AHMAD KHAN Vs. SHAIK MAIJAR

JUDGEMENT

(1.) IN a suit for partition in respect of a family dwelling house of a Mohammadan family it was found that defendant No. 6 and his wife defendant No. 7 who had a share in the house had sold the same to their son-in-law defendant No. 11. Defendants 1/Ka and 1/Kha who are admittedly members of the family filed an application under Section 4 of the Partition Act (hereinafter called the Act) to purchase the share of defendant No. 11 in the family house on the ground that defendant No. 11 is a stranger to the family. The trial Court found on evidence that defendant No. 11 and his wife were coming to the house of defendant No. 6 frequently and staying there and on the basis of this finding he held that defendant No. 11 can be treated as a member of the undivided family qua the dwelling house. Although the appellate Court did not record a specific finding on this disputed question of fact, it is clear from his judgment that he accepted the finding of the trial Court as would appear from the following passage in his judgment. "The appellants should have adduced evidence to show that in their community a son-in-law who resides with his father-in-law for a very long period is treated as a stranger". He upheld the decision of the trial Court and dismissed the appeal. Being aggrieved by this decision defendants 1/ka and 1/kha have preferred this second appeal.

(2.) MR. P. K. Dhal, learned Advocate appearing for the appellants does not assail the finding that defendant No. 11 with his wife was frequently residing in a portion of the family dwelling house which had been purchased by defendant No. 11 from defendants 6 and 7. His main contention is that notwithstanding this finding, the Courts below ought to have held that defendant No. 11 is a stranger to the family and that consequently defendants 1/ka and 1/kha are entitled to purchase his share. Section 4 of the Act so far as is relevant runs thus :