1. This appeal arises out of an application under Section 1, Partition Act (IV of 1893). The property in suit consists of a dwelling house and of certain other immovable properties. This property formerly belonged to one Ram Kamal Guha, who sold the same to his cousin Golak Nath Guha. On the death of Golak the property was inherited in equal shares by Golak's two sons Kashi and Harish. In the year 1309 B.S. Harish sold his share of the property to plaintiff Brajendra Chandra Ghose and the plaintiff's brother Upendra Chandra Ghose who was the husband of Sarala Sundari, defendant 1. The plaintiff and his brother apparently obtained possession of a portion at least of the property purchased. In the year 1935, the plaintiff instituted a suit for partition impleading his sister-in-law Sarala Sundari as defendant 1 and Chandra Mohan Guha, son of Kashi Chandra Guha, as defendant 2. A preliminary decree was passed sometime in the year 1935. Thereafter, on 6th April 1936, defendant 2 made an application under Section 1, Partition Act, to purchase the share in the dwelling house which the plaintiff and the husband of defendant 1 had purchased from his father's brother Harish. This application was heard by the learned Munsif and rejected on 5th June 1936. Thereafter on 4th August 1936, a final decree Was passed in the partition suit.
2. Without filing any separate appeal against the order dated 5th June 1936 rejecting his application under Section 1, Partition Act, defendant 2 filed an appeal against the final decree on 31st August 1936, and in his memorandum of appeal he claimed the right to purchase under Section 4, Partition Act, and questioned the decision of the learned Munsif on his application. The learned subordinate Judge rejected the application under Section 4 of the Act and with certain modifications confirmed the allotment which had been made in the final decree. Against the judgment of the lower appellate Court this second appeal has been preferred by the sons of defendant 2. In order to invoke the provisions of Section 4, Partition Act, it was necessary to show first that the property consisted of a dwelling house belonging to an undivided family, and secondly that a share of that property was transferred to a person who was not a member of the undivided family. If these requirements were satisfied, the defendant was entitled to invoke Section 4, unless it were shown that after the date of purchase he had lost the rights conferred by that section. The learned Munsif rejected the defendant's application for two reasons. The first reason was that there had been unnecessary delay in making the application and the second reason was that the purchaser of a share of the property was not a stranger to the family. On appeal the learned subordinate Judge rejected the argument that the application was not maintainable on account of the delay in making it, but he agreed with the learned Munsif in holding that the purchaser was not such a stranger to the family as to entitle the defendant to the relief claimed.
3. On behalf of the appellants, it has been pointed out that the property in suit consisted of a dwelling house and other immovable property which immediately before the purchase in 1309 B.S. belonged to Kashi and Harish, sons of Golak Nath Guha, who constituted an undivided family. It has been further pointed out that the purchasers of the share of Harish were not members of that undivided family. On the other hand, it has been argued by the learned advocate for the respondents that the property in suit was not a dwelling house belonging to the heirs of Golak but was merely a share in a larger dwelling house of which the plaintiff and defendant 1 were part owners. To appreciate this argument it is necessary to refer to the relationship between the parties. As pointed out above, the property in suit formerly belonged to Ram Kamal Guha. Ram Kamal's maternal grand-father was Ram Saran Ghose. The plaintiff and the husband of defendant 1 are the great-grandchildren of Sudharam Ghose, brother of the said Ram Saran Ghose. It appears that originally the land in suit and other lands belonged jointly to Ram Saran Ghosh and Sudharam Ghosh. The learned advocate for the respondents has contended that these properties remained as the joint property of Ram Saran Ghosh and Sudharam Ghosh, that there was never any partition of these properties and that consequently the plaintiff and defendant 1 had always been in possession of a part of the property. The question whether there had been a partition of the shares of Ram Saran and Sudharam was not investigated in the lower Courts but the plaintiff based his claim to partition wholly on the assumption that such a partition had taken place; and we are therefore constrained to assume that whatever was the original position, there was a partition between Ram Saran and Sudharam and the property in suit fell to the share of Ram Saran. The arguments therefore that this property is still merely a portion of the undivided property formerly owned by Ram Saran and Sudharam cannot be entertained.
4. It was conceded that at the time of the purchase by the plaintiff and the husband of defendant 1, Golak Nath Guha's sons were separately possessing this particular property and the plaintiff and defendant 1 had no possession therein. Such being the case we are of opinion that at the time of the purchase this property did consist of a separate dwelling house and the fact that at some previous stage it may have been a portion of a larger homestead is irrelevant for the purposes of this case. We are satisfied therefore that the first of the requirements of Section 1 was satisfied and that in 1309 B.S. a share of the dwelling house belonging to the undivided family was transferred to the plaintiff and defendant 1. It was next contended that the plaintiff and the husband of defendant 1 were not persons described in Section 4, Partition Act, as persons who are not members of such family. This argument found favour with both the Courts below. The learned Munsif observed that as the plaintiff was a great grandson of Sudharam Ghosh, the original owner of a portion of the homestead, and as Golak Nath had acquired his interest by purchase at a later stage it would be more accurate to state that defendant 2 was a stranger rather than to state that the plaintiff and defendant 1 were strangers to the family. This view was approved by the learned subordinate Judge in appeal.
5. It seems to us that both the Courts below have failed to appreciate the exact provisions of Section 4. The fact that the plaintiff and the husband of defendant 1 were members of the family to which the property originally belonged is quite irrelevant. The question for consideration was whether they were members of the undivided family to which the dwelling house belonged at the time of the sale in 1309 B.S. It is perfectly clear that in 1309 this particular dwelling house belonged to the undivided family consisting of Kashi and Harish. Of that family neither the plaintiff nor the husband of defendant 1 were members; and therefore at the time of the purchase the second of the requirements of Section 4 was satisfied. We are definitely of opinion that at the time of the purchase in 1309, neither the plaintiff nor defendant l's husband were members of the undivided family to which the dwelling house belonged.
6. It follows, therefore, that unless it can be shown that defendant 2 had lost his right to relief under Section 4 after the date of the purchase, he was entitled to the right claimed by him. It has been contended on behalf of the respondents that as the plaintiff had succeeded in obtaining possession of at least a portion of this property, defendant 2 had lost whatever right he may have originally possessed under Section 4, Partition Act. No authority for this proposition has been placed before us. We are of opinion that the mere fact that the purchaser has obtained possession is not sufficient to defeat the claim of a member of a family under Section 4, Partition Act. Unless it can be shown that the purchaser's possession was such that he could be regarded as having become a member of the family no possession would, in our opinion, serve to defeat the claim. In these circumstances, we are of opinion that the application under Section 4, Partition Act, should be allowed. The learned advocate for the respondents preferred another objection, on the ground of limitation. He pointed out that the application under Section 4 had been rejected on 5th June 1936, and he argued that an order rejecting an application is appealable. It is contended that as no appeal was filed against that order, defendant 2 was not competent to question the propriety of that order in his appeal against the final decree. In this connexion the learned advocate drew our attention to Section 8, Partition Act which provides that any order for sale made by the Court under Sections 2, 3 or i shall be deemed to be a decree within the meaning of Section 2, Civil P.C.
7. From this the learned advocate argued that an order refusing an application for sale must also be deemed to be a decree and be appealable as such. In support of this argument the learned advocate referred to the case in Pran Krishna v. Surath Chandra Roy ('19) 6 AIR 1919 Cal 1055. That was a case in which an application under Section 4, Partition Act, had been allowed and the appeal was by the transferee and not by the person who had applied under Section 4. It is clear, therefore, that in that case an order for sale had been passed, and by virtue of Section 8 of the Act was appealable as a decree. There was no occasion, therefore, for the learned Judge in that case to consider the question whether an order refusing an application for sale should be deemed to be a decree and should be appealable. The learned advocate has relied on the following sentences from that judgment:
This was an appeal from an order of the learned subordinate Judge of Hughly made under Section 4, Partition Act (IV of 1893) in the course of a suit for partition. Under Section 8 of the Act, such an order must be deemed to be a decree within the meaning of Section 2, Civil P.C., so that an appeal lies therefrom to this Court.
8. The learned advocate has argued that this general statement of the law must be interpreted as meaning that not only is an order of sale to be deemed to be a decree but that any order passed on an application under Section 4 must be deemed to be a decree. We are unable to place this interpretation upon the ruling cited. In our opinion, there is nothing in S.8 to indicate that an order rejecting an application for sale should be deemed to be la decree. In this view we hold that the appeal to the lower appellate Court was not time barred, and as there was an appeal from the final decree defendant 2 was competent to question the correctness of the order rejecting his application under Section 1. In the circumstances therefore we are of opinion that this appeal must be allowed. The appeal is therefore allowed and the case is sent back to the lower appellate Court in order that it may make a valuation of the share of the dwelling-house in such a manner as it thinks fit and shall direct the sale of the shares of the plaintiff and defendant 1 in that dwelling-house to the sons of defendant 2. The appellants will be entitled to recover the costs of this appeal from the respondents. No order is made regarding the costs already incurred in the Courts below.
9. I agree.