1. The appellant is a purchaser who claims partition of a one-third of a s dwelling house on the basis of a purchase. The Courts below, have allowed the defendants to purchase his share under Section 4 of the Partition Act. He objects to this part of the decree. When the appeal was first argued under Order XLT, Rule 11, three ;pleas only were urged on behalf of the appellant as noted in my order of 22nd April, 1926.
2. They are-
(1) That the house is not a dwelling house within the meaning of Section 4 of the Partition Act.
(2) That it does not belong to an undivided family.
(3) That there was no offer by any member of the family to purchase it as required by Section 4.
3. I allowed the record to be sent for to find out if the third plea was correct. It shows that a distinct offer to purchase was made by the defendants in their written statement. The appellant suggests that this was not a good offer because the defendants denied the plaintiff's right to the one-third share which he claimed, but said that if he was found to have the right they were ready to purchase his share. There is nothing improper or illegal in this. The defendants were not obliged to admit the plaintiff's claim in order to take advantage of Section 4 of the Act. Their offer came into operation when the preliminary issue as to title was decided in the plaintiffs' favour.
4. The first plea was urged in the Courts below on the ground that the house was a mere ruin and not fit for habitation. Both Courts have found this against the appellant. The Munsif personally inspected the house and satisfied himself that the plea was untrue. Before me the plea is urged on the ground that the defendants admitted that they were in service in Gwalior. The finding of the learned District Judge on this point is that the house in dispute was occupied by the members of the defendants' family up to 1918 and after 1918 some defendants lived in the house whenever they came to Etawah from Gwalior. It appears from the Munsif's judgment that there are 35 members in the defendants' family and as they cannot all possibly live in the ancestral house, some of them have to live in the house in dispute. The house is certainly a dwelling house belonging to the defendants within the meaning of Section 4 of the Act.
5. The second plea has also rightly been found against the appellant. It was held in the Full Bench decision in Sultan Begam v. Debi Prasad 30 A. 324 : A.W.N. (1908) 126 : 5 A.L.J. 3352 : 4 M.L.T. 38 (F.B.) that 'undivided' does not mean that the defendants must form a joint Hindu family but includes every family, Hindu or other, which is undivided qua the particular dwelling house, and includes a house which belongs to the family and in which members of the family have a right to live. To-day the appellant raises a fresh objection to the form of the decree. The decree directed the defendants to pay the ascertained value of the plaintiff's share plus costs of the suit to him within two months, otherwise his suit for partition would be decreed and he would be entitled to partition. This is a perfectly good decree and is in accordance with the principles laid down as to a decree under this section in Was Ahmad v. Bulaqi Chand 41 Ind. Cas. 867 : 39 A. 372 : 15 A.L.J. 677.
6. There is no force in the appeal which I accordingly dismiss under Order XLI, Rule 11, C.P.C.