BRIJMOHAN LAL Vs. MUSAMMAT MAHBUBAN

JUDGEMENT

(1.) This is a plaintiffs appeal in a suit for partition of a house. The house was mortgaged and a decree was passed in favour of the plaintiffs for sale under Order XXXIV, Rule 4 of the Civil Procedure Code. At the auction-sale, which took place in the year 1921, the plaintiffs purchased the house for Rs. 100. Defendant No. 1 Musammat Mahbuban a sister of the original judgment-debtor, obtained a decree for a one sixth share of the house, although she had claimed the whole of the house. The suit out of which this appeal has arisen was for partition and defendant No. 1 applied to the Court of first instance that under Section 4 of the Partition Act (IV of 1893) she should be allowed to purchase the whole of the house although her share was only one-sixth. The learned Munsif acting under Section 4 of the Partition Act ordered the defendants to deposit Rs. 100 and directed the plaintiffs to execute a sale deed in favour of Musammat Mahbuban.

(2.) The plaintiffs went up in appeal before the learned District Judge, and the two points urged by them were that Section 4 of the Partition Act did not apply inasmuch as the house in question was not a dwelling house and for some years was inhabitable, and that the value of 5-6ths of the house was more than Rs. 100.

(3.) The plaintiffs appeal was dismissed and they have come up in second appeal to this Court.