Arun Kumar Bhattacharya ( 1 ) THE hearing stems from an application under Article 227 of the Constitution of India filed by the petitioner praying for revision of the order dated 28. 06. 2005 passed by the learned Additional District Judge, Second Court, Maldah in Misc. Appeal 26/2003 setting aside the order being No. 8 dated 28. 10. 2003 passed by the learned Civil Judge (Jr. Div.), First Court, Maldah in O. C. Suit No. 141/03. ( 2 ) THE circumstances leading to the above application are that the petitioner's father Bibhuti Bhusan Das and his two brothers Bhupati Bhusan das and Manindra Mohan Das were joint owners of 1/3rd share each of a bastu land appertaining to R. S. Plot No. 1389, Khatian No. 341, Mouza Phulbari, P. S. English Bazar, Maldah, as described in schedule 'ka'. Bhupati died leaving behind four sons. The land was partitioned amongst Bibhuti, Manindra and the said legal heirs of Bhupati by a registered deed of partition dated 27. 2. 91, and 0330 sahasrangsha, as described in schedule 'kha', fell in the share of Bibhuti who constructed a dwelling house thereon and gifted 100 sahasrangsha each to his two sons i. e. the petitioner and Pro-O. P. No. 2 by two deeds dated 30. 04. 2002 and 130 sahasrangsha to his unmarried daughter Pro-O. P. No. 3 by a deed dated 07. 05. 2002 and thereafter he died. No demarcated portion was given by the said three deeds to the petitioner and pro-O. P. Nos. 2 and 3 who have been residing in the unpartitioned dwelling house of 'kha' schedule property and there are common passages on the extreme south and extreme west of 'ka' schedule. Pro-O. P. No. 3 sold her share in the undivided dwelling house by a registered deed dated 16. 12. 2002 to O. P. No. 1 who is trying to take forcible possession and make construction thereon. The petitioner instituted O. C. Suit No. 141/03 in the Court of learned Civil Judge (Jr. Div.), First Court, Maldah for declaration and injunction and filed another application under Order 39 Rules 1 and 2 read with Section 151, C. P. Code against O. P. No. 1 for injunction. The application for injunction was allowed on contest vide order dated 28. 10. 03 but reversed in misc. Div.), First Court, Maldah for declaration and injunction and filed another application under Order 39 Rules 1 and 2 read with Section 151, C. P. Code against O. P. No. 1 for injunction. The application for injunction was allowed on contest vide order dated 28. 10. 03 but reversed in misc. Appeal 26/03 by the learned Additional District Judge, Second Court, maldah by the impugned order dated 28. 6. 2003. ( 3 ) BEING aggrieved by and dissatisfied with the said order, the petitioner has come up before this Court. ( 4 ) MR. Sen, learned Counsel for the petitioner, relying upon the case of ashim Ranjan Das v. Bimla Ghosh, reported in AIR 1992 Cal 44 contended that when there was no partition by metes and bounds either by a deed of partition or by a decree of Court, as required under Section 14 of the West Bengal Land reforms Act amongst brothers and sister i. e. petitioner, O. P. Nos. 2 and 3 in respect of the undivided dwelling house in 'kha' schedule, the municipal holding number of which remains the same i. e. 13/14, which is under common enjoyment of the petitioner and Pro-O. P. Nos. 2 and 3, the petitioner being co-owner is entitled to protection of his privacy under Section 44 of the Transfer of Property act against the O. P. who is a stranger to the family. ( 5 ) MR. Banerjee, learned Counsel for the O. P. , on the other hand, on referring to Section 277 of the Hindu Law contended that according to Dayabhaga law so long as the father is alive, there is no coparcenary between him and his male issues and it is only on his death leaving two or more male issues that a coparcenary is formed, and as Bibhuti gifted the 'kha' schedule property during his lifetime to his sons and daughter, there cannot be any co-sharership between the said sons and daughter and that as the 'ka' schedule land was partitioned during the lifetime of Bibhuti the question of further partition and application of the provision of Section 14 (6)of the W. B. L. R. Act does not arise. Referring to the case of Labanya Bala Debi v. Parul Bala Debi reported in AIR 1973 Cal 367 and putting emphasis on the word "certain" as used in the definition of "gift" in section 122 of the Transfer of Property Act, Mr. Banerjee argued that when the said word "certain" according to Black's Law Dictionary means ascertained, clearly known, unambiguous, identified and free from doubt and specific demarcated portion was transferred by Pro-O. P. No. 3 who cannot claim a common right of user, there was no illegality in the impugned order. ( 6 ) UNDER Section 44 of the Transfer of Property Act, when one of several co-owners transfers his share, the transferee stands in the shoes of the transferor and acquires as against the other co-owners the same rights that the transferor had, and is subject to any condition and liabilities affecting the share at the date of the transfer, but the transferee of a share of a dwelling house of an undivided family cannot be put into joint possession. The object of the second part of the provision is to keep off strangers who may purchase the undivided share of a co-sharer of an immovable property, so far as dwelling house is concerned. The section is not merely restrictive in its operation, but while taking away a right of a stranger transferee of a share in a dwelling house to ask for joint possession, it also creates a right in favour of the other co-sharers to institute a suit for injunction restraining such transferee from exercising any act of joint possession in respect thereof, as was held in the case of Lal Bihari samanta v. Gourcharan reported in AIR 1952 Cal 253 . ( 7 ) HERE, undisputedly the 'ka' schedule property belonged to Bibhuti and his two brothers Bhupati and Manindra and by virtue of partition by a registered deed dated 27. 2. 91 amongst Bibhuti, Manindra and four sons of Bhupati, since deceased, 'kha' schedule property measuring 330 sahasrangsha fell in the share of Bibhuti who constructed a dwelling house thereon and gifted the same to his two sons and daughter viz petitioner and Pro-O. P. Nos. 2 and 3. As soon as the said property was transferred in favour of sons and daughter, the latter stepped into the shoes of father and became co-owners. 2 and 3. As soon as the said property was transferred in favour of sons and daughter, the latter stepped into the shoes of father and became co-owners. The legal relationship in co-ownership is always knitted in a framework of jointness. Indubitably, constitution of coparcenary according to Dayabhaga Law arises only on the death of the father, but in the present context such question of coparcenary is quite irrelevant. The term 'dwelling house' includes not only the structure of the building but also adjacent buildings, cartilage, courtyard, garden or orchard, and all that is necessary to the convenient occupation of the house, and the phrase 'undivided family' is not limited to Hindus but includes any group of persons related in blood who live in one house under one head and that it applies if they are undivided qua the dwelling house which they own. In the case on hand, the nature of the property is bastu and Bibhuti, out of his share of 330 sahasrangsha gifted 130 sahasrangsha to Pro-O. P. No. 3 specifying the boundaries as north : Prabir Das, south and west common passage and east: debasis Das, and Pro-O. P. No. 3 in turn sold the same to O. P. No. 1. The determinant factor for invoking the second part of Section 44 is not transfer of the property with demarcation but whether it is a share of a dwelling house of an undivided family. Here, as there is nothing to suggest that the said 'kha' schedule property was ever partitioned amongst the brothers and sister by metes and bounds, the approach of the learned Court of appeal below was totally erroneous. So, when it prima facie appears that the plaintiff/petitioner is entitled to protection under the second part of Section 44 and the stranger purchaser is liable to be restrained, it would follow that even if the defendant has been put in possession or he came jointly to possess, he can be kept out of by injunction. The remedy of the stranger purchaser is actually one of partition and until then he is obliged to keep out from asserting joint possession. The remedy of the stranger purchaser is actually one of partition and until then he is obliged to keep out from asserting joint possession. Denying an injunction against such transferee would prima facie cause irreparable injury to the other members of the family, and in such circumstances it is but just and necessary that the respondent purchaser be directed by an interlocutory mandatory injunction to undo what he has done. In this connection, reference may be made to the case of D. C. Warden v. C. S. Warden, reported in AIR 1990 SC 867 . ( 8 ) THE facts and circumstances of the decision so referred to by the learned Counsel for the O. P. being different, the same have no manner of application in this case. ( 9 ) ACCORDINGLY, in the light of the above discussion, the present revisional application be allowed. The impugned order dated 28. 06-05 reversing the order of the learned Civil Judge (Jr. Div.), First Court, Maldah in O. C. Suit no. 141/2003 is set aside.