BHARATSINGH Vs. RISHI KUMAR

JUDGEMENT

(1.) THIS is an appeal under Section 8 of the Partition Act.

(2.) IT is not disputed that the house in suit which is situated in Gopalganj, Sagar, originally belonged to the joint Hindu family. The plaintiff-respondent purchased 1/5th share of Rishikumar, appellant No. 1, one of the members of the family at a Court auction in 1960. Thereafter the plaintiff filed a suit for partition and for possession of his 1/5th share against the appellants and certain other members of the family. The suit was decreed and a preliminary decree for partition was passed in favour of the plaintiff-respondent. During the proceedings for final decree, the appellants and some others filed an application under Section 4 of the Partition Act (hereinafter referred to as 'the Act') for purchasing the share of the plaintiff. This application was opposed by the plaintiff-respondent and was dismissed by the trial Court in appeal, the learned Additional District Judge set aside the order of the trial Court and allowed the application. Being aggrieved thereby, the plaintiff has preferred this second appeal.

(3.) FROM the material on record, it appears that the house in suit is a dwelling house. Shri P. R. Padhye, learned counsel for the appellants, however, urged that the family had lost its character as an undivided family and, therefore, the members of the family were not entitled to the benefit of Section 4 of the Act In support of his contention, he pointed out that, as would appear from the finding of the trial Court on issue No. 3 in the partition suit brought by the plaintiff-respondent (Civil Suit No. 45-A of 1963), some of the members had earlier filed a suit for partition of the suit house against one Bhagwati Prasad, one of the members of the family and in the said partition, Bhagwati Prasad got possession over 1/5th portion of the suit house from the date of preliminary decree. It was urged that in view of the earlier suit for partition it is obvious that there had been disruption of the joint status of the family and as such the family ceased to be undivided family within the meaning of Section 4 of the Act.