( 1 ) THIS is an application in revision by the first three defendants in a suit for partition of a one-third share in a house. There was also a relief in the plaint that the plaintiff might be awarded the entire house on the principle embodied in Section 4, Partition Act, 4 of 1893.

( 2 ) THE original owner of the house was one Parag who had two sons, Mahabir and Sahdeo. The former left a daughter Mt. Munesari, the plaintiff-opposite party, and the latter two sons, Shyam narain and Bal Makund, defendants 4 and 5 respectively. On 2-7. 1918, Parag made a will of the house, bequeathing a life interest in a one-third share to the plaintiff and an absolute interest in the remaining two-thirds to defendants 4 and 5. Some time later defendants 4 and 5 mortgaged the entire house to defendants 1 to 3, the present applicants. In 1938 the plaintiff sued for redemption of the mortgage and obtained a decree. Pending an appeal filed by defendants 1 to 3 against that decree these defendants purchased the proprietary title in the house from their mortgagors, defendants 4 and 5, and hence the decree passed by the appellate Court in the redemption suit was confined only to the one-third share in which the plaintiff had a life interest. The plaintiff then obtained formal possession over that share. Afterwards she filed the suit giving rise to this application, claiming the reliefs I have already mentioned, offering Rs. 234 as price for the two-thirds share of defendants 1 to 3 (applicants) in case she was allotted the entire house.

( 3 ) THE defence taken by defendants 1 to 3 was that as a mere life estate holder the plaintiff was not entitled to sue for partition, much less to claim the entire house under Section 4, Partition act, that the plaintiff was not entitled to the latter relief also because she never dwelled in the house, that the house was not capable of partition, so that no decree for partition could be passed at all and that these defendants having spent Rs. 200 on repairs no decree could be passed in the plaintiffs favour except on condition of payment of that sum.

( 4 ) THE trial Court decreed the suit for partition of a one-third share without allowing to the plaintiff the benefit of Section 4, Partition Act. There was a finding that these defendants had spent Rs. 50 on repairs and that the plaintiff was liable to pay one-third of this amount which was made a charge on her one-third share.

( 5 ) AN appeal by the plaintiff and a cross objection by defendants l to 3 were filed against this decree. The former was allowed and the latter disallowed, and the case was remanded to the trial court with the direction that the plaintiff should be given the benefit of Section 4 of the aforesaid act. The present application is against that order.

( 6 ) MR. Ambika Prasad, learned counsel for the defendants-applicants, has mainly argued the question of applicability or otherwise of Section 4, Partition Act. According to him this section did not apply, firstly because the plaintiff never resided in the house, secondly because she was a mere life estate holder, in which capacity she could not even claim a decree for partition and thirdly because that section could be invoked only where the transferee of a share was the plaintiff, and not where he was a defendant, in a suit for partition.

( 7 ) AS regards the first grounds, I am not prepared to hold that there is any substance in them. Section 4 of the Act is worded thus :

"where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder. . . . . "

( 8 ) ON the bare language of this section one would find that the fact of residing in the h