Judgement PATRA, J. : In a suit for partition in respect of a family dwelling house of a Mohammadan family it was found that defendant No. 6 and his wife defendant No. 7 who had a share in the house had sold the same to their son-in-law defendant No. 11. Defendants 1/Ka and 1/Kha who are admittedly members of the family filed an application under Section 4 of the Partition Act (hereinafter called the Act) to purchase the share of defendant No. 11 in the family house on the ground that defendant No. 11 is a stranger to the family. The trial Court found on evidence that defendant No. 11 and his wife were coming to the house of defendant No. 6 frequently and staying there and on the basis of this finding he held that defendant No. 11 can be treated as a member of the undivided family qua the dwelling house. Although the appellate Court did not record a specific finding on this disputed question of fact, it is clear from his judgment that he accepted the finding of the trial Court as would appear from the following passage in his judgment. "The appellants should have adduced evidence to show that in their community a son-in-law who resides with his father-in-law for a very long period is treated as a stranger". He upheld the decision of the trial Court and dismissed the appeal. Being aggrieved by this decision defendants 1/ka and 1/kha have preferred this second appeal. 2. Mr. P. K. Dhal, learned Advocate appearing for the appellants does not assail the finding that defendant No. 11 with his wife was frequently residing in a portion of the family dwelling house which had been purchased by defendant No. 11 from defendants 6 and 7. His main contention is that notwithstanding this finding, the Courts below ought to have held that defendant No. 11 is a stranger to the family and that consequently defendants 1/ka and 1/kha are entitled to purchase his share. Section 4 of the Act so far as is relevant runs thus : "4. Partition suit by transferee of share in dwelling house. Section 4 of the Act so far as is relevant runs thus : "4. Partition suit by transferee of share in dwelling house. - (1) Where a share of 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 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 share-holder, and may give all necessary and proper directions in that behalf. x x x" The term 'family' occurring in this Section is not defined in the Act and it is not possible nor desirable to frame a comprehensive formula or exhaustive definition to indicate all that is understood by the term "family". In one of the earliest decisions of the Calcutta High Court in Khirode Chandra Ghoshal v. Saroda Prosad Mitra (1910) 7 Ind Cas 436 (Cal) the learned Judges had to consider the exact connotation of this term as used in Section 4 of the Act. Ashutosh Mukherjee, J. after a through discussion in the course of which referred to several English cases on the point, concluded thus : "The word "family", as used in the Partition Act, ought to be given a liberal and comprehensive meaning, and it does include 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' was intended to be used in a very narrow and restricted sense namely a body of persons who can trace their descent from a common ancestor". In that case, the owners of the property who were descendants of the founder were all daughters. They had been married, some lived with their husbands in the husbands' 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 had transferred their interests to their husbands who however, lived in the family dwelling-house of their father-in-law. They had been married, some lived with their husbands in the husbands' 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 had transferred their interests to their husbands who however, lived in the family dwelling-house of their father-in-law. On these facts, the learned Judge held that regard being had to the Hindu social customs and manners, it is difficult to hold that the term 'family' is not comprehensive enough to include such a body of persons and that in those cases where there are no male children in the family and the daughters alone are entitled to the inheritance, their husbands very often live as members of the family, and they with their wives may appropriately be treated as members of the family. The principle enunciated in this decision, which related to a Hindu family was applied to a Mohammedan family in Latifannessa Bibi v. Abdul Rahaman, (AIR 1934 Cal 202). In the context of Section 4 of the Act, the question arose whether with reference to the undivided family of which one Shamsuddin was the common ancestor, his daughter's son Aftabuddin who acquired an interest in the undivided family house partly by inheritance and partly by purchase can be treated to be a member of the family. Notwithstanding the finding that Aftabuddin who was a Government servant was not even constantly residing in the house, it was held that for the purpose of Section 4 of the Act, he must be deemed to be a member of the undivided family. 3. Mohammed Suleiman Khan v. Amir Jan (AIR 1941 All 281) where again the parties were Mohammedans, related to two married daughters - one occupying the house permanently, and the other, though she lived mostly with her husband had not permanently abandoned all intention of occupying the house. In the context of Section 4 of the Act it was held that the daughters must be regarded as members of the undivided family. In the context of Section 4 of the Act it was held that the daughters must be regarded as members of the undivided family. In a subsequent decision of the Allahabad High Court in Salim Ullah v. Faqir Ullah, (AIR 1948 All 142) it was held that there is nothing in the Partition Act to warrant the suggestion that the term "family" was intended to be used in a very narrow and restricted sense, namely, a body of persons who can trace their descent from a common ancestor. According to the learned Judge, the principle underlying Section 4 of the Act appears to be to maintain the integrity of a body of people knit together by the tie of common residence and that therefore the words "undivided family'' must be taken to mean undivided qua the dwelling house in question and a family which owns the house but not divided it. 4. A Division Bench of this Court in Bibuni Bewa v. Padmanay Swain, ILR (1956) Cut 148 : (AIR 1956 Orissa 105) following (1910) 7 Ind Cas 436 (Cal) held that a widowed daughter residing in the father's family and not receiving any maintenance from her husband's family can be regarded as a member of the undivided family of the father for the purpose of Section 4 of the Act, and on the self-same principle. Misra, J. (as he then was) in Paluni Dei v. Rathi Mallik, (1965) 31 Cut LT 380 : (AIR 1965 Orissa 111) held that a married daughter who at times resides in the house of the father must be treated as a member of the undivided family qua the dwelling house. 5. Mr. Dhal then relied somewhat faintly on a decision of the Judicial Commissioner's Court in Mian Jaffar Shah v. Mt. Bibi Gulla, AIR 1943 Pesh 79 which relates to a Mohammadan family and where the learned Judicial Commissioner held that where a Mohammadan owning a house jointly with his brothers transfers a share in the house to his wife the brothers are entitled to offer to buy the share transferred as the wife must be deemed to be a stranger within the meaning of Section 4 of the Act. This is a view which appears to us to be opposed to the consensus of opinion reflected in the decisions already quoted. This is a view which appears to us to be opposed to the consensus of opinion reflected in the decisions already quoted. It is difficult to accept the position that the wife of a brother is a stranger to the family. In the Peshawar case it appears that Mt. Bibi Gulla (the wife of one of the brothers) could not pull on with her husband and left him. It may be that this circumstance had influenced the learned Judicial Commissioner to hold in that particular case that under the circumstances she can no more be regarded as a member of the family. Consequently the decision must be held to be confined to the facts of the case. If however the learned Judicial Commissioner wanted to lay down as a general proposition of law that the wife of a brother is not a member of the family, we must with respect dissent from that view. 6. In the result, we find no merit in this appeal which is accordingly dismissed, but in the circumstances without costs. 7. R. N. MISRA, J. : I agree with the result indicated by my learned brother. 8. One of the reasons why I had referred this Second Appeal to be heard by a Division Bench was to resolve the conflict between the decisions of this Court in the case of Banchhanidhi v. Balaram, AIR 1951 Orissa 180 and in the case of Sundari Bewa v. Ranka Behara, (1968) 34 Cut LT 379 : (AIR 1968 Orissa 134). In the latter case it was held that for the application of Section 4 of the Partition Act one of the requirements must be that the transferee sued for partition. The learned Appellate Judge relied upon this decision and held that relief under Section 4 of the Partition Act was not available to the defendants 1/ka and 1/kha as the purchaser defendant No. 11 had not asked for partition. 9. In the meantime a Division Bench of this Court in the case of Alekha Mantri v. Jagabandhu Mantri, (1970) 36 Cut LT 882 : (AIR 1971 Orissa 127) has resolved the conflict by holding that the decision of this Court in (1968) 34 Cut L T 379 : (AIR 1968 Orissa 134) did not correctly state the law on the point. The expression "such transferee sues for partition" occurring in Section 4 of the Act can as well apply to a transferee defending a suit for partition.