' FAZAL KARIM, J.---The facts giving rise to this regular first appeal by the defendant, Mst. Arjumand Bano, shortly stated, are as follows:--
2. The house in suit, namely, house No, SI-105-S-6, a double storeyed building, is situate in Shah Abul Muali, Lahore; it was owned by the two sisters, namely, Mst. Arjumand Bano, defendant, and Mst. Balqis Jchan Bcgum in equal shares. Mst. Balqis Jehan Begum transferred her share by means of a deed of sale dated 16-6-1982 to the plaintiff, Ch. Ali Muhammad. The latter brought this suit for the partition of the house in June, 1984. A preliminary decree for partition was passed in his favour on 19-7-1987. The defendant preferred no appeal against that decree. The learned Civil Judge then appointed a Local Commissioner to suggest the mode of partition and to determine the valuation of the house. By his report dated 10-12-1987, the Local Commissioner reported that the house was partitionable and this fact is no more in dispute. However, both the parties felt aggrieved by the mode of partition suggested by the Local Commissioner. As it is the defendant who has come in appeal against the judgment of the learned Civil Judge dated 30-1-1989, it is not necessary to notice the plaintiffs objections. The defendant's objections were that the Local Commissioner had not prepared the building plan himself and had engaged a Draftsman for the purpose; that the Local Commissioner had not taken into consideration the market rate of the property, namely, Rs, 30/35,000 per marla on the front and Rs, 20/25,000 at the back. In determining the value of the property, the Local Commissioner had taken into consideration the valuation notified by the Government for the purposes of the Registration Act and the objection of the defendant was that the valuation so notified was not conclusive. It was also said that the plaintiff had a wider approach, the passage serving him being as wide as '17-1/2' to 9' and the passage serving the defendant being 3'-10" and 3'-6' only. According to the defendant, the Local Commissioner was wrong in treating the entire building and plot at a par value and should have assessed the area in the front differently from the one situate at the back.
3. The learned Civil Judge dealt with the parties' objections as follows:-- "The perusal of record of local commission shows that he has drawn the line of partition in such a way that each party will get the area under the house in equal share. In my opinion, it is not in the interest of justice that the land of the house be divided equally without giving considerations to other factors namely the better location, covered area and the better construction. The local commissioner has held that the portion in possession of the defendant is better constructed and located than the plaintiff. The perusal of plan attached with the report of local commissioner shows that he has shown partition wall in the suit property as A to B. Thus partitioning two small rooms whereas the site plan produced by the plaintiff alongwith its objection petition shows that partition wall as "A to A" will be more suitable than the partition wall as "A to B" shown by the local commissioner. In this way, the defendant will get more covered area and better constructed portion and the plaintiff will be compensated by giving a little bit more land. This will also avoid the partition of small rooms. It is note-worthy that parties to the suit have not objected to the partition of sewerage, water pipe and Sui gas pipe. According to my above discussion, the report of local commissioner is amended to the extent of demarcation of partition wall showing as "A to A" instead of A to B" in the site plan. The portion in green colour will fall in share of the plaintiff, whereas portion shown in the yellow colour will fall in defendant's share. According to the report of local commissioner, the total value of the suit property is Rs, 4,10,000. Local Commissioner has valued the property according to the rates as notified by the Board of Revenue for the purposes of registration of sale deeds. So in my opinion Local Commissioner has properly valued the suit property and the value of the respective shares of each party conies Rs, 2,05,000".
4. Learned counsel for the appellant pressed only two grounds before us;
(i) that the Local Commissioner should not have delegated the function of preparing the site-plan to the Draftsman and (ii) that the portion given to the plaintiff was more valuable because it had the advantage of a wider passage. Learned counsel for the plaintiff supported the conclusion come to by the learned trial Judge; according to him, the learned trial Judge had not acted upon the Local Commissioner's report in its entirety and had divided the house in a just and equitable manner.
5. Having heard the parties' counsel, and perused the Local Commissioner's report and the parties' objections, we find no merit whatever in the contentions raised by the appellant's counsel. It will have been noticed that the mode suggested by the Local Commissioner would have produced the result of partitioning two small rooms; to avoid this result, the learned trial Judge thought and in our view, for good reasons, that the line of partition should be AA and not A-B. That in this way, the defendant got more covered area and better constructed portion is not denied. Accordingly, to compensate the plaintiff, he was given "a little bit more land." It is, therefore, wrong to say that the learned trial Judge had not taken into consideration the situation of the portions allotted to the parties. Nor do we think that in engaging an expert to prepare the building plan, the Local Commissioner committed any irregularity. By so doing, he did not delegate his functions as Local Commissioner to the Draftsman; all that he did was to use the services of an expert for the purpose.
6. Alongwith her appeal, the appellant has made an application under section 4 of the Partition Act, 1893; it is stated that the house in suit is a dwelling house originally belonging to an undivided family, 1/2 share whereof has been transferred by one co-sharer to the respondent who is a stranger; that the plaintiff, respondent herein, "is not a member of the undivided family owning the house in question". It is therefore, prayed that "this honourable Court may kindly be pleased to evaluate 1/2 share of the respondent/decree holder and grant permission to the petitioner to make payment thereof to the respondent/decree holder".
7. Section 4 of the Partition Act runs as under:-- "(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.
(2) If in any case described in subsection (1) two or more members of the family being such share- holders severally undertake to buy such share, the Court shall follow the procedure prescribed by subsection (2) of the last foregoing section".
8. Learned counsel for the appellant contended that the right conferred by section 4 of the Partition Act can be exercised by a member of an undivided family at any stage of the suit; that the section applies to an undivided family whether the family be a Muslim or a Hindu family and that as the house in suit belonged to the two sisters, it was at the date of the sale in favour of the plaintiff, a dwelling house belonging to an undivided family and, therefore, the appellant is within her right to invoke the provisions of the section to her aid. Learned counsel for the respondent on the other hand maintained that the question whether the house in suit was a dwelling house belonging to an undivided family involves a question of fact, namely, that it was a dwelling house and that it belonged to an undivided family and this is not the stage to allow this question of fact to be raised and decided. According to him, it is in the evidence of Muhammad Amjad, a son and attorney of the appellant, that as many as six rooms of the house in suit had been let to tenants by Mst.
Arjumand Bano; and long before the sale in favour of the respondent by Mst. Balqis Jehan Begum, the latter's share had been in occupation of the plaintiff, respondent herein, as a tenant and that it cannot, therefore, be said that the house in suit was a family dwelling house.
9. We were helpfully referred to a number of precedent cases of the pre-Partition India; some of the cases decided by the Indian Courts after the Partition of the Sub-Continent were also referred to. In Sundari Bewa v. Ranka Behara and others AIR 1968 Orissa 134, reference was made to the statement of objects and reasons which is as follows:- "It is proposed in the Bill to give the Court the power of compelling a stranger who has acquired by purchase a share in a family dwelling house when he seeks for a partition to sell his share to the members of the family who are the owners of the rest of the house at a valuation to be determined by the Court. This provision is only an extension of the privilege given to such share holders by Section 44, para 2 of the Transfer of Property Act, and is an application of the well known rule which obtains among Mohemedans everywhere and customs also among Hindus in some parts of the country".
' On the meaning of the expression "undivided family" in section 4 perhaps the leading authority is the Full Bench case of the Allahabad High Court Sultan Begum v. Debi Prasad (1908) 30 All.
324. In that case, it was contended on the one hand that the expression means a joint family and was confined to Hindus or to Muslims who had adopted the Hindu rule as to joint family property.
On the other hand, the contention was that the expression was of general application and meant a family, whether Hindu, Muslim or Christian, possessed of a dwelling house which had not been divided or partitioned among the members of the family. It was held that the purpose of section 4 was to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferrer's family have a right to live and that the expression undivided family means "undivided qua the dwelling house in question and to be a family which owns the house but has not divided it". This case was followed in Sivaram Ayya v.
Venkata Subbamma and others AIR 1930 Mad.
561. In this connection, reference may also profitably be made to Nil Kamal v. Kamakshva Charan AIR 1928 Cal. 539= 109 I.C. 67 where Mukerji, J reviewed almost all the available case law on the subject and observed: "These decisions lay down that the word 'family' as used in the section ought to be given a liberal and comprehensive meaning and it includes a group of persons related in blood, who live in one house under one head or management; that it is not restricted to a body of persons who can trace their descent from a common ancestor; that it is not necessary for the members to constitute an undivided family that they should constantly reside in the dwelling house, nor is it necessary that they should be joint in mess; that it is sufficient if the members of the family are undivided qua the dwelling house which they own; that it is the ownership of the dwelling house and not its actual occupation which brings the operation of the section into play; and that the object of the section is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferor's family have a right to live".
' The observations were adopted and followed in J. C. Chitterji and others v. Maung Mye and another AIR 1940 Rangoon 53.
10. In this connection, learned counsel for the appellant also referred to Muhammad Habibullah and another v. Maulvi Saleh Ahmad Chowdhury PLD 1968 Dacca 12. It was held that the pre- requisites to the applicability of section 4 of the Partition Act, 1893 are:
(1) The property must be a dwelling house.
(2) It must belong to an undivided family.
(3) There must be transfer of a share of the dwelling house.
(4) The transferee must be a person who is not a member of the undivided family.
(5) There must be a suit for partition.
(6) One or more members of the undivided family must undertake to purchase the share of the transferee.
' Section 4, it was observed, "was enacted to afford protection to the members of an undivided family against a stranger purchaser. Its simple object was to prevent intrusion into the dwelling house of an undivided family by strangers on the basis of purchase of some share in such dwelling house," and that "in order to get the benefit of section 4 of the Partition Act, it is not necessary that a person must live in the family dwelling house. It is not the residence but the ownership of the family dwelling house that entitles a person to apply under section 4 of the Act. Support for this view was gained from Md. Mogdu Bhuiya alias Magdu Bhuiya v. Jabban Huq and others 11 PLR 355.
11. For his contention that when a house or a part of it has been let to tenants, it ceases to be a family dwelling house, learned counsel for the respondent referred to Abinash Chandra Cahkarvarty v. SM. Kamal Devi AIR 1953 Patna 344 and J. C. Chitterji and others v. Maung Mye and another AIR 1940 Rangoon 53.
12. It is evident that it is necessary for the application of section 4 of the Partition Act that the dwelling house in question is joint and undivided, for if a dwelling house has been divided among its co-sharers and each co-sharer is in possession of his divided share, then no occasion for its partition would arise. In other words, it is necessarily implied by reason of the subject-matter of the Partition Act in general and section 4 in particular that section applies only to an undivided dwelling house. This highlights the importance of the expression "undivided family. With great respect, therefore, we are unable to adopt the view that the expression" undivided family" means undivided qua the dwelling house in question and that it is sufficient for the application of section 4 that the family owns the house jointly and has not divided it. This view of section 4, in our opinion, fails to give any meaning to the expression "undivided family". In our judgment, therefore, the test is not that the house in question is an undivided dwelling house; the test must be that the house belongs to an undivided family.
13. It is also apparent from the plain words of section 4 that not only should the dwelling house belong to an undivided family, but also the person who undertakes to purchase the share of the transferee must be a member of that undivided family.
14. The crucial question, therefore, is what is a 'family' and what was intended to be conveyed by the expression "undivided family".
15. There are many general words in common usage in the law which have no precise or constant meaning but few have been used with so many shades of meaning in different contexts or have so freely acquired new meanings with the development of the law as the word 'family'. It is a popular and not a technical expression and indeed much turns upon the context in which it has been used.
This is so because the family is a social unit and its meaning has changed from age to age and society to society.
16. In its broad general sense, the word 'family' means a group of persons consisting of parents and children; a collective body of persons who live in one house and under one head or management.
(Per Mukerji J in Nil Kamal case; also see Black's Law Dictionary, Fifth edition).
17. The concept of a joint family is very well known to the Hindu law. The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. Further, the conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive of such ancestor. No coparcenary can commence without a common male ancestor, though after his death it may consist of collaterals, such as brothers, uncles and nephews, cousins etc. And the essence of a coparcenary under the Mitakshara law is unity of ownership.
' The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth. No family can be a coparcenary under that law. In fact, the property, according to the Hindu law, is divided into two classes, namely,
(1) joint family property, and (2) separate property and a joint family or coparcenary property is that in which every coparcener has a joint interest and a joint possession. The principal incidents of joint family or coparcenary property are that (a) it devolves by survivorship, not by succession and
(b) it is property in which the male issue of the coparceners acquires an interest by birth. (See Mulla's Principles of Hindu Law (Tenth edition) Chapter 12, paras 212, 213, 214, 216, 217, 220 and 221).
Then the position of a female in Hindu law is that of perpetual tutelage. There are different sorts of stridhan properties in Hindu law; broadly speaking, one over which a female has absolute right of ownership and which she can use, give, or sell quite independently of her husband's control, the other over which her powers are subject to her husband's consent. Ghulam Ali and 2 others v. Mst.
Ghulam Sarwar Naqvi PLD 1990 SC 1, 15.
18. In sharp contrast to the well recognized conception of an undivided Hindu family, the Islamic law "does not allow the conception of a family life to overshadow its fundamental principle, namely, individual responsibility and liberty. Each member of the family is endowed with full legal capacity and the law does not sanction any jont family system of holding property as is prevalent among the Hindus. Whatever authority the law vests in the head of the family is based either on contract or on necessity for the protection of those members of the family who are unable to take care of themselves". (The Principles of Muhammadan Jurisprudence by Sir Abdur Rahim at page 326). This is because "as soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately to the heirs.
Thus it is obvious that a Muslim's estate legally and judicially vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith".Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, 12.
19. In the present day western civilization, there are some societies in which the law recognizes a body of persons consisting of a man and woman, living as husband and wife, though not legally married, and their illegitimate children as a family. Indeed, this is inconceivable in our society.
20. In view of what has been said above, particularly the conception of an undivided Ilindu family, we are left with the impression that section 4 of the Partition Act smacks of the influence of Hindu law. In any case, the parties here being Muslims, the expression must be understood in the context of an Islamic society, and if need be, re-interpreted accordingly, for, to quote from the preamble of the Constitution of the Islamic Republic of Pakistan, "it is the will of the people of Pakistan to establish an order wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah". We do not, therefore, think that the concept of "undivided family", as understood in Hindu law, has any relevance in an Islamic society.
21. It was said that the right given by section 4 of the Partition Act is assimilable to the right of pre- emption, its object being to exclude the intrusion of strangers into a family dwelling house. This contention overlooks the Islamic preemption law, under which a co-sharer has a right to purchase the share of another co-sharer in preference to a stranger. This right has received legislative recognition in the recently enacted Punjab Pre-emption Ordinance, 1990.
22. There may be cases in which a family consists of a father and married sons and daughters living under the same roof, the father being the head of the family. But it will cease to be a 'family' when the father dies, the house devolves upon his children in definite shares, and the married sons and dauthers start living with their families independently of each other.
23. As the legislature has used the adjective "undivided" with the expression "family" and as the law must be presumed to intend to mean what it says, this was not without significance. The question must, therefore, be asked-- undivided in what? One need not strain one's imagination to conjure up cases, for there are many, in which a group of persons, though descended for the same ancestor and related in blood, are living in the same dwelling house as independent families; they have separate establishments; they have separate living and cooking facilities and do in fact live separate and apart. Such families would not, in our opinion, be within the expression "undivided families".
24. We now proceed to apply these tests to the facts of this case. It is in evidence that the house in suit devolved upon the two sisters many years ago. They were married and it is obvious that with their marriage, each sister became a member of the family of her husband. In other words, whatever their status before their marriage, the two sisters ceased, after their marriage, to be the members of the same family.
25. Assuming that this was a family dwelling house at one time, Muhammad Amjad, a son and attorney of Mst. Arjumand Bano, admitted in his evidence that the plaintiff, now respondent, had been living in the portion of Mst. Balqis Jehan Begum as a tenant since long before the sale in 1982 and also that Mst. Arjumand Bano had rented out as many as six rooms of her portion of the house to tenants. Before us, learned counsel for the appellant candidly admitted that four of the rooms on the ground floor in the appellant's portion are with tenants and that those tenants are using their rented premises for commercial purposes. In the circumstances, we cannot regard the house at the date of the sale in the respondent's favour to be a family dwelling house. When the respondent occupied the portion of Mst. Balqis Jehan Begum as her tenant, he did not do so as a member of the family. Similarly, the tenants of the appellant Mst. Arjumand Bano could also not be regarded as the members of the parties' family and the fact that a portion of the house is being used by the tenants for commercial purposes also strongly militates against the house in question being a family dwelling house.
26. For these reasons, we do not think that there is any merit in the appeal or that the application under section 4 of the Partition Act is entitled to succeed. The appeal and the application are dismissed with costs.