BRIJMOHAN LAL Vs. MTMAHBUBAN

JUDGEMENT

(1.) This is a plaintiff's 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 34, Rule 4, Civil P. 0. At the auction sale, which took place in the year 1921, the plaintiffs purchased the house for Es. 100. Defendant 1 Mt. 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 1 applied to the Court of first instance that under Section 4, Partition Act 4, 1893, she should be allowed to purchase the whole of the house although her share was only one-sixth. The learned Munsiff acting under Section 4, Partition Act, ordered the defendants to deposit Es. 100 and directed the plaintiffs to execute a sale deed in favour of Mt. Mahbuban.

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

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