Rai, J.

(1) This appeal by the plaintiff is directed against the judgment and decree of the Additional District Judge of Muzaffarpur affirming those of the Additional Subordinate Judge, 2nd court of the same place.

(2) The plaintiff filed the present suit for a declaration of his one-sixth interest in the holding in suit and for confirmation of possession or in the alternative for recovery of possession of his share. He also prayed for partition of his one-sixth share of the property in dispute in case it be not possible for the court to direct the defendant to sell to the plaintiff the remaining five sixth share of the holding together with the house standing on it for a consideration of Rs. 2916/10/-.

(3) The case of the plaintiff was that the property in suit along with other properties were inherited by him and his two brothers Girish Chandra Chakraverty and Subodh Chandra Chakraverty, from their mother Khetramoni Debya. In the property in suit, the share of Subodh Chandra Chakraverty was half and the remaining half belonged to Khetramoni Debya, after whose death, each of her three sons, namely, Subodh Chandra. Chakraverty, Girish Chandra Chakraverty and the plaintiff inherited one-third of one-half, that is one-sixth share in the property in dispute. Girish Chandra Chakraverty sold his one-sixth share in the property to Srimati Radha Rani, wife of Subodh Chandra Chakraverty. Thus Subodh Chandra Chakraverty and his wife became the owners of five-sixth share in the property and the remaining one-sixth share belonged to the plaintiff. On 24-9-1943, Subodh Chandra Chakraverty and his wife Srimati Radha Rani sold the entire property in suit be defendant

1. As the defendant refused to partition the properties amicably, it became necessary for the plaintiff to institute the present suit.

(4) The suit was contested by the defendant. Her plea was that the suit was not maintainable for the non-joinder of Subodh Chandra Chakraverty and his wife Srimati Radharani. According to her, unless the entire holding of 7 kathas be Included in the suit, it is not maintainable. Her case further was that the property in suit belonged to her vendors exclusively by some amicable arrangement, who had been, on previous occasions, dealing with this property as if they were its exclusive owners. Subodh Chandra Chakraverty alone had after the death of his mother, mortgaged the property in suit to Khirodeshwar Bose who ultimately realised his dues by instituting a mortgage suit. Subodh Chandra Chakraverty had further mortgaged the property in suit to Srimati Charusheela Devi for Rs. 1000 by a registered mortgage bond dated 15-7-194

1. He had executed another mortgage by way of a conditional sale in favour of Sachindra Chandra Mukherjt and another for Rs. 1750 and had put the mortgagees in possession of the property in suit. The defendant pleaded that she had purchased the property in suit in good faith for a valuable consideration from its ostensible owners, and had thus acquired a valid title to it. According to her, even if it be held that the plaintiff had one-sixth share in the property in dispute he should not be allowed to get more than one-sixth of Rs. 3500 which was the consideration for the sale deed in her favour. On these and other allegations she pleaded that the suit was fit to be dismissed.

(5) The trial Court came to the conclusion that the defendant had failed to prove any private arrangement between the plaintiff and Subodh Chandra Chakraverty by which the property in suit had fallen to the share of the latter. It further held that the suit was not bad for non- joinder of Subodh Chandra Chakraverty and his wife and that it was not necessary for the plaintiff to include, in the present suit, the entire holding of 7 kathas as alleged by the defendant. The trial court, however, held that, in the circumstances of the present case, the plaintiff was entitled to get, out of the consideration money of Rs. 3500, an amount proportionate to his one-sixth share. The suit was thus decreed for recovery of Rs. 700 with proportionate costs at the ex parte scale. The plaintiff thereafter went in appeal.

(6) Before the lower appellate court it was urged on his behalf that the plaintiff was entitled to purchase the remaining five-sixth share of the property in dispute in accordance with the provisions of Section 4, Partition Act (Act 4 of 1893). The lower appellate court, however, came to the conclusion that, as the present suit was not a suit for pure partition, the provisions of Section 4(1), Partition Act, do not apply to it. In this view of the matter, the appeal was dismissed.

(7) Mr. K. D. Chatterji for the plaintiff-appellant contended before me that his client is entitled to purchase the five-sixth share of the property in dispute in accordance with the provisions of Section 4(1), Partition Act (Act 4 of 1893) which runs as follows:

"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 shareholder, 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, and may give all necessary and proper directions in that behalf."

According to Mr. Chatterji, the plaintiff can claim a relief under Section 4(1), Partition Act, even when the suit for partition has not been filed by the transferee. In support of his contention he relied upon the decisions in the cases of -- Satyabhama De v. Jatindra Mohan Deb, AIR 1929 Cal 269 (A); -- Sheodhar Prasad v. Kishun Prasad, AIR 1941 Pat 4 [LQ/PatHC/1940/113] (B); -- Ram Dulal v. Benode Behari, AIR 1949 Cal 245 [LQ/CalHC/1944/72] (C) and -- Abu Isa v. Dinabandhu, AIR 1947 Cal 426 [LQ/CalHC/1947/33] CD).

(8) Mr. Chatterji next contended that it is the ownership of the dwelling house and not its occupation which attracts the provisions of Section 4(1), Partition Act. In support of his contention he relied on the decision in the case of -- Vaman Vishnu v. Vasudev Morbhat, 23 Bom 73 (E). The facts of that case were as follows:

(9) One Vishnu Bhikaji Gokhale was the owner of the house in question. He died leaving four sons, namely, Krishnaji, Ramchandra, Vaman and Parasuram. In 1874 the shares of Krishnaji and Parasuram in the house in question were sold and purchased by one Karandikar. In 1877, a money decree was obtained against the heirs of Vishnu. In execution of that decree the house in question was sold and ultimately it passed to Vasudev Morbhat Kale. In a subsequent litigation it was decided that half of the share in the house belonged to Karandikar and the remaining half to Vasudev. Vasudev Morbhat Kale instituted a suit for partition and obtained a decree. During the execution of the partition decree Karandikar sold his moiety share in the house to Ramchandra and Vaman. Vaman, thereafter, applied for purchase of the moiety share of Vasudev Morbhat Kale in accordance with the provisions of Section 4(1), Partition Act. His application was rejected by the trial court. On appeal by Vaman, the lower appellate court ordered the sale of the house to the highest bidder as amongst the plaintiff on the one hand, and Ramchandra and Vaman on the other. The sale proceeds were to go half and half to the two sets, of owners of the house. Vaman thereafter went in second appeal before the High Court. The relevant portion of the judgment of Farran, C. J. runs as follows:

"It is the ownership of the dwelling-house and not its actual occupation which brings the provisions of Section 4, Partition Act, into play. The family of Vishnu after the sale in 1877 were either tenants in the house or trespassers. In neither capacity would they possess any privilege-of pre-emption. The question is, whether the dwelling-house at the time, when the shares therein which had not been sold to Karandikar was transferred to the plaintiff, belonged to an undivided family. The answer must, we think, be in the negative. The house then belonged to Karandikar and the heirs of Vishnu whose shares had not been conveyed to Karandikar. When the latter shares were transferred to the plaintiff, he and Karandikar became the owners in common of the house, and it is plain that, as between them, Section 4, Partition Act, had no operation. The subsequent purchase of the interest of Karandikar by Ramchandra and Vaman did not, in our opinion, confer upon them, any rights which Karandikar did not possess. It was in their hands re-acquired ancestral property, but not property belonging to an undivided family within the meaning of Section 4."

This decision, in my opinion, is not of any assistance to the plaintiff.

(10) Mr. Chatterji further relied on the decision in the case of -- Nil Kamal v. Kamakshya Charan, AIR 1928 Cal 539 [LQ/CalHC/1928/13] (F), wherein Mukherji, J. relying on certain decisions observed:

"These decisions lay down that the word family as used in the section ought to be given a liberal and comprehensive meaning, and it includes a group of persons related in blood who jive in one house under one head or management; that it is not restricted to a body of persons who can trace their descent from a common ancestor; that it is not necessary for the members to constitute an undivided family that they should constantly reside in the dwelling house, nor is it necessary that they should be joint in mess; that it is sufficient if the members of the family are undivided qua the dwelling house which they own; that it is the ownership of the dwelling house and not its actual occupation which brings the operation of the section into play; and that the object of the section is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferrers family have a right to live."

In that case, however, the homestead land was once used as the dwelling house of the defendants, but in the present case it has not been established that the house in suit was ever used as the dwelling house of the plaintiff or of Subodh Chandra Chakraverty. The plaintiff himself admitted in his evidence:

"The land to the east of the disputed house was allotted, to me by partition in 192

4. It has nothing to do with the disputed land."

From his evidence it further appears that the house in suit had been in occupation of tenants. Thus, it is clear that the house in suit was not the dwelling house of the plaintiff.

(11) Mr. Banerji on behalf of the defendant-respondent contended that the expression "dwelling house belonging to an undivided family" refers to the family dwelling house and not to any house or building for human dwelling belonging to an undivided family. He relied in this connection on the case of -- J. C. Chatterji v. Maung Mye, AIR 1940 Rang 53 (G). I agree with Mr. Banerji and hold that it has not been established in this case that the house in question, is a "dwelling house belonging to an undivided family" within the meaning of Section 4(1), Partition Act.

(12) Mr. Banerji next contended that his client had been greately prejudiced by the frame of the present suit. If Subodh Chandra Chakraverty and his wife had been added as parties to this suit and if the entire undivided holding of 7 kathas had been the subject matter of the partition suit, it would have been possible to allot to the plaintiff a different area representing his one-sixth share in the area of 31/2 kathas which belonged to his mother out of the entire holding of 7 kathas. According to Mr. Banerji, his client had purchased the property in suit from Subodh Chandra Chakraverty when she had found him alone dealing with it, on previous occasions, to the knowledge of the plaintiff who had admitted in his deposition that his (plaintiffs) name was not recorded in municipal papers as yet. Banerji submitted that his client was entitled to all equitable considerations in the circumstances of this case.

(13) Mr. Banerji next contended that when it is inconvenient to divide a property it should be left in possession of the person who is in occupation of it and the other side may be compensated by paying a cash amount as has been done by the courts below in this case.

(14) In reply, Mr. Chatterji contended that it was not necessary for his client to seek partition Of all the properties left by his mother. In support of his contention he relied upon the cases of -- Lachmi Narain v. Janki Das, 23 All 216 (H) and -- Ram Charan v. Ajudhia Prasad, 28 All 50 (I).

(15) Prom the partition decree dated 19-3-1924 (Ext. 3) it appears that Khetramoni Debya was allotted certain proprietary interest in village Khota besides half share in the house and land appertaining to Municipal No. 697 ward No.

2. The other half of the house and the land in that holding had been allotted to the share of Subodh Chandra Chakraverty. Prom Ex. D, the report of Ravindra Nath Banerji, pleader commissioner in connection with mortgage suit No. 307 of 1938 it is clear that the holding of 7 kathas 15 dhurs had fallen to the share of Subodh Chandra Chakravarty and his mother Khetramoni Debya by the partition decree of 192

4. In this connection the plaintiff who has been examined as P. W. 1, said in his cross-examination:

"Khirodeshwar Bose sued Subodh on the basis of that mortgage bond. Ravi Babu, pleader, was appointed a commissioner to fix the valuation. He made enquiries on the spot in presence of us three brothers."

From Ex. 3 it appears that the share of Subodh Chandra Chakraverty in the house and the adjoining lands was valued at Rs. 1500.

(16) I agree with Mr. Banerji that the defendant has been greatly prejudiced by non-joinder of Subodh Chandra Chakravarty and his wife as parties to this suit. The judgment in this suit will not be binding on them. On the basis of this judgment the defendant cannot claim any compensation from them for the one-sixth share of the property in suit which has been held to belong to the plaintiff. In the circumstances of this case it was essential for the plaintiff to have included the entire holding of 7 kathas 15 dhurs in the suit. In that case it would have been possible to give him another piece of land in lieu of his one-sixth share in the house in suit. But instead of setting aside the decrees of the Courts. below and remanding the case to the trial Court With permission to the plaintiff to amend the plaint, the justice in the case will be met by allowing plaintiff a compensation for his one-sixth share. Prom the report of the pleader commissioner (Ex. D) it is quite clear that the structures standing on the holding were in a very dilapidated condition. The house in suit is a small one and it will not be convenient if the plaintiffs one-sixth share is separated from the remaining five-sixth share. The partition may make the house uninhabitable. Courts of law have in appropriate cases allowed compensation to a cosharer rather than partition the property. This was done in the case of -- Gopal Ram v. Ram Prasad, AIR 1952 Pat 351 [LQ/PatHC/1952/38] (J). The Courts below had granted to the plaintiff a decree for Rs. 700. Mr. S. N. Banerji informed me that his client could in the utmost agree to pay a compensation of Rs. 1000. In my opinion, in the circumstances of this case, the plaintiff is entitled to a decree for Rs. 1000 as compensation for his One-sixth share in the property in suit.

(17) The result is that the decrees of the courts below are modified and this appeal is allowed in part. In the circumstances of this case each party will bear its own costs of this Court and of the Court of appeal below.