Tottenham and Agnew, JJ.
1. The plaintiff in this buit claimed the partition of a share in a Hindu family dwelling house purchased by him from a widow.
2. The first Court, having regard to the inconvenience which it considered would be entailed on the other members of the family if the partition were allowed, made a decree in favour of the plaintiff only for the sum which he had paid for the share in question.
3. The lower Appellate Court reversed that decree and decreed actual partition in favour of the plaintiff.
4. The grounds taken in this second appeal are, that the purchaser of the share of a Hindu widow in a family dwelling ,house is not entitled to a partition of that share inasmuch as possibly the Hindu widow had no right to alienate her share; and further that the lower Appellate Court has not followed the procedure laid down in the Code; that, in fact, there has been as yet no decree which can be executed. It is contended that in a suit for partition, if the Court thinks that the plaintiff is entitled to obtain it, it must, before making a final decree, have the partition carried out by commissioners as provided by Section 396. Therefore, the order of the lower Court against which this second appeal has been filed as if it were a decree, is not a decree at all. At any rate, there is no decree which can be executed.
5. In our opinion the appellant must fail on both contentions. That a Hindu widow has a right to partition has been established by the Full Bench decision in Janoki Nath Mukhopadhya v. Mothuranath Mukhopadhya I.L.R. 9 Cal. 580 and the assignee of a Hindu widow is in the same position. All that has to be secured in favour of the reversioners is that the partition should be so carried out as not to affect their rights. The lower Appellate Court, therefore. was right in law in holding that the plaintiff is entitled to actual partition.
6. As to the other point, we think it clear that the adjudication of the plaintiff's right to obtain a partition amounts to a decree within the meaning of Section 2 of the Code of Civil Procedure. Therefore, an appeal will lie against that decree.
7. As to the decree not being capable of execution, we think that, is an objection which need not stand in the way of either of the parties. The lower Appellate Court has in its decree made an order in the terms of Section 396, that the Civil Court Amin shall carry out the partition in the manner prescribed. Whether the order to the Amin goes direct from the lower Appellate Court, or whether it goes from the Court of original jurisdiction, the Munsif, seems to us to be of no importance. We, therefore, see no reason for interference in the matter.
8. While this appeal was pending, it seems that an application to execute the decree was made before the Munsif, and the Munsif took steps to execute it. Thereupon a rule was obtained in this Court to show cause why execution should hot be stayed pending the hearing of this appeal. We have, therefore, now to dispose of that rule. As we see no reason for interfering with the decree passed by the lower Appellate Court, it follows that there can be no reason for staying execution in the terms of the rule.
9. The appeal is dismissed with costs, and the rule discharged.
10. We make no order as to the costs in the rule.