Hon’ble Sanjay Misra, J.—The plaintiff-appellant is aggrieved by the judgement and decree dated 31.7.1978 passed in Civil Appeal No. 253 of 1976 by the IInd Additional District Judge, Farrukhabad dismissing the appeal of the plaintiff and confirming the judgment and decree dated 17.9.1976 passed in O.S. No. 73 of 1974, ‘Sri Ram and another v. Ram Krishna and another’, by the Ist Additional Munsif, Kannauj.

2. Sri Dhruva Narain, learned counsel has submitted that the substantial question of law involved in this appeal is : Whether the second paragraph of Section 44 of the Transfer of Property Act is applicable to the facts of the case?

3. The plaintiff had filed a suit for cancellation of sale deed and injunction against the transferee from interfering or seeking possession over the house in question. The Trial Court as also the First Appellate Court found that transfer of one half share was made by the descendants of Bheema who were defendants No. 2 to 7 and other half share belonged to the plaintiffs No. 1 to 5 who were descendants of Narain. The Courts below found that when the descendants of Bheema had half share in the property in question they could alienate the same and the plaintiff had not been able to establish his case for cancellation of sale deed. In so far as Section 44 of the Transfer of Property Act is concerned, the recitation of the facts by both the Courts below undisputedly was that house in question was ancestral and was owned half share each by the plaintiffs and the defendants No. 2 to 7 but the fact that Smt. Inda was daughter of Bheema ancestor of the defendants No. 2 to 7 would make the defendants No. 2 to 7 belonging to another family although they inherited half portion of Bheema in the house in question.

4. Sri Dhruva Narain states that a transferee cannot be permitted to take possession of the share unless he seeks partition of the property from co-owners. He further states that even the sale deed executed for half share by the defendants No. 2 to 7 in favour of defendant No. 1 was illegal and is liable to be cancelled.

5. The facts of the case are that the plaintiffs and defendant Nos. 2 to 7 were co-owners of house situate in Vijaypuria, Mauja Kusum Khor, Pargana Kannauj, District Farrukhabad. The defendants No. 2 to 7 executed a sale deed dated 2.3.1973 of their share in the house in favour of defendant No. 1 namely Ram Kishun who took possession forcibly in January 1974. The plaintiffs brought the instant Suit No. 73 of 1974 for cancellation of the sale deed dated 2.3.1973 and also prayed for mandatory injunction to restrain the defendant No. 1 from taking possession of the share purchased by him.

6. On the question formulated in this Second Appeal Section 44 of the Transfer of Property Act would govern the field. Section 44 is quoted hereunder :

“Transfer by one co-owner : Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

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”.

7. The Section contemplates a transfer of share in immovable property. It deals with the share of a co-owner of immovable property who is legally competent to transfer his share. The transferee acquires the transferors right to joint possession or other common or part enjoyment of the property and a right to enforce partition of the share or interest so transferred at