BABULAL TIWARI Vs. HULLA MALLAH

JUDGEMENT

(1.) This is an appeal by the plaintiff who sued for partition of a half-share in a house bearing No. 794 and a third share in plot bearing No. 802, having based his title on purchase from defendant 3 who had shares to this extent in these two plots. The suit was decreed by the trial Court. The lower Appellate Court, however, proceeded to act under Section 4, Partition Act (Act 4 of 1893), and has directed the appointment of a Commissioner who will fix a valuation of the house and if defendants 1 and 2 pay the proportionate value of it for half-share in the house the plaintiff shall convey his share to the defendants.

(2.) Hence this appeal before me. It is contended on behalf of the appellant that the order of the learned Judge was wrong because defendants 1 and 2 were not members of an undivided family with defendant 3, the vendor of the plaintiffs. I Reliance is also sought to be placed upon the undoubted fact that in the Survey Record of Rights, in the year 1920 the shares of the vendor of the plaintiffs have been denned.

(3.) On a dear reading of the section, it seems to me that this provision in the Act was intended to apply to all subjects of His Majesty including Hindus, Mahomedans and Christians, and there, fore the meaning of the term "undivided family" means a family which is undivided with respect to the house. Otherwise the law would be different for each community. I am supported in this view by the Full Bench decision of the Allahabad High Court in Sultan Begam V/s. Debi Prasad 1908. 30 All 324, where it has been laid down authoritatively at page 327: It seems to me that the object of the section ...is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of the transferor's family have a right to live, and that the words "undivided family" must be taken to mean "undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it.