Judgment L.M. Ghosh J: 1. In a suit for partition filed by the plaintiff against the defendants, several contentions were raised on behalf of the defence, but ultimately only two points survived for consideration by this court. The facts lie within a short compass find are set out below: 2. It is not disputed that the property belonged to one Manmatha who got it by a settlement made by Ambica. It is also beyond controversy that on the death of Manmatha his son Lalbehari and his widow, Prafulla Bala (defendant No. 6 got the suit propery in equal share although there was some minor dispute as to when Manmatha had died. According to the plaintiff, Manmatha died in 1939, but according to the defence Manmatha died in 1937. But it is of no materiality now, since the parties proceeded on the footing that the properties of Manmatha devolved on Lalbehari and Prafulla Bala, his widow. The plaintiff purchased 8 annas share of Prafullabala in the suit property by a Kobala dated 5.4.62. Then the plaintiff filed the suit for partition against the defendants. The defendants 1 to 5 are the successors-in-interest of Lalbehari. The defendant No.6 is Prafullabala, the widow of Manmatha. The defence did no deny the plaintif's purchase but contended that the suit was barred by limitation and adverse possession, that the suit was bad for partial partition and that the suit was also hit by s. 23 of the Hindu Succession Act "hereinafter referred to as the Act). Last of all, defendants also claimed to buy up tinder s 4 of the Partition Act. 3 The learned trial court negatived the contentions that the suit was barred by limitation and adverse possession. The trial court also did not accept that the suit was barred by s. 23 of the Act or that it was defective on .account of partial partition. But, the learned trial court allowed the prayer under s. 4 of the Partition Act. 4, The learned first appellate court confirmed all the findings of the learned trial court, except as to s. 4 of the Partition Act. It may also be noticed that the learned first appellate court, though accepted that the wit was not barred by s. 23 of the Act, his reasoning for keeping out of play s. 23 was somewhat different from the reasoning of trial court. It may also be noticed that the learned first appellate court, though accepted that the wit was not barred by s. 23 of the Act, his reasoning for keeping out of play s. 23 was somewhat different from the reasoning of trial court. The result was that while-trial court passed a decree for partition, subject to the right of the defendants to buy up under s. 4 of the Partition Act, the learned first appellate court granted a decree simpliciter for partition, without making the same subject to the right of the defendants under s. 4 of the Partition Act. The appeal was allowed to that extent and the judgment and the decree of the learned trial court were modified accordingly. 5. against that judgment and decree of the first appellate court, this second appeal has been preferred. 6 Mr. Roy, the learned Advocate for the appellants, has argued on two points: the plaintiff's claim for partition is barred unders. 23 of the Act and that the defence claim for buying up under s. 4 of the Partition Act cannot be ignored under the law. 7. None appears today on behalf of the respondents. It has already been noticed that there is not much controversy regarding the other points. That Prafullabala, defendant no. 6, got 8 annas share in the property from Manmatha, is not disputed. Whatever might be the controversy regarding the date of death of Manmatha, the parties have accepted the position that the properties of Manmatha devolved on lalbehari and Prafullabala. 8. The defence case of adverse possession was not accepted by the two courts below. This is a concluded fact and based on cogent evidence. The plaintiff purchased the same in 1962. In the defence, there was no case that Prafullabala was ousted. The suit was filed in 1968 So, there could not be any question of adverse possession against the plaintiff, who purchased in 1962. The suit was filed within six years much shorter than 12 years. And, as already noted if there was no ouster of Prafullabala, the plaintiff stepped into the shoes of Proaullabala and he became a co-sharer with the defendants. Against the plaintiff also, there is no specific case of ouster. Therefore, the learned courts below rightly decided that the suit was not barred by limitation or ad verse possession. 9. And, as already noted if there was no ouster of Prafullabala, the plaintiff stepped into the shoes of Proaullabala and he became a co-sharer with the defendants. Against the plaintiff also, there is no specific case of ouster. Therefore, the learned courts below rightly decided that the suit was not barred by limitation or ad verse possession. 9. As to the plea of partial partition, from the records, it is made clear that in the suit property only the plaintiff and the defendants are interested. There might be other properties in Hooghly, belonging to different co-sharers but there is no community of interest in the suit property as between the parties and the other co-sharers. It is well known that the rule against partial partition is not an inflexible rule and it admits of several logical exceptions. One such exception is where bringing in other properties and other persons who have no community of interest in a specific property, would be to complicate the suit itself. That is the finding of the trial court and upheld by the learned first appellate court. We find no ground to interfere. 10. Mr. Roy, the learned Advocate for the appellants has argued that the suit of the plaintiff for partition is obviously barred by s. 23 of the Act. Undoubtedly, the plaintiff could not be considered to be a member of the family to which the suit property belogged. The plaintiff claims through a Hindu female, Prafullabala. Now s. 23 puts a bar on the right of the Hindu female to claim partition of the dwelling house until the male heirs choose to divide the respective shares therein. Mr. Roy contends that what the female heir was not enabled to do the person claiming through the female heir cannot do. We are, however, of the view that the disablement created by s. 23 of the Act does not apply her for two reasons. Firstly, the bar of s. 23 operates only when the female heirs specified in Class-1 of the schedule inherits the property under the Act of 1956. If the female heir heirs acquired the property otherwise than under this Act of 1956, then the bar would not specifically apply. Firstly, the bar of s. 23 operates only when the female heirs specified in Class-1 of the schedule inherits the property under the Act of 1956. If the female heir heirs acquired the property otherwise than under this Act of 1956, then the bar would not specifically apply. For example, if Prafullabala acquired the property under the Hindu Women's Right to Property Act, 1937, it would not be logical to contend that the bar of s. 23 of the Act of 1956 would be attracted. For, in that case Prafullabala could not be described as any of the heirs specified in Class-I of the Schedule. This position has been made clear in the decision reported in AIR 1963 Cat. 29 (Upendra Neth Das v. Chintamoni Debi). We have also noticed that the law on the point appears clear from the reading of the section itself. Mr. Roy the learned Advocate for the appellants, has cited a decision reported in AIR 1981 Andhra Pradesh 84, which expressed a contrary view. We cannot ignore the Division Bench decision of the Calcutta High Court for placing reliance on a single bench decision of the Andhra Pradesh High Court. The reasoning of the Andhra Pradesh High Court is that since the right conferred on a Hindu widow' under s. 3(3) of the Hindu Women's Right to Property Act to seek partition of a dwelling house is inconsistent with the provisions of s. 23 of Hindu Succession Act, it stands repealed by s.4(b) of the Act. With respect, we cannot accept this decision as laying down the correct law for in view of the provisions of s. 23 of the Act in a case like ours. Even if it be held, as observed in the Andhra Pradesh case, that the right to seek partition under the Hindu Women's Right to Property Act stands cancelled by s. 4(b) of the Hindu Succession Act, we cannot hold that the Hindu widow in this case became an heir specified in Class-I of the Schedule of Act, 1956. because the Hindu widow in this case acquired interest in the to property even before the coming into operation of the 1956 Act and cannot fit in with Class-I of the Schedule. To do so would be importing something which is not in the section itself. because the Hindu widow in this case acquired interest in the to property even before the coming into operation of the 1956 Act and cannot fit in with Class-I of the Schedule. To do so would be importing something which is not in the section itself. We reiterate that s.23 of the Act is not attracted to a case where succession opened even before the coming into operation of the Act. 11. Section 23 of the Act cannot apply for another reason. Admittedly, it is a residential house. It is also not disputed that the whole of it was tenanted, when the suit was instituted. If such be the position, s. 23 of the Act cannot come into operation, because that stipulates that the property must be a dwelling house wholly occupied by members of the family. When the suit was filed, it was wholly let out to tenants. This day, an affidavit is filed on behalf of the appellants to refer to some subsequent events. It is stated that one tenant living in one room left and delivered amicable possession of the room to some of the appellants. As regards the other room, it is merely stated that the other tenant, Fate Chand Agarwalla, also left the room out of the disputed premises. This is very vague and undoubtedly it does not make out a case of possession of the defendants-appellants. The tenant may have left the room for a temporary period and there might be possibility of his coming back. In any case, the defendants have not come out with a case that they got physical possession of the other room. As long as the possession of the tenant is not validly terminated in due course of la w, the possession of the tenant remains, wherever he might be. The defendants cannot be said to be in possession of the of her room at least. Therefore, even after noticing the subsequent development, we do not get that the suit property is wholly occupied by members of the family. The decision in the case of Usha Majumder v, Smriti Basu ( AIR 1988 Cal. The defendants cannot be said to be in possession of the of her room at least. Therefore, even after noticing the subsequent development, we do not get that the suit property is wholly occupied by members of the family. The decision in the case of Usha Majumder v, Smriti Basu ( AIR 1988 Cal. 115 ) is an authority for the principle that for attracting s. 23 of the Hindu Succession Act, 1956, the dwelling house must be wholly occupied by the members of the family and the operation of the Section would not be available even if a part of the house remains in the occupation of tenant. For these reasons, we are of the view that s. 23 of the Act cannot be a bar to the plaintiff's claim of partition. We may also add that ordinarily, the court decides the case on the basis of the cause existing on the date of the suit but in certain circumstances, the court can, and sometimes should, take notice of subsequent development. There is no dispute that on the date of the suit, the whole of the property was occupied by the tenants. On the basis of that cause, the plaintiff's claim for partition cannot be resisted, invoking s. 23 of the Act. And, as noticed before, even if the subsequent event is considered, we do not get that the whole of the property is occupied by the members of the family. We conclude that the suit cannot be barred by s. 23 of the Hindu Succession Act, 1956. for the reasons stated before. Mr. Roy, the learned Advocate for the appellants has also contended that under s. 22 of the. Hindu Act, the defendants can buy up the property. We are of the view that s. 22 of the Act, 1956 cannot be attracted to such a case as ours, because it contemplates a proposed transfer and not a concluded transfer. That would be abundantly clear from The wording of the Section itself any of such heirs proposes to transfer his of her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. It is noticeable that the word "proposed" has been used in two places, in relation to transfer. Moreover, there is also a significance in the word "preferential right to acquire". It is noticeable that the word "proposed" has been used in two places, in relation to transfer. Moreover, there is also a significance in the word "preferential right to acquire". There is yet another point and it is that if s. 22 can be extended to a case of concluded transfer, there would be no limitation, which cannot be the intendment of the Act. Mr. Roy has relied upon the decisions reported in AIR 1971 Orissa 66 and 80 C WN 994. Both these decisions are single Bench decisions and with respect we are unable to accept the reasoning of the decisions. We have already observed that the wording of s. 32 itself would dearly suggest That it refers to proposed transfer and not a concluded transfer and that if a very wile meaning is given, then many incongruous situations might arise. Although s. 22, as it is, is unhappy it cannot be extended to operate in a field which is not assigned to it. We are of the view that s. 22 is not applicable. 12. The last point for consideration is whether the defendants can claim to buy up the property under s. 4 of the Partition Act. The learned trial court acknowledged that claim of the defendants, but the first appellate court set aside that part of the judgment and decree of the learned "trial Court. We are of the view that the approach of the learned first appellate court is not correct. It seems that he has been influenced by the consideration that the property was tenanted. But it is settled law that s. 4 of the Partition Act is available even in respect of tenanted lands, for there is - the chance that the landlords at some point of time may resume possession. As authorities for this proposition, we place reliance on the decisions reported in 56 CWN 681 and AIR 1960 ell! 467. If the house is not wholly occupied by the members of the family, the operation of s. 23 of the Hindu Succession Act may be arrested or it may be rendered nugatory, hut for that reason s. 4 of the Partition Act cannot be rendered otiose, because its field of operation is different. Undoubtedly, the suit property is a dwelling house. Undoubtedly the same belonged to the defendants and Prafullabala. Undoubtedly, the suit property is a dwelling house. Undoubtedly the same belonged to the defendants and Prafullabala. Undivided family means undivided qua the dwelling house and stress is not laid on blood relationship. Therefore, the property was the undivided dwelling house and the plaintiff must be considered stranger in relation to that, though there is some indication that he is related in blood to the defendants. Therefore, we notice that all the conditions of s. 4 of the Partition Act are fulfilled. There is nothing to prevent the defendants 1 to 5 from exercising their option to purchase the suit property on proper valuation. That part of the claim of the defendants must be allowed and the decree of the learned first appellate court must be modified to that extent. 13. In the circumstances we confirm the judgment and decree of the learned two courts below regarding the decree for partition. We, however, modify the decree of the learned first appellate court, disallowing the defence prayer under s. 4 of the Partition Act and grant that prayer as the trial court did. The appeal is allowed to that extent and the judgment and the decree of the learned first appellate court are modified and the judgment and decree of the learned trial court are restored with some further modifications, needed because of the lapse of time. The preliminary decree for partition of the plaintiffs is made subject to the right of pre-emption exercisable by the defendants 1 to 5. The defendants 1 to 5 are at liberty to buy lip the shares of the- plaintiffs according to the valuation to be assessed by Commissioner appointed by the court on the application of the defendants 1 to 5. The defendants 1 to 5 must make such ~in application within three months from the date of intimation of the arrival of the lower court records of the trial court. The learned trial Court will fix a date for intimating to the parties about the state of the case. The defendants will make application if they to desire within three, months from that date. The learned trial Court will fix a date for intimating to the parties about the state of the case. The defendants will make application if they to desire within three, months from that date. After the Commissioner has finally ascertained that valuation of the suit property, on the basis of the present market valuation and after the same has been accepted by the court, the defendants would be required to deposit in court the money representing such valuation within two months from the date of the final acceptance of the valuation. If the defendants fail to exercise their choice in the manner as prescribed, the plaintiffs will be entitled to pray for partition by metes and bound by the appointment of an Advocate Commissioner and for making the decree for partition final. We make no order for costs of this appeal. Pabitra Kumar Banerjee, J.: I agree. Appeal allowed; decree modified; direction given.