1. The facts relating to this second appeal are as follows :- The original owner of the house in suit died leaving a widow, two sons, and a daughter, who is the appellant in this appeal. The widow and one of the sons sold the house in suit and another house to the father of the present plaintiffs. The purchaser himself took possession of one of the houses, but allowed his vendors to stay in the suit house as his tenants. In 1913 he sued them for possession of the house on the strength of his rent-note, but was met by the contentions of the present defendant-appellant that she had a share in the house and that her share had not been sold to the father of the plaintiffs. On appeal it was decided that the purchaser could get possession of the house subject to the shares of the present defendant and her brother, since they had not been parties to the sale. The purchaser then sued for the determination of his share, and in that suit it was held that the plaintiffs had a share of 131 180 and the defendants had a share of 49 1180. The defendant's brother was by that time dead. The heirs of the purchaser now sue for possession of their 1311180 share. The defendant contended that she was a member of an undivided family and had a share in the dwelling house in suit, and therefore under Section 4 of the Partition Act of 1893 she was entitled to have the plaintiffs' share sold to her on payment of the price fixed by the Court. The trial Court held that she was a member of an undivided family and also that the house was a dwelling house, and ordered the plaintiffs to sell her their share in the house for Rs. 291. Both sides appealed to the District Court. The result of the defendant's appeal is immaterial; but the appeal of the plaintiffs succeeded to the extent that partition was ordered and also mesne profits; and it was held that the defendant was not a member of an undivided family and the suit house was not a dwelling house, and therefore the defendant was not entitled to take advantage of the provisions of Section 4 of the Partition Act. The defendant now appeals.
2. I need not discuss the question of the house in suit being a dwelling house within the meaning of Section 4 of the Partition Act, because in my opinion the appeal must fail on the other ground of contention, viz.: that the defendant is a member of an undivided family. It is settled law that the expression 'undivided family', occurring in Section 4 of the Partition Act, is not confined to joint Hindu families nor to families of other religions which happen to have adopted Hindu notions of jointness. It includes also Mahomedans who are undivided in the sense with which the expression is used in Section 4. There is some difficulty in the interpretation of that expression and a number of authorities have been quoted to me.
3. In Sultan Begam v. Debi Prasad I.L.R. (1908) All. 324, the full bench held that the object of Section 4 is to prevent a transferee 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'. If these words are taken to be of universal application and to cover every possible case, then they would cover the case of the present defendant who has a right to live in the house, assuming that she is still a member of the family. But the difficulty here is that the defendant has married and is living in her husband's house, and the question is whether she is still a member of an undivided family within the meaning of Section 4. The case of Sultan Begam v. Debi Prasad is not an authority which expressly deals with this point.
4. Then there is Vaman v. Vasudev I.L.R. (1898) 23 Bom. 73. That was a case of a Mouse originally owned by four members of a joint Hindu family in which at various times all the shares of the four members of the family were sold. At a later stage two of the members of the joint family and the original owners of the house bought their shares back again, though it appears that in spite of the change of ownership at the four previous sales they had remained in actual occupation of the house throughout. One of the original owners who had thus bought back his share applied under Section 4 of the Partition Act to buy out the plaintiff in the suit. It was held that he was not entitled to the benefit of Section 4 because at the time of the purchase by the plaintiff the undivided family had ceased to be the owners of the house and the re-purchase by one of the original owners was after the purchase by the plaintiff and it was stated that although the original owner had been in actual occupation throughout, still it was ownership and not occupation which determined the applicability of Section 4 of the Act. Strong reliance is placed upon these last words as an authority in favour of the present defendant. But although it was said that the determining principle is ownership rather than occupation and therefore the mere fact of occupation would not determine a right to relief under Section 4, that does not mean that a person who was not in occupation and who had no intention of occupying would be entitled to the benefit of Section 4 merely because he was an owner.
5. Then there is Kshirode Chunder Ghosal v. Saroda Prosad Mitra (1910) Cri.L.J. 525. That was a case brought by certain members of the family who had a share in the dwelling house in question but did not regularly live in the dwelling house. Sultan Begam v. Debi Prasad was referred to with approval, and it was accepted that the words ' undivided family ' must be taken to mean ' undivided qua the dwelling house in question '. But there again, although this was a case of persons not regularly occupying the house, it was not a case of a person who prima facie has given up all intention of using the house. It is contended that there is nothing in the record of this case to suggest that the defendant has abandoned all intention of living in the house, and that the mere fact of her right to live in the house is enough to entitle her to the benefit of Section 4 of the Act. This ignores the fact that a woman who marries and goes to live in her husband's house prima facie gives up her intention of continuing to reside in her old house, and that in my opinion is what makes all the difference between the case with which we are now dealing and the cases on which reliance has been placed. The defendant has prima facie given up all intention of living in the house; indeed, since she is now married, she is prima facie no longer a member of the family which owned the house. In the absence of a clear authority in favour of the defendant, I am unable to hold that she is entitled to the benefit of Section 4, because in my opinion she is no longer a member of an undivided family with reference to the house in suit.
6. The appeal, therefore, fails and is dismissed with costs.