Judgment :- 1. One Rajathi Ammal the first respondent in these civil revision petitions filed O.S. No. 85 of 1978 in the Court of the Subordinate Judge of Madurai for partition and separate possession of her one-third share in the property described therein. The present second respondent and the revision petitioner were defendants 1 and 2 respectively in that action. On 19.4.1979 the preliminary decree was passed in the suit. The Commissioner appointed in I.A. No. 76 of 1980 submitted his report stating that the nature of the property is such that division by metes and bounds is not feasible. So in that application the Sub Court passed an order on 16.3.1982 that the said properly has to be sold in public auction under S. 2 of the Partition Act and the sale proceeds are to be shared among the parties. The revision petitioner who was a party in I.A. No. 76 of 1980 did not prefer any appeal or revision against the said order. Then the first respondent/plaintiff filed E.P. No. 3 of 1985 in O.S. No. 85 of 1978 for the sale of the said house. In the meanwhile, one Maruthamuthu who purchased the 1/3 share of the first defendant Mookayee Ammal got himself impleaded as the third respondent in the execution petition. Since he died pending the said petition present respondents 3 to 12 came on record as his legal representatives. On 17.11.1979 one Sri S. Vasudevan was appointed as Commissioner to sell the property among the sharers. On 15.7.1990 he conducted the auction and sold the property in favour of the fifth respondent who was the highest bidder for Rs. One lakh. Immediately after the sale he deposited 1/4th of the sale amount less his 1/3 share therein. He was given 45 days time for deposit of the balance amount by the Commissioner. At this stage the revision petitioner came forward with two applications. Of them E.A. No. 586 of 1990 is under S. 4 of the Partition Act requesting the Court to pass an order directing present respondents 3 to 12 to sell their undivided 1/3 share to him after the valuation of such share as fixed by the trial court. The next E.A. No. 587 of 1990 is under O. 21 R. 90 and S. 151 C.P.C. to set aside the sale conducted by the Commissioner. The next E.A. No. 587 of 1990 is under O. 21 R. 90 and S. 151 C.P.C. to set aside the sale conducted by the Commissioner. Both applications were resisted by respondents 3 to 12. After enquiry learned Subordinate Judge dismissed both the petitions without cost holding that the second defendant had no right to invoke S. 4 of the Partition Act and that the sale conducted by the Commissioner was not vitiated by any material irregularity. These two revision petitions are directed against the said orders. 2. The revision petitioner claimed the benefit of S. 4 of the Partition Act on the ground that the suit property is her family dwelling house wherein she is residing along with the other co-sharers who are present respondents 1 and 2 and that the first defendant Mookayee Animal has alienated her undivided 1/3 share to the third defendant who is a stranger to their family. The Court below has negatived her contention on the basis that she would be entitled to enforce the sale in her favour only in a partition action instituted by the alienee. Since the plaintiff in O.S. No. 85 of 1978 the first respondent herein herself is a member of the family, the provisions of S. 4 of the Partition Act cannot come to her rescue. Sri P.T.S. Narendravasan, learned counsel for the revision petitioner assailed these findings of the Court below and argued that S. 4 of the Partition Act is applicable even in a suit instituted by one of the members of the joint family and it is not necessary that this benefit can be availed of only in case the stranger alienee chooses to file the suit for division of the family house. 3. 3. S. 4(1) of the Partition Act proceeds as under: “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 a valuation of such share in such manner us it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.” This Section, is a corollary to the second part of S. 44 of the Transfer of Properly Act which says that where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in that Section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. S. 4 of the Partition Act also denies the right of joint possession to stranger purchasers and gives the members of an undivided family a statutory right to purchase the share transferred to an outsider to eliminate difficulties and to maintain homogeneity in families. In other words, to prevent intruders entering the family circle. For S. 4 of the Partition Act to be applicable it is manifest that the following conditions must be shown to exist. (a) the house is dwelling house belonging to an undivided family (b) share of a co-sharer transferred to a stranger to that family. (c) purchaser-transferee had sued for partition, and (d) any other member or members of the family being share-holder undertake to buy the share of the stranger-purchaser. So the object of S. 4 is to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible. 4. Learned counsel for the revision petitioner urged that in order to achieve the abovesaid object a liberal construction has to be put upon the Partition Act and its provisions are interpreted in such a way as would promote and fulfil the said object. 4. Learned counsel for the revision petitioner urged that in order to achieve the abovesaid object a liberal construction has to be put upon the Partition Act and its provisions are interpreted in such a way as would promote and fulfil the said object. He also pointed out that in a suit for partition the question as to who is arrayed in the category of plaintiff and who in the category of defendants is not of importance for a party in partition suit whether a plaintiff or a defendant is at the same time a plaintiff as well as a defendant. In support of his contention he cited the decision in Banchhanidhi v. Balaram (AIR 1951 Orissa 180). There the property in question was a dwelling house belonging to four branches of a family one-fourth share of it belonged to a stranger; one-fourth share was owned by defendant No. 5 in his own right; defendants 2, 3 and 4 were jointly entitled to the third share and the remaining one-fourth share was purchased by the wife of defendant No. 5, who filed the suit for partition in order to buy off the share of defendant No. 1. Before the final decree was drawn up defendant No. 5 applied under S. 4. Partition Act to buy up the share of defendant No. 1 who was a stranger to the family. Held that the Act was designed to prevent the intrusion of strangers into the dwelling house of an undivided family and enable the Court to make a valuation if any shareholder undertook to buy the transferred share; and the shareholder offering to buy it shall be offered such valuation as the Court may fix. This was certainly a beneficient provision intended to allow members of an undivided family to enjoy their property uninterrupted by strangers. ..The words “and such transferee sues for partition” are however capable of the wider meaning The word “sues” is applicable not only to a suitor who figures as plaintiff, but is equally applicable to a defendant who carries on his defence as a suitor. ..The words “and such transferee sues for partition” are however capable of the wider meaning The word “sues” is applicable not only to a suitor who figures as plaintiff, but is equally applicable to a defendant who carries on his defence as a suitor. The words “to sue” not only signify “to prosecute” but also “to defend” or “to do something which the law requires for the better prosecution of defence of the cause” The language of S. 4 does not preclude a defendant from availing himself of the provisions of that Section if the stranger-transferee happens to be arrayed as a party-defendant and should not be strictly limited only to those cases where the transferee figures as the plaintiff. Learned counsel for the revision petitioner next relied on the decision in Bagwati Lal v. Bhorelal (AIR 1974 Rajasthan 225) wherein it has been held that a member of an undivided family who has filed a suit for partition against a stranger defendant is entitled to the benefit of S. 4 of the Act even in a case where the defendant stranger does not claim his share by partition of a dwelling house. Therefore his application for purchase of the share transferred to a stranger is maintainable. In Bhagirathi v. Parsuram (AIR 1985 Orissa 137) the members of a family claimed possession of separate portions of their dwelling house. A stranger-purchaser neither filed the suit for partition nor claimed share therein even though he was impleaded as a defendant. Held that S. 4 was applicable. 5. On the other hand learned counsel for the respondents relied on the decision in Sakhawat Ali v. Ali Husain (AIR 1957 Allahabad 356 Full Bench) wherein it has been laid down that a shareholder in a dwelling house belonging to an undivided family cannot take advantage of S. 4 of the Partition Act in a suit for possession of the entire house and or for partition in which he is the plaintiff and the transferee in possession is a defendant. It was clearly the intention of the Legislature that the right conferred by S. 4 should accrue to the member of the undivided family only in the event of the transferee seeking to obtain partition of his share in the dwelling house, and therefore the provisions of S. 4(1) will not apply to a suit for partition in which the stranger defendant does not himself claim the separation of his share, It maybe that this construction which will in some instances, deprive a plaintiff of a relief to which under a wider interpretation he would be entitled, but the equity of the statute cannot override its plain meaning. 6. We must take note of the fact that different High Courts in India had not construed S. 4 of the Partition Act on the point at issue in a uniform manner. While some had taken the view that the purchaser himself must sue, others had taken a modified view that such a purchaser must at least ask for partition even as a defendant and separate allotment in order to attract the provision. Both sides have not brought to my notice any decision of our High Court covering this aspect, in my view in order to promote and fulfil the object of S. 4, it should be liberally construed and irrespective of whether the transferee is the plaintiff or the defendant. Where the third party transferee is entitled to a share in the family dwelling house by virtue of his purchase, the other co-sharers/family members must be entitled to claim the benefit of pre-emption under the said Section. If effect is given to the respondents contention the result will defeat the object of the Legislature to secure indivisibility of a dwell ing house. A party in a partition suit whether a plaintiff or a defendant is at the same time a plaintiff as well as a defendant and this dual capacity of a party in a partition action does not preclude even defendant who claims a share in the dwelling house from being treated as plaintiff for the purpose of S. 4 of the Partition Act. The expression ‘to sue’ occurring in S. 4 may be applied indifferently either to defendant or plaintiff, and it will not only signify ‘to prosecute’ but also ‘to defend’. The expression ‘to sue’ occurring in S. 4 may be applied indifferently either to defendant or plaintiff, and it will not only signify ‘to prosecute’ but also ‘to defend’. In that sense even where the third party purchaser is defending a suit for partition, is share is liable to be pre-empted under S. 4 of the Partition Act. In defending such a suit such a defendant need not necessarily himself claim partition or separate allotment. Considering the fact that S. 4 is to prevent a transferee from a member of a family who is an outsider from enforcing his way into the dwelling house in which the other members of the family to which the transferor belongs have a right to live, the Section should have a liberal construction so that its object can be fulfilled. So the fact that the revision petitioner did not happen to be the plaintiff in O.S. No. 85 of 1978 is no impediment to her in availing the benefit of S. 4 of the Partition Act. 7. Learned counsel for the respondents further took the point that there must be an unconditional offer by the revision petitioner, from which he will not be permitted to resile, and it is only under such undertaking, that the Court may take an order permitting him to buy up the share. The very first condition for application of S. 4 is that the revision petitioner should give an unconditional undertaking to buy up the share. In the present case, it is clear that the revision petitioner never resorted to this procedure before filing of the petition. And this would preclude her from invoking the beneficial provision. 8. There is yet another aspect of the case which learned sub Judge failed to take into account. We find from the counter statement of the present respondents 3 to 12 that after passing of the preliminary decree in I.A. No. 76 of 1980 the Court below has passed an order on 16.3.1982 to the effect that the property had to be sold in public auction under S. 2 of the Partition Act and the sale proceeds had to be divided among the sharers. As per S. 2, whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstances, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of t he property and a distribution of the proceeds. And under S. 8 any order for sale as per S. 2 shall be deemed to be a decree within the meaning of S. 2 of the Code of Civil Procedure. Admittedly the present revision petitioner was a party in I.A. No. 76 of 1980. Since she had not chosen to challenge that order so far, it has become final. Consequent to that order the first respondent filed E.P. No. 3 of 1985 and the Commissioner appointed therein had conducted the sale in which the fifth respondent was declared as the successful bidder. While so, it is not now open to the revision petitioner to invoke S. 4 of the Partition Act, 9. In I.A. No. 587 of 1990 the revision petitioner sought to set aside the auction sale conducted by the Commissioner on the ground of material irregularity in the conduct of sale. In this affidavit in support of the application the revision petitioner gives these factors as instances of material irregularity. (i) Without taking into account the prevailing market rate the Commissioner of his own accord fixed the upset price at Rs. 60,000/- (ii) He did not indent the assistance of any valuer in arriving at the price of the property. (iii) The sale in favour of the fifth respondent for one lakh of rupees is very low; and (iv) The right of the revision petitioner to bid in the auction was defeated in view of the arbitrary conduct of the Commissioner. 10. (iii) The sale in favour of the fifth respondent for one lakh of rupees is very low; and (iv) The right of the revision petitioner to bid in the auction was defeated in view of the arbitrary conduct of the Commissioner. 10. The Court below has found that in the order dated 17.11.1989 in E.P. No. 3 of 1985 the Court only directed the Commissioner to sell the properly among the sharers and deposit the sale proceeds into court. It did not specify that initially the Commissioner should fix any upset price. The evidence of the Commissioner as C.W. 1 also discloses the same fact. Had the revision petitioner been aggrieved of the order dated 17.11.1989, he could have challenged the same before the appropriate forum. Further, the revision petitioner as not shown how the fixing of upset price at Rs. 60,000/- was responsible for the property being sold in auction for more than one lakh of rupees. In fact, the plaintiff had valued the properly in the year 1978 when the suit was filed only at Rs. 25,050/-so it cannot be said that fixing of the value of the property at Rs. 60,000/- in the year 1989 is very low. We have also to bear in mind that the Commissioner had sold the property only under S. 2 of the Partition Act. That was not a sale conducted in execution of a decree as per the provisions of O. 21 C.P.C. Further in Kailasam v. Muthusamy 1991(1) M.L.J.354 Srinivasan, J. has held that after the amendment of the Civil Procedure Code by Act (CIV of 1976) there is no necessity for the Court to fix the upset price. Under Cl. (e) of R. 66(2), the Court is only to mention in the sale proclamation everything which the Court considers material for a purchaser to know in order to judge the nature and value of the property. That does not mean that the Court is bound to fix the upset price. 11. How far the provisions of O. 21 C.P.C. are applicable to sales under the Partition Act has been considered by Sathiadev, J. in Official Receiver v. Samanthagam Ammal ( 1979(2) M.L.J. 115 ). This passage at page 118 of the judgment may be usefully extracted for our present purpose: “S. 7 of the Partition Act, deals with the procedure lobe followed in cases of sales. This passage at page 118 of the judgment may be usefully extracted for our present purpose: “S. 7 of the Partition Act, deals with the procedure lobe followed in cases of sales. This Section itself starts by saying that “save as herein before provided, the property can be sold under the Act”. The Act itself contemplates two types of sales. Ss. 2, 3 and 4 of the Act initially enables the sharers of the property to buy the shares of other sharers for a price to be fixed by Court, which would mean an internal sale within the co-sharers, and no question of public participation a rises. The other type of sale is the one where the property is to be sold in public auction, when S. 6 of the Act will become applicable, and the members of the public can bid in the court-auction sale, liven in S. 6 of the Act, Cl. (2) itself provides for the Court in stipulate about “the non-payment of deposit or as to setting off or accounting for the purchase-money or any part thereof instead of paying the same into Court”. Hence, even the Partition Act, itself has contemplated stipulation of certain special terms and conditions, when sales are affected under the Act, and therefore it cannot be contended that only the provisions made under O. 21, R. 84, 85 and 86, Civil Procedure Code, will alone be applicable to all types of sales under the Partition Act. S. 7 of Partition Act, also is to the same effect by slating that the except as otherwise provided under the Act.” Properties can be sold under the Act following the procedure as far as practicable, which would mean that certain types of sales under the Act will come under a special category and they cannot be governed by the sales that may be effected under the Code of Civil Procedure. S. 7(b) of the Act empowers the High Court to frame Rules and the Madras High Court has framed Rules which had been already referred to. R. 9 in Chapter III also states that the Rules prescribed in Chapter IX, Para I supra “as far as the same are applicable”, shall be followed. S. 7(b) of the Act empowers the High Court to frame Rules and the Madras High Court has framed Rules which had been already referred to. R. 9 in Chapter III also states that the Rules prescribed in Chapter IX, Para I supra “as far as the same are applicable”, shall be followed. R. 200 found as part of Part I, Chapter IX (VII) states that the sale of property be conducted in the manner prescribed by the Code for the sale of the attached property. The provisions made under S. 6 and 7 of the Partition Act and the Rules framed by the High Court, all go to show that all types of sales effected under the partition Act cannot be governed by the provisions of the Code of Civil Procedure. O. 21, R. 84, 85 and 86 of the Code of Civil Procedure can be applied only for public sale of property.” So there is no scope for holding that there is any irregularity in the conduct of auction sale by the Advocate-Commissioner for the reasons given by the revision-petitioner. 12. In the result, both the Civil Revision Petitions are dismissed. No costs.