Sankari Prasad Das Ghosh, J. - (1.) The main point for consideration in this appeal, or revisional application, in the alternative, in whether section 4 of the Partition Act, 1893 can be attracted to a sale to a stranger of a share of a dwelling-house by a member of an undivided family, after passing of a find decree in a suit for partition brought by a co-sharer against other members of that undivided family.
(2.) The facts leading to the filing of the appeal, or revisional application, in the alternative, may be stated as follows : Premises No. 56/10, Kashinath Dutta Road, Calcutta-36 (hereinafter called the "dwelling-house") belonged to one Purosuttam Halwai governed by the Mitakshara School of Hindu Law Purosuttam died, leaving three sons, Mulchand Halwai, Lakshman Halwai and Ramjatan Halwai. These three sons of Purosuttam transferred the dwelling house along wish other properties by way of registered deed of gift to their respective wives, namely Janaki Devi, Munni Devi and Sumaria Devi. As there was inconvenience in joint possession of the dwelling house, Janaki Devi filed a suit, being Title Suit no. 41 of 1963, in the court of the learned Subordinate Judge, Fifth Court at Alipore against Munni Devi, Sumaria Devi and others for partition of the dwelling house and other properties. That Title Suit no. 41 of 1963 was filed on 8.7.63. A preliminary decree on compromise was recorded in that Title Suit on 27.1.67. Thereafter, a Commissioner was appointed to effect partition of the dwelling house by metes and bounds between the parties. The Commissioner divided the dwelling house into three blocks viz. Block A, Block B and Block C. By an order passed by the learned Subordinate Judge, Fifth Court, Alipore on 10.11.76, Block A in the dwelling-house was allotted to Janaki without any objection by the other co-sharers of that house. The final decree was thereafter passed in that suit for partition on 24.4.79. Janaki filed Title Execution Case no. 6 of 1980 in the court of the learned Subordinate Judge, Fifth Court, Alipore, for delivery of possession of Block A of the dwelling house on partition of the same by metes and bounds. She died subsequently on 17.10.81. Prior to her death, she executed a deed of settlement and trust in favour of her brother, Ganesh Prosad Gupta in respect of 1.44 Cottahs approximately, more or less, in her ⅓rd share of the dwelling house butted and bounded on the South by Block C and on the East by Block B of the dwelling house. Thereafter, Ganesh said Block A to Smt. Sarada Verma by a registered deed of sale dated 20.12.82. Smt. Sarada Verma, the respondent no 1, filed an application for substitution in the Title Execution case. Her application was allowed Subsequently on 2.8.85, Munni Devi, the wife of Lakshman filed a petition in the court below under section 4 of the Partition Act, 1893 (hereinafter called the "Act") for sale of the portion of the dwelling-house purchased by the respondent no 1 to her on the ground that Sarada was not entitled to possess the dwelling house as she was a stranger to the family and the privacy of the family would be disturbed if she was allowed to possess the dwelling house, Munni Devi died subsequently in December, 1983. The appellants were substituted as her heirs and legal representatives Sarada Verma filed a petition of objection to the petition under section 4 of the Act. That petition under section 4 of the Act was also under section 47(b) read with Order 20 Rule 14 of the Code of Civil Procedure. One witness Rajendra Prasad Gupta, a son of Munni Devi, was examined as P.W. 1 in the Misc. case arising out of the petition under section 4 of the Act. No other witness examined in the Misc. Case, which was subsequently dismissed by the learned Subordinate Judge, Fifth Court, Alipore on the ground that the petition under section 4 of the Act filed in course of the execution proceeding in Title Execution Case no. 6 of 1980, after the passing of the final decree in the Title Suit no. 41 of 1963, was not maintainable. Being aggrieved, the heirs and legal representatives of Munni Devi have filed an appeal. They have also filed a petition under section 115 CPC for treating the proceeding as a revisional application, in the alternative.
(3.) An order rejecting an application for sale under section 4 of the Act cannot be deemed to be a decree under section 8 of the Act and is not, therefore, appealable (see Nitish Chandra v. Promode Kumar, 56 CWN 375 ; Bhuban Mohan v. Brajendra, 45 CWN 74 ). As such, this proceeding will henceforth be taken as revisional application.;