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15. Next question that arises for consideration is the ambit, scope and applicability of Section 4(1) of the Partition Act and whether the said premises is a dwelling house belonging to an undivided family as envisaged by Section 4(1) of the Partition Act. On this point it was submitted on behalf of the respondent that before Section 4 of the Partition Act, 1893 is said to be applicable in the facts and circumstances of a case the Court will have to come to a finding that the property which is the subject matter of the application is a dwelling house belonging to an undivided family. According to the respondent, the basic pre-requisite for an application under Section 4 of the Partition Act for exercise of the right of pre-emption is that the property which is the subject matter of the application must be a dwelling house of an undivided family. If on examination of the facts of a particular case it is found that by reason of the co-sharers' dealings with property it has lost its character as dwelling house then in such an event naturally the provision of Section 4 of the Partition Act, 1893 will not apply. It is further submitted that by reason of sale of 5/6th share of the property and delivery of possession of number of the rooms to the purchaser the suit property has lost its character as a dwelling house belonging to an undivided family which is the basic condition for applicability of Section 4 of the Partition Act. It is also submitted that what is important under Section 4 of the Act is that the house has either been put actually in use, though not constant occupation by the owners of the residential house or that condition should be such that it is still possible for them to return to the occupation of the house at some future date. It is also submitted that when some co-sharers have alienated a substantial part of the suit property in favour of the strangers by way of permanent settlement or sale and a portion of the said property has been in possession of the stranger-purchaser for a long time to the knowledge and/or with the consent or approval of the co-sharers then it will no longer be open for the co-sharers residing in a fractional portion of the suit property to contend that it retains the character of the dwelling house belonging to the undivided family. Reliance was placed on the cases of Dulal Chandra Chatterjee v. Gosthabehari Mitra, , and Kalipada Ghosh v. Tulsidas Dutt .

51. In the facts and circumstances of the instant case the respondent is not entitled to the benefit of promissory estoppel According to the respondent, before his purchase of the share of the premises in question the other co-sharers including the appellants declined to purchase the said share. Further, some of co-sharers including the male appellants gave writings to the respondent stating that they declined to purchase the half share of Gopi Ballav Basak. It is to be noted that the lady appellants did not give any such writing to the respondent. Further, in respect of purchase of 5/8th and 1/18th share of the said property no such written declaration was given to the respondent. The other co-sharers including the appellants only declined to purchase the shares of the said premises before the respondent purchased the said shares. It is submitted by the respondent that before his purchase of the share in the suit property other co-sharers including the appellants represented to him that they would not oppose the purchase made by the respondent. These allegations of the respondent have been denied by the appellants. In the facts and circumstances of this case we are unable to accept the above contention of the respondent In our view, the appellants, particularly the female appellants did not make any representation that they would not exercise their right of pre-emption under the statute when such right would accrue to them. The right of pre-emption under Section 4 of the Partition Act arises in favour of the co-owners of a family dwelling house belonging to an undivided family when stranger purchaser of a share of such property files a partition suit. In the instant case it is alleged that the appellants declined to purchase the share of the property before the same was purchased by the respondent but they did not make any representation not to exercise their right of pre-emption under Section 4 when such right would accrue. According to us, in the facts and circumstances of this case no such promise was made by the appellants particularly, the female appellants. The appellants merely declined to purchase the shares offered to them before purchase of the suit property-Expression of such disinclination cannot be said to constitute their giving up of the right of pre-emption under Section 4 of the Partition Act which arose upon filing of the suit by the respondent in 1980. The facts and circumstances of this case do not show that the appellants, particularly, the female appellants made any promise not to exercise their right of pre-emption arising under Section 4(1) of the Partition Act upon filing of the suit by respondent a stranger purchaser on the basis of which the respondent purchased the share in the said property.

57. On behalf of the appellants it has been submitted that waiver being 'the intentional relinquishment of a known right' and the right under Section 4 of the Partition Act having had arisen only subsequently on the institution of the suit for partition by the stranger purchaser, the question of waiver would be of no avail to the respondent. It has been further submitted that a right which may or may not accrue to a person in future depending upon the occurrence or absence of given conditions cannot be waived. In other words a future right cannot be waived. In the instant case the appellants had no right of pre-emption against a co-sharer. Their right of pre-emption arose under Section 4 of the Partition Act only after a suit for partition having been instituted by a stranger purchaser. A stranger purchaser cannot be compelled by a continuing co-sharer to sell his undivided share in the dwelling house at any stage prior to the institution of the suit. A right which cannot be enforced cannot be said to be a known right, and hence the same cannot be waived. There is no knowing whether a suit for partition would at all be instituted during the lifetime of a co-sharer. It was also submitted that Section 4 of the Partition Act deals with transfer of title and not of possession. Nature of possession of the property by the stranger purchaser is, therefore, not of much consequence in dealing with an application under Section 4 of the Partition Act. Possession would merely follow the title.

THIRDLY, in the father's brother or fathers brother's son of the vendor : FOURTHLY, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof.

61. There is a difference in the language of Section 15( 1)(a) of the Punjab Act and Section 4(1) of the Partition Act. Section 15(1)(a) provides that "The right of pre-emption in respect of agricultural land and village immovable property shall vest". Section 4(1) of the Partition Act provides that "where a share of a dwelling house.......... the Court shall, if any member of the family being a share-holder 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 directions in that behalf. The difference in the language used in the two statutes should be noted. The language of the Punjab Act that the right which was attached to the land would vest upon a person under certain circumstances. But under the Partition Act the right accrues to a shareholder when the conditions laid down in Section 4(1) are fulfilled. Hence the right of pre-emption accrues to a shareholder after a partition suit is filed by the stranger purchaser. In this connection see Bharat Singh v. Rishi Kumar. .