The term 'family' in section 4 of the Partition Act should be liberally construed, but a bond of unity is required to tie up members of an undivided family.

( 1 ) ONE Kiron Bala Dassi was the owner of the property in question namely, a dwelling house in 107, Panchanantala Road, P. S. Bally. She sold the undivided eastern half of the house by a Kobala to Uttam and Amulya Sadhukhan. By a second Kobala she sold the western half of the said house to aforesaid Amulya and his wife's brother Sudhanya Sadhukhan. Subsequently Uttam sold his share in the property to Amulya who has since died. Sudhanya has sold his share in the property to the appellant.

( 2 ) RESPONDENTS, as heirs of Amulya, brought a suit for partition and a decree in preliminary form has been passed declaring their 12 annas share and appellants 4 annas share in the suit property, overruling the appellants plea of previous partition. Subsequent thereto respondents filed a petition under section 4 of the partition Act (hereinafter to be referred to as the Act) for purchasing the share of the appellant on the footing that he was a stranger-purchaser in relation to the dwelling house which belonged to undivided family. The learned court below has allowed the said petition dismissing appellants contention that Amulya and Subhanya did not constitute an 'undivided family' in relation to the house and the prayer of the respondents did not comply with the requirements of the said section. So the defendant opposite party in the proceedings under section 4 of the Act has come up in appeal.

( 3 ) THERE is no dispute that the property is a dwelling house. The learned court below has held that the term 'family' used in section 4 of the Act, according to judicial decisions cited by him, should be liberally construed and on such liberal construction he has held Amulya and Sudhanya to be constituting an undivided family.

( 4 ) MR. S. C. Mitra, the learned Advocate for the Appellant vehemently challenges the decision of the trial court. He argues that the court below has not given the factual basis for his decision. He makes a grievance that the evidence adduced has been totally ignored.

( 5 ) KALINATH, the son of deceased Amulya, as P. W. I deposed "sudhanya and Amulya were never joint. They did not live jointly in the said property. " Dhirendra Sadhukhan the appellant as opposite party and transferee from Sudhanya deposed "sudhanya was wife's brother of Amulya. They were never joint. " In the petition under section 4 of the Act the respondents had pleaded that subsequent to Amulya's death Sudhanya become the head of the family consisting of himself and Amulya's heirs, but they adduced no evidence in support of their plea.

( 6 ) IN the well-known case Kshirodh Ghosal v. Sarada Mitra, reported in 12 Callj 527 it has been held that the first element to attract section 4 of the Act is that the dwelling house belong to an undivided family. So the point of greatest importance in this case is if Amulya and Sudhanya constituted and undivided family in relation to the dwelling house in question. As to what is a "family" for he purpose of the Act we again refer to the judgment of Sir Ashutosh Mukherjee in the case cited above. The exposition is so good that till now no one has been able to improve upon the same and extracts from the judgment have been quoted in subsequent decisions to which we do not refer.

( 7 ) MR. Mitter argues that in the case cited married daughters owning a house 5th indescent from the last full owner of the house were held to constitute a family. Mr. Mitter argues that Amulya and Subhanya neither had a common ancestor nor they related by blood. According to evidence on record, he emphasizes, they never lived jointly in the house nor as members of a family they messed together. He contends that the evidence on record does not disclose any material to justify a conclusion that they were members of an undivided family.

( 8 ) MR. Ranajit Banerjee, the learned Advocate for the respondents relies on the observation in the judgment referred to, "the word 'family' as used in the partition Act ought to be given