Judgment. - This appeal on behalf of the deft. arises out of a suit filed by the pltf. resp. for permanently restraining the deft. from taking joint possession of the homestead.

2. The property originally belonged to the members of a family and the relationship amongst the parties will appear from the following genealogical table:

(See genealogical table on page 413.)

3. The deft. Jogendra Nath had purchased the share which originally belonged to Siddheswar from his widow Narayani and his grandsons Jaladhar and Sasadhar. The case of the pltf. Adhar is that Jogendra on the strength of the said conveyance, is making preparation to take joint possession of the homestead which had been in the possession of Narayani. The pltf. has accordingly filed the present suit for declaration that the property in dispute forms the undivided family dwelling house of the pltf. and his other co-sharers, including Narayani and the deft. being a stranger purchaser is not entitled to take joint possession of any portion of the said homestead. It is accordingly prayed that the deft. being a stranger purchaser may be permanently restrained from taking joint possession on the strength of his purchase of the interest of Narayani. The pltf. has impleaded only the transferee Jogendra Nath. The other co-sharers have not been joined as parties.

4. The defence inter alia raised various issues. The deft. claimed that he was an agnatic relation of the pltfs. family, the property in question was not a homestead and at least a portion thereof was neither a part of the homestead nor the necessary adjunct

thereto. It was further claimed that the members of the family had been in possession of separate portions after partition and the portion sold was not a part of any joint homestead. The pltf. and Narayani were possessing lands separately. It was further contended that the suit as framed is not maintainable and the relief as claimed is not available to the pltf. in the present proceedings.

5. Both the Cts. below have found in favour of the pltf. that the deft. was not a member of the joint family which originally owned the property, that the property in suit constituted an undivided family dwelling house and that there had been no previous partition. The deft. was accordingly permanently restrained from taking joint possession.

6. The principal question raised in this appeal is whether on the facts found the suit as framed is maintainable in law. In the lower Cts. reliance had been placed upon the provisions contained in S. 44, T. P. Act, and in S. 4, Partition Act.

7. Section 44, T. P. Act, provides that the transferee from a co-sharer acquires the right of his transferor so far as is necessary to give effect to the transfer and no further. In respect of a dwelling house the second para. of S. 44 provides:

"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."

8. The transferee from one of the members of a Hindu co-parcenary may acquire a right to joint possession or to ascertain the share by

partitioning the share to which he is entitled. Such a transferee does not acquire the status of a coparcener in the family. In the case of a dwelling house belonging to an undivided family, the transferee shall not by the provisions of this section be deemed to be entitled to joint or common enjoyment of the house.

9. The stranger purchaser of an undivided share in a homestead, used as a residence by joint Hindu family, cannot obtain a decree for joint possession. The proper course to follow by a Ct. in such a case is either to direct delivery of possession by partition in execution proceedings or to leave the purchaser to his remedy by a separate suit for partition, Girijakanta v. Mohimchandra, 20 C. W. N. 675: (A.I.R. (3) 1916 Cal. 170). If such a suit for partition is brought by a stranger transfer

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