Resisting of application u/s 4 by the purchaser

This second appeal raises an important and interesting point of law regarding the meaning and bearing of section 4 of the Partition Act. The facts are briefly these.

The appellant, Krishna Pillai, is the mother’s sister’s son of the first defendant Parukutty Ammal of Nagaram Amsom, Kozhikode taluk. Parukutty Ammal and her sister, Thangammal, were living in the suit house, as tenants-in-common having inherited it from their mother, and had not divided it. On 29th August, 1940, Krishna Pillai, bought the half share of Thangammal in that house and obtained a decree for partition of his half share. Parukutty filed an application under section 4 of the Partition Act to buy out Krishna Pillai’s share. Krishna Pillai contended that the house in question did not belong to "an undivided family," as Parukutty and Thangammal were sisters in a Mitakshara family, and so would belong to different families, and not to one joint family or coparcenary, and that he himself, though an alienee, was "a member of the family" and could not be deemed to be "not a member of the family," under section 4, and that an order under section 4, giving the right to Parukutty to buy out his share and giving him no right to buy out Parukutty’s share would be unjust and inequitable. The principal District Munsiff of Calicut, by his order dated 28th November, 1946, in I.A.No.6057 of 1946, in O.S.No.493 of 1943, the application put in by Parukutty under section 4, held that Parukutty was entitled to the benefit conferred by section 4, and overruled all the objections of Krishna Pillai. Krishna Pillai took the matter in appeal. The District Judge of South Malabar, who heard the appeal, confirmed the order of the District Munsiff by his judgment and decree dated 29th September, 1947, in A.S.No.108 of 1947, and dismissed the appeal with costs. Hence this second appeal by Krishna Pillai.

I have perused the records and heard the learned counsel on both sides Mr. Venkatachala Sastri, for the appellant, raised the same three contentions before me. He stated that it was wrong to hold Parukutty and Thangammal, sisters in a Hindu Mitakshara family owning the bouse in common, to belong to "an undivided family" as they could never be deemed members of the same joint Hindu family. But there are many rulings holding that the phrase "dwelling house belonging to an undivided family" in section 4 should be construed in a liberal and comprehensive way and should not be confined to the dwelling house of a joint Hindu family but should include a house where a group of persons related by blood live, and that it is not necessary that they should be descendants from a common ancestor, or that they should constantly reside in the dwelling house, or that they should be joint in mess, and that the fact that the dwelling house has been blown down, either by wind or in war, will not make it any the less a dwelling house of an undivided family so long as the members have not abandoned it or at any rate given up the idea of using it as such. It is enough to quote the rulings in Sivaramayya v. Kapa Venkatasubbamma1, Sultan Begam v. Debi Prasad2, Balvalal Tinari v. Hullah Mullah3and Nilkamal v. Kamakshava Charan4, where several other rulings also have been referred to and discussed. It is clear, in the light of these rulings, that the house in question was rightly considered by both the Courts below to be "a dwelling house belonging to an undivided family", even though Parukutty and Thangammal were, undoubtedly, not members of a Hindu joint family. These two were closely related by blood and were living in the same house. Such sisters, even in a Mitakshara family, will be termed by all people as "members of the same family" though not of the same joint Hindu family, and when these sisters have been living for years and years in that undivided house, inherited by them from their mother, it is obvious that section 4 will apply.

The next contention of Mr. Venkatachala Sastry was that the app