RUKMI SEWAK Vs. MUNESARI

JUDGEMENT

(1.) This is an application in revision by the first three defendants in a suit for partition of a one-third share in a house. There was also a relief in the plaint that the plaintiff might be awarded the entire house on the principle embodied in Section 4, Partition Act, 4 of 1893.

(2.) The original owner of the house was one Parag who had two sons, Mahabir and Sahdeo. The former left a daughter Mt. Munesari, the plaintiff-opposite party, and the latter two sons, Shyam Narain and Bal Makund, defendants 4 and 5 respectively. On 2-7.1918, Parag made a will of the house, bequeathing a life interest in a one-third share to the plaintiff and an absolute interest in the remaining two-thirds to defendants 4 and 5. Some time later defendants 4 and 5 mortgaged the entire house to defendants 1 to 3, the present applicants. In 1938 the plaintiff sued for redemption of the mortgage and obtained a decree. Pending an appeal filed by defendants 1 to 3 against that decree these defendants purchased the proprietary title in the house from their mortgagors, defendants 4 and 5, and hence the decree passed by the appellate Court in the redemption suit was confined only to the one-third share in which the plaintiff had a life interest. The plaintiff then obtained formal possession over that share. Afterwards she filed the suit giving rise to this application, claiming the reliefs I have already mentioned, offering Rs. 234 as price for the two-thirds share of defendants 1 to 3 (applicants) in case she was allotted the entire house.

(3.) The defence taken by defendants 1 to 3 was that as a mere life estate holder the plaintiff was not entitled to sue for partition, much less to claim the entire house under Section 4, Partition Act, that the plaintiff was not entitled to the latter relief also because she never dwelled in the house, that the house was not capable of partition, so that no decree for partition could be passed at all and that these defendants having spent Rs. 200 on repairs no decree could be passed in the plaintiff's favour except on condition of payment of that sum.