A person who is not a member of an undivided family cannot force his way into a dwelling house belonging to that family by a suit for partition, and a member of the family has the right to purchase the share of such a transferee under Section 4 of the Partition Act.

Judgement

PANIGRAHI, C. J. :- If the facts of this case are properly appreciated the principle of law that should be applied will be-easy to determine.

2. Plaintiffs 1 to 4 are the heirs of one Shyam Sundar Baral who had two brothers Samuel and Daniel. In the year 1936 they filed a suit for partition of their share in the suit property, which consists of a dwelling house standing on plot No. 280. in Title Suit No. 332/89/57 of 1936 in the Court of the First Munsif, Cuttack, and obtained a decree for partition on 3-10-1936. In accordance with the decree the suit house was divided into two portions-X and Y, X representing one-third share of the plaintiffs father, and Y representing the share allotted to Samuel and Daniel jointly.

The plan attached to the plaint shows that eastern portion marked X fell to the share of the plaintiffs and the western portion Y, to Samuel and Dapiel. Samuel died in the year 1944, leaving a widow, Kadambini, surviving him. Kadambini purported to convey by a sale deed, Ex. 1 dated 10-1-47, the entire interest of Samuel in the suit dwelling, house to plaintiffs 1 and 2 - which obviously she was not entitled to do.

The parties being Christians are governed by the provisions of Section 106, Indian Succession Act and Kadambini would be entitled only to a half sharer in the interest of Samuel, the other half going to Samuels brother and his nephews. Ext. 1 is therefore operative only to the extent of conveying Kadambinis half share in the interest of Samuel in the suit house, the plaintiffs and Daniel being entitled to the other half. Thus, the plaintiffs would be entitled to 2 annas interest by succession and 4 annas interest of Kadambini by reason of the purchase under Ex. 1. The appellant Sushila is the widow of Daniel who died leaving a deed of gilt in her favour. The plaintiffs have raised the present suit for partition of the entire 8 annas interest which they claim to have purchased from Kadambini under Ex. 1 and for separate possession thereof. The appellant Sushila is defendant 1 and Kadambini is defendant 2.

3. Several points were raised by the defendants in the course of the trial, but it is unnecessary to trace the chequered course that this litigation has taken. The only point raised in this appeal which requires serious consideration is whether defendant 1 the appellant, who is willing to purchase the 4 annas interest of Kadambini from the plaintiffs is entitled to any relief under Section 4, Partition Act.

The Courts below have negatived the appellants claim on the ground that on Samuels death the plaintiffs who became cosharers in the suit house were still members of the family and were not strangers in favour of whom partition could not be granted. It is against this finding that defendant 1 has come up in appeal.

(4) Sub-Section (1) of Section 4, Partition Act says :

"Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the Court shall, if any member of the family being a member of the family shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit, and direct the sale of such share to such shareholder, etc".

What this Section contemplates is (1) that the suit for partition must relate to a dwelling house (2) that such house must have belonged to an undivided family (3) that it must have been transferred to a person who is not a member of such family. The question is whether the property in question remained as the dwelling house of an undivided family and whether the plaintiffs are not members of such family. It should be noticed that plaintiffs 1 and 2 are the purchasers under the sate Ex. 1 and plaintiffs 3 and 4 are the other children of Shyam Sundar Baral.

5. Mr. Das Gupta appearing for the appellant contends that tire plaintiffs can by no means be regarded as members of an undivided family as they had already got