MT SHAFIAN BEGAM Vs. MTKIFIATO

JUDGEMENT

(1.) This is a plaintiff's second appeal arising out of a suit for partition of a house. The house originally belonged to a man named Hafizullah who died leaving a widow Mt. Kifayato, and a son, Mutiullah, and two daughters Mt. Mahmudan and Mt. Farmudan. On the death of Hafizullah the widow inherited a one-eighth share and the remaining 7/8 went to the son and daughters. On 12 June 1935, the son and the daughters sold their 7/8 share to the plaintiff and on 6 June 1935 the plaintiff instituted this suit against Mt. Kifayato for partition. The defence inter alia was that Mt. Kifayato was a member of an undivided family and so was entitled to purchase the 7/8 share which had been sold to the plaintiff. This plea was based on Section 4, Partition Act, and it has been given effect to by the Court below, the value of the house being assessed at Rs. 400. The only question in this appeal is whether or not the defendant should be deemed to be a member of an undivided family within the meaning of Section 4, Partition Act. Section 4(1) provides as follows: 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 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.) It appears that the defendant has remarried since the death of her first husband, Hafizullah, but unfortunately we do not know when she remarried, as counsel for both parties made a statement to the effect that they would adduce no evidence in the suit. There is a finding of fact however by the Courts below that notwithstanding remarriage the defendant is still residing in this house. In Sultan Begam V/s. Debi Prasad (1908) 30 All. 324 it was held by a Full Bench of this Court that the object of Section 4, Partition Act, was to prevent a transferee of a member of a family who was 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 word "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." Unfortunately in the present case, as I have already said, we do not know when the defendant remarried. If she remarried a considerable time ago find has nevertheless continued since then to live in this house, there would be a fair presumption that she had no intention of leaving the house and that I she was still an undivided member of the family within the meaning of Section 4, Partition Act, but, if her remarriage had taken place shortly before the sale and the institution of this suit, the presumption might not be so strong and other considerations might arise. It is also of some importance to know whether her present husband has a house, and if so where it is, and whether he has ceased to live in it and has come to live with his wife in the house in suit. In order to adjudicate properly on this appeal t consider it advisable to have findings from the lower Appellate Court on certain issues. Accordingly under Order 41, Rule 25, Civil P.C., I remit the following issues to the lower Appellate Court for trial : (1) When did the defendant marry her present husband? (2) Whether her present husband owns a house, and if so, where? (3) Whether the defendant is living in the house in suit as her permanent place of abode, and whether her husband is living with her? An opportunity will be given to the parties to adduce such evidence as may be relevant to the above issues. The findings should be returned within three months, and thereafter the usual ten days will be allowed for objections. JUDGMENT

(3.) Under my order dated 22 December, 1938, I remitted the following three issues to the lower Appellate Court for trial: (1) When did the defendant marry her present husband? (2) Whether her present husband owns a house, and it so where? (3) Whether the defendant is living in the house In suit as her permanent place of abode, and whether her husband is living with her?