JUDGMENT
G.B. Pattnaik, J.
1. Plaintiff is the appellant against a reversing judgment. Plaintiff filed the suit for partition and allotment of his one-fourth share and sought for relief Under Section 4 of the Partition Act to re-purchase the undivided ancestral property from defendant No. 8 with respect to Schedule -Kha property. Plaintiff’s case, in brief, is that plaintiff and defendants 1 to 7 are descendants of the common ancestor Banamaii and defendant No. 8 is a stranger to the family. Defendant No. 8 got a registered sale deed in respect of the undivided ancestral homestead property from defendant No. 1 on 14-2-1978 in respect of Schedule-Khar property of the plaint which comprises of a part of the residential house and the tank appurtenant thereto and the plaintiff is entitled to protection of Section 4 of the Partition Act.
2. The defendants contested the suit challenging the share- claimed by the plaintiff and it was further contended that though defendant No. 1 had sold his share of homestead to defendant No. 8 on 14-2-1978, but defendant No. 8 had re-conveyed the same in favour of defendant No. 1 on 21-4-1978 on receiving the consideration money of Rs. 2,000/- and, therefore, the plaintiff is not entitled to the protection of Section 4 of the Partition Act.
3. The learned trial Judge framed several issues of which the most crucial issue is whether in view of the reconveyance made by defendant No 8 in favour of defendant No. 1, the relief Under Section 4 of the Partition Act can at all be given to the plaintiff. This in turn makes it obligatory to decide whether the principle o1 lis pendens would be applicable in respept of the rights of the parties Under Section 4 of the Partition Act. So far as the share of the plaintiff is concerned, there is no controversy between the parties, the same having been determined at one-sixth. The learned trial Judge on the crucial issue in question came to the conclusion that the right of pre-emption has to be worked out at the time of filing of the suit and the subsequent re-conveyance by defendant No. 8 in favour of defendant No. 1 will not effect that right of the plaintiff so as to defeat his claim of re-purchase Under Section 4 of the Partition Act. He further held that the subsequent re-conveyance is hit by Section 52 of the Transfer of Property Act. On this conclusion, the suit having been decreed, defendant No. 1 carried the matter in appeal.
4. The lower appellate Court on considering the question as to whether the principle of lis pendens would apply to a suit claiming relief Under Section 4 of the Partition Act, came to hold that the said principle will be of no application, since the transfer in question does not relate to any immovable property directly or specifically in question. In other words, according to the lower appellate Court since specific property is not in issue, but an undivided share in the joint family, the principle of Iis pendens will not be applicable. The lower appellate Court further held that by virtue of reconveyance, the stranger purchaser walks out having no interest in the suit property and, therefore, the trial Court’s decree directing defendant No. 1, a member of the family, to execute a sale deed in favour of the plaintiff, is on the face of it absurd and hence the present second appeal.
5. The only question that arises for consideration in the present second appeal is whether a suit claiming relief Under Section 4 of the Partition Act can be said to involve a right to a specific immovable property and, therefore, would be governed by Section 52 of the Transfer of Property Act, or not. There is no manner of doubt that the subsequent reconveyance by defendant No. 8 made in favour of defendant No. \ was much after the filing of the suit. Mr. Patnaik appearing for the respondent No. 1 argues with vehemence that a suit for pre-emption enshrined in Section 4 of the Partition Act does not involve a right to any specific immovable property and, therefore, the provision of Section 52 of the Transfer of Property Act will have no application. This question came up for consideration before a Division Bench in one of the earliest cases in Kehar Singh v. Jahangir Singh and Anr., AIR 1925 Allahabad, 487, and, their Lordships after analysing the provision of Section 52 of the Transfer of Property Act came to hold that the doctrine of Us pendens would apply when after the institution of a suit for pre- emption, the vendee transfers the property to the vendor. In course of discussion, the learned Judges held ;
“……We think it is intolerable that a vendee after a suit for pre-emption has been filed, should be allowed to reconvey to the vendor and to defeat the suit which has been brought by a pre- emptor. In a case of this kind parties who enter into such transactions are not entitled to the protection of the Court, while the plaintiff, on the other hand, ought to have the full benefit of the doctrine of lis pendens, as laid down in S.52 of the Transfer of Property Act……”
The question also cropped up for consideration before their Lordships of the Supreme Court in the case of Bishan Singh and Ors. v. Khazan Singh and Anr., AIR 1968 Supreme Court, 838, in which case the provisions of the Punjab Pre-emption Act were under consideration. Their Lordships of the Supreme Court held :
“It is settled raw in Punjab that the rule of lis pendens is as much applicable to a suit to enforce the right of pre-emption as to any other suit….,.”
(quoted from headnote)
Mr. Patnaik appearing for the defendant No. 1-respondent in course of hearing had urged that the aforesaid dictum applies only to the rules of pre-emption in Punjab and will not be applicable to the same principle enshrined under the Partition Act. I see no Justification for the aforesaid contention, as the right of pre-emption Under Section 4 of the Partition Act is also akin and similar to the rule of pre-emption under Punjab Pre-emption Act which was under consideration before their Lordships of the Supreme Court.
A learned Single Judge of this Court in the case of Sundari Bewa v. Ranka Behera and Ors.. AIR 1968 Orissa 134, had also considered this question and in paragraph-9 of the Judgment it has been held:
“Thus, when the jurisdiction of the Court Under Section 5 of the the Partition Act on the basis of facts obtaining as on the date of the institution of the suit has been invoked, the same cannot be ousted by the transfer of interest of the defendants 2 and 3, who are stranger-purchasers and if the plaintiff is legally entitled to any relief Under Section 4 of the Partition Act by ignoring the alienation pendente lite he must have it……”
Mr. Patnaik appearing for the respondent No. 1 had urged that this decision has not been held to be correct law by the Division Bench in the case of Alekha Mantri v. Jagabandhu Mantri and Ors., AIR 1971 Orissa 127. I have carefully considered the latter Division Bench case and in my considered opinion, the aforesaid observations of the learned Single Judge in relation to the applicability of provision of Section 52 of the Transfer of Property Act to a suit for partition and claiming right Under Section 4 of the Partition Act have not been overruled, though the ratio of the aforesaid case, so far as whether Section 4 of the Partition Act is attracted in a suit for partition not by a stranger purchaser but by a member of the family as a co-sharer, has been overruled.
6. In view of the aforesaid position of law, I have no doubt in mind that to a suit for partition, claiming relief of pre-emption enshrined in Section 4 of the Partition Act, the principle of lis pendens enshrined in Section 52 of the Transfer of Property Act would apply, as the said right must be held to be involving a right to the immovable property. In this view of the matter, the lower appellate Court was in error in holding that the provision of Section 52 of the Transfer of Property Act will not apply to the present case. Accordingly, the judgment and decree of the lower appellate Court are set aside and those of the trial Court are affirmed.
The Second Appeal is allowed. Parties would bear their own costs.