1. This is a plaintiffs' appeal in a suit for partition of a house. The house was mortgaged and a decree was passed in favour of the plaintiffs for sale under Order XXXIV, Rule 4 of the Civil Procedure Code. At the auction-sale, which took place in the year 1921, the plaintiffs purchased the house for Rs. 100. Defendant No. 1 Musammat Mahbuban a sister of the original judgment-debtor, obtained a decree for a one sixth share of the house, although she had claimed the whole of the house. The suit out of which this appeal has arisen was for partition and defendant No. 1 applied to the Court of first instance that under Section 4 of the Partition Act (IV of 1893) she should be allowed to purchase the whole of the house although her share was only one-sixth. The learned Munsif acting under Section 4 of the Partition Act ordered the defendants to deposit Rs. 100 and directed the plaintiffs to execute a sale deed in favour of Musammat Mahbuban.
2. The plaintiffs went up in appeal before the learned District Judge, and the two points urged by them were that Section 4 of the Partition Act did not apply inasmuch as the house in question was not a dwelling house and for some years was inhabitable, and that the value of 5-6ths of the house was more than Rs. 100.
3. The plaintiffs 'appeal was dismissed and they have come up in second appeal to this Court.
4. If, has been urged by Mr. Kunzru appearing on behalf of the appellants that before an order could be passed under Section 4 of the Partition Act, there must be a finding by the Court that the house that was being partitioned was a dwelling house belonging to an undivided family, and secondly, that 'the Court should make a valuation of the property which the Courts below had not done.
5. Section 4 of the Partition Act lays down that 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 share-holder, undertakes to buy the share of such transferee, make a valuation of such share. It is. therefore, necessary for a Court when a suit is instituted by a stranger to an undivided family for partition of a house to find first whether the house in question was a dwelling house and belongs to an undivided family and further that if a member of an undivided family who was a share-holder in that dwelling house under-takes to buy his share to value the share, the valuation to be decided in any manner that the Court should think fit. This, in our opinion, clearly indicates that the Court must frame issues relating to these two matters, namely, as to whether the house was a dwelling house belonging to an undivided family, and secondly, as to what was the proper value of the share that the Court could award under Section 4 for the transfer to the defendant share holder.
6. In this case, in our opinion, there has not been a proper trial of these two points. We are, therefore, of opinion that the Court below should record findings on the following issues:
1. whether the house in suit is a dwelling house within the meaning of Section 4 of the Partition Act?
2. If it is, what is the value of the plaintiffs' share?
7. Parties will be entitled to adduce fresh relevant evidence. Findings are to be returned within three months. Objections, if any, should be filed within 10 days of receipt of the findings.