A co-sharer may invoke Section 4 when a stranger purchaser sues to partition an undivided family dwelling house.

Phul Kumar Pal instituted a partition suit concerning a residential dwelling house. During the suit, he transferred his undivided share to the Respondents, who were substituted as Plaintiffs and continued the partition proceedings.

The Trial Court passed a preliminary decree declaring the Respondents entitled to a one-fifth share. The Appellant, a co-sharer, then applied under Section 4 of the Partition Act, 1893, claiming a right to purchase that share on the ground that the property was an undivided family dwelling house and the Respondents were strangers to the family.

The Trial Court allowed the application and directed payment of Rs. 2,58,920; the First Appellate Court reversed that order. The Appellant brought this appeal.

Whether the Appellant, as a co-sharer in an undivided family dwelling house, could invoke Section 4 of the Partition Act to purchase the Respondents’ share after they acquired it as strangers to the family and continued the partition suit

Whether the Trial Court’s order allowing pre-emption should be restored, subject to valuation at the current market rate

Section 4 of the Partition Act, 1893 applies where a share in a dwelling house belonging to an undivided family has been transferred to a person who is not a member of that family and the transferee sues for partition. A family-member co-sharer who undertakes to buy the transferee’s share may seek its valuation and purchase [Srilekha Ghosh (Roy) v. Partha Sarathi Ghosh, (2002) 6 SCC 359].

The right may be invoked during the partition suit and, after the final decree, during execution until the decree has been fully executed and the shareholders placed in possession [Ghantesher Ghosh v. Madan Mohan Ghosh, (1996) 11 SCC 446].

The Court held that the First Appellate Court had overlooked that the Respondents, as stranger purchasers, had been substituted for the original Plaintiff and continued the partition proceedings.

The case therefore met Section 4’s conditions: the property was an undivided residential unit, the Respondents were outsiders to the family, and they pursued partition.

The Court found the First Appellate Court’s contrary reasoning erroneous. Because no final decree had been passed, the pre-emption order could be upheld, but the purchase price had to reflect the current market value rather than remain fixed at the amount earlier directed.

It remanded the matter to the Trial Court to determine that value and make the necessary order. The appeal and pending applications were disposed of.