Foster daughter being a member of the family provisions of section 4(1) not applicable.

1. The second appeal is preferred by the unsuccessful plaintiff who succeeded before the trial court. He filed a suit for partition and separate possession of his half share. His case was that he purchased a number of properties and also the B schedule property in the name of his wife. They were issueless. Hence, they were bringing up the 2nd defendant as their foster daughter and after some time, when the question of marriage of the 2nd defendant came, as dispute arose between the plaintiff and the 3rd defendant, who is his wife. He wanted the 2nd defendant to marry a boy to be chosen by him while the 3rd defendant was insisting on the plaintiff to get the 2nd defendant married to the 1st defendant who is her relative. The 3rd defendant has executed a sale deed in favour of the defendants 1 and 2. According to the plaintiff, the B schedule property, which originally belonged to Karuppanan Servai, was settled in his name and in the name of the 3rd defendant. Hence, he is entitled to a half share. Since the other half share, which belonged to the 3rd defendant, has been sold away to the defendants 1 and 2, who are strangers, the plaintiff is entitled for direction that the half share, which was alienated by the 3rd defendant in favour of the defendants 1 and 2, should be sold to him. The 3rd defendant contended that the 2nd defendant wanted to marry the 1st defendant. Marriage was celebrated. But, the plaintiff was insisting that the 2nd defendant should marry his sisters son. On account of the marriage of the 2nd defendant, a dispute arose between the plaintiff and the 3rd defendant.

2. The trial court framed as many as 8 issues. The 1st issue was "Whether the plaintiff is entitled to purchase the interest of the defendants 1 and 2 in the house property in B schedule under the provisions of the Partition Act?". The trial court discussed the law and came to a conclusion that even though the alienees have not filed a suit, yet in a partition suit, even the defendants can be considered to be the plaintiffs and hence, the defendants 1 and 2 must be deemed to sue for the partition. Regarding the other question as to the meaning of member of the family, the trial court found that since the second defendant was the foster daughter, she could not be treated to be a member of the family. Hence, she will be considered to be a stranger for the purpose of Section 4 (1) of the Partition Act. In that view, the trial court decreed the suit as prayed for.

3. In the appeal preferred by the defendant, the appellate court has reversed the judgment and decree of the trial court.

4. The learned counsel for the appellant contended that the appellate court has held that inasmuch as the defendants have not filed a suit and claimed for partition, the claim for sale as contemplated under Section 4(1) of the Partition Act is not maintainable. But, the lower appellate court has erred in finding that the 2nd defendant has been a dependent on the plaintiff and the 3rd defendant from her infancy, being brought up a s a foster daughter of the plaintiff and the 3rd defendant and hence, the 2nd defendant should be treated as a member of the family. Hence, Section 4(1) of the Act is not available to the plaintiff.

5. The learned counsel for the appellant cited in Padma Charan v. Netrananda, AIR 1968 Ori. 62 in and contended that a foster daughter cannot be considered to be a member of the family within the meaning of Section 4(1) of the Act. In the said case, the learned Single Judge of the Orissa High Court has held that the foster daughter is not connected with either by blood or affinity and in that view, the learned Judge has rejected the contention of the counsel for the appellant. The learned Judge feels that though a wider meaning should be given, yet the learned Judge feels that it is not acceptable as there is no authority. According to the view of the learned Judge, if a person is connected by affinity, then the person can become a mem