A suit for partition of a portion of the joint family property is maintainable in certain exceptional circumstances, and the alienation of an undivided interest in the joint family property by a member governed by the Dayabhaga School of Hindu Law is allowable.

( 1 ) THE present appeal arises out of a suit brought by a member of a joint Hindu family for partition.

( 2 ) ONE Sitanath Basu died leaving a widow Tarangini and six sons, Bireswar, Kasiswar, Triguneswar, Nakuleswar, Kesabeswar and Sureswar. The eldest son Bireswar died leaving a will under which he gave his share in the properties to his two brothers Kasiswar and Nakuleswar. The youngest son Sureswar died intestate without any issue. His share in the property devolved on his mother Tarangini. On 15-9- 1944, Kesabeswar transferred his interest in the residential house which is the subject-matter of. the present suit in favour of Nakuleswar. Nakuleswar brought the present suit for partition of the residential house as between himself, his two brothers Kasiswar and Triguneswar and his mother Tarangini,

( 3 ) ADMITTEDLY, the joint family had several properties and in those properties all the brothers including Kesabeswar and the widow Tarangini have some interest. The plaintiff's case is that in the property in suit, viz. , the residential house, Kesabeswar is not interested, and this is the only-property held jointly by him along with bis two brothers and his mother which is required, to,be partitioned.

( 4 ) VARIOUS defences were raised, but it is not necessary to refer to them at this stage owing tot the limited question which has been raised before us.

( 5 ) THE plaintiff's claim was resisted by the two brothers, Kasiswar and Triguneswar. The objection was that the suit as framed was not maintainable; the plaintiff ought to have brought into the hotchpot all the properties which belong ed to the family jointly irrespective of the question whether such properties, belonged to three of the brothers jointly or to four of them. It was further contended that Kesabeswar who was interested in the joint family properties other than the property in suit should have been impleaded.

( 6 ) THE objections were overruled and a preliminary decree has been passed by the learned Subordinate Judge directing a commissioner to be appointed to partition the residential house amongst the parties who are interested in that property and according to the shares which are also admitted.

( 7 ) IT is undisputed that in a suit for partition-of the properties which are held in co-tenaney amongst the persons who are impleaded nothing but the property held in co-tenancy should be included in a partition suit. The other accepted principle is that no partition should be allowed in respect of a portion of the joint properties held by such co-tenants except in certain specific exceptional circumstances. As observed by Freeman, on "co-tenancy and Partition" in Section 506: "the equities which may be adjusted and enforced in. a suit for partition are such only as arise out of the relation of the parties to the common property. " and in Section 508 : "a tract held in common cannot be partitioned by fragments. "

( 8 ) AS observed by this Court in Bajendrm Kumar Bose v. Brojendra Kumar Bose, 37 Cal. L. J. 191, there are exceptions to the rules abave mentioned. Where a partial partition is allowed. some of the more important of the exceptions, which have been noticed in the cases or by other authorities are : (1) when different portions of the property belonging to the joint family are situated in different districts, separate suits for these separate portions may be brought : Punchanun v. Shib Chander, 14 Cal. 835 ; (2) where there are different rules of substantive or adjective law prevailing in the different Courts in the jurisdiction of which different parcels of property are situated : Padmamani Dasi v. Jagadamba Dasi, 6 Beng. L. R. 134; (3) when the portions excluded from the partition suit are not in the possession of coparceners; Kristayya v. Narasimham, 23 Mad. 608; and (4) where the portion excepted is an impartible property and not capable of partition: Mallikarjuna v. Durga Prasad, 27 Ind App 151 (PC ).

( 9 ) WHEN the property