The transferee of a share of a dwelling house belonging to an undivided family is not entitled to joint possession or other common or part enjoyment of the house if he is not a member of the family.

G. K. MISRA, J.

( 1 ) BISI Bej died 25 years ago. He had three sons Rajan. Ratnakar (Plaintiff 1) and indramani. Rajan and Indramani died about 12 years ago respectively. Defendant 2 is the son of Rajan. Plaintiff 3 is the widow and plaintiff 2 is the son of indramani. On 19-5-58 defendant 2 transferred the disputed property to defendant 1 by a registered sale deed (Ex. C) for Rs. 995. Plaintiffs assail this alienation as not binding on them as the family was an undivided joint family. Defendant 1 contested the suit alleging that plaintiffs and defendant 2 were separate, there was a parti-lion by metes and bounds soon after the death of Bisi, the disputed land fell to the share of defendant 2's father who was in exclusive possession of the same and the sale was valid.

( 2 ) BOTH the courts below found that the defence story of partition by metes and bounds had not been established. Mr. Mohanty did not assail this concurrent finding. He, however, contended that there were enough materials on record to establish severance of joint status and that on such a finding the alienation would be valid. Mr. Sahu, on the other hand, contends that there being no plea in the written statement that there was severance of joint status, such a contention is not tenable once the case of partition by metes and bounds is not established He also contends that on the materials on record there is no severance of joint status and that the appellant court's finding on this point is a pure finding of fact binding on this Court in second appeal His further contention is that even if there be a finding that there was severance of joint status and the alienation is valid, defendant 1 is liable to be evicted from the homestead under Section 44 of the transfer of Property Act. Each of these contentions requires careful examination.

( 3 ) IN the written statement defendant 1 did not take any plea that there was severance of joint status The learned lower appellate court has recorded a finding that there was no severance of joint status. Even if such a plea had not been taken in the written statement, finding thereon can be recorded if the materials on record justify it. Certain materials may not justify a conclusion regarding a completed partition but may be sufficient for a finding regarding severance of joint status. The objection of Mr. Sahu that in the absence of such ft plea in the written statement the courts below had no jurisdiction to go into that question is not legally tenable. In Raghavamma v. Chenchamma, AIR 1964 SC 136 such a question had not been initially taken but was for the first time advanced before the high Court in first appeal. The question was examined both in the High Court as well as in the Supreme Court. Mr. Sahu's objection on this score must be rejected.

( 4 ) MR. Mohanty contends that the finding of the lower appellate court that there was no severance of joint status is based by an error of record and non-consideration of material evidence. In support of severance of joint status he relies on the following pieces of evidence:

(i) Ex. K. a registered sale-deed dated 24-12-55 executed by defendant 2 in favour of Pahali Behara transferring 15 decimals and 19 biswas of land for Rs. 60;

(ii) Ex. G. a registered mortgage bond, dated 9-6-58 executed by plaintiff 1 in favour of Madha Bej (D. W. 2);

(iii) Distribution of Jajmans for performance of barber-service into three shares in the family;

(iv) Separate kitchen and separate residential houses with different sadar doors; and

(v) Demarcation of agricultural lands conveyed by the impugned sale deed (Ex. C) into three portions by intervening ridges

( 5 ) THE question whether there was severance of joint status in the family is essentially a question of fact and binding on this Court in second appeal unless the finding is contrary to law. It is necessary to see if the learned lower appellate court bestowed consideration over the aforesaid materials and whether its finding is vitiated in