1. This is an appeal by the defendants from a final decree in a suit for partition passed by the Officiating Subordinate Judge of Dacca on 9th September 1929. It appears that after the preliminary decree an application was made by one of the defendants for sale of the property in suit in accordance with the provisions of Section 4, Partition Act (Act 4 of 1893). The application of the defendants for invoking the principles laid down in the Partition Act, and directing the sale of the property in accordance therewith, was rejected by two orders of the Court dated respectively 12th March 1928 and 26th June 1929-orders Nos. 109 and 144 of the order sheet at pp. 4 and 11 of the paper book. After the rejection of the application under Section 4 the Court appointed a Commissioner to effect the partition and the Commissioner submitted his report and the final decree was passed on the date already mentioned. Against that decree the present appeal has been brought. It should be observed here that the Court proceeded to direct partition by the Commissioner notwithstanding the protest of the defendants whose application under Section 4 had been rejected.
2. In the present appeal the defendants have put forward the same contentions which they had raised before the Subordinate Judge and contend that in view of the provisions of Section 4 of Act 4 of 1893 the Subordinate Judge should not have proceeded to direct any partition but should have proceeded in accordance with the provisions of Section 4. In order to understand the contention so raised by the appellants a few facts should be stated. It appears that one Shamsuddin had a dwelling house in the town of Dacca comprising two plots of land which are described in Schedules 1 and 2 of the plaint. Shamsuddin died leaving him surviving two sons Ahamad Hossain and Taleb who is defendant 3 in the present suit and a daughter Nazibunnessa. Ahmad had a daughter Azgari who was defendant 4 in the present suit and has died after the institution of the suit. The plaintiff is the husband of Azgari. Defendant 1 in the present suit is one Aftabuddin who is the son of the Najibunnessa. Defendant 2, Fatima, is the daughter of Najibunnessa. Aftabuddin died after the suit and his heirs have been substituted in his place. Now, it appears that Shamsuddin conveyed by a Hebabil ewaj the whole of the Schedule 2 lands to his wife Mashbi Bibi and 12 annas share of Sch. 1 property to his son Taleb and 4 annas of the same to Najibunnessa Taleb, after the death of his mother Mashbi Bibi became entitled to the entire 16 annas of Sch. 2 property. On 8th Baisakh 1327 B. S. corresponding to some time in April 1920 the plaintiff purchased an eight annas share of both schedule lands from Taleb Hossein and commenced a suit for partition of the dwelling house which admittedly consists of these two schedules on the strength of his purchase.
3. Defendants 1 and 2 inherited about 3 annas old share of plot 1 from their mother Najibunnessa and they also purchased certain shares of both the plots from defendant 3 Taleb, some time in Baisakh 1327 B. S. The plaintiff's purchase was in the name of his wife Azgari. The partition suit was dismissed in the first instance. An appeal was taken to this Court and this Court came to the conclusion that plaintiff's purchase was for himself and that his wife was really a benamidar for him. The High Court set aside the decree of the Subordinate Judge dismissing the plaintiff's suit and directed that a preliminary decree for partition be made and remitted the case to the Subordinate Judge for making the final partition in the suit. This was by a decree of this Court passed by B. B. Ghose and Roy, J., on 21st June 1927.
4. After the case was sent back applications were made, as has already been stated, by the defendants for taking proceedings under Section 4, Partition Act (4 of 1893) as their contention was that the plaintiff was a stranger to the family. This contention was negatived by the Subordinate Judge by the two orders to which reference has already been made. The grounds on which the orders were made were that neither the plaintiff nor the defendants were members of an undivided family. Both were strangers and purchasers from the same person and as both parties should be considered to stand in the position of strangers to the family dwelling house in suit, the Partition Act has no application. It was further stated that the share of the dwelling house sold by defendant 3 to the plaintiff was sold with the express object that the plaintiff might continue to live there as before. Another ground on which the decision of the lower Court was rested was that having regard to the fact that the dwelling house appeared to be a big one which could conveniently be partitioned amongst the co-sharers, Section 4 should not apply and a direction was given to partition the property. It has been argued in support of this appeal that the conclusion of the Subordinate Judge that the defendants are strangers and are not members of an undivided family qua the dwelling house, cannot be sustained. The word 'family' has bean construed liberally in previous decisions both of this Court and of the other High Courts in India, and the word has been held to include not merely a body of persons who trace their descent from a common ancestor but also a group of persons related in blood who live in one house or under one head of management: see the case of Khirode Chandra Ghosal v. Sarada Prasad Mitter (8), a decision of Mookerjee and Carnduff, JJ., which so far as this Court is concerned seems to be the leading authority. It was pointed out in that ease that the elements which must co-exist to attract the operation of Section 4, Partition Act are: (1909) 7 I O 486 that the dwelling house should belong to an undivided family ; (2) that the share thereof should have been transferred to a person who is not a member of such family ; and (3) that the transferee should sue for partition. And it was further held in that case that the word 'family,' as used in the Partition Act, ought to be given a liberal and comprehensive meaning to which we have just referred.
5. It is not necessary to constitute an undivided family, the same case points out, that the members of the family should constantly reside in the dwelling house nor is it necessary that they should be joint in mess and a recent decision of the Madras High Court has gone to the length of holding that even if the members of the family are divided in status, the Act will have application: see the case of Sivaramayya v. Venkata Subbamma AIR 1930 Mad 561 where it was held that
where a purchaser of a share in a dwelling house from a member of a Hindu family, whose members although divided in status, occupy the house in common, sues for partition of the house against the members of the family, a member of the family, who is a defendant in the suit, is competent to apply for the benefit of Section 4, Partition Act.
6. The question as to what the words member of an undivided family' within the meaning of the Partition Act mean, was also considered by a Full Bench of the Allahabad High Court [Sultan Begam v. Debi Prasad (1908) 30 All 324]. Sir John Stanley, the Chief Justice, pointed out that the section of the Partition Act was of general application and that Mahomedans, which the parties in the present case are, are not excluded from the benefit of Section 4, Partition Act; and proceeding further the learned Chief Justice pointed out that the words 'undivided family' must be taken to mean undivided family qua the dwelling house in question and to be a family which owns the house but has not divided it. The view taken in the Calcutta case referred to and by the Allahabad Full Bench has not been dissented from in any subsequent case. On the other hand, Mukerji, J., in the recent decision which has been reported in the unauthorized reports and which arises from an appeal from an Appellate Decree No, 1601 of 1925, decided on 5th January 1928 has given the word 'family' the same meaning as has been given in the earlier Calcutta case and in the Allahabad Full Bench case: see : AIR1928Cal539 : Nil Kamal Battacharjee v. Kamalaksha Charan Battacharjee.
7. The principles being well established, we have now to examine the facts of this case in order to see whether the Subordinate Judge was right in excluding the provisions of Section 4, Partition Act. It has been sought to be argued on behalf of the respondents that the plaintiff was not a stranger at all within the meaning of the Act and that he was a member of the undivided family of which Shamsuddin was the common ancestor. It is difficult to accept this contention, for he was a son-in-law of Shamsuddin's son Ahmed. There is evidence in this case which has been referred to in the course of the argument that he was in Government service and had really been living not as a member of Shamsuddin's family; of course, occasionally he used to go to his father-in-law's place. Ordinarily a son-in-law would not be regarded whether with reference to a Hindu family or a Mahomedan family, as a member of the family. Sometimes, a son-in-law who actually resides in the family of his father-in-law for a number of years and has practically taken up his home with his father-in-law, is regarded as a member of the father-in law's family, as is pointed out in Gobinda Rani Dasi v. Radha Ballabh Das (1909) 7 I 0 118. The evidence here discloses that that was not the case with the plaintiff here. On the other hand, there is at any rate, evidence to show that shortly before the institution of the suit the plaintiff was, as a matter of fact, driven out of this family and that he was not a member of the family at all. We have, therefore, no doubt that the plaintiff is a stranger and that consequently so far as the Subordinate Judge has held that the plaintiff is not a member of the undivided family, his conclusion seems to be right and we are in agreement with him.
8. Then arises the other questions namely as to whether the defendants are members of the undivided family qua the dwelling house. It appears that defendant 1 was the son of Najibunnessa the daughter of Shamsuddin. He is a sharer in whatever property was gifted away by Shamsuddin in favour of his mother to which be succeeded by right of inheritance. He is a member of the undivided family qua the dwelling house which has descended to him partly by right of inheritance and partly on the ground of purchase from defendant 3. Great stress has been laid on behalf of the respondents on the circumstances disclosed in the evidence that Aftabuddin who was in Government service in Calcutta had never been in the disputed dwelling house. We are unable to accept this view. Aftabuddin was certainly in possession of the property and it is not necessary, in order to become a member of the undivided family within the meaning of the Act, that he should be constantly residing in the house. It is not likely that after Aftabuddin had succeeded to the inheritance he should not go to the dwelling house to which he succeeded; as he was in Government employment naturally he couldnot be in the dwelling house all the time. We are satisfied on a consideration of the entire evidence that Aftabuddin and after him his heirs were members of the undivided family within the meaning of Section 4 and that a case has been made out by the appellant for the application of Section 4, Partition Act.
9. The result is that the decree of the Subordinate Judge should be set aside and he is directed to proceed with the case and apply the principles of Section 4, Partition Act, and direct the sale of the property in accordance therewith. It appears to us that the appellant might have moved the High Court for the setting aside of the orders made on the two dates to which reference has been made namely 12th March 1928 and 26th June 1929. If they had succeeded, all these costs of the Commissioner would not have been thrown away. In these circumstances, the appellant must bear the costs of the Commissioner, namely Rs. 418.14.0 (rupees four hundered and eighteen and annas fourteen only) as also the costs for stamps, namely Rs. 37.8.0 (rupees thirty-seven and annas eight only,) and the payment of these costs will be a condition precedent to the re-opening of the inquiry under Section 4, Partition Act. These sums must be paid within a month of the arrival of the record in the Court below. If these sums are not paid within the time aforesaid the appeal will stand dismissed with costs. The appellant is entitled to his costs of this appeal. We assess the hearing fee at three gold mohurs.
10. I agree.