Decided on December 03,1973

Yakub Khan And Ors. Appellant
Mrs. Zaibunissa Respondents


S.K. Ray, J. - (1.) THIS appeal is by the Defendants from the reversing decision of the lower appellate Court which has decreed the Plaintiff 's suit for partition and her claim for pre -emption.
(2.) THE Plaintiff is the sister of Defendants 1 and 2. The suit property is a dwelling house which belonged to their mother. Upon the death of the mother, the Plaintiff and Defendants 1 and 2 inherited the suit property. They being Mohammedans, the Plaintiff acquired 1/5th interest and Defendants 1 and 2 each acquired 2/5th interest in the suit house. Defendants 1 and 2 sold a part of the house appertaining to their share to Defendant No. 3 a stranger to the family on 20 -10 -1959 as per registered sale deed (Ext. A) for a consideration of Rs. 4,000/ -. As soon as the Plaintiff became aware of the sale she exercised her right of preemption by exercising the two formalities, namely Talab -i -Ishabad or immediate demand and Talab -i -Ishabad or demand by invocation of witnesses. Thereafter she demanded partition of her share and right of purchase either as a pre -emptor or under Section 4 of the Partition Act (hereinafter briefly referred to as the "Act"). Her demands having gone unheeded she filed the present suit. The Defendants contested the suit on various grounds namely that the two necessary formalities required for the exercise of the right of pre -emption had not been carried out and that in fact the dwelling house had been partitioned between Plaintiff and Defendants 1 and 2 and the Plaintiff was allotted specific share therein of which she is in possession. The lower appellate Court found that the necessary ceremonies or Talab -i -Ishabad and Talab -i -Ishabad incidental to the exercise of the right of pre -emption had been performed. This finding though in reversal of the trial Court 's finding on that point is final and is binding in second appeal. The learned Counsel for the Appellants does not impugn it on any legal ground. Both the Courts further concurrently found that the defence case of partition by metes and bounds has not been established and that the property continued to be joint till the date of suit. The appellate Court, therefore, maintained the trial Court 's decree for partition and separate possession of Plaintiff 's 1/5th share and further decreed the Plaintiff 's claim of pre -emption by directing that she will re -purchase the interest sold to Defendant No. 3 by depositing a consideration of Rs. 4,000/ -.
(3.) ONLY one point has been urged by the learned Counsel for the Appellants. It is this : The Plaintiff not being in occupation of the dwelling house and there being be evidence that she has any intention of occupying it in future, she is not entitled to the benefit of Section 4 of the Act merely on the ground that she is a co -owner, and that the Plaintiff having been married away is no longer to be considered to be a member of the family and, as such, is also not entitled to any relief under Section 4 of the Act. In support of this contention, the learned Counsel has relied upon the case of Bai Fatma v. Gulamnabi, A.I.R 1936 Born. 197.;

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