PALUNI DEI Vs. RATHI MALLICK

JUDGEMENT

(1.) THE sole point involved in this appeal is whether defendant 2 is entitled to any relief under Section 4 of the Partition Act (hereinafter referred to as the Act ). Facts relevant for the appreciation of this point need only be mentioned. One Kelu had four sons--Kashi, Ananda, Nilei and Bholi. Paluni (defendant 2) is the daughter of bholi. Chanda (defendant 1) is the widow of Dinei, son of Nilei. Keluni (defendant 3) is the widow of Kurup, son of Ananda. Defendants Nos. 4 and 5 are the sons of kashi. Plaintiff purchased Ka schedule property from defendant No. 1 by a registered sale-deed, dated 14-11-1953 (Ex. 1/a) Plots Nos. 85 and 543, in respect of which relief under Section 4 of the Act is claimed, constitute portions of ka schedule land. The concurrent findings of both the Courts are that the plaintiff is a stranger purchaser and that defendant No. 2 is a resident of village jagannathpur where she resides with her husband, but at times comes with her husband to village Bahuliapada to look after the properties which she has got from her parents and her husband is not a Gharjamai.

(2.) TO appreciate the contention, Section 4 (1) of the Act may be quoted-"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 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. "

(3.) IT is now settled by authorities that the family must be undivided qua the dwelling house. The concurrent finding is that the dwelling house is undivided and that the plaintiff is a stranger and not a member of the family. As the plaintiff-transferee has filed the suit for partition and defendant No. 2 is a share-holder undertaking to buy the share of the plaintiff the only question for determination is whether defendant No. 2 is a member of the family.