S.M.N. Raina, J.
1. This is an appeal under Section 8 of the Partition Act.
2. It is not disputed that the house in suit which is situated in Gopalganj, Sagar, originally belonged to the joint Hindu family. The plaintiff-respondent purchased 1/5th share of Rishikumar, appellant No. 1, one of the members of the family at a Court auction in 1960. Thereafter the plaintiff filed a suit for partition and for possession of his 1/5th share against the appellants and certain other members of the family. The suit was decreed and a preliminary decree for partition was passed in favour of the plaintiff-respondent. During the proceedings for final decree, the appellants and some others filed an application under Section 4 of the Partition Act (hereinafter referred to as 'the Act') for purchasing the share of the plaintiff. This application was opposed by the plaintiff-respondent and was dismissed by the trial Court in appeal, the learned Additional District Judge set aside the order of the trial Court and allowed the application. Being aggrieved thereby, the plaintiff has preferred this second appeal.
3. From the material on record, it appears that the house in suit is a dwelling house. Shri P.R. Padhye, learned counsel for the appellants, however, urged that the family had lost its character as an undivided family and, therefore, the members of the family were not entitled to the benefit of Section 4 of the Act In support of his contention, he pointed out that, as would appear from the finding of the trial Court on issue No. 3 in the partition suit brought by the plaintiff-respondent (Civil Suit No. 45-A of 1963), some of the members had earlier filed a suit for partition of the suit house against one Bhagwati Prasad, one of the members of the family and in the said partition, Bhagwati Prasad got possession over 1/5th portion of the suit house from the date of preliminary decree. It was urged that in view of the earlier suit for partition it is obvious that there had been disruption of the joint status of the family and as such the family ceased to be undivided family within the meaning of Section 4 of the Act.
4. In order to appreciate the arguments of the learned counsel for the appellants, it is necessary to examine carefully the provisions of the Act. It would appear from the preamble of the Act that it was enacted to amend the law relating to partition. There is nothing in the Act to suggest that it is applicable only to partition of the property belonging to a joint Hindu family. It is quite clear from the provisions of the Act that it is of a general nature and is applicable to partition of property irrespective of the consideration whether it belongs to Hindus, Muslims, Parsis or members of any other community. It would, therefore, not be correct to construe the various provisions of the Act treating it as a part of the Hindu Law itself.
5. The expression 'undivided family' as used in Section 4 of the Act means a family not divided qua the dwelling house. The essence of the matter is that the house itself should be undivided among the members of the family who are its owners. The emphasis being on the undivided character of the house the expression merely means a family the members of which have not effected a partition of the dwelling house belonging to it. Where the members of a family are in joint occupation of a dwelling house and there has been no partition by metes and bounds by allotting distinct portions of the house to different members of the family who are co-owners thereof, the family would be an undivided family with respect to such house within the meaning of said section.
6. Shri P.R. Padhye, learned counsel for the appellants, referred to a number of authorities; but they do not support the view propounded by him. In Chaudhari Mohammed Sulaiman Khan v. Mr. Amir Jan AIR 1941 All 281, it was held that the phrase 'undivided family' in Section 4 is used in a very wide and general sense and two Mahomedan married daughters too may be regarded as members of an undivided family within the meaning of the Act if the house is undivided. Relying on an earlier Full Bench decision of that Court in Sultan Begum v. Debiprasad (1908) ILR 30 All 324, it was pointed out that 'undivided family' in Section 4 of the Act does not mean an undivided Hindu Family; but it applies to undivided families of all castes and communities and in order to comply with the condition laid down in the section all that is necessary is that the family should be undivided qua the dwelling house which is the subject matter of the partition.
7. A similar view was expressed by the Patna High Court in Sheodharprasad Singh v. Kishun Prasad Singh AIR 1941 Pat 4. It was pointed out in that case that the expression 'undivided family' in Section 4 means a family which is undivided qua the dwelling house in question and the said section is applicable even to portions of houses left undivided.
8. In Boto Krishna Ghose v. Akhoy Kumar Ghose AIR 1950 Cal 111 also a similar view was expressed. The following observations made in paragraph 12 are pertinent:
'The essence of the matter, therefore, is that the house itself should be undivided amongst the members of the family who are its owners. The emphasis is really on the undivided character of the house, and it is this attribute of the house which imparts to the family its character of an undivided family. For the members of the family may have partitioned all their other joint properties and may have separated in mess and worship, but they would still be an undivided family in relation to the dwelling house so long as they have not divided it amongst themselves'.
9. The object of Section 4 of the Act appears to be to give the members of a family owning a dwelling house the right to exclude a stranger from such house by purchasing his share which he may have acquired in some manner and thus to preserve the privacy of a dwelling house. It is, therefore, clear that where a dwelling house owned by members of a family has remained undivided by a partition amongst them, the members will have a right to keep the stranger away by purchasing his share at a price which will be determined by the Court.
10. In the instant case, it is obvious that after the separation of Badriprasad's share, other members of the family continued to hold the remaining portion of the house as tenants-in-common without any partition by metes and bounds. The plaintiff-respondent having purchased the share of the one of the members of the family in the house the members are entitled to purchase the share for a price to be determined by the Court. The Additional District Judge, therefore, rightly allowed the application of the appellants.
11. Another point that was feebly urged by the learned counsel for the respondent was that since the plaintiff-respondent had obtained a decree for partition, and the Court bad expressly held in paragraph 22 that the house could be partitioned, the application for partition could not be allowed. There appears to be no merit in this contention and it was rightly disallowed by the learned Additional District Judge. The question whether a particular property is capable of being partitioned or not, is entirely a different matter. Section 4 is attracted even though a dwelling house is big enough to be partitioned.
12. From the language of Section 4, it is clear that the right of a member of the family, who is a share-holder accrues under the said section as soon as a suit for partition is filed by a stranger to the family and subsists during the pendency of the suit until it is terminated by an effective final decree for partition. Thus the right can be exercised at any time before final decree for partition is passed. In the Patna case (Supra) it was held that an application under Section 4 can be made at the appellate stage or at any stage before final decree.
13. In Birendranath Banerjee v. Smt. Snehlata Devi AIR 1968 Cal 380, it was held that the right of pre-emption under Section 4 of the Act is a right given by the statute and on its wordings it subsists so long as the suit remains pending, or in other words so long as the suit has not been concluded or terminated by an effective final decree for partition. I entirely agree with this view. In the instant case, the application was made before a final decree was passed. The application was, therefore, clearly maintainable. No other point was pressed before me.
14. The appeal, therefore, fails and is hereby dismissed with costs. Counsel's fee Rs. 25/- if certified.