216 of 1970 and the judgment dated 23.1.1982 passed by the District Judge, Bahraich, dismissing the appellant's appeal are set aside.