JUDGMENT :- This is a plaintiffs Second Appeal in a suit for partition of a small double storeyed house, the division of which, according to the common case of the parties, cannot be reasonably and conveniently made. The plaintiff wanted that the first defendant be directed to sell one-half share, which the latter had purchased from the plaintiffs brother for Rs. 3,000/- by a sale-deed dated the 20th July, 1970. The plaintiff claimed that Section 4 of the Partition Act was applicable and the trial Court having accepted the plaintiffs contention decreed the suit giving the plaintiff benefit of Section 4 of the Partition Act by directing the first defendant to sell his share to the plaintiff on deposit of Rs. 3,500/- to be made by the latter within two months from the date of the trial Courts decree. It may be noticed that the second defendant, who is the second defendant-respondent in this Court, was a tenant of a shop forming part of the property, and had thus no direct interest in the litigation. 2. The lower appellate Court found that Section 4 of the Partition Act was not applicable; inasmuch as the present suit was not by the transferee stranger to the family, but by the remaining coparcener member of the family. Having reached that conclusion, the provisions of Sections 2 and 3 of the Partition Act were invoked by the plaintiff who was the respondent before the lower appellate Court. Having reached that conclusion, the provisions of Sections 2 and 3 of the Partition Act were invoked by the plaintiff who was the respondent before the lower appellate Court. The lower appellate Court found that the counsel for the parties had conceded that the property is not partible, and that the sale of the property as provided for by Section 2 of the Partition Act, would be more beneficial to the share-holders, and the lower appellate Court proceeded to hold that the proper mode of partition would be to order a sale of the property, as provided in Section 2; but, while dealing with the plaintiffs claim to a prior right to purchase the share of the defendant No. 1 the lower appellate Court held that "the question of offering to purchase the share of defendant No. 1 to the other co-sharers would arise only when a sale is ordered", and that "an order or direction for sale under Section 2 is yet to be made in the decree by this Court and it will be after such a decree is passed that it would be open to the share-holder under Section 3 to offer for buying the share of the other co-sharers." According to the lower appellate Court, all the co-sharers are entitled, under sub-sec.(2) of Section 3 of the Partition Act, "to make offer to buy the share and the Court will accept the offer of the co-sharers who pays the highest price", and the "the plaintiff has no preferential right of buying property under Section 3." The further contention that the plaintiff having already made an offer, the first defendant had no right now to make the offer, was rejected by the lower appellate Court. In the result, the lower appellate Court allowed the appeal and modifying the decree of the trial Court ordered that the property shall be got valued and it shall be offered for purchase to the share-holders, namely the plaintiff and defendant No. 1 and the party offering highest price above the valuation made by the Court shall be allowed to purchase the share of the other party and that "In case non of the parties offer to purchase or the price offered falls short of the market value of the property assessed by the Court, it shall be sold by public auction and the sale proceeds thereof shall be distributed equally amongst plaintiff and defendant No. 1.". 3. Learned counsel for the appellant first contended that the Full Bench decision of this Court in Haji Sakhawat Ali v. Ali Husain, 1957 All WR (HC) 342 : ( AIR 1957 All 356 ) had been misapplied by the lower appellate Court to the facts of the present case; inasmuch as it was observed by the Full Bench that the benefit of Section 4 could be claimed "if the transferee either sues for partition himself or makes the same claim when he is impleaded as a defendant in such a suit and clarified the position further by saying that the section does not entitle a co-sharer to buy out the stranger tranferee whenever he likes unless the transferee has claimed a partition of his share either as a plaintiff or as a defendant". Learned counsel pointed out that the case of the first defendant was not that the house was not capable of partition; but that by mutual partition between the plaintiff and his brother Raj Narain, who was the first defendant vendor, the property was partitioned into two equal shares some time in the year 1968, by which the shop and half portion of the house adjoining the shop towards the north was allotted to Raj Narains share and the remaining half portion comprising of the double storeyed building of equal value was allotted to the share of the plaintiff and his sons. According to the defendants case, the plaintiff and his brother Raj Narain had been in actual possession of their respective share. According to the defendants case, the plaintiff and his brother Raj Narain had been in actual possession of their respective share. The suit for partition was thus sought to be defeated not on the ground that the house was incapable of partition, but on the ground that it was already divided into two portions and the first defendant was in possession of a separate specific portion sold to him by the plaintiffs brother, of which he was in exclusive possession; and, even in the alternative, the first defendant claimed that in case of fresh partition by Court, the answering defendant would be entitled to get the shop and the adjoining portion of the house allotted to his share on payment of owelty to equalise the share, if necessary. 4. The defendants case that the house had already been divided in the manner alleged by him was not accepted by either of the two Courts below and it was conceded before the glower appellate Court that the house was not capable of being reasonably or conveniently divided into two equal portions. 5. It was found by both the Courts below that there was no partition as alleged by the first defendant. That finding is of fact and being based on evidence, its correctness cannot be assailed in this Court. 6. The first question, which, therefore, arises for determination in this Second Appeal, is whether Section 4 of the Partition Act could be said to be applicable. The property consists of a shop, which was admittedly tenanted by the second defendant, but it was said that originally the shop was the Baithak or the front sitting room of the family dwelling house and that has been found to be so by the trial Court. The trial Court found that the house was a dwelling house and taking the view that every party to partition suit was in the position of a plaintiff, it held the plaintiff entitled to the benefit of S.4. 7. As already observed, the lower appellate Court held that the benefit of Sec.4 was not available to a co-sharer member of the family unless the stranger transferee sues for partition. The reading of the pleas taken by the first defendant in his written statement that he did not seek partition does not appear to be correct. 7. As already observed, the lower appellate Court held that the benefit of Sec.4 was not available to a co-sharer member of the family unless the stranger transferee sues for partition. The reading of the pleas taken by the first defendant in his written statement that he did not seek partition does not appear to be correct. On the language of the written statement, as it stands, it does seem to have been contended by the first defendant that the house was already divided, and in case the Court found that it was not already divided or partitioned, as claimed by him, it may be divided and partitioned in that manner. The finding, however, is that the house was not partible and that finding was based on concession made by the counsel for the parties. The lower appellate Court did not give any finding as to whether the house was a dwelling house, but, at the same time, did not reverse the finding of the trial Court that it was a family dwelling house. In the relief, as originally worded in the plaint, the plaintiff had claimed a partition of his one-half share in the property and it was only by way of an amendment that a plea was added that the value of the house would be destroyed by partition, and that, therefore, the plaintiff may be given a right to purchase the half share of his brother Raj Narain which had been purchased by the first defendant, Thus, originally both the parties sought partition and finding that difficult each one of them wanted to buy the share of the other. 8. What the Full Bench has ruled in Haji Sakhawat Ali v. Ali Husain, 1957 All WR (HC) 342 : ( AIR 1957 All 356 at p. 359) (supra) is that : A suit for possession of the entire dwelling house is not a suit for partition. When such a suit is brought by a co-sharer against the transferee of another co-sharer it is in the nature of a suit for pre-emption, and although Sec.4 (1) does confer a right of pre-emption on a co-sharer against the stranger transferee that right is limited in its scope. It can be claimed, in our opinion only if the transferee either sues for partition himself or makes the same claim when he is impleaded as a defendant in such a suit. It can be claimed, in our opinion only if the transferee either sues for partition himself or makes the same claim when he is impleaded as a defendant in such a suit. That section does not entitle a co-sharer to buy out the stranger transferee whenever he likes unless the transferee is claiming a partition of his share either as a plaintiff or as a defendant." 9. Applying the rule so enunciated by the Full Bench to the facts of the present case the plaintiff could take advantage of the provisions of Section 4 of the Partition Act. But that is not to say that a decree for pre-emption has to be passed in the plaintiffs favour by substituting him as the purchaser in place of the first defendant on payment of the amount paid by the latter to the plaintiffs brother Raj Narain. A sale of the share of the first defendant could be directed in favour of the plaintiff only after a valuation of his share. The trial Court did not value the share according to any principles of valuation of immovable property. It only added the estimated expense on purchase to the sale consideration of Rs. 3,000/- and interest at the rate of one per cent per mensem to arrive at the figure of Rs. 3,500/-. 10. The law requires a valuation to be made by the Court. The price paid by the transferee may be an index of the correct value of the share purchased by him or it may not be so depending on the facts and circumstances of each case. A subsidiary question, which arises in this connection, is the point of time, with reference to which the valuation has to be made. The right under Sec.4 is not a right of pre-emption. It is a right to buy the share of the stranger transferee on payment of its fair value. In case a partition is decreed the parties are put into separate possession of their respective shares and if one of the parties is found to be in possession of more than his rightful share, that party can even be required to pay mesne profits in respect of the property in his possession in excess of his share. In case a partition is decreed the parties are put into separate possession of their respective shares and if one of the parties is found to be in possession of more than his rightful share, that party can even be required to pay mesne profits in respect of the property in his possession in excess of his share. It is not known as to which of the two whether the first plaintiff or the first defendant, or both have been recovering the rent of the shop from defendant. No. 2. It is also not very clear as to who is in possession or use of the rest of the property. 11. Under the circumstances. I would direct that an account be rendered by the defendants of the income from the use and occupation of the property in suit since the date of its institution up to date. The plaintiff and the first defendant are entitled to share the net proceeds of the said income equally. The second defendant is further directed to deposit the rent of the shop or the portion of the property in his possession in the trial Court regularly every month from the date of this judgment until further orders of the trial Court. The amount so deposited will be shared equally between the plaintiff and the first defendant. On an application being made by the plaintiff in this behalf within one month of the receipt of the record by it, of which due intimation shall be sent to the plaintiff by the trial Court, the trial Court shall proceed to appoint a duly qualified person to determine the value of the house and dividing the same by two, to determine the present value of the first defendants one-half share therein. The expenses of valuation shall be borne by the plaintiff irrespective of the result of valuation or of the suit. The trial Court shall on receipt of the valuers report and considering the objections of the parties thereto, if any, proceed to determine the value of the first defendants one-half share in the property in suit and, that having been done it shall direct the first defendant to sell his one-half share to the plaintiff on such valuation within a period to be fixed by it. The expenses on the sale including stamp duty, scribing and registration charges would be payable by the plaintiff. The expenses on the sale including stamp duty, scribing and registration charges would be payable by the plaintiff. The parties shall, in the circumstances of the case, bear their own costs throughout. In case the plaintiff shall fail to deposit the value so fixed along with the necessary expenses, the suit shall stand dismissed with costs through- out to the first defendant. Let a preliminary decree be passed accordingly. The appeal is partly allowed and the decree under appeal is modified as above. Appeal partly allowed.