Pullan and Niamat-ullah, JJ.:— 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 Mst. Chunia and Mst. Sohni, the wives of Parshotam and Har Kishen, 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 Mst. 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 of the 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 Har Kishen 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. Mst. Sohni has preferred the present second appeal impleading the plaintiff and her co-defendants as respondents.
The learned Second Additional Sub-ordinate Judge held that the houses in dispute are dwelling houses within the meaning of section 4 of the Partition Act, and that the defendants' family is an undivided family as contemplated by the aforesaid section. He, however, held that section 4 of the 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 Sub-ordinate Judge proceeds but on other grounds as well. section 4 of the 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 shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.”
The finding of the lower court that the houses in question are dwelling houses of the defendants' family has not been challenged before us. It has been held in Sultan Began v. Deli Prasad (1) that section 4 of the 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 defendants' family is not an undivided family in the above sense. Reference is made in this connexion to the statement of Rachau, the husband of the appellant Mst. Sohni. He admitted: “My brother and I have been living separately for eight or ten 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.” It is argued on the strength of the passage quoted above that the two brothers had divided the house, 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 Met. 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 Mst. 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 Sub-ordinate Judge held against the plaintiff's, contention on this part of the case, and we think rightly.
The view expressed by the learned Sub-ordinate Judge in his judgment, namely, that section 4 of the Partition Act does not apply to a case in which the plaintiff obtained a share in an undivided dwelling house at a sale held in execution of a decree is, to our mind, incorrect. The process of reasoning by which he arrived at that conclusion is not only faulty, but unintelligible. section 4 of the Partition Act applies to a case in which 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. It is clear to us that where an undivided share of one of the members of an undivided family is sold in execution of a decree it is “transferred” to the auction purchaser, and does not remain vested in the judgment-debtor. The learned Sub-ordinate Judge refers to sections 2(d) and 5 of the Transfer of Property Act. The former merely declares the repeal of certain enactments as regards certain, territories, and contains a saving clause to the effect that nothing contained in the Transfer of Property Act shall affect “any transfer by operation of law or by, or in execution of, a decree or order of a court of competent jurisdiction.” It may be accepted that the provisions of the Transfer of Property Act do not affect any transfer in execution of a decree, but the section cannot have any bearing on the interpretation of section 4 of the Partition Act. section 5 of the Transfer of Property Act provides that in certain specific sections of that Act “transfer of property” means “an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons”. It is not possible to extend the operation of section 5 to other parts of the Transfer of Property Act than those mentioned in section 5. Much less can the words “transfer of property” as used in section 5 be imported in section 4 of the Partition Act. We are of opinion that the word “transfer” in section 4 of the Partition Act is used in its ordinary sense, namely change of ownership from one to another. It should be noticed that section 5 of the Transfer of Property Act occurs in chapter II, which relates to “transfers of property by act of parties”, and the words “transfer of property” have, therefore, to be applied in the peculiar sense given by section 5 in relation to cases dealt with in that chapter. For these reasons we hold that section 4 of the Partition Act applies to the case before us, and that if the defence is otherwise a good one, it cannot fail only because the plaintiff respondent purchased not by a private treaty but at an auction sale in execution of a decree against Mst. Chunia.
The second ground on which the judgment of the learned Sub-ordinate Judge proceeds is still less cogent. He maintains that if two or more dwelling houses belonging to an undivided family are the subject of a partition suit, the defence contemplated by section 4 is not admissible. Stress is laid on the words, “a dwelling house” occurring in section 4. The learned Sub-ordinate Judge has obviously overlooked that each of the two houses is “a dwelling house” and is sought to be partitioned. In reference to section 13 of the General Clauses Act which provides that unless a contrary intention is implied singular words occurring in a statute should be taken to include the plural, the learned Sub-ordinate Judge is of opinion that a contrary intention appears from section 4 of the Partition Act, and therefore the singular should not be held to include the plural. We are unable to find any words in section 4 of the Partition Act which preclude the application of the rule contained in section 13 of the General Clauses Act. Apart from this consideration, the provisions of section 4 are general enough to apply to every dwelling house a share of which has been transferred to a person who is not a member of the undivided family to which the house belongs which is sought to be partitioned. If the family is large enough to need several dwelling houses to accommodate it, and the share of one of the members in all such houses is transferred to a stranger, on no principle can the other members of the family be precluded from availing themselves of the protection afforded by section 4 of the Partition Act. We have no hesitation in holding that the view taken by the learned Sub-ordinate Judge is unsustainable.
For the foregoing reasons we are satisfied that section 4 of the Partition Act is applicable, and that the defendants having undertaken to buy his share the plaintiff is only entitled to half of the value of the two houses. As both the courts below overruled the defence they did not have the houses valued to ascertain the amount which the defendants must pay to the plaintiff for his share in the two houses. In the view we have taken this becomes necessary. Accordingly we allow the appeal, set aside the decrees passed by the courts below, and remand the case to the court of first instance with a direction that it should make a valuation of the two houses and proceed in the manner required by section 4 of the Partition Act. The appellant shall have her costs in all the courts up to date from the plaintiff respondent.