JUDGMENT T.S. Misra, J.
1. The house in suit originally belonged to Ram Bali. A gift deed was executed by him on 29-4-1941 in favour of Smt. Mahdei daughter of Ram Bali. Smt. Mahdei died in the year 1957 after the enforcement of Hindu Succession Act. The house thereupon devolved on her mother Smt. Mangla, who too died on 24-10-1961 leaving behind a son Ram Charan and daughter Smt. Saheb Dei. Ram Charan and Smt. Saheb Dei thus inherited the said house each having a half share therein. Ram Charan however, executed a gift deed in respect of the whole house in favour of his wife Smt. Shiv Rani on 24-1-1962. Smt. Saheb Dei on the other hand sold the entire house aforesaid to Ram Bilas on 3-3-1962. Ram Charan is now dead. Smt. Shiv Rani his wife is alive.
2. Before the appellate court below it was stated by the learned counsel for the appellant as also the respondents that the plaintiff got only half share in the house whereas the remaining half belonged to Ram Charan and then the remaining half share of Ram Charan came to be owned by Smt, Shiv Rani. In this way Ram Bilas has hall share in the house and the other half belongs to Smt. Shiv Rani, respondent No. 1.
3. For the appellant it was urged that neither the provisions of Section 44, Transfer of Property Act, nor those of Section 4 of the Partition Act, 1893 bar the relief for partition. Section 44 of the Transfer of Property Act reads as under:--
"44. Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
Section 4 of the Petition Act, 1893 stipulates:--
"4 (1) 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 shareholder 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 shareholder, and may give all necessary and proper directions in that behalf."
The provisions of Section 4(1) of the Partition Act as also those of Section 44 of the Transfer of Property Act would be an impediment to a remedy for partition where a share of a dwelling house belonging to an undivided family has been transferred to a person who is a stranger to the family and who seeks partition of the house. The conditions precedent for invoking the provisions of the aforesaid provisions are that the house must be a dwelling house, secondly it must belong to an undivided family, thirdly a share of such a dwelling house has been transferred to a person who is stranger to the family and fourthly the transferee sues for partition of the house.
4. In the case in hand, the house which was subject of transfer to the plaintiff, is no doubt a dwelling house but it did not, however, belong to an undivided family. Ram Charan and Smt. Saheb Dei who ultimately came to own the said house did not form a joint family. Similarly Smt. Shiv Rani and Smt. Saheb Dei also did not form an undivided family. That being so, the sale of the share of Smt. Saheb Dei in the house in question to Ram Bilas, who is undoubtedly a stranger to the family of Smt. Shiv Rani cannot be said to be a sale of a share by a member of an undivided family; hence neither Section 44 of the Transfer of Property Act, nor Section 4(1) of the Partition Act shall hinder the plaintiff to seek partition of the said house by metes and bounds. The plaintiff having been found to have half share in the property could, therefore, have asked for partition and possession of such share in the house and the appellate court below has erred in not granting that relief to him by saying that Section 4 of the Partition Act bars such a relief.
5. In the result, the appeal is allowed. The decree passed by the court below is set aside. The suit is decreed for partition of the share of Ram Bilas Tewari in the house in question. It is, however, made clear that Ram Bilas Tewari is owner of half share in the house in suit. Let a preliminary decree for partition be drawn accordingly. The relief for joint possession is not pressed. Learned counsel for the plaintiff has stated that the plaintiff's case is that instead of the relief for joint possession, he may be allowed partition of his share in the house. In the circumstances, the parties shall bear their own costs.