S. Ramachandra Iyer, C.J.
1. In this appeal the plaintiff in O. S. No. 818 of 1958 on the file of the District Munsifs Court, Tiruchirapalli, challenges the order passed by the lower Courts directing sale of the property, which formed the subject-matter of the partition, under the provisions of Section 4 of the Partition Act. The property was purchased by one Allah Baksh, who died leaving his son Sherfuddin and two daughters Asia Bibi and Razia Bibi, the respondents before us. The plaintiff Rukia Bibi who had purchased the half share of Sherfuddin, instituted the suit for partition and separate possession of her half share in the properties left by Allah Baksh. There was no contest on the question that the plaintiff was entitled to the half share claimed by her or even to the partition. The advocate appearing for the defendants had even endorsed on the plaint that he was not contesting the right of Rukia Bibi to partition or to the quantum of share that she would be entitled on such partition. Accordingly, a preliminary decree for partition was passed on 11-6-1959. A Commissioner was appointed in pursuance of the preliminary decree, to submit a report suggesting the mode of division. The Commissioner submitted his report.
Soon thereafter, Razia Bibi, the second defendant, filed an application under Section 4(i) of the Partition Act alleging that the major sharer, namely, the plaintiff, being a purchaser from her brother of a half share in the property should be considered as a stranger to the family and that that half share should be sold to her. There was also a plea that the house was incapable of division and that an order should be passed under Section 2 of the Partition Act. The latter question, need not, however, detain us as the Courts below have proceeded to act only under Section 4 of the Act. Both the lower Courts have held that the house is a family house and that the respondents were entitled to the order sought. The contention that the provisions of Section 4 could be invoked only if the case falls under Section 2 of that Act, that is, where the house is incapable of division was rejected. In this appeal against that order Mr. Sherfuddin first contended that under the compromise decree, as the parties had agreed to the division it should be no longer open to one of them to invoke to her aid Section 4 of the Partition Act. But from what we have stated above, what was agreed at the time of the preliminary decree was the fact that Rukia Bibi was entitled to the share claimed by her and also to a partition of that share. There was no agreement as to how that partition was to be effected, whether by division by metes and bounds, or by the application of the relevant provisions of the Partition Act. There is therefore no substance in this contention of the appellant.
2. It is next contended that the house should not be regarded as a dwelling house to which the provisions of Section 4 would apply. It is argued that the house was purchased in the year 1955 subject to an othi, which, even now is subsisting and that under the circumstances it cannot be held that the family resided in the house to make it a family dwelling house. This contention is directly opposed to the averments in the plaint filed by the appellant that the respondents were, on the date of suit, living in the house and also to the specific finding of the learned District Judge that the house was a family dwelling house in the occupation of the respondents. There is therefore no substance in this point either.
3. It is then argued that as the respondents are the daughters of the deceased, who had been married away into other families, they should no longer be regarded as members of the family who owned a dwelling house and an order under Section 4 of the Partition Act could not therefore be passed in their favour. In support of the contention that a female member of the family marrying and leaving the family house to live in her husband's house prima facie gives up her intention of residing in the house. belonging to the family and for that reason is not entitled to apply under Section 4 of the Partition Act; reliance is placed upon Bai Fatma v. Gulamnabi, AIR 1936 Bom 197. That decision undoubtedly supports the contention of the appellant. But, with great respect to the learned Judge, who decided that case, we are unable to share the view expressed therein. Under the Muhammadan law, a female member born in a family does not cease to be a member, because she marries into another family. Marriage, under that law, is a contract, and not a question of any change of status from one family into another. A female member marrying a person of a different family cannot therefore lose her rights as a member of the family in which she was born. It must also be noticed that under Section 4, it is not necessary that the co-sharer applying for relief should continue to be a member of the family. There can be no doubt that in the present case the house is a family dwelling house and that Razia Bibi is a co-sharer who is entitled to a share in that house on partition. She would, in our opinion, be entitled to maintain the application under Section 4 of the Partition Act.
4. The appeal fails and is dismissed with costs.