JUDGMENT Henderson, J. - This appeal is by the plaintiff, defendant 1 and defendant 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 joint purchase which was made in the year 1906 from one Ramnath Acharjya who was admittedly owner of an eight annas share in the property. It is not disputed now that the total share of the appellants amounts to five annas nine pies. The contesting respondents represent the other eight annas and they are members of the original family. 2. The first contention made on behalf of the appellants is that this Act does not apply at all. On the basis of the purchase of eight annas made in 1906 there can be no question that it does apply. This argument is accordingly based upon a subsequent transaction by which the appellants made a purchase from one Jagat. If it can be held that by that purchase they purchased a share then the Act will not apply. 3. At the time of the purchase in 1906 Ramnath had creditors. One of them was named Jagat and he attached Ramnath's share in the property. He obtained a decree and then applied for execution. It is not surprising that the appellants put in a claim case. It is also not surprising to find that Jagat alleged that they were Ramnath's benamdars. The claim was allowed and Jagat then instituted the usual suit. 4. The Munsif decreed the suit. The appellants appealed. The learned Subordinate Judge who decided the appeal then reached what appears to me to be a rather curious decision. He held that the sale to the appellants was a perfectly genuine transaction and he rejected Jagat's case of benami. Instead of dismissing Jagat's suit he held that as the price was rather low Ramnath must have intended to reserve to himself something and this something was a right of residence. As a result Jagat obtained a decree which entitled him to bring to sale a right of residence. 5. It is again not surprising to find that the appellants then tried to get rid of Jagat. They obtained a declaration of their title against him but they failed to obtain khas possession because of this right of residence. As a result Jagat obtained a decree which entitled him to bring to sale a right of residence. 5. It is again not surprising to find that the appellants then tried to get rid of Jagat. They obtained a declaration of their title against him but they failed to obtain khas possession because of this right of residence. It is, therefore, not surprising that they decided to buy him out and they purchased this rather nebulous right by the Kobala Ex. 1(a). 6. It is, therefore, quite clear that they did not purchase any share by this kobala but on the contrary they obtained a declaration of their title in the suit brought against Jagat on the basis of their original purchase from Ramnath. The result, therefore, is that they cannot get rid of the Partition Act by saying that Jagat was a co-sharer of the respondents. 7. In the second place it was contended in the alternative that in view of the wording of S. 4, the respondents can only purchase the share of the plaintiff. In this contention defendants 1 and 11 are supported by the decision of the Bombay High Court in the case of Khanderao Dattatraya Wakde v. Balkrishna Mahadev Phulambrikar, 46 Bom. 341 : (A.I.R. 1922 Bom. 121). 8. A different view was taken by this Court in the case of Satyabhama De Vs. Jatindra Mohan Deb and Others, AIR 1929 Cal 269 . The learned Judges said this: If effect is given to the respondents' contention the result will defeat the object of the legislature to secure indivisibility of a dwelling house. They then went on to point out that, a party in a partition suit whether a plaintiff or a defendant is at the same time a plaintiff as well as a defendant. With these remarks, I respectfully agree. If the respondents are only entitled to purchase the share of the plaintiff the whole object of the Act would be defeated and there will be further trouble in future. 9. Mr. Das tried to distinguish the case of defendant 1, on the ground that he did not actually ask for an allotment. The language actually used by the learned Judges was due to the fact that the only person appearing before them had actually asked for an allotment. In the present case defendant 1 did not file a written statement at all. The language actually used by the learned Judges was due to the fact that the only person appearing before them had actually asked for an allotment. In the present case defendant 1 did not file a written statement at all. He, therefore, accepted the ease made in the plaint that he had a certain share and that he was entitled to an allotment. The actual application under the Act was made in the Appellate Court after the preliminary decree for partition had actually been made. 10. The other question raised is that of valuation. It is not disputed that the appellants have a grievance on this point. No notice of the application was ever given to them. The learned District Judge said that it was of no practical importance because the case had been fully put by the plaintiff's advocate. He forgot this however when he was dealing with the question of valuation proceeding upon the theory that there was an estoppel against the plaintiff. If that theory was right it immediately made the case of defendants 1 and 11 quite different. 11. The learned Judge has accepted the valuation made in the plaint. He has also found that it was grossly inadequate. His finding could, therefore, only be accepted if the plaintiff were estopped from challenging this valuation. No such contention has been put forward and the most that can be said is that this would be a very strong piece of evidence against the plaintiff. Dr. Sen Gupta suggested that it would also be evidence against defendants 1 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 that they were admitting that the property was not worth more than two thousand rupees. 12. There are really no materials on the record upon which the 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 by which Jagat'a interest was purchased. Obviously these two would have to be added together and not treated as separate valuations. By Ex. 1(b) the appellants were merely purchasing peace from somebody else. This also should be added to the others instead of being treated as an independent transaction. Exhibit. 1 is the original Kobala. Exhibit 1(a) is the Kobala by which Jagat'a interest was purchased. Obviously these two would have to be added together and not treated as separate valuations. By Ex. 1(b) the appellants were merely purchasing peace from somebody else. This also should be added to the others instead of being treated as an independent transaction. In this state of the record it is impossible to avoid an order of remand. 13. The decree of the Lower Appellate Court is accordingly set aside and the case is remanded to him in order that the valuation of the property may be fixed. Both sides will be at liberty to adduce evidence, I make no order as to costs in this appeal. 14. The cross-objection is not pressed and is dismissed without costs.