Sri Surendra Nath Achar and Another vs Sri Ram Chandra Hazra and Others

Amaresh Roy, J.—This appeal is directed against a judgment and preliminary decree in a partition suit in which, while passing the preliminary decree for partition, the learned Subordinate Judge has also directed that defendants shall be entitled to preempt plaintiff''s share u/s 4 of Partition Act. The plaintiff who instituted the suit and obtained the decree for partition has preferred this appeal assailing that part of the decree by which defendants'' right to pre-empt plaintiff''s share has been declared. Property sought to be partitioned in the suit is the dwelling house with its appurtenances, curtilage etc., comprised in Plot No. 747 having en area of 29 decimals appertaining to interest No. 126 and Plot No. 7471945 having an area of 38 decimals appertaining to interest No. 140 of Teghari Mouza in Midnapore district. That property originally belonged to Natabar Hazra and on his death it was inherited by his two sons Nitai and Chaitanya in equal shares. Chaitanya died leaving his widow Prasanna-moyee as his sole heir; Nitai died leaving two sons Dharani and Naren (since deceased). Dharani died leaving a widow Raimoni and son Kalipada.

Prasannamoyee who had inherited 8 annas share of Chaitanya sold that share of the property to the plaintiffs by a Kobala dated 9th Barsakh 1353 B.S. corresponding to 22nd April 1946 and gave up possession in their favour of the hut in which she was living at the time of sale. Since then the plaintiffs are in possession of ejmali property but they did not get possession of entire 8 annas share purchased by them and there was inconvenience of joint possession. Amicable partition was demanded by a registered notice but partition was refused by defendants. Hence present suit was instituted by the plaintiffs claiming partition of 8 annas share by metes and bounds.

The geneological table relevant for the suit is mentioned below:

Defendants Nos. 1 and 2 Naren and Kalipada contested the suit by filing joint written statement. During the pendency of the suit Naren died and his heirs have been substituted as plaintiffs in his place. They have adopted the written statement filed by Defendant No. 1.

Only point that was pressed at the trial of the suit was that the plaintiffs are strangers to the family of defendants and they having purchased undivided share of the property which is a dwelling house, the defendants are entitled to pre-empt plaintiff''s share u/s 4 of the Partition Act. It was admitted by parties and found by trial court that Plaintiff by their purchase by Kobala Ex. 1 are entitled to 8 annas share of the properties and the defendants Nos. 1, 2 and 3 together have the other 8 annas share and the properties are liable to partition. It was also not disputed that plaintiffs are strangers to the family of the defendants. There was no dispute also that dwelling house of the parties is situated on the disputed land. But the plaintiffs sought to raise three points in the Trial Court against claim of defendants for pre-emption u/s 4 of Partition Act. Those we will discuss in detail later but need mention that the learned Subordinate Judge has held against plaintiff''s contentions on all the three points and has decreed the suit by saying in the ordering portion of his judgment: "That the suit be decreed on contest against defendants Nos. 1 and 2 and ex-parte against the rest in a preliminary form. The parties shall bear their own costs up to the preliminary decree. Plaintiffs do get eight annas share of the disputed property on partition by metes and bounds. Two months'' time is allowed for effecting partition amicably In default, the plaintiffs shall be entitled to apply for appointment of commissioner for effecting partition by metes and bounds. In case a Commissioner is appointed he shall partition the property by metes and bounds by maintaining the present possession of the parties as far as practicable and considering the convenience of all parties concerned. The defendant shall be entitled to pre-empt plaintiff''s share u/s 4 of the Partition Act."

Appearing for the plaintiff appellants learned Advocate Mr. Kalipada Sinha before us sought to raise a new point by contending that the plaintiffs having been put in possession of some part of the ejmali property by the vendor from whom they purchased, Section 4 of Partition Act will not apply. This point was at first sought to be presented by Mr. Sinha as a novel point based on interpretation of Section 44 of Transfer of Property Act, by contending that the provisions in the paragraph of that Section should be held to mean that it applies only when a stranger purchaser of a share of a dwelling house has not been put in possession of any part of the property and does not apply when such a purchaser has been put in possession of that part of the dwelling house which was in occupation of the co-sharer who has sold his share in it. No doubt this argument is novel; but it can not be countenanced at all in view of the very principle on which judgment of West-ropp C.J. in the case of (1) Balaji v. Ganesh reported in ILR 5 Bom. 499. The learned Chief Justice observed at page 504 of the report: "We also deem it a far safer practice and less likely to lead to serious breaches of the peace, to leave the purchaser to a suit for partition than to place him by force to joint possession with other members of a Hindu family, which may be not only of a different caste from his own but also different in race and religion."

That was said in a decision before Transfer of Property Act, 1882 was enacted. It was pronounced on 26th January 1881.

That principle was given legislative recognition by second paragraph of Section 44 of Transfer of Property Act which was enacted in 1882 and Section 4 of Partition Act which was enacted in 1893. The object of that legislation was examined in this High Court by Sir Ashutosh Mookerjee in the case of (2) Kshirode Chunder Ghosal and another v. Saroda Prosad Mitra 12 CLJ 525. Speaking for the Division Bench (Mookerjee and Caranduff JJ). the learned Judge in relevant part at page 534 of the report said: "The object of the Section is to prevent a transferee from a member of a family, who is an outsider, from forcing his way into a dwelling house, in which other members of the family, to which his transferor belongs, have a right to live. In fact Section 4 of the Partition Act of 1893, is a logical sequel to Section 44 of the Transfer of Property Act, which provides that where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in the section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. It is well known that under the law as it stood before the Transfer of Property Act was passed, it had been held that the purchaser at a judicial sale of the rights of one member was entitled to be put into physical possession even of a part of the family house, as the only remedy of the other members was to purchase the share of the debtor at the auction sale or to sue for partition. Ram Tanu v. Ishur Chandra Koonwar, 2 WR (Mis) 30 F.B. Bijoy v. Shama Soondurie and Eshan Chunder v. Nund Coomar Put, although the rule was thus laid down, Mr. Justice Kemp observed that it was inequitable, with reference to Hindu customs and prejudices to permit a stranger to intrude himself upon the privacy of a joint Hindu family residence, more particularly when, as happens in many instances, a stranger is actuated by motives of enmity, and the learned Judge suggested that the difficulty might be met, if instead of joint possession, in execution of the decree, partition proportionate to the share of the purchaser was effected. The position of a purchaser of a share of a member of a family governed by the Mitakshara law was much worse, because, as the member himself could not say that any specific portion was exclusively his, the purchaser could not claim to be put into possession of any definite piece of property. The matter was set at rest by the second paragraph of Section 44 of the Transfer of Property Act to which we have referred; and Section 4 of the Partition Act merely makes a provision which may really be regarded as a corollary thereto."

The observation of Kemp, J. referred to in the above quotation was made in a dissenting judgment in the Full Bench decision in the case of (3) Koonwar Bijoy Keshab Roy Bahadur v. Shyama Soondari Dossi and others reported in 2 WR (Mis) 30. The decision was in 1865 when Transfer of Property Act had not yet been enacted.

While that is sufficient authority for repelling Mr. Sinha''s contention, we may point out that at present quite a body of judicial pronouncements in this High Court and other High Courts in India have firmly established that limit of the right of a stranger purchaser of an undivided share of a dwelling house is only a right to sue for partition by exercise of the title he has purchased and he has no right to obtain possession in any part of the property before partition. His position relating to other co-sharers of the dwelling house, so far as possession of it is concerned, is, before partition of the property, no better than that of a trespasser. If such stranger purchaser makes any attempt to get into possession of the joint property before partition, he may be injuncted against such attempt in an action by any of the co-sharers. On that question, in recent times there was a conflict of views in this Court. While Lahiri, J. (as his Lordship then was) in the case of (4) Lalbehari Samanta and ors. v. Gourhari Dawn 54 CWN 912 held that second paragraph of Section 44 of the Transfer of Property Act creates a right in the co-owners so much so that a suit for injunction at their instance is maintainable, Mukherjee, J. in the case of (5) Jogendra Nath Mondal v. Adhar Chandra Mondal and ors. 55 CWN 289 held that the provisions of Section 44 are of a negative nature and do not create a positive right in favour of members of the family. Those two decisions taking exactly opposite views on the same question of law and both emanating from Single Benches were pronounced at about the same time and that explains why the latter of those did not appear to have considered or even make any reference to the earlier. Soon thereafter both the conflicting decisions were considered by another learned Judge Renupada Mukherjee, J. in the case of (6) Paresh Nath Biswas v. Kamal Krishna Choudhury and. others AIR 1958 Cal. 614 where it was held that the second part of Section 44 though does not create any new right in favour of any co-owner of a family dwelling house, it by implication recognises a right which really inherits in him and because of the restriction in second part of Section 44, such a stranger purchaser is reduced to the position of a trespasser, so far possession is concerned, so much so that member co-sharer can maintain a suit for injunction as was held by Lahiri, J. in (4) 54 CWN 912. We agree with Renupada Mukherjee, J., that the contrary view taken by Mukherjee, J. is not correct.

We are clearly of the view that a stranger purchaser of a fractional share of an undivided family dwelling house is reduced to a position of trespasser in respect of possession before partition, though he has acquired title to a share by his purchase. In other words his purchase vests him with title only and gives him only the right to sue for partition and no more. Section 44 of Transfer of Property Act negatives his claim to possession before partition; Section 4 of Partition Act spells out his right to sue for partition. Former is the limit and latter is the extent of what he has acquired by purchase. His position in law is not altered in the least even when he may have secured what he is not entitled in law, that is, joint possession or other common or part enjoyment of the house.

A question remains if in such case a member co-sharer can institute a suit for evicting the stranger purchaser from such illegal possession, or his remedy is only to sue for partition and in that suit exercise the right given by Section 4 of Partition Act. But in the present case that question need not detain us, because present is a suit for partition instituted by the stranger purchaser which is directly within Section 4. In such a suit the right given by Section 4 to the member co-sharer is directly enforceable, even though the plaintiff is already in possession of a portion of the joint property. Fact of his illegal possession in our view can not be used either as a shield or as a sword to defeat the right given by Section 4. We need howsoever mention that in our Court consistent view has been taken that a member co-sharer himself can sue for partition and exercise his right u/s 4 in that suit without waiting for a suit by the stranger-purchaser. (See (7) AIR 1929 Cal. 269, (8) AIR 1947 Cal. 426, (9) AIR 1949 Cal. 245) though a different view on that point prevails in Bombay (10) ILR 23 Bom. 77, our view finds support in Patna and Allahabad (see (11) AIR 1941 Pat. 4, (12) AIR 1953 All. 332 and (13) AIR 1957 All 356). In view of preponderance of authority in this Court, Mr. Sinha could not press this point beyond presenting it. In our view, for the reasons discussed above this point of Mr. Sinha could be presented only to be rejected and we do so.

Mr. Sinha then fell back on a point which he himself characterised as a mixed question of law and fact. He was at considerable pains to impress us that the essential prerequisite for exercise of right u/s 4 of Partition Act is that it must be shown by evidence that the property is a joint family dwelling house and that onus in the present case in the state of evidence adduced has not been discharged. Mr. Sinha first says that the property he has purchased is not a joint dwelling house and not family dwelling house, though the co-sharer who sold to Mr. Sinha''s client built a dwelling hut in that portion of the land and lived in it. This argument appears to us to be an argument of despair because such controversy is not appearing in the pleadings of the parties and does, not appear to have been raised in the trial Court in that form,

The judgment under appeal has emphasised that there was no dispute that the dwelling house of the parties is situated on the disputed land and that controversy is on three points : "1. The first objection of the plaintiff is that during his lifetime Chaitanya separated from Nitai and Prasannamoyee, his widow was living separately from the defendants and so it cannot be said that it was the dwelling house of an undivided family. 2. The next objection raised on behalf of the plaintiffs is that Prasanna and Nitai constructed huts separately and Prasannamoyee lived in the hut constructed by her husband Chaitanya and the plaintiffs are in occupation of that hut and so the defendants have no right to pre-empt this hut. 3. The last objection advanced from the plaintiff''s side is that the best the defendants can pre-empt one plot No. 747 having an area of 29 decimals which has been described as a bastu in the settlement khatian and on which the huts stand. It is contended on behalf of the plaintiffs that the other plot 7471945 is not bastu and there are no huts on it and so it cannot be pre-empted by the defendants." Trial Court has found against the Appellant on all three of them. Mr. Sinha did not assail the findings of the Trial Judge on the first two of those. But he attacked the findings on the third.

On examining the materials on record it appears clear that the dwelling house is situate on contiguous lands, which have been recorded in settlement Dag Nos. 747 and 7471945, former in interest No. 126 and latter in interest No. 140 which is included in the former. On that bata Dag No. 7471945 one of the co-sharers Prasannamoyee Devi widow of Chaitanya Hazra had her apartments. It is true that Dag No. 747 has been described as a ''Bastu'' in the Settlement Khatian, while Dag No. 7471945 has been recorded as kala land.

But true character of it clearly appears in the description of it in the Kobala Ex. 1 by which plaintiff purchased the undivided half share of the interest No. 126 as "kala Bastu Bari" ''ud bastu'' (land surrounding the homestead) tank, bamboo groves etc., and the straw built hut with fittings and furniture standing on the Kala Bastu house etc. and various kinds of trees which was in the demarcated possession of my aforesaid husband in his own share comprised in 2 plots lying in the Dag and within the boundaries mentioned in the schedule below...." In that schedule both the plots 747 and 7471945 were mentioned and in the body of the Kobala it is made clear that she was "selling off my residential house and homestead."

In paragraph 5 of the plaint plaintiff averred that "the plaintiffs are possessing the disputed property jointly with the principal defendants Nos. 1 to 3 and the plaintiffs are using the structures.... The separate residential structures of the two co-sharers have been in existence and their possession of the same has for a long time continued without any connection with each other."

In that state of the document of title and the pleading, it is futile for Mr. Sinha to contend that because there were bamboo clumps and pan bar a] on the land which was recorded in khatian as kala land, it was rot a dwelling house and would not be governed by section 4 of Partition Act. In his endeavor to steer clear of Section 4, Mr. Sinha placed reliance on a pass-sage in the judgment delivered by Sir Ashutosh Mookherjee (2) 12 CLJ 525, to which we have made reference.

Particular passages relied on by Mr. Sinha occurs at page 535 of the report:

The rule, deducible from these cases, is that the term ''house'' embraces not merely the structure or building, but includes also adjacent buildings, curtilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier." and at page 536 of the report: "The question, therefore, must be determined upon evidence; a plan must be prepared of the entire subject-matter of the litigation, and the Court must determine, how much of the adjoining land may be justly treated as included within the dwelling-house, upon the principles already explained.

First of these two passages was sought to be used by Mr. Sinha as an authority for his proposition that only what is strictly necessary for convenient occupation of the house should be considered to be dwelling house for the purposes of Section 44 of Transfer of Property Act and Section 4 of Partition Act. That reading of the import of the dicta appears to us to be erroneous. Mr. Sinha sought to support his proposition on either loose understanding or very subtle twist of the language employed by the learned Judge. The learned Advocate was in error in either case transposing the word ''only'' from the negative part to replace the word "all" in the earlier positive part of the sentence quoted. Be it a misunderstanding or be it a conscious twist, we do not accept Mr. Sinha''s rendering of it. The learned Judge Sir Ashutosh Mookherjee was in that case dealing with a contention raised at the Bar that : "The term ''dwelling house'' includes, not merely the actual structure, but also the land upon which the structure stands, and so much of the adjoining land as is necessary for the convenient use and occupation of the house as a dwelling house."

Holding in favour of that argument, the learned Judge decided : "We must take it, therefore, that the petitioners are entitled to purchase from the plaintiff, not merely the structure of the dwelling house, but also the land on which it stands, and further, every appurtenant and accessory which may be deemed necessary to a full and complete enjoyment of the thing sold."

Full and complete enjoyment of the dwelling house and all that is necessary for the convenient occupation of the house are well chosen wide expressions to distinguish from that which is only for the personal use and convenience of the occupier. This expansive connotation of dwelling house has received approval in later decisions of this Court in recent times (14) (see AIR 1928 Cal. 539 (15) AIR 1948 Cal. 73, (16) AIR 1957 Cal. 65 & (17) AIR 1960 Cal. 467). We respectfully join those precedents to follow the dicta of Sir Ashutosh Mookherjee and reject the narrow connotation contended for by Mr. Sinha.

It has to be remembered that the habits and customs of the people of lower Gangetic Valley, particularly that part of it which is now in West Bengal was and has always been even in present times to include in their family dwelling houses all that would be necessary for every detail of food and comfort for every member of the family now and in future and also all others that is or may be necessary for their religious rites, social customs, duties and responsibilities. Only limit was the financial capacity. A family dwelling house cannot therefore be limited only to the space and apartments wherein members of the family sleep or eat in. Rural concept in that respect differs fundamentally from urban concept of the same community and even of some family or individual. That was the underlying consideration in the observations of Chief Justice Westropp in 5 Bombay 499 and Justice Kemp occurring in the quotations in the earlier part of our judgment. On those considerations the provisions in Section 44 of Transfer of Property Act and Section 4 of Partition Act are essentially based. Mr. Sinha''s endeavour to curtail the width must therefore fail.

The second passage in the judgment of Sir Ashutosh Mookherjee, J. relied on by Mr. Sinha was cited in support of his contention that in the present case there was not sufficient evidence to show that the portion of joint property was essentially necessary for convenient use and enjoyment of the dwelling house by the joint owners, and therefore in this case also there should be an order of remand for deciding on proper evidence that issue of fact. This contention is erroneous for two reasons. First is that in the case before that Division, Bench the application u/s 4 of Partition Act was not heard on merits or on evidence but was dismissed in the trial Court on a preliminary ground of maintainability. That preliminary point was decided by the Division Bench in Revisional Jurisdiction. Having held that the application was maintainable, the Div. Bench remanded it for trial on evidence. That distinguishes that case from the case before us.

That distinguishing feature in the present case provides the second reason why Mr. Sinha''s contention for a remand order cannot be accepted. We have already pointed out that both in the recitals of the documents of purchase Ext. 1 and in the averments in the plaint, the nature of the property was clearly and definitely stated to be undivided portion of joint dwelling house comprised in the two plots 747 and 747/945, though a portion of it was being occupied by Prasannamoyee''s husband in his life time and by Prasannamoyee herself at the time she sold her share in the dwelling house to the plaintiff by the sale deed Ext. 1. In that state of evidence provided by that important document and also averments in the pleading very little was depending on oral evidence. Even at that plaintiff No. 1 in his deposition said: "There was no partition between Chaitanya and Nitai or between the successors. Each co-sharer had separate hut. I possess Prasanna''s hut. Chaitanya and Nitai separated in mess. They built separate huts and had exclusive possession therein. I asked the defendants to partition the property. They did not agree. Hence this suit." In cross-examination he said: "Chaitanya and Nitai built huts separately on ejmali lands. They became separate in mess long ago. The ancestral huts fell down. Prasanna and other co-sharers have built separate huts. The Bastu is ancestral." Defendant No. 1 in his deposition said : "It is our ancestral Bastu." and in cross-examination it was elicited from him. "The total area of the Bastu is 1 Bigha 5 Kathas. There is betel plantation on two Kathas. Chaitanya had a share in the Pan Baraj. Prasannya also had a share. There are two tanks within the suit land. There is a bamboo grove within the suit land covering an area of 1\\ Kathas. Plaintiff did not demand partition. He occupies the hut of Prasanna. We did not allow him to possess any other portion of the Bastu." That was the evidence on the issue No. 4 which was in these terms : "Do the properties in suit constitute the undivided family dwelling house of the defendants ?" There was no specific issue on necessity for convenient use and enjoyment because that was never in controversy. Yet it was sought to be raised during argument and the learned Subordinate Judge considered it and relying on evidence mentioned above arrived at the definite finding: "In my view this plot No. 7471945 which is adjoining to the Bastu of the defendants is necessary for the convenient enjoyment of the family dwelling house." In our view that is a proper and correct finding on the evidence in the case. There is, therefore, no necessity or scope for remanding the case.

The last point argued by Mr. Sinha was that in the ordering portion of the judgment and as also in the preliminary decree for partition the learned Subordinate Judge has not given adequate directions as were necessary for properly dealing with the rights of the parties emanating from the provisions of Sec. 4 of the Partition Act. He pointed out that the only direction in that respect has been given that the defendant shall be entitled to pre-empt limited share u/s 4 of the Partition Act. On hearing Mr. Sinha''s contention and by examining the ordering portion of the judgment and the preliminary decree passed by the trial Court we find that directions have been given for slashing out plaintiff''s 8 annas share in the disputed property on partition by metes and bounds and two months'' time has been allowed for effecting partition amicably. Then it has been directed:

In default, the plaintiffs shall be entitled to apply for appointment of Commissioner for effecting partition by metes and bounds. In case a Commissioner is appointed he shall partition the property by metes and bounds by maintaining the present possession of the parties as far as practicable and considering the convenience of all parties concerned. The defendant shall be entitled to pre-empt plaintiff''s share u/s 4 of the Partition Act.

It is clear that there is no defect in those directions so far as they go. But Mr. Sinha is right in his contention that some further directions were necessary to work out the provision of Section 4 of the Partition Act and also for the particular fact of this case that have been found on evidence. One outstanding fact is that the plaintiff who is the stranger purchaser has claimed to be in possession of some portion of the disputed property and the defendant has admitted that fact in his deposition. In the background of that fact and for working out the rights of the parties u/s 4 of the Partition Act it is necessary to make it clear that if the parties do not arrive at an amicable partition within the time allowed in the decree not only the plaintiff but also the defendants who have 8 annas share in the property shall have right to apply for appointment of Commissioner for effecting partition by metes and bounds.

In case a Commissioner is appointed he shall partition the property by metes and bounds. In doing so, maintenance of present possession of the parties as far as practicable was involved, consideration of the convenience of the defendants who have 8 annas share in the property as compared with the possession of proforma defendant No. 4 Prasannamoyee at the time when she sold her interest to the plaintiff. Convenience of the plaintiff who is a stranger purchaser should not be taken into consideration by the Commissioner because that party under the law was not entitled to possession as is provided in the second paragraph of Section 44 of the Transfer of Property Act. By those considerations allotments should be fixed by the Commissioner which may or may not involve providing for owelty money to balance the equities between the two allotments.

In this case all the defendants in their written statement have expressed their desire to exercise their right u/s 4 of Partition Act. But for actual exercise of right Section 4 requires something more, that is, an undertaking to pre-empt the share sold to a stranger purchaser. That can be done only by a proper application in terms of that Section. Upto the present stage the defendant have not made any such application, though in the preliminary decree it has been held that they are entitled to exercise the right u/s 4 of Partition Act.

Proper stage for making the application u/s 4 of Partition Act would be when application for final decree of partition by appointing a Commissioner to effect partition by metes and bounds has been made. If an application u/s 4 of Partition Act is made proper direction to the Commissioner should be that after the allotments have been fixed, the lot to which plaintiff will be entitled need have to be valued for exercise of the rights by defendants u/s 4 of the Partition Act.

The considerations that need be devoted in the several contingencies that may arise for dealing with application u/s 4 of Partition Act, if and when made, were laid down in the judgment of the Division Bench of this Court in the case of (18) Subal Chandra Modak v. Gostha Behari Das reported in 60 CWN 829 at 833-34. Those should be carefully followed. In doing so, particular facts of each case before the court need be remembered. On the facts of the present case we generally indicate the outlines of the directions that Court should include in the final decree, if application u/s 4 of Partition Act is made at that stage.

If for balancing the equities between the two allotments owelty money is payable by the plaintiffs to the defendants, then the value of the plaintiff''s share u/s 4 of the Partition Act shall be the value of that allotment minus that amount of owelty money. If, on the other hand, for balancing the equities owelty money is payable by the defendant to the plaintiff then the value of the share of the plaintiff u/s 4 of the Partition Act shall be the value of that allotment plus that amount of owelty money.

After the value of the share of the plaintiffs has been fixed in that way, it should be properly provided in the final decree that (a) the defendants shall deposit the value of the plaintiff''s share in Court. That amount should be allowed to be withdrawn by the plaintiff within time specified by the court only after the plaintiffs deliver vacant and peaceable possession to the defendant of that portion of the joint property which is in the possession of the plaintiffs, (b) If within that specified time the plaintiffs do not deliver the peaceable and vacant possession, the defendant shall be entitled to obtain such possession through court by the execution of the decree and the plaintiff shall be allowed to withdraw the amount of price of his share deposited in court only after the vacant possession has been delivered to the defendants, (c) If within the time specified for depositing the money by the defendants, the defendants do not do so, then there shall be a final decree passed giving the two allotments to the two parties who are entitled and both parties will be entitled to obtain possession of their respective allotments through court by execution of the final decree. The preliminary decree passed by the learned Subordinate Judge should be modified by including in it these directions.

In the result, we dismiss this appeal with costs and affirm the judgment and decree of the trial court modified only to the extent of the directions indicated above.

Bagchi, J.: I fully agree with my Lord and I like to add a few words of my own.

This is a very peculiar case which had never come before any Court where a stranger purchaser of a share of a dwelling house belonging to an undivided family has entered into possession of such purchased share in the dwelling house and has sued for partition of such share in the dwelling house.

Section 44 of the Transfer of Property Act is divided in two parts. The First part creates in favour of a transferee from one of two or more co-sharers of immoveable property, the transferor''s right to join 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. The second paragraph of Section 44 of the Transfer of Property Act takes away from the transferee of a share of a dwelling house belonging to an undivided family, who is not a member of the family, the right to joint possession or other common or part enjoyment of the property but he acquires only the right to enforce a partition of the share of the property, which is a dwelling house, belonging to an undivided family. The second part takes away the three rights-right to joint possession or other common or part enjoyment of the property but keeps intact the right to enforce a partition of the same.

In the present case, before enforcing the right to partition of the share in the undivided dwelling house, the transferee came into possession of such share and thereafter sued for partition. Mr. Sinha, learned Advocate for the appellant did not dispute that second paragraph of Section 44 would not come but he contended that the property that was purchased by his client would not come within the expression "share of a dwelling house belonging to an undivided family". The transferor and the other co-sharers were, as evidence of P.W. 1 and D.W. 1 (defendant No. 2) shows, members of a joint Hindu family, but the transferee plaintiff-appellant was not. The transferee plaintiff-appellant admitted that he was in no way related to the transferor Prasannamoyee. The property transferred to the plaintiff-appellant, who brought the present suit for partition, is described in Ext. 1, registered kobala. The executant of the kobala recited in the kobala itself that she was executing the sale deed of kala Bastu Bati. Prasannamoyee, the executant of the Kobala, while describing the share of the property sold, stated in the kobala. "On selling to you the lands appertaining to the annual jama of Rs. 2-3 annas in respect of.331/2 decimals of land together with the Kala Bastu house, Udbastu (land surrounding the homestead) tank, tank, bamboo grove, etc., and the straw-built hut with fittings and furniture standing on the Kala Bastu house etc. and various kinds of trees which were in the demarcated possession of my aforesaid husband in his own share, comprised in two plots lying in the daga and within the boundaries mentioned in the schedule below....". The description of the property sold as appearing in the Kobala (Ext. 1), covers, according to D.W. 1 (defendant No. 2), their ancestral bastu. To the south of the bastu there is a pathway and to the north of the bastu there is the Khirki Pukur. The plaintiff''s Bari is at a distance of 21/2 bighas away from the Bari of the witness. This witness gave out that the total area of the bastu is one bigha and five cottahs and within that bastu there is the betel-leaves plantation on two cottahs, and bamboo groves covering 21/2 cottahs and two tanks. For the plaintiff there was only one witness. Mr. Sinha''s argument if as that Pan Boraj land, and the bamboo grove land were possessed by the defendant for the convenient enjoyment of the ancestral dwelling house had not been asserted. But the evidence of D.W. 2 defdt. one and the recitals in the kobala (Ext. 1) executed by Prasannamoyee in favour of the plaintiff clearly prove that for convenience of possession of the dwelling house, the co-sharers possessed as part of the dwelling house which is called bastu, in local parlance, the plot containing betel leaves plantation and bamboo grove plantation adjacent to and surrounding the dwelling house. In the kobala (Ext. 1) the name of the defendant No. 1 Narendra Nath Hazra as the co-sharer has been mentioned. The executant of the kobala sold her undivided share of raiyat jote of 67 decimals. Therefore, the property which is the subject matter of the partition suit filed by the plaintiff appellant comes within the expression "a share of a dwelling house belonging to an undivided family" within the second part of Section 44 of the Transfer of Property Act as also within sub-section (1) of Section 4 of the Partition Act. All the conditions, enumerated both in the second part of Section 44 of the Transfer of Property Act and sub-section (1) of Section 4 of the Partition Act are applicable on the proved facts of this case. Accordingly, the first part of Section 44 of the Transfer of Property Act has no application and the second part puts an embargo to the plaintiff-appellant transferee from getting joint possession or other common or part enjoyment or separate possession of the dwelling house. As I read the second part of Section 44 of the Transfer of Property Act and sub-section (1) of Section 4 of the Partition Act, I notice that by imposing the ban to the transferee, the section does not make any distinction between a plaintiff and a defendant in a suit for partition brought at the instance of the transferee as in the present case making the other co-sharers of the dwelling house parties defendants in such a suit. If the transferee, as in the present case the plaintiff-appellant, gets into possession of a share in the dwelling house, his possession becomes joint possession with the other co-sharers but such joint possession is illegal, in view of the embargo put by the second part of Section 44 of the Transfer of Property Act. Courts cannot countenance or foster such illegal possession of the transferee, as in the present case, the plaintiff-appellant, whose possession has become illegal. In a suit for partition of a joint property a co-sharer figuring as a plaintiff in such a suit and other co-sharer or co-sharers, figuring as defendant or defendants in the suit so far as the joint property under partition is concerned, stand in the same position even if arrayed either as plaintiff or as defendant, since in a suit for partition, which is a suit for complete accounting of joint properties, each and everyone of the co-sharer has a right to continue the suit even if the other co-sharer coming as a plaintiff in the suit withdraws from the suit. Therefore, the words "sues for partition" in Section 4 sub-section (1) of the Partition Act, cannot contemplate only a suit filed by a transferee of a share in a dwelling house as in the present case, and may also contemplate a suit filed by other co-owners in a case, where, as in the present case, the transferee does not file a suit for partition. But in the present case, the transferee himself having come into illegal possession of a share of the dwelling house, has himself sued for partition. A co-sharer defendant in a suit for partition of a joint property may be transferred to the category of a plaintiff and the plaintiff to the category of a defendant in such a suit, according to the exigencies of the circumstances developing at every stage of the progress of the suit till the final decree for partition has been passed. In the present case the partition suit was brought by the transferee plaintiff-appellant making the other co-sharers parties defendants in the suit. If the defendants in the suit as plaintiffs would have brought the suit for partition, they would have been entitled to get a decree for eviction of the plaintiff upon exercising their right u/s 4 of the Partition Act by purchasing the share of the plaintiff in the joint property of which he came into possession illegally. If the plaintiff-appellant in the present case before coming into possession of the share of the joint property he had purchased would have threatened to get into possession of such share by force, the defendants could have, by filing a suit, obtained an injunction restraining the plaintiff from getting into possession of the transferred share. In (6) Paresh Nath v. Kamalkrishna, reported in AIR 1958 Calcutta page 614, such a view was expressed by His Lordship R. Mookerjee after considering the two conflicting decisions of this Court in (9) Lalbehari v. Gourhari Dawn, AIR 1952 Calcutta 253 and (5) Jogendra v. Adhar, AIR 1951 Calcutta 412. We have accepted the rationale of the decision in Paresh Nath''s case which accords with the decision of Lahiri J. in Lalbehari''s case. In the present case the plaintiff-appellant brought the partition suit for partition by metes and bounds of his purchased share in the joint property being a share in a dwelling house of an undivided family after having illegally obtained joint possession of his purchased share in such joint property. He cannot retain his possession in the share of the joint property that would be allotted on partition by the Partition-Commissioner, and in such a situation, the defendant-respondents can well exercise their right of purchasing that share of the plaintiff-appellant u/s 4 of the Partition Act, which would have been otherwise allotable to him on partition by metes and bounds by the Partition-Commissioner. The plaintiff-appellant by purchasing the undivided share in the dwelling" house acquired only the right to have such share partitioned by metes and bounds subject, however, to the right of the other co-sharer or co-sharers in the joint property as exercisable u/s 4 sub-sections (1) and (2) read with sub-section 2 of Section 3 of the Partition Act, entitling such co-sharer or co-sharers, as the case may be, to purchase the plaintiff''s such share in the joint property allotable to him on partition, on payment to him of the value of such share payable by such co-sharer or co-sharers as would be determinable by the Partition-Commissioner. It would not appear from the judgment of the learned Subordinate Judge that the defendant-respondents or any of them applied for partition of their shares in the joint property now in dispute. In paragraph ''14'' of the written statement, the defendants 1 and 2 asserted that u/s 4 of the Partition Act, the defendants were entitled to purchase the share of Prasanna-moyee, pro-forma defendant No. 4, the transferor co-sharer in the family dwelling house. No application by the defendants 1 and 2 was filed before the learned Subordinate Judge u/s 4 of the Partition Act undertaking to purchase the transferred share of pro-forma defendant No. 4 now in the hand of the plaintiff. Mere statement in paragraph ''14'' of the written statement of the defendants 1 and 2 would not entitle them to exercise their right u/s 4 of the Partition Act, in regard to the transferred share in the family dwelling house. Sub-section (1) of Section 4 of the Partition Act amongst other things lays down :-"The Court shall, if any member of the family being a share-holder 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." Subsection (2) of Section 4 of the Partition Act speaks of two or more members of the family being such shareholders who severally undertake to buy the transferred share and the procedure the Court shall follow as prescribed by sub-section (2) of Section 3 of the Partition Act. The right created by sub-section (1) of Section 4 of the Partition Act to the petitioning shareholder or share-holders who undertake to buy off the transferred share is depended upon the share-holders or shareholders'' exercising that right by offering on an application made an undertaking to the Court to buy off the transferred share. Till more than one share-holder undertake to buy the share of the transferee, sub-section (2) of Section 4 and sub-section (2) of Section 3 of the Partition Act do not come into operation. Therefore, the valuation of the transferred share is to be made by the Court only when the share-holder or share-holders shall undertake to buy the transferred share. In the present case, before the trial court the defendants did not pray for partition of their respective share in the property described in the schedule to the plaint. They only stated in paragraph ''14'' of the written statement that they were entitled to buy off the transferred share u/s 4 of the Partition Act. So, the only question that arises as to what should be the standard with reference to which the valuation of the share purchased by the plaintiff-appellant is to be made in the proceedings of the partition suit u/s 4 of the Partition Act.

In the case of (18) Subal v. Gostha reported in 60 CWN page 829, my Lord Mr. Justice P. N. Mookerjee sitting with my Lord R. K. Sarkar J. at page 834 observed :-"While fixing a valuation after an application is made u/s 4 of the Partition Act the valuation is to be fixed on the proper market value. Such valuation is to be fair both to the stranger purchaser and also to the co-sharers of the erstwhile undivided joint family. The sale by the stranger to the co-shaver is a forced sale and therefore such valuation is to be fixed with great care and precision." At page 833 of the report my Lord Mr. Justice P. N. Mookerjee was pleased to observe as follows :-

The point for decision which comes up before the court that stage, when an application is made by a co-sharer u/s 4(1) of the Partition Act is first to ascertain whether the property in question is a dwelling house; and if the answer is in the affirmative, to proceed to value the share in such dwelling house which is held by the stranger. The Court is then to require the co-sharer who was a member of the undivided family to deposit the amount within a date to be fixed by the Court. If such deposit is made, then the Court is to require transfer of the stranger''s share in the dwelling house to the co-sharer. If the deposit as required to be made is not so done, the petition made u/s 4 of the Partition Act fails and the Court takes necessary steps for partitioning the entire property including the dwelling house.

The Division Bench decision just referred to above clearly lays down how upon an application u/s 4 of the Partition Act, the valuation of the transferred share is to be made by the Partition-Commissioner. The Partition-Commissioner while fixing the valuation of the transferred share shall take as the standard the price of the transferred share as disclosed in the document of transfer. He shall, however, receive evidence if adduced by the parties as to the market-value of the transferred share as obtaining on the date on which the application u/s 4 of the Partition Act is made by a co-sharer or co-sharers i.e. the defendant-respondent or defendant-respondents in this case. Since the date of transfer right up to the date of application u/s 4 of the Partition Act, the value of the transferred share may increase or may decrease as would be determined by the Partition Commissioner upon evidence taken during the proceedings for valuation of the transferred share before him. Upon the Commissioner''s report of valuation of the transferred share the trial court may, on evidence, if it thinks fit, decide the market-value of the transferred share as obtaining on the date of the application u/s 4 of the Partition Act. The trial Court shall, thereafter, follow the directions of the Division Bench in the case of (18) Subal v. Gostha as appearing in page 833 of 60 CWN already quoted in this judgment. If the deposit as required to be made is not so done, the petition u/s 4 of the Partition Act would fail. In that event, if the defendant-respondents apply before the trial Court for partitioning their share in the property in suit, then the trial Court shall have to take all necessary steps for partitioning the entire property in suit including the transferred share of the dwelling house amongst the plaintiff and the defendant-respondents. In such a situation the share of each co-sharer in the joint property in suit has to be valued by the Partition-Commissioner following the direction given in that behalf by my Lord in his part of the judgment. If the defendant-respondents do not apply for partitioning their share of the joint property but apply only for buying off the transferred share in the dwelling house acquired by the plaintiff, the valuation of transferred share in the dwelling house shall have to be made by the Partition-Commissioner following the direction given in my part of the judgment. If the defendant-respondents deposit the amount determined as value of the transferred share as directed by the trial Court, the direction given in (18) Subal''s case -of 60 CWN referred to above shall have to be followed by the trial Court in finally disposing of the partition suit. If the defendant-respondents failed to deposit the amount fixed by the trial Court as the value of the transferred share in the dwelling house, the trial Court shall have to partition the transferred share in the dwelling house in favour of the plaintiff. In such a contingency the defendant-respondents'' un-partitioned allotment in the joint property and the plaintiff-appellant''s partitioned allotment in the transferred share of the dwelling house shall have to be valued by the Partition-Commissioner and shall have to be finally determined by the trial Court following the elaborate directions given by my Lord in his part of the judgment, in order to adjust and to finally determine the equities of the parties in respect of the allotted share of the plaintiff and the unallotted share of the defendants in the partitioned property.