MANORANJAN MALLICK, J. ( 1 ) ANIY Kumar Sen and S. N. Sanyal J. J. have referred this revisional application for disposal by Special Bench as the Learned Advocate appearing for stranger purchaser being the defendant No. 1 (a) of the Title Suit No. 131 of 1977 in the Court of the Subordinate Judge. First Court, Alipore, challenges the maintainability of the application under Section 4 of the Partition Act, on the ground that the same is not maintainable in as much as the stranger purchaser has neither prayed for partition nor for separate allotment. The Learned Judges have expressed the view that the view expressed in Nitai Das v. Bali Das I. L. R. (1967) 2 Cal 301 relied upon by the Learned Advocate is contrary to other earlier decisions of the Court. In order to resolve the conflict of the views, the Learned Judges have ordered that the revisional application should be decided by a Larger Bench. ( 2 ) FOLLOWING are the facts: the petitioners being three brothers have filed as plaintiffs a suit for partition, permanent and mandatory injunctions being T. S. 131 of 1977 before Subordinate Judge 1st Court, Alipore against the defendant No. I claiming 3/4th share in the 17/4, Pitambar Ghatak Lane, Calcutta-27 and alleging that defendant No. 1 being the other brother has the remaining 1/4th share. During the pendency of the suit as the defendant No. 1 has sold away his share to Chittaranjan Bhattacharjee, a stranger purchaser, he has been impleaded as Defendant No. 1 (a ). After the preliminary decree has been passed the petitioners have applied for pre-emption under Section 4 of the Partition Act for purchasing the share transferred to Defendant No. 1 (a) on the ground that the property is the undivided family dwelling house of the plaintiffs and the defendant No. 1 and the defendant No. 1 (a) is a stranger purchaser. The Learned Subordinate Judge registered the application as Misc. Case No. 3 of 1983. The Learned Subordinate Judge, however, dismissed the said application under an order dated 11th February, 1983 only on the ground that the plaintiffs have waived, the right to pre-emption as the defendant No. 1 prior to his sale of his share to defendant No. 1 (a) offered the plaintiffs to purchase his share but the plaintiffs did not offer adequate price to purchase the share. Being aggrieved, the petitioners have filed the revisional application under Section 115. C. P. Code challenging the above order as illegal. ( 3 ) THE opposite party No. 2 being the strange purchaser has opposed the application. Though in the Trial Court no plea was raised that the application was not entertainable on the ground that the opposite party No. 2 neither filed the suit for partition nor prayed for separate allotment, such a contention was raised for the first time in revision before the Division Bench and the Learned Judges of the Division Bench have referred the revision application to be disposed of by the larger Bench. Before us Learned Advocate for the petitioners has made two fold submissions. Firstly, there is no question of waiver of the right of pre-emption because the alleged offer which the petitioners very much dispute was made prior to the transfer and cannot prevent the petitioners from claiming the right of preemption under Section 4 of the Partition Act, which right accrues to petitioners after a co-sharer sells his share in the undivided family dwelling house to the stranger. Secondly, the series of decisions beginning from Satyabhama v. Jatindra AIR 1929 Calcutta 269 have consistently taken the view that the right of preemption is available to a co-sharer even in a case when the stranger purchaser does not himself file the suit for partition and is arraigned as a defendant in a partition suit filed by the co-sharer and that the decision of Division Bench of Netai Das v. Hari Das ILR 1967 (2) Calcutta 301 should not be accepted as the said decision is against the series of decisions of this High Court. Arun Kr. Matilal Learned Advocate for opposite party No. 2 has submitted that plea of waiver can be raised by the opposite party in a proceeding under Section 4 of the Partition Act and if the plaintiffs did not intend to purchase the share of the defendant No. 1 when offered prior to sale to stranger purchaser, they must be deemed to have waived the right and the Learned Subordinate Judge did not commit any illegality in taking that view. He has also relied upon the Division Bench decision of Netai Das v. Hari Das (Supra) but has concluded that in this case the stranger purchaser has in the written statement claimed his share in the property and should be presumed to have prayed for separate allotment and even on the basis of Netai Das's case the claim of the petitioners cannot be refused on that ground. ( 4 ) EVEN though we feel that there is scope for the opposite party in a proceeding under Section 4 of the Partition Act to take the plea of waiver of such right by the petitioners, we are of the view that in this case there was no sufficient material before the Learned Subordinate Judge to hold that the petitioners have waived such right. Before the Learned Subordinate Judge no evidence was adduced in Misc. Case No. 3 of 1983 by the opposite party No. 2 in support of the story of waiver. The Learned Subordinate Judge, only on the basis of the evidence in cross examination of the defendant No. 1 adduced before the preliminary decree was passed, namely, that he offered to sell his share to the plaintiffs but, the plaintiffs offered to pay Rs. 2000, held that the petitioners had waived their right. That evidence does not show that the defendant No. 1 made any averment that his brothers had refused to purchase his share and that is why he sold the share to opposite party No. 2. There is no whisper that he intimated his brothers that he would not sell it at Rs. 2000 and that he was selling to the opposite party No. 2 because he had offered higher price. On the contrary, there is nothing to indicate that the petitioners had any knowledge that the defendant No. 1 was negotiating for sale with opposite party No. 2 after the petitioners are alleged to have offered the lower price As a matter of fact, prior to filing of the suit the petitioners had no knowledge of the sale to the defendant No. 1 (a) who has been added after the filing of the suit for partition against the defendant No. 1. ( 5 ) WHEN at the time of hearing of the Misc. ( 5 ) WHEN at the time of hearing of the Misc. Case No. 3 of 1983 no evidence was tendered by the opposite party No. 2 in support of his case of waiver, the learned Subordinate Judge not justified in refusing the prayer on the ground that the petitioners had waived the right under Section 4 of the Partition Act. We have already indicated that Mr. Arun Kr. Matilal has conceded that in this case the opposite party No. 2 has claimed separate allotment by asking for a share in the property. Therefore, in this case even if, the decision of Netai Das's case be treated as laying down the correct law, the opposite party No. 2 cannot resist the claim of the petitioners when he is himself claiming separate allotment. Moreover, in our view when the petitioners have 1/4th share in the property and the opposite party No. 2 has purchased the remaining 1/4th share of defendant No. 1, even if no separate allotment were prayed for by the opposite party No. 2, the court would have to grant the opposite party separate allotment if the petitioners' claim for pre-emption failed. In that view of the matter we hold that the Learned Subordinate Judge was not justified in rejecting the prayer for pre-emption and the impugned order is liable to be set aside. We would now answer the reference, namely, whether the stranger purchaser not having prayed for partition nor for separate allotment the application under Section 4 of the Partition Act filed by the co-sharers of the undivided family dwelling is maintainable or not and whether the Division Bench decision of Netai Das v. Hari Das ILR 1967 (2) Calcutta page 301 has been correctly decided or not. We would reproduce here the provisions of the Section 4 of the Partition Act. 5. Section 4 reads thus -" (1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the court shall, if any member of the family being a share holder shall undertake to buy the share of such transferee, make valuation of such share in such manner as it thinks fit and direct the sale of such share to such share holder and may give all necessary and proper directions, in that behalf. 2. " " " "the interpretation of the words "such transferee sues for partition" have led to conflict of decisions. ( 6 ) IN Satyabhama v. Jatindra AIR 1929 Calcutta 269 Subrawardy and Jack JJ. were called upon to decide specifically as to whether the provision of Section 4 of the Partition Act would be attracted only when the stranger purchaser himself filed the suit for partition or whether the same would also apply if the co-sharer files a suit partition in which the stranger purchaser figures as a defendant. The Learned Judges rejected the contention of the respondents that the right of the co-sharer under Section 4 of the Partition Act would arise only when the stranger purchaser sues for partition. The following observations have been made. "if effect is given to the respondent's contention their suit will defeat the object of the legislature to secure the individuality of a dwelling house. It is possible that two persons buy two shares of two members of the family and one of them brings a suit for partition making the other a defendant and if his right to purchase the share of the dwelling house fails on any account, the stranger defendant may yet be given a share in the dwelling house because he does not happen to be a plaintiff in the suit. This is not what the legislature intended and we must put a reasonable construction on the act of the legislature. " ( 7 ) THUS liberal construction to Section 4 was given by the Learned Judge. That Section 4 whose object is to prevent a transferee from a member of the family who is an outsider to the family from enforcing his way to the undivided family dwelling house in which the other members of the family and the transferor belong have a right to live should be liberally construed has been enunciated by Sir Ashutosh Mukerjee in Khirod Prasad vs. Sarada Prasad 12 Callj 525. The Division Bench in AIR 1929 Calcutta 269 has followed this principle and has given liberal construction so that the object of Sec. 4 is achieved and is not frustrated. The Division Bench in AIR 1929 Calcutta 269 has followed this principle and has given liberal construction so that the object of Sec. 4 is achieved and is not frustrated. The Learned Judges have also taken into consideration that in a suit for partition parties are interchangeable and in a suit for partition whether a plaintiff or defendant is at the same time a plaintiff as well as defendant and this dual capacity of a party in the partition suit does not preclude even a defendant who is claiming a share in the undivided family dwelling house from being treated as plaintiff for the purpose of Section 4 of the Partition Act. This decision has been followed in several decisions. In some of them the definition of the expression "to sue" in Stroud's Judicial Dictionary to include not only "to prosecute" but also "to defend" was also taken into account. Reference may be made to the following decisions: Butto Krishna vs. Akshoy Kumar AIR 1950 Calcutta 111; Haradhan vs. Ushacharan AIR 1955 Calcutta 292. Ramdulal vs. Benode AIR 1949 Calcutta 245: Abu Isha Thakur vs. Dinobandhu AIR 1947 Calcutta 726; Satyendra vs. Amar Nath AIR 1964 Calcutta 52; Surendra Nath Achar vs. Ram Chandra Hazra 75 Calwn 195; Sunil vs. Provas AIR 1969 Calcutta 88; Sontosh Kr. Mitra, vs. Kalipada Das AIR 1981 Calcutta 278 ; B. Karmakar vs. S. N. Paramanick 88 Calwn 228 and Gopal Ch. Mitra vs. Haripada Das 91 Calwn 799. ( 8 ) THE view expressed in the above Calcutta decisions are in consonance with the view of Stone C. J. in AIR 1937 Nagpur 4. The Patna High Court in Abinash vs. Kamala AIR 1950 Patna 317 and Orissa High Court in Alekha vs. Jagabandhu AIR 1971 Orissa 127 have followed the Calcutta view. Section 4 has been strictly construed by Bombay High Court in Kamoda Rao vs. Balkriskna AIR 1922 and Madras High Court, in Ramayya vs. Subba Rao AIR 1950 Mad 214. These High Courts have held that Section 4 will be attracted only when the stranger purchaser files a suit for partition. ( 9 ) THE Full Bench of Allahabad High Court in Sakhawat Ali vs. Ali Hussain AIR 1957 Allahabad 356 has, however, struck a different note. These High Courts have held that Section 4 will be attracted only when the stranger purchaser files a suit for partition. ( 9 ) THE Full Bench of Allahabad High Court in Sakhawat Ali vs. Ali Hussain AIR 1957 Allahabad 356 has, however, struck a different note. The Full Bench does not fully deny the co-sharer the right under Section 4 even when the stranger purchaser is arraigned as defendant in the suit for partition but the Full Bench has expressed the view that Section 4 does not entitle a co-sharer of an undivided family dwelling house to buy the share of purchase by the stranger purchaser whenever he likes and the court cannot exercise such power unless the stranger purchaser is claiming partition of his share in the dwelling house either as a plaintiff or as a defendant. ( 10 ) THE Division Bench of Calcutta High Court in Netai Das vs. Hari Dass ILR 1967 (2) Calcutta 301 has followed the full bench decision of Allahabad High Court in Sakhawat Ali vs. Ali Hossain AIR 1957 Allahabad 356. The learned Judges have noted that the Calcutta High Court consistently expressed the view that Section 4 of the Partition Act should be liberally construed in favour of the co-sharer of the undivided family dwelling house and that the co-sharer has the right to buy the share of the stranger purchaser in the said dwelling house irrespective of the fact that the stranger purchaser is the plaintiff or a defendant. The learned Judges have also noted that the Calcutta High Court consistently rejected the narrow interpretation of Section 4 of the Partition Act. The learned Judges were also aware that the full bench decision of the Allahabad High Court never found favour with the Calcutta High Court. Even then the learned Judges have expressed that it must appear to the court that the stranger purchaser has claimed partition or, separate allotment and that application of Section 4 in a case where the stranger purchaser does not claim or is not claiming partition and separate allotment is unwarranted by the language of Section 4 of the Partition Act. The learned Judges over ruled the view expressed in series of decisions beginning from 12 CLJ 535 (Khirode vs. Sharada) that regard being had to the object of Section 4 it must be liberally construed. The learned Judges over ruled the view expressed in series of decisions beginning from 12 CLJ 535 (Khirode vs. Sharada) that regard being had to the object of Section 4 it must be liberally construed. The learned Judges have for the first time observed that Section 4 providing for invasion of legal right of the stranger purchaser must be strictly construed. ( 11 ) IT is to be noted that even after the above learned Judges expressed the view contrary to what has been so long held by Calcutta High Court, the subsequent decisions of Calcutta High. Court did not even take note of the above view. The views expressed since Satyabhama's case in AIR 1929 Calcutta 269 have been consistently followed. In B. Karmakar vs. S. N. Pramanik 88 Calwn 228 before Anil Kumar Sen and S. N. Sanyal JJ, Mr. S. P. Ray Chowdhury learned Advocate for the appellant relied upon the decision of Netai Dass's Case. The learned Judges in that decision found that in the said case the stranger purchaser-himself wanted to purchase the share of the plaintiff co-sharer, and even on the principle laid down in Netai Das's case the respondent was entitled to get the relief under Section 4 of the Partition Act and that is why the learned Judges did not refer the case to a larger bench. The learned Judges, however, did not agree with the view expressed in Netai Das's case. ( 12 ) WE are in full agreement with the view expressed in B. Karmakar vs. S. N. Paramanik (Supra ). When from Khirode vs. Sarada 12 Callj 525 this High Court consistently held that Section 4 should be liberally construed so that the object of Section 4 is not frustrated the learned Judges in Netai Dam's case have for the first time struck a different note that Section 4 should be strictly construed as it affects the legal right of the stranger purchaser. The object of Section 4 is to prevent the disintegration of the family dwelling house by preventing to introduce a stranger herein. The stranger is adequately compensated by the market value of the property purchased so that dwelling house of the family be preserved. The object of Section 4 is to prevent the disintegration of the family dwelling house by preventing to introduce a stranger herein. The stranger is adequately compensated by the market value of the property purchased so that dwelling house of the family be preserved. If the view that it must be strictly construed and that until and unless the stranger either sues for partition as a plaintiff or asks for separate allotment as defendant be accepted then the whole object of Section 4 would be frustrated. In a suit for partition parties are interchangeably. The defendant can, at any time before the decree for partition is finally passed, ask for separate allotment. The right under Section 4 is available to the co-sharer as soon as a preliminary decree is passed. The defendant may frustrate the right of the co-sharer to buy out the share by not asking for separate allotment upto the last moment. The possibility cannot be ruled out that after the co-sharer's right of pre-emption under Section 4 is rejected on the ground that the defendant has not asked for separate allotment, the defendant would ask for separate allotment. In this way if the Netai Dass's case be accepted great injustice will be caused to the co-sharer of an undivided family dwelling house. On the other hand, the consistent view of Calcutta High Court is that the word "to sue" would include both "to prosecute" and "to defend" and only if such a view is taken the object of Section 4 is not frustrated. Otherwise there is every possibility of object of Section 4 being frustrated. When the liberal interpretation of Section 4 is made that the right would be available to the co-sharer even when the stranger is a defendant, when there is no scope for further limiting the right of the co-sharer that if the stranger purchaser is arraigned as defendant he must have to apply for separate allotment to give the co-sharer the right to apply under Section 4. In Netai Dass's case the learned Judges appear to accept the view the right is also available to the co-sharer when the stranger purchaser is impleaded as defendant. In the case there is no reason why any further limitation, not contemplated by Section 4, would be placed in the exercise of such right. In Netai Dass's case the learned Judges appear to accept the view the right is also available to the co-sharer when the stranger purchaser is impleaded as defendant. In the case there is no reason why any further limitation, not contemplated by Section 4, would be placed in the exercise of such right. ( 13 ) THEREFORE, we are unable to accept the decision of Netai Dass vs. Hari Das (Supra) as correctly decided. We answer the reference as follows: the right of pre-emption under Section 4 of the Partition Act is available to a co-sharer of an undivided family dwelling house when he himself files a suit for partition and the stranger purchaser is arraigned as defendant and irrespective of the fact whether the stranger purchaser has actually applied for partition or for separate allotment of his share or not. The parties of the suit for partition being interchangeable the right to claim separate allotment is germane in any party, be he the plaintiff or defendant in the suit for partition and in such ease the right of pre-emption cannot be defeated only because on or before the filing of the application for pre-emption under Section 4 of the Partition Act the stranger purchaser as defendant did not ask for separate allotment. We also uphold the view that Section 4 should be liberally construed. ( 14 ) IN the result we allow the revisional application, set aside the order of the Learned Subordinate Judge and direct that the application under Section 4 of the Partition Act be allowed and the learned Subordinate Judge is directed to proceed in accordance with law and to pass further order under Section 4 of the Partition Act. ( 15 ) THE order be communicated at once and the learned Subordinate Judge shall dispose of the consequential matters as expeditiously as possible. Mookerjee, C. J. I agree. Sadhanshu Sekhar Ganguly, J. I agree. Application allowed .