A.G.R. Henderson, J.

1. This appeal is by the plaintiff, defendant 1 anddefendant 11 and it raises some points in connection with the application of S.4, Partition Act. All the three appellants derive their title from a jointpurchase which was made in the year 1906 from one Ramnath Acharjya who wasadmittedly owner of an eight annas share in the property. It is not disputednow that the total share of the appellants amounts to five annas nine pies. Thecontesting respondents represent the other eight annas and they are members ofthe original family.

2. The first contention made on behalf of the appellants isthat this Act does not apply at all. On the basis of the purchase of eightannas made in 1906 there can be no question that it does apply. This argumentis accordingly based upon a subsequent transaction by which the appellants madea purchase from one Jagat. If it can be held that by that purchase theypurchased a share then the Act will not apply.

3. At the time of the purchase in 1906 Ramnath hadcreditors. One of them was named Jagat and he attached Ramnaths share in theproperty. He obtained a decree and then applied for execution. It is notsurprising that the appellants put in a claim case. It is also not surprisingto find that Jagat alleged that they were Ramnaths benamdars. The claim wasallowed and Jagat then instituted the usual suit.

4. The Munsif decreed the suit. The appellants appealed. Thelearned Subordinate Judge who decided the appeal then reached what appears tome to be a rather curious decision. He held that the sale to the appellants wasa perfectly genuine transaction and he rejected Jagats case of benami. Insteadof dismissing Jagats suit he held that as the price was rather low Ramnathmust have intended to reserve to himself something and this something was aright of residence. As a result Jagat obtained a decree which entitled him tobring to sale a right of residence.

5. It is again not surprising to find that the appellantsthen tried to get rid of Jagat. They obtained a declaration of their titleagainst him but they failed to obtain khas possession because of this right ofresidence. It is, therefore, not surprising that they decided to buy him outand they purchased this rather nebulous right by the Kobala Ex. 1(a).

6. It is, therefore, quite clear that they did not purchaseany share by this kobala but on the contrary they obtained a declaration oftheir title in the suit brought against Jagat on the basis of their originalpurchase from Ramnath. The result, therefore, is that they cannot get rid ofthe Partition Act by saying that Jagat was a co-sharer of the respondents.

7. In the second place it was contended in the alternativethat in view of the wording of S. 4, the respondents can only purchase theshare of the plaintiff. In this contention defendants 1 and 11 are supported bythe decision of the Bombay High Court in the case of Khanderao Dattatraya Wakdev. Balkrishna Mahadev Phulambrikar, 46 Bom. 341 [LQ/BomHC/1921/128] : (A.I.R. 1922 Bom. 121) [LQ/BomHC/1921/128] .

8. A different view was taken by this Court in the case ofSreemati Satyabhama De v. Jatindra Mohan Deb and others, : 49C.L.J. 136 : (A.I.R. 1929 Cal. 269). The learned Judges said this:

If effect is given to the respondents contention the resultwill defeat the object of the legislature to secure indivisibility of adwelling house.

They then went on to point out that, a party in a partitionsuit whether a plaintiff or a defendant is at the same time a plaintiff as wellas a defendant. With these remarks, I respectfully agree. If the respondentsare only entitled to purchase the share of the plaintiff the whole object ofthe Act would be defeated and there will be further trouble in future.

9. Mr. Das tried to distinguish the case of defendant 1, onthe ground that he did not actually ask for an allotment. The language actuallyused by the learned Judges was due to the fact that the only person appearingbefore them had actually asked for an allotment. In the present case defendant1 did not file a written statement at all. He, therefore, accepted the casemade in the plaint that he had a certain share and that he was entitled to anallotment. The actual application under the Act was made in the Appellate Courtafter the preliminary decree for partition had actually been made.

10. The other question raised is that of valuation. It isnot disputed that the appellants have a grievance on this point. No notice ofthe application was ever given to them. The learned District Judge said that itwas of no practical importance because the case had been fully put by theplaintiffs advocate. He forgot this however when he was dealing with thequestion of valuation proceeding upon the theory that there was an estoppelagainst the plaintiff. If that theory was right it immediately made the case ofdefendants 1 and 11 quite different.

11. The learned Judge has accepted the valuation made in theplaint. He has also found that it was grossly inadequate. His finding could,therefore, only be accepted if the plaintiff were estopped from challengingthis valuation. No such contention has been put forward and the most that canbe said is that this would be a very strong piece of evidence against theplaintiff. Dr. Sen Gupta suggested that it would also be evidence against defendants1 and 11 because they did not challenge the valuation in the written statement.If their failure to do so amounts to anything it merely amounts to this thatthey were admitting that the property was not worth more than two thousandrupees.

12. There are really no materials on the record upon whichthe property can be valued. The learned Judge has relied upon Kobalas, Ex. 1,1(a) and 1(b). Exhibit. 1 is the original Kobala. Exhibit 1(a) is the Kobala bywhich Jagata interest was purchased. Obviously these two would have to beadded together and not treated as separate valuations. By Ex. 1(b) theappellants were merely purchasing peace from somebody else. This also should beadded to the others instead of being treated as an independent transaction. Inthis state of the record it is impossible to avoid an order of remand.

13. The decree of the Lower Appellate Court is accordinglyset aside and the case is remanded to him in order that the valuation of theproperty may be fixed. Both sides will be at liberty to adduce evidence, I makeno order as to costs in this appeal.

14. The cross-objection is not pressed and is dismissedwithout costs.

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Ram Dulal Acharjee and Ors. vs. Benode Behari Acharjya and Ors.(21.06.1944 - CALHC)