The appellant before me was the sixth defendant in the original suit which was laid for recovery of a one-tenth share out of a two-third share of a whole property of the other one-third of which the sixth defendant had become owner by virtue of a Court auction purchase of the interest of one Krishnarao, a member of the family of the plaintiff and the other defendants to the present suit, by the sixth defendant himself as his Execution Creditor. After the purchase, the sixth defendant in fact filed his own suit for partition and recovery of his one-third share in the right of Krishnarao and before the final decree in that suit was actually passed, defendants 1 to 5 in the present suit, of whom the second defendant is the father of the plaintiff in the present suit, applied to buy up the share of the present sixth defendant who was the plaintiff in the former suit, under the provision of S. 4 of the Partition Act. Defendants 1 to 5 in fact were given the chance to buy up the share in accordance with the provision of that section of the Act, but, they did not avail themselves of it. The present plaintiff who is the respondent before me, claims that he is entitled to assert his own right to buy up the share of the present sixth defendant by force of the provision of S. 4 of the Act which, according to him, confers upon him an individual right of his own irrespective of the rights of his father the second defendant or the other members of his branch of the family who were parties to the former action.
This claim of the plaintiff is answered by the sixth defendant in a two-fold way: firstly, by saying that there is no individual right such as is sought to be asserted by the plaintiff who must be held bound by the conduct of his father, the second defendant, who actually along with his brothers did not avail himself of the right given by the decree in the former suit under S. 4 of the Partition Act, and, secondly, by saying that the present suit is not within the purview of S. 4 of the Partition Act and that consequently there is no right such as is claimed by the plaintiff which can be asserted by him. The learned District Munsif who tried the suit gave effect to both the pleas which were made by the sixth defendant and accordingly dismissed the suit as against him. On appeal taken to the Subordinate Judge he rejected both the pleas and decreed the suit.
Both the points taken in the original suit by the sixth defendant are repealed here by his learned Counsel; but, it is not necessary for me to deal with the first of them, as on the second, I have come to the distinct conclusion that the plaintiff respondent must fail. The view that I take of the section is that there must be a suit at the instance of a transferee of a share of a dwelling house for partition and then, if any member of the family being himself a shareholder in respect of the dwelling house, undertakes to buy the share of the transferee-plaintiff the Court shall make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder. This is the view which necessarily follows on the language of the section, and, if effect were given to the language, as indeed has been done in a Bombay case reported in Khanderao Dattatraya v. Balkrishna Mahadev (1), there is no doubt but that this appeal must succeed and the plaintiff must fail as there is no suit by a stranger purchaser of a share here and now. It is said, however, by Mr. Suryanarayana the learned Counsel for the respondents, that there are two other decisions, one of the Calcutta High Court and the other of the Nagpur High Court, reported respectively in Satyabhama v. Jatindra Mohan (2), and Laxman v. Mt. Lahana Bai (3), which support what has been described in the latter of the two decisions as a more liberal interpretation of the section on which he is placing reliance. I have examined the two decisions and I do not think that they afford any real assistance to the learned Counsel for the respondents with reference to the contention that he has advanced, namely, that although there is no suit now and here by a stranger transferee of a share his client may be allowed to buy up the sixth defendant's share on the spirit, if not on the letter of the section. Even without deciding that a more liberal construction of the section is permissible than is warranted by its letter as virtually held in those cases, I am still of opinion that the present case can well be distinguished from them on the facts. In fact, neither of the cases actually dissents from the case in Khanderao Dattatraya v. Balakrishna Mahadev . The Nagpur case makes no reference at all to the Bombay case while the Calcutta case which refers to it does not disapprove of it but only distinguishes it. In both the cases there is one peculiar feature which distinguishes them from the case before me, viz., that the stranger transferee happened in those cases himself to apply for partition with the result that it became open to the Court notionally and virtually to regard him as plaintiff and thereafter to regard the original plaintiff as himself or herself entitled to ask for the relief under S. 4 on the basis that there was a suit in the eye of law by the stranger transferee himself for a partition. I am not sure that this sort of strain put upon the situation in those cases was rightly put. It is hardly necessary for me however to pronounce on the exact soundness in this respect of the two cases which, as I have pointed out, are on the view of facts taken therein distinguishable. The case before me does not accordingly attract the Calcutta or the Nagpur case. I may state however that the view of law taken by the learned Chief Justice in the Bombay case seems to my mind, if I may say so with respect, to be the only sound view possible, which accords with the spirit as well as the letter of the section and which, unlike the view taken in the Nagpur and Calcutta cases does not extend the spirit of the section beyond its letter. The equity of the Statute, as it is sometimes called cannot override its plain language and the contention of the respondents' learned Counsel must accordingly be repelled.
In these circumstances, I have no hesitation in reversing the judgment and decree of the lower appellate Court on the basis of my decision on the point which I have dealt with, and in allowing the civil miscellaneous appeal and restoring the decree of the trial Court with costs to the appellant throughout. No leave.
N.R.R