Lodge, J.:— This appeal arises out of an application under sec. 4 of the Partition Act (IV of 1893).
The property in suit consists of a dwelling-house and of certain other immovable properties. This property formerly belonged to one Ram Kamal Guha, who sold the same to his cousin Golak Nath Guha. On the death of Golak the property was inherited in equal shares by Golak's two sons, Kashi and Harish. In the year 1309 B.S Harish gold his share of the property to Plaintiff Brojendra Chandra Ghose and the Plaintiff's brother Upendra Chandra Ghose who was the husband of Sarala Sundari, Defendant No. 1. The Plaintiff and his brother apparently obtained possession of a portion at least of the property purchased.
In the year 1935, the Plaintiff instituted a suit for partition impleading his sister-in-law, Sarala Sundari, as Defendant No. 1 and Chandra Mohan Guha, son of Kashi Chandra Guha, as Defendant No. 2. A preliminary decree was passed sometime in the year 1935. Thereafter on the 6th of April, 1936, Defendant No. 2 made an application under sec. 4 of the Partition Act to purchase the share in the dwelling-house which the Plaintiff and the husband of Defendant No. 1 had purchased from his father's brother Harish. This application was heard by the learned Munsif and rejected on the 5th June, 1936. Thereafter on the 4th of August, 1936, a final decree was gassed in the parition suit.
Without filing any separate appeal against the order dated the 5th of June, 1936, rejecting his application under sec. 4 of the Partition Act, Defendant No. 2 filed an appeal against the final decree on the 31st of August, 1936, and in his memorandum of appeal he claimed the right to purchase under sec. 4 of the Partition Act, and questioned the decision of the learned Munsif on his application. The learned Subordinate Judge rejected the application under sec. 4 of the Act and with certain modifications confirmed the allotment which had been made in the final decree. Against the judgment of the lower Appellate Court this second appeal has been preferred by the sons of Defendant No. 2.
In order to invoke the provisions of sec. 4 of the Partition Act, it was necessary to show first that the property consisted of a dwelling-house belonging to an undivided family, and secondly that a share of that property was transferred to a person who was not a member of the undivided family. If these requirements were satisfied, the Defendant was entitled to invoke sec. 4, unless it were shown that after the date of purchase he had lost the rights conferred by that section. The learned Munsif rejected the Defendant's application for two reasons. The first reason was that there had been unnecessary delay in making the application and the second reason was that the purchaser of a share of the property was not a stranger to the family. On appeal the learned Subordinate Judge rejected the argument that the application was not maintainable on account of the delay in making it, but he agreed with the learned Munsif in holding that the purchaser was not such a stranger to the family as to entitle the Defendant to the relief claimed.
On behalf of the Appellants it has been pointed out that the property in suit consisted of a dwelling-house and other immovable property which, immediately before the purchase in 1309 B.S, belonged to Kasi and Harish, sons of Golak Nath Guha, who constituted an undivided family. It has been further pointed out that the purchasers of the share of Harish were not members of that undivided family. On the Other hand, it has been argued by the learned Advocate for the Respondents that the property in suit was not a dwelling-house belonging to the heirs of Golak but was merely a share in a larger dwelling-house of which the Plaintiff and Defendant No. 1 were part-owners. To appreciate this argument it is necessary to refer to the relationship between the parties. As pointed out above, the property in suit formerly belonged to Ram Kamal Guha. Ram Kamal's maternal grand-father was Ram Saran Ghosh. The Plaintiff and the husband of Defendant No. 1 are the great-grand-children of Sudharam Ghosh, brother of the said Ram Saran Ghosh. It appears that originally the land in suit and other lands belonged jointly to Ram Saran Ghosh and Sudharam Ghosh. The learned Advocate for the Respondents has contended that these properties remained as the joint property of Ram Saran Ghosh and Sudharam Ghosh, that there was never any partition of these properties and that consequently the Plaintiff and Defendant No. 1 had always been in possession of a part of the property. The question whether there had been a partition of the shares of Ram Saran and Sudharam was not investigated in the lower Courts but the Plaintiff based his claim to partition wholly on the assumption that such partition had taken place; and we are, therefore, constrained to assume that whatever was the original position, there was a partition between Ram Saran and Sudharam and the property in suit fell to the share of Ram garan. The argument therefore, that this property is still merely a portion of the undivided property, formerly owned by Ram Saran and Sudharam, cannot be entertained.
It was conceded that at the time of the purchase by the Plaintiff and the husband of Defendant No. 1, Golak Nath Guha's sons were separately possessing this particular property and the Plaintiff and Defendant No. 1 had no possession therein. Such being the case, we are of opinion that at the time of the purchase this property did consist of a separate dwelling-house an the fact that at some previous stage it may have been a portion of a larger homestead is irrelevant for the purposes of this case. We are satisfied, therefore, that the first of the requirements of sec. 4 was satisfied and that in 1309 B.S a share of the dwelling-house belonging to the undivided family was transferred to the Plaintiff and Defendant No. 1.
It was next contended that the Plaintiff and the husband of Defendant No. 1 were not persons described in sec. 4 of the Partition Act as persons who are not members of such family. This argument found favour with both the Courts below. The learned Munsif observed that as the Plaintiff was a great-grandson of Sudharam Ghosh, the original owner of a portion of the homestead, and as Golak Nath had acquired his interest by purchase at a later stage, it would be more accurate to state that Defendant No. 2 was a stranger rather than to state that the Plaintiff and Defendant No. 1 were strangers to the family. This view was approved by the learned Subordinate Judge in appeal.
It seems to us that both the Courts below have failed to appreciate the exact provisions of sec. 4. The fact that the Plaintiff and the husband of Defendant No. 1 were members of the family to which the property originally belonged is quite irrelevant. The question for consideration was whether they, were members of the undivided family to which the dwelling house belonged at the time of the sale in 1309 B.S It is perfectly clear that in 1309 this particular dwelling-house belonged to the undivided family consisting of Kasi and Harish. Of that family neither the Plaintiff nor the husband of Defendant No. 1 were members; and, therefore, at the time of the purchase the second of the requirements of sec. 4 was satisfied. We are definitely of opinion that at the time of the purchase in 1309, neither the Plaintiff nor Defendant No. 1's husband were members of the undivided family to which the dwelling-house belonged.
It follows, therefore, that unless it can be shown that Defendant No. 2 had lost his right to relief under sec. 4 after the date of the purchase, he was entitled to the right claimed by him.
It has been contended on behalf of the Respondents that as the Plaintiff had succeeded in obtaining possession of at least a portion of this property, the Defendant No. 2 had lost whatever right he may have originally possessed under sec. 4 of the Partition Act. No authority for this proposition has been placed before us. We are of opinion that the mere fact that the purchaser has obtained possession is not sufficient to defeat the claim of a member of a family under sec. 4 of the Partition Act. Unless it can be shown that the purchaser's possession was such that he could be regarded as having become a member of the family no possession Would, in our opinion, serve to defeat the claim. In these circumstances, we are of opinion that the application under sec. 4 of the Partition Act should be allowed.
The learned Advocate for the Respondents preferred another objection, on the ground of limitation. He pointed out that the application under sec. 4 had been rejected on the 5th of June, 1936, and he argued that an order rejecting an application is appealable. It is contended that as no appeal was filed against that order, Defendant No. 2 was not competent to question the propriety of that order in his appeal against the final decree.
In this connection the learned Advocate drew our attention to sec. 8 of the Partition Act which provides that “any order for sale made by the Court under sec. 2, 3 or 4 shall be deemed to be a decree within the meaning of sec. 2 of the Code of Civil Procedure.” From this the learned Advocate argued that an order refusing an application for sale must also be deemed to be a decree and be appealable as such. In support of this argument the learned Advocate referred to the case of Pran Krishna Bhandari v. Surath Chandra Roy(1). That was a case in which an application under sec. 4 of the Partition Act had been allowed and the appeal was by the transferee and not by the person who had applied under sec. 4. It is clear, therefore, that in that case an order for sale had been passed, and by virtue of sec. 8 of the Act was appealable as a decree. There was no occasion, therefore, for the learned Judges in that case to consider the question whether an order refusing an application for sale should be deemed to be a decree and should be appealable. The learned Advocate has relied on the following sentences from that judgment:
“This was as appeal from an order of the learned Subordinate Judge of Hughly made under sec. 4 of the Partition Act (IV of 1893), in the course of a suit for partition. Under sec. 8 of the Act inch an order must be deemed to be a decree within the meaning of sec. 2, C.P.C, so that an appeal lies therefrom to this Court.”
The learned Advocate has argued that this general statement of the law must be interpreted as meaning that not only is an order of sale to be deemed to be a decree but that any order passed on an application under sec. 4 must be deemed to be a decree. We are unable to place this interpretation upon the ruling cited. In our opinion there is nothing in sec. 8 to indicate that an order rejecting an application for sale should be deemed to be a decree. In this view we hold that the appeal to the lower Appellate Court was not time-barred, and as there was an appeal from the final decree, Defendant No. 2 was competent to question the correctness of the order rejecting his application under sec. 4. In the circumstances, therefore, we are of opinion that this appeal must be allowed.
The appeal is, therefore, allowed and the case is sent back to the lower Appellate Court in order that it may make a valuation of the share of the dwelling-house in such a manner as it thinks fit and shall direct the sale of the shares of the Plaintiff and Defendant No. 1 in that dwelling-house to the sons of Defendant No. 2.
The Appellants will be entitled to recover the costs of this appeal from the Respondents. No order is made regarding the costs already incurred in the Courts below.
Sen, J.:— I agree.
P.C