(1.)The point of law that is raised in this case is as to whether a co-sharer of a joint family property after alienating a portion thereof in favour of a stranger to the joint family can opt for re-purchase along with the other co-sharers in consonance with Section 4 read with sub-section (2)of Section 3 of the Partition Act.

(2.)To answer the said question, it would be necessary to discuss the factual matrix in brief. One Balu Malik was the original owner of the land appertaining to plot No. 87 under Khata No. 234 situate in Mouza Bidyadharpur of Cuttack district and the residential house of the family exists on a portion of the said land. Balu died in the year 1940 leaving behind him two sons, namely, Purna Chandra Mallik (present petitioner), Bhagirathi Mallik and a grandson namely Nrusingha Mallik (son of his predeceased son Gangadhar). Bhagirathi and Nrusingha having joined hands sold a portion of the aforesaid joint family dwelling house to one Smt. Renuka Jena (present opposite party No. 1). Since Renuka could not take possession of the portion of the said dwelling house, she filed Title Suit No. 658 of 1988 in the Court of thee Civil Judge (SD). 1st Court, Cuttack, impleading Purna Chandra Mallik (present petitioner)as defendant No. 1, Bhagirathi Mallik as defendant No. 2, and Nrusingha Mallik (present opposite party No. 5)as defendant No. 3, and praying inter alia :

(i)For partition of suit schedule A land by metes and bounds and allot schedule A-1 land which has been purchased by the plaintiff under the aforesaid sale deed from defendants 2 and 3 (Bhagirathi and Nrusingha)to be allotted in her share.

(ii)Possession of her allotted land be given to her through Court, and

(iii)In the event it is found that there was earlier partition of schedule A land by metes and bounds, title of the plaintiff over schedule A-1 land be declared and her possession be confirmed and if she is found to have been dispossessed from schedule A-1 land decree for recovery of the same through process of the Court be passed along with other reliefs."

(3.)After receiving notice of the suit, present petitioner Purna Chandra Mallik, who is defendant No. 1 in the suit, filed his written statement repudiating the averments of plaintiff-Renuka in the plaint and taking a specific stand that the joint family dwelling house of all the defendants standing on the suit land has never been partitioned and the plaintiff who does not belong to the family of the defendants has no right of joint possession of the said house. The other two defendants, namely, Bhagirathi defendant No. 2 and Nrusingha defendant No. 3 filed their joint written statement admitting the claim of the plaintiff.

(4.)The records reveal that during pendency of the suit, Bhagirathi defendant No. 2 having expired his widow Labanya and three sons were substituted in his place as defendant Nos. 2(a)to 2(d)respectively. In the meanwhile Labanya, defendant No. 2(a), has also expired. After filing their written statements the defendants having not contested the suit, they were set ex parte and an ex parte judgment decreeing the suit has been passed. Thereafter final decree proceeding was initiated which is still pending before the Court below.

(5.)In the final decree proceeding, defendant No. 1 Purna, present petitioner, filed an application under Section 4 of the Partition Act praying to fix the consideration amount of the portion of the dwelling house sold by original defendant No. 2 Bhagirathi and defendant No. 3 Nrusingha to plaintiff Renuka who was a stranger transferee and to direct Renuka to transfer the said portion of the dwelling house in his (defendant No. 1)favour and for other ancillary reliefs. The prayer of defendant No. 1 was resisted by plaintiff-Renuka.

(6.)The Court below by its order dated 22-8-2008 in the final decree proceeding allowed the petition of defendant No. 1 Purna and directed the parties to produce the relevant documents for determination of the consideration amount of the portion of the disputed property which had been purchased by the plaintiff. While matter stood thus, defendant Nos. 2(c)and 3 Nrusingha filed a petition before the Court below under Section 4 of the Partition Act praying that they might be allowed to re-purchase the land which had been alienated in favour of the plaintiff, for the consideration as may be fixed by the Court. Defendant No. 1 Purna (present petitioner)filed objection to the said application of defendant Nos. 2(c)and 3 inter alia contending that since original defendant No. 2 Bhagirathi and defendant No. 3 Nrusingha had sold the land in question, the benefit of Section 4 of the Partition Act was not available to them.

(7.)After hearing the parties, the Court below by order dated 23-9-2006 allowed the prayer of defendant Nos. 2(c)and 3 and further held that since rival claims were coming forward with regard to re-purchasing the property purchased by the plaintiff (stranger to the joint family), the matter should be dealt with in accordance with the provisions of Section 3(2)of the Partition Act. Being aggrieved by the said order dated 23-9-2006 of the Court below, defendant No. 1 Purna has filed this writ petition.

(8.)As would be apparent from the aforesaid facts, a portion of the joint family dwelling house has been sold by original defendant No. 2 and defendant No. 3 to the plaintiff who was a stranger to the family. A preliminary decree has been passed in the suit for partition filed by the said stranger-purchaser and final decree proceeding is pending. There is no law which stipulates that a co-sharer must sell his or her share to only another co-sharer. Thus strangers and outsiders can purchase share of a co-sharer even in a dwelling house. Section 44 of the Transfer of Property Act stipulates that the transferee of a share in a joint family dwelling house if he is not a member of the said family gets no right to joint possession or common enjoyment of the portion of the house so purchased. Thus Section 44 of the Transfer of Property Act adequately protects the members of the joint family against intrusion of an outsider into joint family dwelling house. The only manner in which an outsider can get possession of the property purchased by him/her is by filing of a suit for separation of his/her share and pray for delivery of possession. Only after such a step is taken that the provisions of Section 4 of the Partition Act will come into play. Excepting Section 4 of the Partition Act there is no other law which provides right to a co-sharer to re-purchase the property sold to a stranger/outsider. Thus before the right of pre-emption under Section 4 of the Partition Act is claimed, the conditions laid down therein have to be satisfied. One of the said conditions is that the outsider must file a suit for partition. Section 4 does not provide a right to the co-sharer to claim preemption where a stranger/outsider does nothing after purchasing the property in question. In other words, Section 4 of the Partition Act does not vest right on a co-sharer to claim pre-emption and to re-purchase the property unless the stranger-purchaser comes to the Court and files a suit for partition and for handing over possession. (See Gautam Paul v. Debi Rani Paul, AIR 2001 SC 61 [LQ/SC/2000/1497] ).

(9.)In the case of Ghantesher Ghose v. Madan Mohan Ghosh, AIR 1997 SC 471 [LQ/SC/1996/1512] , it has been held that before Section 4 of the Partition Act can be invoked the following conditions must be fulfilled :

"(1)A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein; (2)The transferee of such undividual interest of the co-owner should be an outsider or stranger to the family; (3)Such transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned. (4)As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-emption by undertaking to buy out the share of such transferee; and (5)While accepting such a claim for pre-emption by the existing co-owner of the dwelling house belonging to the undivided family, the Court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house."

(10.)Sub-section (2)of Section 4 stipulates that in a case where two or more members of the family being such share-holders severally undertake to buy such sharp, the Court shall follow the procedure prescribed under sub-section (2)of Section 3. Sub-section (2)of Section 3 stipulates that if two or more share-holders severally apply for leave to buy as per Section 3, the Court shall order a sale of the share or shares to the shareholders who offer to pay the highesr price above the valuation made by the Court.

(11.)In the instant case, according to Mr. Routray, the property in question was sold by original defendant No. 2 and defendant No. 3. The writ petitioner who was defendant No. 1 in the suit though admittedly a co-sharer was not a party to the said transaction and as such only defendant No. 1 has a right of re-purchase and not others. Section 3 of the Partition Act deals with the procedure for re-purchase of a share by a co-sharer. According to this Section, in a case where a prayer is made to direct a sale, and any other share-holder applies for leave to value at a valuation the share or shares of the party or parties asking for sale, the Court shall order a valuation of the share in such manner as it may think fit and offer to sell the same to such share-holder at the price so ascertained. In this Section, in its prudence, the Legislature has used the word "share-holder" which otherwise means and connotes a person who has a share in a particular property. After alienating a portion of the property, the alienating co-sharer loses all his right over the said property. Thereafter he cannot be nomenclatured as a share-holder qua the property alienated by him. In other words, he strips his right, title and interest in respect of the property alienated by him and virtually becomes a stranger to the property. The words "any other share-holder" used in Section 3 of the Partition Act thus excludes the co-sharer who has sold the property. Thus, it would suffice to say that in consonance with Sections 3 and 4 of the Partition Act, only those share-holders who have a right over the dwelling house sold to a stranger can be given opportunity to re-purchase the same. Thus a co-sharer who sold a portion of the joint family dwelling house has no right to re-purchase and such right vests only upon the co-sharer who has not sold the said property. A liberal interpretation of the aforesaid provisions would lead to a conclusion that a co-sharer who was not a party to the transaction would have the right of pre-emption. The said Interpretation, according to this Court, would not only be harmonious, but would also be in fulfilment of the intention of the Legislature. A co-sharer who has sold away a portion of a joint family dwelling-house without intimation to other co-sharers and thereby has parted with his share in the said house cannot once again be allowed to opt for re-purchase, inasmuch as by his own conduct he is estopped from making offer to re-purchase.

(12.)Considering all these facts and circumstances of the cases and the provisions of law, this Court feels that the impugned order of the Court below granting permission to defendant Nos. 2(c)and 3 cannot be sustained.

(13.)Accordingly this Court allows the Writ Petition and quashes the impugned order. This Court, however, directs that petitioner-defendant No. 1 shall only be allowed to exercise his right of re-purchase at the price that may be fixed by the Court below in consonance with the provisions of sub-section (2)of Section 3 read with Section 4 of the Partition Act. The writ petition is disposed of and so also the Misc. Case. Petition allowed.