1. Wearer invited in this Rule to set aside an order, by which the Court below has refused an application made by the petitioners under Section 4 of the Partition Act of 1893. The petitioners were two of the defendants in a suit for partition of joint property, commenced by the plaintiff opposite party, who has purchased an one-fourth share from one of the share-holders. In the schedule attached to the plaint. The subject-matter of the litigation was described In five parcels, the first of which, covering an area of two and a-half bighas, was said to be the family dwelling house of the defendants, inclusive of tank and appurtenances. The other parcels, which cover about 5 bighas and a-half, appear to adjoin the first parcel. The boundaries given are those of the entire land comprised in the five parcels. A preliminary decree was made on the 23rd February 1909, and we are informed that it was subsequently confirmed on appeal. The title of the plaintiff was declared to an one-fourth share of the entire property, which the Court found was included within one set of boundaries, and directions were given for partition by metes and bounds by a Commissioner. On the 25th April 1910, the petitioners applied to the Court, under Section 4 of the Partition Act of 1893, for an order that the share of the dwelling house, purchased by the plaintiff, might be valued, and transferred to themselves. The application was treated as a petition of objection, and was opposed by the plaintiff. The Court dismissed the application on three grounds, namely, first, that the application could not be entertained after the preliminary decree; secondly, that, as the ground, urged in support of the application, had been taken in the memorandum of appeal presented against the preliminary decree, the matter could not be re-opened; and, thirdly, that, as the subject-matter of partition consisted, not only of the dwelling house, but of other lands as well, the defendants would be amply protected, if by a, suitable distribution, no part of the dwelling house was allotted to the share of the plaintiff. The applicants then moved this Court, and obtained the Rule now under consideration. In support of the Rule, it has been urged by the learned Vakil for the petitioners, first, that the application was made at the proper stage and ought to have been entertained and considered on the merits; secondly, that the petitioners are entitled as a matter of right to an order under Section 4 of the Partition Act, because it is not disputed that a share of the dwelling house of the defendants has been transferred to the plaintiff, who is not a member of the family; and, thirdly, that the Court ought to have taken evidence to determine what portion of the property, comprised in this suit, may be properly described as the dwelling house' of the parties, which expression, it is suggested, includes not merely the structures but also the land on which the structures stand, and such portion of the adjoining lands as is necessary for the convenient use and occupation of the house as the dwelling house of the family. Each of these grounds has been contested on behalf of the plaintiff opposite party and it has, further, been argued in answer to the Rule first, that the defendants do not constitute a 'family' within the meaning of Section 4 of the Partition Act, as they are not, all of them, the descendants of a common ancestor; and, secondly, that even if they are assumed to be members of a family, they do not constitute an undivided family,' inasmuch as some of them do not reside in the dwelling house in question. After careful consideration of the arguments which have been addressed to us on both sides, we have arrived at the conclusion that the order of the Court below cannot be supported) that the application made by the petitioners should be heard on the merits, and an order made under Section 4 of the Partition Act in respect of such portion of the property under partition as may properly be described as the 'dwelling house.'
2. In so far as the first point urged in support of the Rule is concerned, it is clear that the application, under Section 4, of the Partition Act, has been made at the proper stage. Section 4 does not provide that the application contemplated by it should be made before the preliminary decree; on the other hand, it is obvious that the application cannot be made till the rights of the parties have been determined by the preliminary decree. To take one illustration it is conceivable that there may be a dispute between the parties as to whether the plaintiff has really acquired any interest in the dwelling house or not, and whether, he is entitled to demand a partition of it. Such question must, clearly, be determined before a defendant can be expected to make an application under Section 4. As was pointed out by this Court in the case of Satya Kumar v. Satya Kirpal 10 C.L.J. 503 : 3 Ind. Cas. 247, the question, whether a particular property alleged to be joint really possesses that character, must be determined before the preliminary decree is made; all questions involving the title of the parties and their right to any relief within the issues, are judicial in character, and must be determined by the Court, such determination to be made ordinarily by the Court, and incorporated in the interlocutory decree before any partition is made or directed. An application, under Section 4, therefore, cannot be properly made, before it has been declared by the preliminary decree, that the plaintiff, who is not a member of the family, has acquired a valid title to a share thereof, and is entitled to claim partition. This view has been adopted in the cases of Hira Moni v. Radha Charn 5 C.W.N. 128; Kadir v. Abdul Rahiman 24 M. 639, Abdus Samad v. Abdur Razzaq 21 A. 409 and Bai Hirakore v. Trikamdas 32 B. 103 : 10 Bom. L.R. 23 : 3 M.L.T. 141, where it was ruled that an application, under Section 2 or Section 4 of the Partition Act, may be made after the preliminary decree. The case of Kali Kumar v. Brahmananda 7 C.L.J. 98, where the earlier authorities do not appear to have been brought to the notice of the Court, may, at first sight, seem to lend some support to the contrary view. The case, however, is really distinguishable, because there the parties had proceeded, not merely beyond the preliminary decree, but also be-yond execution proceedings based thereon, and had actually found it necessary to institute a suit under Section 331 of the Civil Procedure Code of 1882, by reason of an obstruction by a claimant in good faith other than the judgment-debtor. It is needless for us to express any opinion upon the question, whether, even at such stage, it may not be open to one of the parties to avail himself of the benefit of Section 4 of the Partition Act. There can, however, be no room for controversy that the application in the case before us, made immediately after the confirmation of the preliminary decree by the Court of appeal, was amply in time, and ought to have been considered on the merits. We may add, further, that the mere circumstance that this matter had been mentioned in the memorandum of appeal presented against the preliminary decree, is no bar to this application. Thy ground could not have been entertained at that stage, and, as a matter of fact, was not considered. We hold, therefore, that the first ground urged by the learned Vakil for the petitioners in support of the Rule, must prevail.
3. In So fat as the second ground urged by the learned Vakil for the petitioners, is concerned, it is, in our opinion, unanswerable. The learned Judge, in the Court below, appears to have thought that the operation of Section 4 of the Partition Act may be avoided if the property comprised in the suit includes, in addition to the dwelling house, other lands owned by the parties. This is clearly erroneous. The elements which must co-exist to attract the operation of Section 4, are, first, that the dwelling house should belong to an 'undivided family,' secondly, that a share thereof should have bean transferred to a person who is not a member of Such family; and, thirdly, that the transferee should sue for partition. In the case before us, it does not appear to have been disputed in the Court below, that the dwelling house did belong to an undivided family; and that a share thereof had been transferred to the plaintiff who was not a member of the family. As the suit was brought by such transferee for partition, the application under Section 4 was obviously tenable [Balshet v. Miran Sahib 23 B. 77]. The circumstance that the plaintiff had purchased, in addition to a share of the dwelling house, a share of other lands as well of which he sought partition in the suit as framed, does not render inapplicable the provisions of Section 4. Section 4 does not provide that if the purchaser has acquired an interest not merely in the dwelling house of the family, but also in other lands, he can resist the transfer of the share of the dwelling house to such member of the family as may undertake to buy it at a valuation made by the Court. It is obvious that the results of the two conflicting views would be widely divergent. If a purchaser of the dwelling house and of other lands is held to be under an obligation to transfer his share of the dwelling house to a member of the family under the provisions of Section 4, he may, upon partition, obtain only such an allotment of the other lands as would represent the value of his share thereof; on the other hand, if the view taken by the Court below is well-founded, and the purchaser is under no obligation to transfer his share of the dwelling house to the applicants under Section 4, and if, upon the partition, his allotment does not, upon ground of convenience, comprise any portion of the dwelling house, it must, necessarily, include a larger portion of the other lands than would correspond to his share therein; in other words, he must be awarded a larger portion of the other lands so as to compensate him for his share of the dwelling-house. This, clearly, was not contemplated by the Legislature. It is, in our opinion, immaterial whether the stranger purchaser acquires a share in the dwelling-house only, or purchases a share of the other lands of the family in addition--in either event, a member of the family, who is a share-holder in the dwelling house, is entitled to the benefit of the provisions of Section 4. If, therefore, it is established that the dwelling house in question belongs to an undivided family, it becomes indisputable that the petitioners are entitled to an order, under Section 4, as a matter of course. The second ground urged in support of the Rule must, consequently, prevail.
4. It would be convenient to take into consideration at this stage, the two grounds upon which the learned Vakil for the opposite party has invited us to discharge the Bale. Neither of these grounds appears to have been suggested in the Court below, but as they raised questions of some importance, we have allowed them to be argued upon the materials on the record.
5. It has been contended in the first place, on behalf of the plaintiff, that the defendants do not constitute a 'family' within the meaning of Section 4 of the Partition Act of 1893, as they are not, all of them, descendants of the same person. There is, in our opinion, no substance in this contention. The term 'family' is not defined in the Partition Act, and we do not think that it would be possible or desirable to frame a comprehensive formula or exhaustive definition to indicate all that is easily understood by the term 'family.' As was well observed by Kindersley V.C., in Green v. Marsden 1 Drew. 646 at p. 651 : 1 Eq. R. 437 : 22 L.J. Ch. 1092 : 1 W.R. 511, the word 'family' is, in itself, a word of a most loose and flexible description. It is, in fact, as Wickens, V.C., said in Burt v. Hellyar L.R. 14 Eq. 160, a popular and not a technical expression, and its meaning is often controlled by the context. As is pointed out in the Oxford Dictionary, Volume IV, page 55, although the term family' is sometimes used to include those descended or claiming descent from a common ancestor, it has, very often, a much wider import; it is often used to indicate a body of persons formed by those who are merely connected by blood or affinity; it is sometimes used to include even a body of persons who live in one house or under one head. In the case of Wilson v. Cochran 31 Texas 677 : 98 Am. Dec. 553, the matter was put clearly as concisely as follows: The term family embraces a collective body of persons living together in one house or within the cartilage. In legal phrase, this is the generic description of a 'family'. It embraces a household comprised of parents or children or other relatives or domestic servants, in short, every collective body of persons living together within the same cartilage, subsisting in common, and directing their attention to a common object--the promotion of their mutual interests, and social happiness. This is the most popular acceptation of the word. The description herein suggested may, perhaps, be deemed, in some respects, too wide. But one thing is, in our opinion, beyond dispute. The word 'family', as used in the Partition Act, ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood, who live in one house or under one head or management. There is nothing in the Partition Act to support the suggestion that the term 'family' was intended to be used in a very narrow and restricted sense, namely, a body of persons who can trace their descent from a common ancestor. In the case before us it appears that the owners of the property, who are fifth in descent from the founder, are all daughters. They have been married, some live with their husbands in the ancestral dwelling-house, while others live occasionally in the same place, and at other times, in the houses of their respective husbands. Two of these daughters, it is said, have transferred their interests to their husbands who, however, reside in the family dwelling house of their father-in-law. When regard is had to Hindu social customs and manners, it is difficult to hold that the term 'family' is not comprehensive enough to include such a body of persons. Indeed, in cases where there are no male children in the family and the daughters alone are entitled to the inheritance, their husbands very often live as members of the family, and they with their wives may not inappropriately be treated as the 'family' some members of which have shares in the dwelling house. Here it may be observed that the phraseology of Section 4 indicates that there may be members of the family who have no share in the dwelling-house, and that Section makes it essential that the member of the family, who undertakes to buy the share of the stranger transferee, should be a shareholder in the dwelling-house, which implies that there may be members of the family who are not such share-holders. In the case before us, there was no suggestion made in the Court below that the provisions of Section 4 were inapplicable because the dwelling-house did not belong to a family' and upon the materials which have been placed before us, we are not prepared to give effect to such a contention. Indeed, if the restricted meaning of the term 'family', suggested by the learned Vakil for the opposite party, is not adopted, there is, clearly, no foundation in fact for his argument. The first ground, therefore, upon which we are invited to discharge the Rule, entirely fails.
6. The second ground, urged on behalf of the plaintiff, is that even if the. defendant be deemed to constitute a 'family' within the meaning of Section 4 of the Partition Act, they do not constitute an 'undivided family' to whom the dwelling-house belongs. This position is sought to be supported on the ground, that one or more members of the family do not regularly reside in the dwelling-house. In our Opinion, there is no solid foundation for this argument. It was pointed out by a Full Bench of the Allahabad High Court, in the case of Sultan Begam v. Deli Prasad 30 A. 324 : A.W.N. (1908) 126 : 5 A.L.J.352 : 4 M.L.T. 38, that the words 'undivided family' must be taken to mean 'undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it'. The learned Judges adopted this interpretation as consistent with the plain object of the Section, and observed that it had been accepted as well-founded in the case of Kalka Prasad v. Banki Lal 9 O.C.156. They further held that the contrary view, which prevailed in the case of Hashmat Ali v. Muhammad Umar 29 A. 308 : A.W.N. (1907) 52 : 4 A.L.J. 209, where it had been ruled that the expression 'undivided family' was practically equivalent to 'a joint Hindu family', could not possibly be supported. In our opinion, the view adopted by the Full Bench of the Allahabad High Court is based upon a reasonable construction of the Section. The object of the Section is to prevent a transferee from a member of a family, who is an outsider, from forcing his way into a dwelling-house, in which other members of the family, to which his transferor belongs, have a right to live. In fact, Section 4 of the Partition Act of 1893, is a logical sequel to Section 44 of the Transfer of Property Act which provides that, where the transferee of a share of a dwelling-house, belonging to an undivided family, is not a member of the family, nothing in the Section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. It is well known that under the law, as it stood before the Transfer of Property Act was passed, it had been held that the purchaser at a judicial sale of the rights of one member, was entitled to be put into physical possession even of a part of the family house, as the only remedy of the other members was to purchase the share of the debtor at the auction sale or to sue for partition; [Ramtonoo v. Ishurchunder (1857) Beng. S.D.A. 1585 ; Bijoi v. Sama Sundari 2 W.R. 30 Mis.(F.B.) : B.L.R. Suppl. Vol. 172 ; Eshan Chunder v. Nund Coomar 8 W.R. 239], but although the rule was thus laid down, Mr. Justice Kemp observed that it was inequitable, with reference to Hindu customs and prejudices, to permit a stranger to intrude himself upon the privacy of a joint Hindu family residence, more particularly when, as happens in many instances, a stranger is actuated by motives of enmity, and the learned Judge suggested that the difficulty might be met, if instead of joint possession, in execution of the decree, partition proportionate to the share of the purchaser was effected. The position of a purchaser of a share of a member of a family governed by the Mitakshara Law, was much worse, because, as the member himself could not say that any specific portion was exclusively his, the purchaser could not claim to be put into possession of any definite piece of property. The matter was set at rest by the second paragraph of Section 44 of the Transfer of Property Act to which we have referred ; and Section 4 of the Partition Act merely makes a provision which may really be regarded as a corollary thereto. It is not necessary, in our opinion, to constitute an undivided family for the purposes of the Section that the members of the family should conslantly reside in the dwelling-house nor is it necessary that they should be joint in mess. If, as Sir John Stanley, C.J., puts it in Sultan Begam v. Devi Prasad 30 A. 324 : A.W.N. (1908) 126 : 5 A.L.J.352 : 4 M.L.T. 38, the members of the family are 'undivided qua the dwelling-house in question, which they own', the benefit of the provisions of Section 4 becomes available. The view we take is also supported by the decision of the Bombay High Court in Vaman v. Vasudev 23 B. 73, where Farran, C.J., pointed out that it is the ownership of the dwelling-house, and not its actual occupation, which brings the provisions of Section 4 of the Partition Act into play. In the case before us, as we have already stated, it was not suggested in the Court below that the defendants did not constitute an 'undivided family' within the meaning of Section 4, and there is, in our opinion, no substance in this contention. The second ground, therefore, upon which we are invited to discharge the Rule, cannot be supported. The conclusion follows that the petitioners are entitled to an order under Section 4 as a matter of right.
7. The third and last point, which now requires consideration, relates to the extent of the dwelling-house. The learned Vakil for the petitioners has contended that the term dwelling-house includes not merely the actual structure, but also the land upon which the structure stands, and so much of the adjoining land as is necessary for the convenient use and occupation of the house as a dwelling-house. In support of this proposition reliance has been placed upon the cases of Khairati Lal v. Secretary of State 11 A. 378 and Nabab Mumtazuddowla v. Secretary of Slate 9 O.C. 311 which turned upon the construction of the term house' as used in Section 55 of the Land Acquisition Act of 1870, and Section 49 of the Land Acquisition Act of 1894. Reference has also been made to the cases of Governors of St. Thomas' Hospital v. Charing Cross Railway Company (1861) 1 J. & H. 400 : 30 L.J. Ch. 395 : 7 Jur. (N.S.) 256 : 4 L.T. 13 : 9 W.R. 411 ; Steele v. Midland Railway Company (1866) L. R. 1 Ch. App. 275 : 12 Jur. (N.S.) 218 : 14 L.T. 3 : 14 W.R. 367 ; Cole v. West London and Crystal Palace Railway Company (1859) 28 L.J. Ch. 767 : 27 Beav. 242 : 5 Jur (N.S.) 1114 : 1 L.T. 178; Hewson v. S.W. Railway Company (1860) 2 L.T. 369 : 8 W.R. 467 ; King v. Wycombe Railway Company (1860) 28 Beav. 104 : 29 L.J. Ch. 462 : 6 Jur. (N.S.) 239 : 2 L.T. 107 ; Alexander v. The West End of London and Crystal Palace Railway Company (1862) 30 Beav. 556 : 31 L.J. Ch. 500 : 8 Jur. (N.S.) 833; Marson v. London, Chatham and Dover Railway Company (1868) L.R. 6 Eq. 101 : 37 L.J. Ch. 483 : 18 L.T. 319., which turned upon the construction of the word 'house' as used in Section 92 of the Lands Clauses Consolidation Act of 1845. The rule deducible from these cases, is that the term 'house' embraces not merely the structure or building, but includes also adjacent buildings, cartilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier. As was observed by Turner, L.J., in Steele v. Midland Railway Company (1866) L.R. 1 Ch. App. 275 : 12 Jur. (N.S.) 218 : 14 L.T. 3 : 14 W.R. 367, the test, to be applied, is, what is necessary for the convenient use and occupation of the house, whoever may chance to occupy it, and not, what will be necessary for the personal convenience and enjoyment of a gentleman of fortune if he takes the house, or a gentleman without fortune if he chooses to become the tenant; in other words as Wood, V. O. put it in Governors of St. Thomas' Hospital v. Charing Cross Railway Company (1861) 1 J. & H. 400 : 30 L.J. Ch. 395 : 7 Jur. (N.S.) 256 : 4 L.T. 1.3 : 9 W.R. 411, the term 'house ' comprises all that would pass by a grant of the house, that is, not only the cartilage but all that is necessary to the enjoyment of the house as distinguished from what is subsidiary to personal use and enjoyment of a particular occupier. See also, Fergusson v. London Brighton and South Coast Railway Company (1864) 3 Dec. & S. 658 : 33 Beav. 103 : 2 N.R. 566 : 33 L.J. Ch. 29 : 9 L.T. 134 : 11 W.R. 1088 ; Kerford v. Seacombe Railway Co. (1888) 57 L.J. Ch. 270 : 58 L.T. 445 : 36 W.R. 431 : 52 J.P. 487 and Low v. Staines (1900) 16 T.L.R. 184 : 64 J.P. 212. We must take it, therefore, that the petitioners are entitled to purchase from the plaintiff, not merely the structure of the dwelling-house, but also the land on which it stands, and further, every appurtenant and accessory which may be deemed necessary to a full and complete enjoyment of the thing sold. It may, no doubt, be difficult to determine, with regard to a particular plot of adjacent land, whether it is or is not necessary to the enjoyment of a house, as is illustrated by the cases of Salter v. Metropolitan District Railway Co. (1870) L.R. 9 Eq. 432 : 39 L.J. Ch. 567 and Falkner v. Somerset and Dorset Railway Co. (1873) L.R. 16 Eq. 458 : 42 L.J. Ch. 581. In the first of these cases, it was held that a nursery garden was part of the dwelling house of the owner, while in the second it was ruled that as the garden was in the nature of a. field, and did not form the garden of the cottage, it could not be treated as included within the dwelling-house. The question, therefore, must be determined upon evidence, a plan must be prepared of the entire subject-matter of the litigation, and the Court must determine how much of the adjoining land may be justly treated as included within the dwelling-house, upon the principles already explained. We may add that it was not seriously disputed, and having regard to the description in the schedule to the plaint, it could not be seriously contested, that the first parcel, in its entirety, would be appropriately comprised in the 'dwelling-house;' the substantial question, in controversy between the parties, is whether the remaining plots, either in whole or in part, can be treated as SO included.
8. We may add also that it has not been disputed that this Court has ample jurisdiction to set aside the order of the Court below, although it is in the nature of an interlocutory order [Amiad Ali v. Ali Hossain 6 Ind. Cas. 574 and Govinda Mohan v. Kunja Behari 4 Ind. Cas. 364 : 10 C.L.J. 407]. The order of the Court below is manifestly erroneous. If it were allowed to stand and partition effected, the defendants would be at liberty, in an appeal against the final decree, to re-open the entire proceedings, and to avail themselves of the benefit of the provisions of Section 4 of the Partition Act. Such a course would, obviously, lead to needless delay and wasteful litigation.
9. The result, therefore, is that this rule must be made absolute, and the order of the Court below discharged. The case will be remanded in order that the Court may determine the extent of the dwelling-house. The share of the plaintiff therein will then be valued, and the petitioners will be at liberty to purchase such share [Bal Shet v. Miran Sahib 23 B. 77]. If the sale is effected in the manner laid down in Section 4, the plaintiff will have the purchase-money as representing his one-fourth share of the dwelling-house, and will also be allotted one-fourth share of the remaining land.
10. The petitioners are entitled to their costs in this Rule. We assess the hearing fee at two gold mohurs.