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5. The point made before us by Mr. Jana appearing on behalf of the appellants is that, in the facts and circumstances of this case there was no 'dwelling house belonging to an undivided family', which had been transferred to a stranger purchaser, and, therefore, Section 4 of the Partition Act had no application. Mr. Jana argued as follows: He said that Debendra had let out the premises to tenants and his only son, Jnanendra had purchased his own house and removed there in 1949, The daughter were all married and were living in the houses of their respective husbands or elsewhere but not in the said premises. He further pointed out that Amar Ghosh got his share in the said premises not by inheritance but as a result of a deed of gift. From this he argued that there was no undivided family and the premises in question was not dwelling house belonging to an undivided family so that it cannot be said that the appellant had purchased a share of a dwelling house belonging to an undivided family. It is, of course, not disputed that the appellant is not member of the family, but if the premises is not a dwelling house belonging to an undivided family then of course Section 4 would have no application. Really speaking, therefore, the point to be considered is as to the real meaning of the expression "dwelling house" and "undivided family" as used in Sub-section (1) of Section 4 of the said Act. Upon this point, there is a divergence of opinion between the various High Courts in India. We are, however bound by the views expressed on decisions of this Court which I shall now proceed to enumerate. The first casa to be cited is a Bench decision of this Court presided over by Mr. Justice Ashutosh Mookerjee -- Kshirode Chundar Ghosal v. Saroda Prosad Mitra, 12 Cal I. J 525. Mookerjee J., held that the elements which must co-exist to attract the operation of Section 4 of the Partition Act were, first, that the dwelling house should belong to an undivided family; secondly, that a share thereof should have been transferred to a person who was not a member of such family; and thirdly, that the transferee should sue for partition. It has now been decided, and the position is not disputed before us that, even where a suit for partition was not brought by the transferee but by a member of the joint family, the provisions of Section 4 were applicable. It was held that the word 'family' as used in "the Partition Act, ought to be given a liberal and comprehensive meaning, and it included a group of persons related in blood, who live in one house, or under one head or management. There is nothing in the Partition Act to support the suggestion that the term 'family' is intended to be used in a very narrow and restricted way, namely a body of persons who can trace their descent from a common ancestor. In that case, the owners of the property were fifth in descent from the founder and were all daughters. They were all married, some living with their husbands in their ancestral dwelling house, while others lived occasionally in the same place, and at other times in the houses of their respective husbands. Two of these daughters were said to have transferred their interests to their respective husbands. It was held that the owners of the said premises constituted a "family" within the meaning of Section 4. The second ground urged was that even if the owners constituted a "family" within the meaning of Section 4 of the said Act, they did not constitute an "undivided family" to whom the dwelling house belonged. Mookerjee, J. said as follows;

9. The situation that arose in that case was that a member of the family transferred his share of the dwelling house to a stranger, while the remaining members continued to be in joint possession. Mitter, J. pointed out that in such a case under Section 44 of the Transfer of Property Act the 'stranger would not be entitled to joint possession and therefore, the position would not be affected so far as Section 4 of the Partition Act was concerned. The 'earned Judge pointed out that the Courts have not hesitated to put a liberal construction upon the Partition Act and to interpret the provision in such a way as would promote and fulfil the object of this piece of legislation' which is to preserve the integrity of a family dwelling house and enable the members of the family to keep it for themselves as far as possible. Section 4 of the Partition Act recognises that a person may be a member of the, family although he may not be owning a share in the dwelling house. It confers the right to apply, on "any member of the family being a share-holder": the additional qualification of being a share-holder would not be necessary, if the intendment of the section was that membership of the family was equivalent to co-ownership of the house. Where the sites of the huts and of the homestead as a whole were the undivided property of the cosharers, the existence of separate huts of the cosharers does not destroy the integrity of the dwelling-house.

(2) A liberal interpretation is to be put upon the provisions contained in Section 4 of the Partition Act, as would promote and fulfil its object, which is to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible.
(3) The expression, 'share of a dwelling house belong-in to an undivided family" occurring in Section 4 of the Partition Act is to be construed in the same way as the expression is construed in Section 44 of the Transfer of Property Act. Section 4 of the said Act carries forward the law laid down in Section 44 of the Transfer' of Property Act.

14. Lastly, Mr. Jana has taken the point that by virtue of the Hindu Succession Act, married daughters who are not actually in possession of a' family dwelling house and are not entitled as a matter of right to reside In the family dwelling house are not entitled to ask for partition thereof, unless the male members themselves ask for partition. From this he argues that a married daughter living in tier husband's house, having no right to reside in the ancestral dwelling house, cannot be said to be a member of an undivided family owning a dwelling house within the meaning of Section 4. In my opinion, this argument is of no substance. As I have mentioned above, actual occupation is not the material test. Cases have been stated above where a property devolved on married daughters, some of whom continued to reside in the ancestral dwelling house while others went to live with their husbands and occasionally visited the ancestral dwelling house. It was held that under such circumstances the provisions of Section 4 were attracted. The very fact that under the Hindu succession Act, married daughters may become owners of the family ancestral dwelling 'house without a right of residence therein, should induce the Court to give a still more liberal interpretation to the provisions of Section 4. In such a case, the right of ownership is there but the right of actual occupation is inchoate. It cannot be said in such a case that a married daughter does not hold the property jointly with the other co-sharers, thereby forming an "undivided family" within the meaning of Section 4 of the Partition Act. Applying the well-known test, the property being undivided is still within the scope of Section 4. It is to be noted that although a married daughter has no right of residence in the ancestral dwelling house, she may come to possess that right under certain circumstances, for example, where she has been deserted or separated from her husband, or where she becomes a widow. Therefore, there is no absolute bar against the residence of a married daughter in the ancestral dwelling house. However, when a suit for partition is brought by any of the male members, she is entitled to her share and her right of residence is revived. It would not be fair, therefore, to deprive her of the right to exclude strangers in a suit for partition, In conformity with the provisions of Section 4 of the Partition Act.