Section 4 of the Partition Act does not apply to a transfer to a member of the undivided family, even if the transferee is not a co-sharer of the dwelling house.

( 1 ) THIS is an appeal on behalf of defendants 1 to 4 and is directed against a preliminary decree for partition. The parties to the suit are descendants of one Tinkari Basu. The plaintiff Sushama is the wife of one of the grandsons of Tinkari and is the transferee of the interest which another grandson of Tinkori had in the joint family estate. The defendants are the other descendants of Tinkori who have an interest in the joint family property.

( 2 ) THE plaintiff prayed for partition of the share purchased by her. Various defences were raised by the different sets of defendants, but in view of the limited points raised in the present appeal it is not necessary to refer in detail to the divergent cases as made by the parties in the lower Court. The two questions raised in the present appeal are whether there had been a previous partition as between the parties, and whether on the facts of the present case the provisions of Section 4 of the Partition Act can be invoked.

( 3 ) THE learned Subordinate Judge held that the plaintiff had her alleged title to and possession of the disputed properties. The story of a previous partition as set up by the defendants was not true and that the defendants were not entitled to the benefits of Section 4 of the Partition Act in respect of the residential house. Certain other points discussed by the lower Court will be referred to when the cross-objection filed by the plaintiff and some of the defendants is considered.

( 4 ) WITH regard to the question as to whether there was a previous partition or not, it was stated in the plaint that in 1933 a deed of reference to arbitration had been executed by the then co-sharers. Arbitrators were appointed, but they did not file any award, and the Arbitrators became 'functus officio' though a plan had been prepared by a surveyor appointed by the arbitrators. No steps were taken for ascertaining the valuation of the separate parcels indicated in the said plan or for the equalisation of value of the shares indicated in the said plan. The parties entered into separate possession of some of the items of property, but there was no full and complete partition. The allotments indicated in the surveyor's plan were characterised as inequitable. Accordingly it was prayed that a preliminary decree might be passed for partition by metes and bounds of the 1/5th share claimed by the plaintiff.

( 5 ) SOME of the defendants supported the plaintiff and prayed for separate allotments. Portions of the property which were being possessed by one or other of the parties were either improved or reconstructed at the costs of the party in possession.

( 6 ) DEFENDANTS 1, 2 and 7, however, maintained that though the arbitrators referred to by the plaintiff had not filed any award in writing, the surveyor appointed by them had prepared a map which made separate allotments in accordance with the respective shares of the parties. All the parties thereafter accepted the allotments so made and took possession according to the demarcation made. The said defendants further stated that"only the heirs of late Hiralal Basu did not approve of the pathway in front of their house and the proposal for the said pathway was not carried into effect. "the parties were also alleged to have made various improvements to the properties in the demarcated allotments in their share, constructed structures thereon. The parties have been in separate possession thereof. Pannalal Basu, father of defendants 11 to 15, had filed written statements in various suits admitting that the said partition had been a completed one. It was further alleged that the share alleged to have been purchased by the plaintiff Sushama was really a purchase by Pannalal himself and the plaintiff had no present interest or possession. Pannalal had purchased the said share with his own money in the 'benami' of his daughter-in-law. '

( 7 ) THE learned Subordinate Judge has referred to the evidence as led, and oh a