Report No. 86
7.23. Recommendation regarding section 4(1).-
In view of what has been stated above, we recommend that section 4(1) should be widened so as to ensure that it applies whether the transferee is a plaintiff or a defendant and whether the transferee makes a prayer for specific allotment or not, provided that the suit is one for partition (the usual situation) or a suit for possession against the transferee (a situation which may arise, for example, where the plaintiff member is not in possession).
Such an amendment will set right the hardship of an extreme character that is often caused by the present law, an illustration of which would be found in the facts of the Allahabad case1 to which we have referred. There the plaintiff had brought a suit against the transferee for possession or, alternatively, for partition. It was admitted, that he was the owner of 47/48th share in a house, and defendants No. 1 to 9 (transferees) owned only 1/48th share (being the share of certain former co-sharers). Still, the section could not be applied.
1. Sakhazuat Ali v. Ali Husssain, AIR 1957 All 356 (357), para. 5 (FB).