ORDER :- This Second Appeal has been filed by the plaintiff for setting aside the judgment and decree passed by the learned 1st Additional District Judge, Jhansi by which the Civil Appeal has been partly allowed and the judgment and decree of the Trial Court has been modified.

2. The plaintiff had filed the suit for partition of her 28/32 share in the disputed house alleging that Smt. Mariyam who was the exclusive owner of the house sold it to Sri Ved Prakash by a registered sale deed dated 1st March, 1950 and subsequently Sri Ved Prakash sold the house to the plaintiff Smt. Saira by a sale deed dated 24th May, 1971. The plaintiff afterwards came to know that the defendant Smt. Sakina had 4/32 share in the house by virtue of a decree passed in Suit No.75 of 1960 and, therefore, she claimed partition of the house for her 28/32 share and for possession over that share.

3. The case set up by the defendant was that the house belonged to her father Rasool Khan who after his death left his widow Smt. Jumra and after her death the property was inherited by Smt. Mariyam and her other sisters and three brothers. It was, therefore, stated that Smt. Mariyam had no right to sell the whole house to Ved Prakash and in fact the defendant was in possession of the whole house. It was also stated that in case the share of the plaintiff was partitioned, the defendant be allowed to purchase that share on payment of Rs.1500/- or the price fixed by the Court because it was a residential house.

4. The Trial Court held that the plaintiff had 28/32 share in the house and that the defendant being only a co-sharer of a small portion was not entitled to purchase the share of the plaintiff. The Trial Court, therefore, decreed the suit only for partition of 28/32 share of the plaintiff.

5. Civil Appeal No.51 of 1974 was filed by the defendant. The Lower Appellate Court framed two points for determination namely whether the plaintiff had 28/32 share in the house and whether the defendant was entitled to purchase the share of the plaintiff under Section 4 of the Partition Act, 1893 (hereinafter referred as the Partition Act).

6. As regards the first point, the only issue before the Lower Appellate Court was whether the plaintiff had 28/32 share because both the parties admitted that the defendant Smt. Sakina had had 4/32 share. The Lower Appellate Court noticed that Smt. Mariyam had sold the house in the year 1950 to Ved Prakash claiming hereself to be the owner of the entire house but that sale deed was cancelled in the suit filed by the defendant Smt. Sakina to the extent that Smt. Sakina had 4/32 share in the house and, therefore, the sale deed in favour of Ved Prakash was valid so far as it purported to transfer 28/32 share. The Lower Appellate Court, therefore, concluded that the share of Ved Prakash and thereafter plaintiff Smt. Saira was to the extent of 28/32.The Lower Appellate Court, therefore, agreed with the findings recorded by the Trial Court that the plaintiff Smt. Saira had 28/32 share in the house.

7. Regarding the second point, the Lower Appellate Court came to the conclusion that it was a residential house and that Smt. Saira was a stranger to the family and, therefore, the defendant Smt. Sakina, being a co-sharer and member of the undivided family, was entitled to purchase the share of the transferee under Section 4 of the Partition Act on the valuation to be made by the Court. In arriving at the said conclusion the Lower Appellate Court noticed that the dwelling house belonged to the undivided family and Smt. Mariyam and Smt. Sakina were real sisters. The share of Smt. Mariyam was transferred toVed Prakash who was a stranger and thereafter to Smt. Saira who was also a stranger. The Lower Appellate Court thereafter valued the share of the plaintiff at Rs.1325/- as that was the valuation indicated in the plaint. The finding recorded by the Trial Court that since the share of the defendant was very small and major share belonged to the plain

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