MT SOHNI Vs. RAJ KUMAR SINGH JAIN

JUDGEMENT

(1.) This is an appeal by one of the defendants in a suit for partition of two houses in the city of Benares. They were purchased in the names of Mt. Chunia and Mt. Sohni, the wives of Parshotam and Harkishen respectively. It is immaterial to determine whether the houses really belonged to the husbands or the wives as all the four were impleaded as defendants and set up a common defence. The plaintiff-respondent purchased the half-share standing in the name of Mt. Chunia in execution of a simple money decree against her, and subsequently instituted the suit for partition which has given rise to this appeal. The defence was founded on Section 4, Partition Act. It was pleaded that the two houses which adjoin each other are dwelling houses belonging to the undivided family consisting of Parshotam Das and Harkishun and their wives, and that the plaintiff respondent is entitled to no more than the value of the half-share which the defendants undertake to purchase. Both the Courts below have overruled the defence and decreed the plaintiff's claim for actual partition. Mt. Sohni has preferred the present second appeal impleading the plaintiff and her co-defendants as respondents. The learned second Additional Subordinate Judge held that the houses in dispute are dwelling houses within the meaning of Section 4, Partition Act, and that the defendant's family is an undivided family as contemplated by the aforesaid section. He however held that Section 4, Partition Act did not apply inasmuch as the word "transfer" in that section does not include an auction sale and as the section applies only to cases in which only one house is sought to be partitioned. According to him it is inapplicable where more than one dwelling; house is the subject matter of a partition suit. The learned advocate for the plaintiff-respondent has sought to support the; decree appealed from not only on the grounds on which the judgment of the learned Subordinate Judge proceeds but on other grounds as well. Section 4, Partition Act runs thus: (1) 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 shareholder 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 shareholder, and may give all necessary and proper directions in that behalf. (2) If in any case described in Sub-section (1) two or more members of the family being such share holders severally undertake to buy such share, the Court shall follow the procedure prescribed by Sub-section (2) of the last foregoing section.

(2.) The finding of the lower Court that the houses in question are dwelling houses of the defendant's family has not been challenged before us. It has been held in Sultan Begam V/s. Debt Prasad [1908] 30 All. 324, that Section 4, Partition Act, is not limited to joint Hindu families but applies where the family is undivided qua the dwelling house. It is however argued that the defendant's family is not an undivided family in the above sense. Reference is made in this connexion to the statement of Bachau, the husband of the appellant Mt. Sohni. He admitted: My brother and I have been living separately for 8 or 10 years. My brother also lived in the house in which I live. Both the houses adjoin each other, and are separate. The doors are separate.

(3.) It is argued on the strength of the passage quoted above that the two brothers had divided the houses, each taking one of them. This position is however wholly inconsistent with the plaintiff's case set forth in his plaint in which it is clearly alleged that he purchased the half undivided share of Mt. Chunia in each of the two houses, and that the defendants were not willing to have an amicable partition of them. That the plaintiff purchased an undivided half-share in the two houses at the auction sale held in execution of the decree against Mt. Chunia also negatives the theory of partition. If the contention put forward before us be accepted, the necessity for a partition ceased to exist, and the plaintiff should be deemed to be the owner of one of the two houses. We must take it for the purposes of this case that both the houses are the joint property of the two brothers or their wives, and that the plaintiff purchased a half undivided share in each of them. The learned Subordinate Judge held against the plaintiff's contention on this part of the case, and we think rightly.