Laik,j.:-

(1) The single and governing question raised in this appeal is whether or not an application under section 4 of the partition act (act iv of 1893) will lie after the final decree is passed but before the stranger takes possession of his allotted share by his execution of the said decree.

(2) A two storeyed house including other bastu plots belonged to the undivided family of the defendant no. 1 transferred his eight annas share to the plaintiff - respondent no. 1 herein, who is not a member of the said undivided family. The stranger transferee sued for partition in 1953. The suit was decreed finally in july, 1956. The said decree was drawn up on 4th of september, 1957. The defendant - appellant, being the member of the said undivided family and being a share - holder, under took to buy the share of the transferee. He filed an application on march 6, 1958 under the provisions of section 4 of the partition act when the said decree was pending in execution before the second court of the munsif at hooghly.

(3) Two objections were taken by the respondent, purchaser in the trial court. First, the application under section 4 of the act could not be entertained after the suit was decreed finally; second, the applicant having become a co - sharer after the decree was passed, is not entitled to apply. The learned munsif rejecting both the objections, allowed the application under section 4 by recording the order, as usual in the suit, in which the decree for partition was passed.

(4) The stranger transferee that is, the plaintiff - respondent no. 1, took up an appeal. It was allowed by the learned subordinate judge, additional court, hooghly. On evidence, he entered the following findings of facts, namely that, the applicant and the other defendants are living in the disputed dwelling house and that the plaintiff respondent no. 1 was a stranger to the family, and that the applicant became a share - holder in respect of the said house during the pendency of the partition suit. The court of appeal below, therefore, concluded that all the conditions necessary for the application of section 4 of the partition act were fulfilled but the judgment further found that such an application must be filed during the pendency of the suit, which ceases to be pending, as soon as a final decree is drawn up by the court. He therefore held that the application under section 4 was not maintainable at that stage.

(5) The instant second appeal by the defendant is against the said order.

(6) Elaborate arguments were advanced and several decisions were cited which are considered with care. The bench decision of the bombay high court in the case of (1) bai hirakore v. Trikamdas, ilr 32 bombay 103 is first in the series. A decree for partition of the house, ordered its division into two equal moieties in the said case. In execution of the decree, this mode of division was found inexpedient. The court therefore directed the house to be sold and the sale proceeds to be equally divided between the parties under section 2 of the partition act. It was argued that section 2 of the partition act could not be applied to a case, where a final decree of partition is already passed and more so because, in the execution proceeding the court should not go behind the terms of the decree in execution. It was further commenced that if the section can be applied in execution proceeding by adopting such construction, it would be opposed to the principle of law that a decree must be executed as it stands and its term should not be varied. "the answer to that is," say their lordships, keeping in view the order already made under section 396 of the old code of civil procedure, 1882 in the said decision, "that in a decree for partition, the right of each party to obtain share by partition declared by decree is the primary thing; the mode in which that share is to be carved out and allotted is only subsidiary. If that mode becomes impracticable or inexpedient or detrimental to the interests of any party, the court is given jurisdiction by the partition act to adopt any of the modes prescribed therein". The argument that the court should not go behind the decree in execution, did not find favour with their lordships.

(7) The next decision is a decision of this court and a bench decision (judgment of sir ashutosh mookerjee) , the case is (2) kshirode chunder ghosal v. Saroda prosad mitra, reported in 12 callj 525. The view expressed in the aforesaid bombay decision of (2) bai hirakore, where it was ruled that an application under section 2 or section 4 of the partition act might be made after the preliminary decree, was not only adopted but his lordship distinguished the case of (3) kali kumar v. Brahmananda, 7 clj 98, where the parties had proceeded, not merely beyond the preliminary decree but also "beyond the execution proceedings" and one party had actually found it necessary to institute a suit under section 331 of the code of civil procedure of 1882 (or. 21 r. 99) by reason of an obstruction by a claimant in good faith other than the judgment - debtor. I emphasise on the employment, by his lordship, of the expression "beyond execution proceedings". Sir ashutosh reserved his opinion upon the question whether even at such a stage, (referring thereby to the stage, where a suit by a claimant in good faith was filed after the execution proceedings were started) , it may not be open to one of the parties to avail himself of the benefit of section 4 of the partition act but did not reject the availability of benefit of section 4 even at the said stage outright. The true import of the said decision, according to me is, that the parties can avail themselves of the benefit of section 4, in any event at the stage of execution proceedings, and naturally at a stage after the final decree is passed and drawn up. Otherwise his lordship could not have reserved his opinion in a case where a stage later than the stage of execution proceedings had already arrived.

(8) The next decision and also another bench decision of this court is (4) prankrishna bhandari v. Surath chandra roy, ilr 45 cal. 873 - 22 cwn 515 - air (1919) cal. 1055. In this case it appears that the final decree was passed on november 28, 1913. Defendants nos. 2 and 3 claimed the right to purchase the share sold, but they did not take any active part in the proceedings up to the final decree. From the final decree, however, they preferred an appeal and at the hearing before the appellate court, they again claimed their right of purchase under section 4 of the act. Richadrson j. , re - rected the contention that the learned subordinate judge had no jurisdiction after the final decree in the suit to make an order under section 4. Their lordships after holding that the "terms of section 4 are quite general", and after referring to the aforesaid case of (2) kshirode chunder ghosal (supra) allowed the right of purchase under section 4 of the act.

(9) The next bench decision of this court is the case of (5) niranka sashi roy v. Swarganath banerjee, air (1926) cal. 95. Their lordships referred to the said decision of sir ashutosh mookerjee in the above mentioned case of (2) kshirode chunder ghosal and held "that the provisions of section 4 are separate and distinct from the decree of a partition suit. " it was further found that the court had jurisdiction to pass the order under section 4 even after the passing of the decree and concluded relying on the principles laid down in the case of (4) pran krishna bhandari (supra) by holding "that the right conferred by section 4 may be exercised at any time before the final allotment takes place" on the footing that the section did not indicate as to when the willingness of a member of a family should be signified to the judge to enable him to pass an order under section 4. We cannot overlook that the limitation act also took the date of taking physical possession of the property by the purchaser as the starting point of limitation (articles 10 and 97 of the acts of 1908 and 1963 respectively in suits for enforcement of the right of pre - emption).

(10) The principles laid down in the above decision are followed by several other decisions of this court as well as by other high courts and one would hesitate in thinking that all the findings and observations made in all the above decisions are in the nature of obiter.

(11) The bombay high court in the case of (6) khanderao v. Balkrishna, air (1922) bom. 121, held that the application under section 4 could be made at any stage of the suit and even after a decree was passed. The expression 'decree' it may be noticed did not confine itself to a preliminary decree only. The executing court was asked to take action under that section. An order for sale under sec. 4 was made which was ultimately upheld by the high court. The allahabad high court in the case of (7) lala dwarka das v. Godhana and ors. Air (1939) all 313, held that an application under section 4 of the act was competent after a preliminary decree was passed. An order under section 4 was made in another case which was a revision (not appeal) before the high court, against an order dismissing an appeal against the final decree (see (8) mt. Bibi gulla, air (1943) peshawar 79). The principle laid down in ilr 32 bom. 103 (supra) was followed by the allahabad high court in the case of (9) masaiti v. Hyder hussain reported in 14 alj 35. The final decree was passed in the said case by the learned munsif. The request for sale was made in the second appeal before the high court and it was held that there was nothing in the law to prevent the claimant from making such a request now, after placing reliance on the said decision of (1) ilr 32 bom. 103. A bench decision of the madras high court in the case of (10) a. Kutti v. Syed ali, 37 ilr (mad) 514 cites with approval the said bombay decision. The patna high court in the case of (11) s. K. Singh v. P. K. Singh, air (1941) pat. 4, inter alia observed, that the application under section 4 could be made at any stage. Lastly the observations of jessel m. R. In (12) salt v. Cooper, 16 ch. D. 544, though not decisive, are instructive.

(12) I am conscious that in some of the above decisions the point was assumed rather than decided, but the fair deduction from the other cases cited above is that while the execution case is pending after the final decree is passed, the application under section 4 of the partition act - would still lie. Further, the point did not give occasion to a division of judicial opinion except probably in a case of the allahabad high court which might appear to conflict with my opinion. The case is not reported. It appears under the head "notes on unreported cases" - (13) air (1955) nuc vol. 2 (4453) - mt. Mohammadi begum v. Md. Nabi hadi. On principle the note (not a report) should not be taken notice of. It is rather risky to refer to the same as the facts are not there. Nevertheless it is so reported by the editor that the benefit of section 4 could not be given to the applicant during the execution proceedings, on the principle that the executing court cannot go behind the decree. The said principle is inapplicable, because the application under section 4 is made in the suit or in the appeal therefrom, and not in the execution proceedings of the decree passed in the suit. The provisions of section 4 are separate and distinct from the decree passed in the partition suit and consequently the order passed on an application under section 4 of the partition act is independent of the decree passed in the partition suit. Therefore no question of the executing court going behind the decree arises in such cases. If the allahabad high court purported to lay down the above rule, with respect, i am unable to agree with the decision.

(13) Their lordships of the judicial committee took the view that an application for execution of a decree was an application in the suit in which the decree was obtained. It resembles in principle that the suit must be taken to be pending till the decree passed thereon was satisfied by execution.

(14) Even if the question is untouched by authority, it would be sufficient in any opinion to answer the argument by reference to the intention and the effect of section 4 of the act. It is not easy to formulate a rule which will fit every case but it will make no difference in point of principle if the question is tested by the ordinary principles applicable to such questions and from the standpoints of the detriment and convenience of the respective parties. Sufficient and cogent reasons could not be shown why the words of the act should not be construed in their obvious sense namely that which best accords with the ordinary convenience and ordinary rules of practice and without injustice.

(15) Having considered the scheme of the partition act including its object which is to prevent the introduction of any foreign element into the group of family members and its aim which is to maintain homogeneity in respect of the entire family and particularly the provisions of section 4 thereof, which does not indicate a contrary intention and after giving anxious consideration to the principles laid down in the aforesaid decisions though i am conscious that in some of the decisions the point in issue was not specifically raised, but following the salutary principles that the residence in a dwelling house of an undivided family should not, if possible (but not contrary to law) , be thrown open to a stranger to the family and remembering that the terms of section 4 of the act are quite general and distinct from a decree passed in a partition suit and holding further the rule that the executing court should not go behind the decree, is inapplicable in an application under section 4 of the partition act and not ignoring the provisions of the section 44 of the transfer of property act and the rules of pre - emption governing the muhammadans, buddhists, jews, romans and others and agreeing with respect the dictum of the judicial committee in (19) (42 ia 10 - ilr 37 am 129 (141) rc) that the right of pre - emption is a "valuable right" - the object of such a right being the avoidance of a disagreeable stranger (though some may think it an archaism and a clog on a freedom of contract) - i hold that an application under section 4 of the partition act is maintainable, even after the final decree in the suit was passed and drawn up and before the possession of the allotted property was delivered to the stranger in execution by him of the said decree. There will be no miscarriage of justice and no principle of law or procedure would be violated if the co - sharer vetoes the transfer in favour of the stranger. In all probability we would be doing a great deal more harm than good if we would have been induced to accept the judgment of the court of appeal below which is not only wrong in principle but is calculated to work practical injustice.

(16) The appellant therefore succeeds in displacing the order of the learned subordinate judge who has misapprehended the question before him and has not kept in sight the essential principle and the appellant succeeds in re - establishing his right to buy up the share of the transferee as found by the learned munsif. The appeal is therefore allowed but in the circumstances there would be no order for costs. Appeal allowed. S. K. Mukherjee, j. : i agree.