A widowed daughter residing in her father's house and not receiving maintenance from her husband's family can be regarded as a member of the undivided family for purposes of Section 4 of the Partition Act.

Judgement

P. V. B. RAO, J :- Defendant 1 Bibuni Bewa widow of one Bhramar Sahu files this appeal against the reversing; judgment of the District Judge of Cuttack-Dhenkanal remanding the plaintiffs suit for ordering a sale according to Sub-Section (2) of Section 3, Partition Act and for disposing it of according to law.

2. One Gangai Swain had two sons, Hari and Damai. The plaintiff Padan, is one of the sons of Damai and his other son Bhagaban had three sons who are defendants 6 to 8. Hari had three sons, Sananda, Jogi and Binanda. Defendant 5 is the daughter of Sananda. Maheswar, defendant 2, is the son of Jogi. Defendant 1 is the widowed daughter of Binanda and defendants 3 and 4 are his sons.

3. The plaintiffs case is that his father Damai separated from his uncle many years ago and divided their agricultural lands, but kept the homestead jointly in which he had a four anna share and defendants 2 to 5 who are the descendants of Hari had an eight annas share, Udia Bewa wife of Sananda, defendant 2 and Binanda who is the father of defendants 3 and 4 sold their eight annas share m the disputed property to defendant 1 on 24-1-1952.

The case of the plaintiff is that defendant 1 being a stranger to the family, her possession causes inconvenience to the plaintiff, that the plaintiff demanded a partition but it was refused and hence he filed a suit for partition with a prayer also for relief under Section 4, Partition. Act in respect of the eight annas share sold to defendant 1.

4. The contention of the defendants 1 to 4 was that there was a partition of the homestead also when there was separation and division. In the family and that each co-sharer was holding the allotment given to him in that partition, and consequently, the suit for partition was not maintainable.

They also contended that the defendant 1 being the sister of defendant 4 is a member of the family and is not a stranger and hence the plaintiff is not entitled to any relief under Section 4, Partition Act.

5. In the present appeal, it is not necessary to go into the contentions of the defendants 6 to 8 but substantially they support the case of prior partition.

6. The trial Court dismissed the suit holding that there was a previous partition but observed that, he would have given relief under Section 4. Partition Act, had there been no partition before.

7. On appeal, the learned District Judge set aside the decree and the judgment of the trial Court and remanded the suit for ordering a sale according to Sub-Section (2) of Section 3, Partition Act.

8. The learned counsel Mr. J.N. Mitra, fertile appellants contends that the finding of the lower appellate court that there was no partition of the homestead is not correct, and that the District Judge erred in holding that defendant 1 is not a member of the family, and that the plaintiff is entitled to purchase the share sold to defendant 1.

9. The main point very strenuously argued by the learned advocate for the appellant is that defendant 1 who is a widowed daughter and is residing in the family for the last 17 years is a member of the family and that the plaintiff is not entitled to relief under the Partition Act.

10. It is in evidence that Bibuni Bewa defendant 1, daughter of Binanda, after she became a widow, was living in the house of her father along with Bhikari, her brother. D.W. 1 Arjun Naik, gave evidence to the effect that Bibuni is the daughter of Binanda, and that she and her son Hari have been residing in the house of her father for the last 17 years, since after she became a, widow, and that Binandas son Bhikari (D-4) is lame, and is remaining aft home living with Bibuni Bewa and her son Hari.

Bibuni Bewa as D.W, 7 stated that she was living at Chowduar for the last 13 years in the house of Binanda and that Binanda, Maheswar and Udia executed a kabala in respect of their homestead land in her favour, and that she sold her husbands property, and purchased the suit property and that her mother and her lame brother are liv