Monjula Bose, J.
1. This suit filed at the instance of a transferee purchaser of an undivided half share in premises No. 23, Krishna Ram Bose Street, Calcutta is for possession and alternatively for partition of the suit premises. In the plaint it is inter alia alleged that by a conveyance dated Aug. 1, 1963, the plaintiff purchased the half share of one Narayan Krishna Ghosh in the suit premises. It is alleged that the said Narayan Krishna Ghose, delivered possession of the portion in his occupation to the plaintiff and the plaintiff let out the same to the said Narayan Krishna Ghose at a rent of Rs. 50/- per month. Inasmuch as the said Narayan Krishna Ghose failed and neglected to pay rent, a suit was caused to be instituted against him and the plaintiff recovered possession from him in execution of the decree for possession in his favour. It is alleged that thereafter the defendants caused obstruction and interference with the plaintiff's use and enjoyment of the property and in or about Aug. 1969, dispossessed the plaintiff therefrom.
2. Realising difficulties in the way of a prayer for possession by a stranger purchaser, learned Advocate for the plaintiff has mainly urged his claim for partition. It is not disputed that originally two brothers Benoy Krishna Chose and Dhirendra Krishna Chose were the joint owners of the said property and the said Narayan Krishna Ghose since deceased having a half share therein is the only son of Benoy Krishna Ghose while the defendants Nos. 1 to 5 are the widow, sons and daughter of Dhirendra Krishna Ghose. The defendant No. 6, Sunil Krishna Bose having no interest in the suit premises. It is also not challenged that the premises is a dwelling house and the plaintiff an outsider to the family. Inasmuch as the material facts of this case are not hi dispute it is not relevant to record the various allegations in the pleadings which have been mainly averred for the purpose of claiming possession. Suffice it to say that in the written statement filed by the defendants Nos. 1, 2 and 3 it was inter alia not admitted that Narayan sold his half share in the said premises to the plaintiff and the plaintiff's claim for possession was resisted. It was specifically inter alia averred therein that the defendant Nos. 1 to 4 are Jointly the owners of a moiety share in the premises and in any event entitled to claim benefit under Section 4 of the Partition Act. 1893. In this background, the only issues settled for determination are:--
1. Is the plaintiff a purchaser of half share of premises No. 23, Krishna Ram Bose Street. Calcutta as alleged in paragraph 1 of the plaint ?
2. If so, are the defendants entitled to purchase the half share of the plaintiff under Section 4 of the Partition Act as claimed in para. 19 of their Written Statement?
3. To what relief, if any, are the parties entitled
3. The plaintiff offered himself for examination and, inter alia deposed that by a Deed of Conveyance dated Aug. 1, 1963 which was tendered as Ext. A, he purchased half share of Narayan Krishna Ghose since deceased, in the suit premises. The plaintiff states that after purchase of the said share he obtained possession of the portion occupied by the vendor in the suit premises and got his name mutated in the records of the Corporation of Calcutta. In cross-examination, he admits that Dhirendra Krishna Ghose, the father of the defendants Nos. 2 to 5 and Bijoy Krishna Ghose, father of Narayan Krishna Ghose were brothers and jointly owned the suitpremises. It was also admitted that the defendants Nos. 1 to 5 are in occupation of the property and that prior to plaintiff's purchase in 1963, Narayan Ghose, since deceased, was in occupation of a portion of the property which had not been partitioned and which is the dwelling house of the Ghose-defendants The plaintiff did not call any other witnesses.
4. The defendant, Subir Kumar Ghosh deposed inter alia that premises No. 23, Krishna Ram Bose Street, Calcutta is their ancestral properly. The father of Narayan Krishna Ghose, since deceased, is the brother of his father Dhirendra Krishna Ghose and that they were joint owners of the suit-premises. He states that on the death of Bijoy Krishna Ghose his undivided half share therein devolved on his son Narayan Krishna Ghose and the defendants Nos. 1 to 5 inherited the same. He states that there has been no parti- tion of the property and that the plaintiff is not related to them by blood. The defendant No. 5 since her marriage is residing at Sin-thee and the defendant No. 4, is at present residing at Bombay where he is employed. The permanent place of residence of the Ghose-brothers and their mother is premises No. 23, Krishna Ram Bose Street, Calcutta. The Ghose-defendants are agreeable to buy jointly the undivided half share of the plaintiff in the suit property and give an undertaking to do so on their behalf as well as individually. It was suggested to him that the property was enjoyed by the Ghose-defendants and Narayan Ghose in severally which suggestion he denies. He states that during the lifetime of his father and his uncle Binoy Krishna Ghose there was joint messing, but after the demise of his father, financial condition of the family did not permit the said arrangement to continue. In answer to question put by Court, he states that the two wives of Narayan Krishna Ghose were living at 23, Krishna Ram Bose Street, Calcutta. One of them left the premises sometime back and the other wife left the premises after the sale of Narayan's share to the plaintiff.
5. Mr. Das, learned Advocate for the defendants concedes that Issue No. 1 should be answered in the plaintiff's favour- Relying on the evidence of the plaintiff he submits that it is the admitted case of the parties that the property belonged jointly to the two brothers Dhireudra Krishna Ghose and Bijoy Krishna Ghose and that upon Bijoy's death, Narayan bis only son inherited his half share therein. It is further the admitted case of the parties that on Dhirendra's death his share devolved on the defendants Nos. 1 to 5 jointly and that the property has never been partitioned andis a dwelling house. He submits that the said facts are sufficient to sustain a case under Section 4 of the Partition Act. He submits further that the trend of cross-examination was merely to establish that Narayan at some point of time started independent messing, but this would be of no avail to the plaintiff in denying the defendant's relief under the Partition Act. He submits that an undivided family within the meaning of Section 4 of the Partition Act does not mean a joint family as contemplated under the Hindu Law, but merely a family undivided qua-dwelling house. In support of this proposition he relies upon the decision of Bata Krishna Ghosh v. Akhoy Kumar Ghose reported in : AIR1950Cal111 wherein the Court had occasion to consider Section 4 of the Partition Act and held that the term undivided family includes a group of persons, connected by blood living together in a dwelling house which has not been divided. It mattered not that any individual was separate in mess. For the same proposition he cites a decision reported in Kshirode Chunder Gho-sal v. Saroda Prasad Mitra, reported in (1910) 12 Cal LJ 525. He emphasizes that the only ingredients necessary for Section 4 of the Partition Act to be applicable are (i) the premises must be a dwelling house; (ii) dwelling house must belong to an undivided family; (iii) there must be a transfer of a share in the dwelling house by a co-owner to a person who is not a member of such family and (iv) the stranger purchaser must sue for partition. If these four conditions are satisfied, and if further any member of the family being the shareholder undertakes to buy the share of such transferee, the Court shall make valuation of such share and direct the sale of such share to such shareholder and give all necessary directions on that behalf. These being the requisites of claiming relief under Section 4 he submits that the question of possession is irrelevant and even if a stranger purchaser obtains possession of the dwelling house, the rights of the co-sharers under Section 4 are not taken away and are enforceable. In support of this proposition, he relies upon the decision reported in (1971) 75 Cal WN 195 (Sri Surendra Nath Achar v. Sri Ram Chandra Hazra) where the Court considered the position of a stranger-purchaser who had enter ed into possession and held that his possession was wrongful. Under Section 44 of T. P. Act he merely had a right to claim partition of the property. Placing reliance also on the decision Haradhone Halder v. Usha Charan Karmakar, reported in : AIR1955Cal292 , he submits that it is established law that joint possessionis no bar to a claim under Section 4 of the Partition Act.
6. He next contends that the Court will direct valuation of the stranger-purchaser share as on the date of filing of suit, viz., in Sept. 1969. Although no time as to when such valuation is to be made has been provided for in Section 4 of the Partition Act he submits that the cause of action arose when the transferee sued for partition and for the pur pose of valuation the date of the institution of the suit should be the relevant time to be considered. For the proposition that a plain meaning of Section 4 contemplates valuation to be fixed when the transferee files a suit for partition, he cites Bhikari Behera v. Dharmanenda Natia reported in : AIR1963Ori40 . He also cites Subal Chandra Modak v. Gostha Behari Das, reported in (1956) 60 Cal WN 829 at pp. 833 to 834.
7. Mr. Chatterjee, learned Advocate for the plaintiff, contends that the requisite elements for claiming relief under Section 4 of the Partition Act have not been averred in the Written Statement and no amount of evidence can be looked into to show that the property is undivided and/or is a dwelling house and/or that the plaintiff purchased the share from a co-owner. Placing reliance on the Written Statement, para 1, he contends that it is inter alia averred these defendants do not admit the alleged conveyance and do admit that Narayan Krishna Ghose was the owner of undivided half share of the premises.' In fact, he submits that the Written Statement proceeds on the basis that the said Narayan Krishna Ghose had no interest in the said property and in fact no case of undivided family has been made out. He submits that the elements of undivided family as construed by the Divisional Bench of this Court reported in : AIR1964Cal52 (Sat-yendra Kundu v. Amar Nath Ghose) includes persons tracing their descent trom a common ancestor and it was held 'it is sufficient if there is a collective body of persons living together within the same curtilage, subsisting in common, and directing their attention to a common object and to the promotion of their mutual interests and social hapi-ness.' He submits that there is no evidence whatsoever to establish that the members of the Ghose family were living together within the same family directing their attention to a common object, and to the promotion of their mutual interests and happiness as envisaged by the said judgment.
8. Relying upon the decision (1956) 60 Cal WN 829 (supra) where the mechanisation as to how the right under Section 4 is to be exercised has been chalked out, Mr. Chatterjee submits that assuming relief under Section 4 of the Act is to be given the same should be done after a preliminary decree for partition has been passed herein.
9. He next argues that until and unless an undertaking is given and an application made to Court, the Court is not bound to determine valuation and allow relief under Section 4 of the Partition Act even if such a plea is taken in the Written Statement. In support of this contention he relies upon the decision Chitta Ranjan Mondal v. Bhupendra Nath Das reported in : AIR1971Cal543 where the Court held that until the defendant No. 10 had made an application or given an undertaking in terms of the Partition Act no relief could be available to him. He drew the Court's attention to the fact that in the said case the defendant No. 10 in his Written Statement had averred that he was entitled to pre-emption under Section 4 of the Partition Act, and an issue had been raised as to whether he was entitled to such relief.
10. As to the relevant period for valuation of the premises, he submits that the ratio of the Orissa decision is not correct and should not be accepted by this Court as Section 4 clearly and without ambiguity enacts that valuation has to be made only if an undertaking is given. Thereby, he submits that the relevant time for such consideration is necessarily the time when the undertaking was given. This interpretation as sought to be given by him, he submits, is supported by the decision cited in : AIR1971Cal543 (supra) where the Court held that 'unless an undertaking is given by the party claiming to pre-empt under Section 4 of the Partition Act, the Court is not bound to determine the valuation of the property.'
11. Mr. Das in reply submits that the said decision in : AIR1971Cal543 is no authority for the proposition that the date of undertaking must be the date on which the valuation is to be made.
12. I have carefully considered the contentions made by the respective parties. Section 4 of the Partition Act of 1893, a corollary to Section 44 of the T. P. Act, denies the right of joint possession to stranger-purchasers and gives the members of an undivided family a statutory right to purchase the share transferred to an outsider to eliminate difficulties and to maintain homogeneity in families. In other words, to prevent intruders entering the family circle. For Section 4 of the Partition Act to be applicable it is manifest that the following conditions must be shown to exist -
(a) the house is dwelling house belonging to an undivided family;
(b) share of a co-sharer transferred to a, stranger to that family;
(c) purchaser-transferee had sued for partition, and
(d) any other member or members of the family being share-holder undertake to buy the share of the stranger-purchaser.
13. To my mind, analysing the evidence given, I find that all the four requisites essential for claiming a right under Section 4 have been established. It is the admitted case of the plaintiff that there was no division of the residential dwelling house and the shares of the respective share owners have not been partitioned in metes and bounds. In my view, the dwelling house being undivided, the character or status of an undivided family exists, and it mattered not that certain members were enjoying separate messing and/or were not permanently residing in the suit premises.
14. Following the decisions cited by learned Advocate for the defendants I hold that undivided family does not mean joint family as commonly understood, but undivided fami-ly qua dwelling house and it mattered not that possession of any portion of the premises was obtained by the stranger-transferee at any point of time and/or that his name was mutated in the records of the Corporation. Nor does the same debar the defendants from claiming the benefits under Section 4 of the Partition Act. I do not find any merits in the contention of the learned Advocate for the plaintiff to the effect that the requisite elements of claiming relief have not been averred in the written statement and no amount of evidence can be looked into for the purpose of determining as to whether the defendants are entitled to any benefit in respect of the said section. In the written statement filed on behalf of the defendants it has been categorically averred that the premises is a residential house in which the defendants 1 to 5 have an undivided half share, and that the plaintiff is a stranger outsider to the said family. In view of the same and the evidence in support thereof I am unable to accept the submission made that it was necessary to include in the pleadings the evidence required to be relied upon. I further reject the contention of the plaintiff that any other further facts are required to be established. The decision reported in : AIR1964Cal52 (supra) does not advance the plaintiff's case any fur-ther, and is of no assistance to him. I also reject the contentions that a separate application is necessary and that the averments in the written statement are insufficient to entitle the defendants to seek relief under Section 4 of the Partition Act- The case relied on, namely, : AIR1971Cal543 was considering the effects of no undertaking being given nor any application being made by the defendant No. 10 for pre-emption under the Partition Act although that the defendant was entitled to such a right, was pleaded in the written statement and an issue was raised thereon. On the fact of a categorical undertaking given to the Court from the witness-box in the instant case, the said case is plainly distinguishable.
15. On the point of time as to when the valuation is to be made I accept the contention of the learned Advocate for the plaintiff and I hold that the relevant time which requires to be considered is the time when the undertaking is given and it is only at that point of time when valuation can be made as envisaged by the said section. This Court respectfully disagrees with the reasonings of the judgment delivered in : AIR1963Ori40 relied on by the learned Counsel for the defendants. To my mind, Section 4 does not contemplate that the market value is to be taken on the date of institution of the suit. It is true that the sale by the stranger to the co-sharer being in the nature of a forced sale or under compulsion, valuation of the premises has to be determined with great care and caution so as not to cause any hardship to either of the parties.
I find however considerable force in the submission made by the learned Advocate for the plaintiff that the valuation thereof should be made on the date when an undertaking to purchase is given, and the wordings of Section 4, to my mind, also indicate that such valuation is to be made only when an undertaking is given by any member of the family to buy the share in question. In reaching this decision I have also considered that no separate application has been made by the defendants for obtaining the benefit under Section 4 of the Partition Act and a mere averment in the Written Statement that they are entitlted to the said benefit and claim the same cannot ipso facto give them a right to claim such relief. This suit was filed in 1969, and inasmuch as the defendants have not taken any steps to obtain any prior decision from the Court on this aspect, they cannot take advantage of the long years involved in litigation. Moreover, the cause of action in so far as the defendants are concerned is based on the undertaking given, which was given for the first time in Court and prior to the said undertaking being given no order for valuation could have been made. Inasmuch as it is A judicious discretion which is requiredto be exercised by the Court, in coming to the conclusion as to what is the relevant time for ascertaining the market value of the suit premises, this Court has considered that all the necessary requisites under Section 4 of the Partition Act including the undertaking given was complied with as late as Aug. 30, 1978. The valuation of the suit premises has thus to be ascertained necessarily as on that date and the property could not have been purchased by the defendants prior to such time.
16. Inasmuch as the defendants did press issue No. 1 it is not necessary to record any decision thereon. Issue No. 2, is however, answered in the affirmative and in favour of the defendants 1, 2 and 3.
17. There will accordingly be a preliminary decree for partition declaring the shares of the parties, namely, half share to the plaintiff and half share in the suit property to the defendants 1 to 5. As the defendants do not seek partition amongst themselves and inasmuch as this Court has held that the defendants Nos. 1 to 3 are entitled to purchase half share of the plaintiff under Section 4 of the Partition Act, no decree for partition by metes and bounds is called for.
18. Mr. S. K. Deb of 6, Old Post Office Street, Calcutta is appointed Surveyor, Commissioner to ascertain the proper market value of the undivided half share of the plaintiff in the suit premises No. 23, Krishnaram Bose Street, Calcutta as on 30th August, 1978. Such valuation to be made in presence of the parties and after giving due notice to them. The initial remuneration of the Surveyor for valuing the property is in the first instance fixed at 60 G. Ms. which will be paid by both the parries in equal shares. The surveyor will submit his report to this Court by 31st Jan. 1979.
19. An earlier order of the Court dated 27th April, 1970 directing the defendants Nos. 1 to 3 to deposit with the Official Receiver who had been appointed Receiver over the portion of the premises in the plaintiff's occupation a sum of Rs. 30/- per month as occupation charges has not been strictly complied with and it is admitted by the defendants that a sum of Rs. 1980/- is due and owing uptil July 1978. It is further admitted by the parties that a sum of Rs. 2,033.66 p. has been paid by the defendants 1 to 3 in respect of the rates and taxes (both shares) upto first quarter of 1978, i. e. March 1978 payable by the plaintiff and defendants jointly. In this view of the matter the defendants will adjust the said payments made anddeposit with the Official Receiver only a sum of Rs. 1,000/- in compliance with the earlier order and will also continue to deposit a sum of Rs. 30/- per month as directed, beginning from the month of Aug. 1978 until further orders. The Official Receiver will hold the said sum until further orders of this Court. The defendants being in occupation of the entire premises will pay both share of taxes of the premises on and from April, 1978.
20. Each party to pay and bear its own costs.
21. Liberty to apply.
22. All parties and Surveyor to act on a signed copy of the minutes.