Report No. 86
V. Stage for Applying Under Section 4
7.28. Some questions seem to have arisen in the past as to the stage at which an application can be made under section 4(1). It has been held that it can be made at any stage of the partition suit, even after the passing of the final decree. Thus, in a Calcutta case,1 a final decree was passed on 28-11-1913. Defendants 2 and 3, who were members of the family, thereafter claimed to purchase the share sold. An argument was advanced that the Subordinate Judge had no jurisdiction to pass an order under section 4 after the passing of the final decree.
The contention was negatived by the High Court. In a later Calcutta case,1 it has been held that "the right conferred by section 4 may be exercised at any time before the final allotment takes place". A similar view has been expressed by a Bench of the Allahabad High Court,2 which held that "the section itself fixes no stage up to which alone the application can be made. On the contrary, the language of the section shows that it can be made at any stage".
1. Prankrishna v. Surath Chandra Roy, ILR 45 Cal 873: AIR 1919 Cal 1055.
2. Niranka Bashi Roy v. Swarganath Banerjee, AIR 1926 Cal 95.
3. Dwnrka Das v. Godhana, AIR 1939 All 313, followed in Kashi Nath v. Atma Ram, AIR 1973 All 548.