1. The parties to this appeal are brother and sister and the dispute between them relates to their ancestral house. It appears that their father Raza Husain, who was the proprietor of the house, died long ago leaving him surviving two sons, a daughter and a widow. One of the sons, namely, Ahmad Hasan executed a deed of sale in favour of his sister Musammat Masiti, the plaintiff-appellant in the present case, in respect of his share in the ancestral house. Musammat Majidan, the mother of the parties, died some time ago, and Musammat Masiti inherited one siham out of the five sihams from her mother. Ahmad Hasan who had inherited two sihams from his mother died after her and 1/3rd siham went to the plaintiff-appellant. In this way the latter obtained 22 1/3 sihams out of 40 sihams in the house. She instituted the suit out of which this appeal has arisen in the Court of the Munsif of Saharanpur on the 16th of December 1911, for a declaration that she was entitled to 22 1/3 sihams out of 40 sihams in the house in suit and for possession of her share of 22 1/3 sihams by partition of the house. The claim was brought against her brother Saiyed Haidar Husain, the only other surviving heir of Raza Husain. Syed Haidar Husain resisted the suit on various grounds. He challenged the genuineness of the sale-deed from Ahmad Hasan to the plaintiff-appellant and pleaded limitation as to her claim based on inheritance to her father. The learned Munsif, however, passed a decree on the 25th of April 1912 in favour of the plaintiff-appellant decreeing her 22 1/3 sihams in the house in suit. On the date on which the decree was passed in favour of the plaintiff-appellant an order was made by the learned Munsif appointing a commissioner and directing him to partition the house according to the shares determined in the decree. The commissioner reported that the house was so small that the division of it was highly inconvenient but that in obedience to the order of the Court he had, as far as practicable, partitioned the house. On the 13th of May 1912 Haider Husain, the defendant, filed objections to the partition of the house on the basis of the report of the commissioner as to the inconvenience which would result from the partition. The plaintiff Musammat Masiti also filed an application by which she objected to the mode of partition adopted by the amin and put forward another mode of division. She further said that she was willing to buy the share of the defendant at the price estimated by the amin and Rs. 10 more. In order to understand the mode of division suggested by the plaintiff it is necessary to describe the house. The house consists of a room, a verandah, a court-yard, a dahliz, the kitchen and the latrine. The room and the verandah are on one side of the court-yard while the dahliz, the kitchen and the latrine are on the other side of it. The plaintiff suggested that the room, the verandah, and the court-yard should be divided, while the dahliz, the kitchen and the latrine should remain undivided. The learned Munsif accepted the mode suggested by the plaintiff with a little variation. He decreed partition of the room and the verandah and ordered that the other parts of the house should remain in joint possession. The final decree embodying the mode of partition was passed by the learned Munsif on the 31st of May 1912. The defendant appealed to the District Judge challenging the decree on the ground that the house in suit was such as could not be conveniently partitioned. The plaintiff filed cross-objections to the decree contending that the court-yard should also have been partitioned. The learned Judge agreed with the defendant that the house in suit could not conveniently be partitioned and accepted the appeal. He dismissed the claim of the plaintiff. The latter has come up in second appeal to this Court.
2. It is contended on her behalf that the mode of partition suggested by her should have been adopted, or in any case the decree of the Munsif should not have been disturbed. It is further said that in case this Court be of the same opinion as the lower Appellate Court the plaintiff-appellant would ask under Section 2 of the Partition Act that the house in suit be sold. I think that for the reasons given by both the lower Courts it is quite clear that the partition of the house in suit is not practicable. Indeed it is not seriously pressed on behalf of the plaintiff-appellant that the house, in suit is capable of partition. The learned Counsel for the defendant-respondent objects to the request of the plaintiff-appellant with regard to the sale of the house on the ground that such a request should have been made in the first Court prior to the passing of the decree for partition. I do not think that the respondent's objection is well founded. The plaintiff-appellant having contended all along that the house is capable of partition in the way she suggests, now at the last stage of the case when she finds herself defeated on that point she prays that the provisions of Section 2 of the Partition Act may be applied. I do not think that there is anything in the law to prevent her from making such a request now. In support of this view I would refer to the following cases: Hiramoni Dassi v. Radha Churn Kar 5 C.W.N. 128; Kadir Bacha Saheb v. Abdul Rahiman Saheb 24 M. 639 and Bai Hirakore v. Trikamdas 32 B. 103 : 10 Bom. L.R. 23 : 3 M.L.T. 141. I, therefore, allow the request of the plaintiff-appellant for the sale of the house in suit. The decree of the lower Appellate Court and that of the first Court dated 31st May 1912 are set aside and the case is remanded to the first Court through the lower Appellate Court for disposal according to law in view of the remarks made above. Costs are allowed to the appellant.