A stranger transferee of an undivided share in a dwelling house belonging to an undivided family is not entitled to joint possession or other common or part enjoyment of the house, and can be ejected by the other co-owners.

Raj Kishore Prasad, J.

1. This appeal, by defendant 1, from the concurrent findings of the Courts below, involves the interpretation of the second paragraph of Sec. 44 of the Transfer of Property Act.

2. Sec. 44 reads thus :

"Where one of two or more co-owners of immoveable 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 transferors 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 a 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."

3. The only question of law, which has been raised in this appeal, is : Whether the defendant 1 is liable to be ejected?

4. The plaintiffs and defendant 2 were members of a joint Mitakshara Hindu family, and, Suraj Prasad Sahu, plaintiff 1, was the karta. They have their residential house and a well on plot 3585, under Khata No. 51, which is recorded in the survey record-of-rights as makan mai sahan, with an area of .45 acres. A portion of this plot, to the extent of 1 katha 71/2 dhurs equivalent to .05 acres, was sold by defendant 2, the brother of the plaintiffs, to defendant 1, a stranger to the family, on 2nd December, 1949, under a registered sale-deed. The plaintiffs, therefore, filed a suit, out of which the present appeal arises, for a declaration that the plaintiffs and defendant 2 were joint and, that the sale by defendant 2 was invalid, fraudulent and without consideration, and, therefore, not binding on the plaintiffs. Their further case was that the land covered by the sale deed formed a part of their undivided joint dwelling house, and, defendant 1, being a stranger to their family and a man of different caste and community, cannot be allowed to take joint possession of the disputed land, because that would interfere with their privacy, as in the compound of that house, which is enclosed by walls, there is a well and a latrine, which are used by females.

5. The suit was contested by defendant I, who pleaded that defendant 2 was separate from the plaintiffs, and, that the sale executed by defendant 2 in his favour was valid and for consideration, and, the suit land was a vacant space, and was not used by female members of the plaintiffs family. His further case was that the disputed land by partition amongst the plaintiffs and defendant 2 had been allotted to the share of defendant 2, and, as such, defendant 2 was quite competent to transfer the land in his exclusive possession, and, to put defendant 1 in possession thereof.

6. The relevant concurrent findings of the Courts below, on which depends the question at issue, are ;

"1. There has been a severance of status between the plaintiffs and defendant 2, but there has been no partition by metes and bounds between them;

2. The suit land was a part of the undivided land appertaining to the dwelling house of the family of the plaintiffs and defendant 2;

3. The suit land was never partitioned and allotted exclusively to the share of defendant 2; and,

4. On the suit land there was a well and a latrine in the compound of the plaintiffs house, and; therefore, the presence of a stranger within the compound would interfere with the privacy, and, as such, the plaintiffs had a right to object to joint possession being given to them with defendant No. 1."

7. On the question as to how defendant 1 got into possession of the land, the learned Subordinate Judge observed :

"It is, therefore, clear from the evidence that the constructions (that is, hut, platform and Nad Charan which were found on the l