MASITULLAH Vs. UMRAO

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for partition of a dwelling house which is situate in mohalla Jatan in the city of Bijnore. The house originally belonged to an undivided Hindu family and was owned by different members of the family in unequal shares and who occupied different portions of the house property. Mt. Kallo, plaintiff 2 purchased a one-sixth share of the house from Ghasi and instituted a suit for partition against the defendants. This was suit No. 1196 of 1922. The defendants did not claim the benefit of Section 4, Partition Act (Act 4 of 1893).

(2.) The plaintiffs 1 and 2 have purchased the shares of two other members of the family namely Tula and Umrao. The extent of their share in the entire house is two-fifth. The present suit was instituted for the partition of this share. The defendants claimed the benefit of Section 4, Partition Act. The learned Munsif in a well reasoned judgment came to the conclusion that the defendants were entitled to the benefit of Section 4, Partition Act. The plaintiffs appealed. The lower appellate Court has affirmed the decision of the trial Court.

(3.) The sole question in this appeal is whether the defendants are entitled to the benefit of Section 4, Partition Act. A right to partition being one of the incidents of proprietary right held in co-ownership cannot ordinarily be resisted. Where the effect of the partition is calculated to destroy the intrinsic value of the entire property it should be more in keeping with equity, not to allow the partition but to grant a money compensation. Section 4(1), Partition Act, provides: 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 he thinks fit, and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.