JUDGMENT DEBANGSU BASAK, J. Five suits relating to premises No. 78, Rafi Ahmed Kidwai Road, Kolkata are taken up for hearing. The property belongs to the Garga family. Woodland Investment Private Limited claims that it purchased shares in respect of such property. For the purpose of convenience, the parties to the five suits are identified by their names. C.S. No. 501 of 1976 is the first suit in the point of time. This suit is filed by Woodland. The defendants in the suits are Shakti Prasad Garga and Shankar Prasad Garga. Shakti Prasad Garga died leaving behind a Will. Shankar Prasad Garga is the only son of Shakti Prasad Garga. Woodland, in C.S. No. 501 of 1976, claims that by an agreement dated September 13, 1973, Shakti and Shankar agreed to sell their undivided 1/4th share in lot No. 2 of premises No. 78, Rafi Ahmed Kidwai Road, Kolkata to Woodland on various terms and conditions. Woodland claims to have paid Shakti and Shankar a sum of Rs. 2,500/- by way of earnest money and part consideration on September 13, 1973. Shakti and Shankar, according to the plaintiff, granted receipt for the sum of Rs. 2,500/-. According to Woodland, on January 6, 1974, it handed over a requisition of title to Shakti and Shankar. Shakti and Shankar failed and neglected to produce the original title deeds in terms of the agreement dated September 13, 1973. Shakti and Shankar, through their advocate letter dated June 12, 1975 purported to cancel the agreement dated September 13, 1973 and purported to forfeit the earnest money of Rs. 2,500/-. Woodland claims that, the cancellation of the agreement dated September 13, 1973 is invalid, illegal and void. Woodland also claims to be ready and willing to perform its obligations under the agreement dated September 13, 1973. Woodland, therefore, claims a decree for specific performance of the agreement dated September 13, 1973 and for consequential reliefs. In the suit, the Woodland also claims partition by metes and bounds of 1/4th portion of premises No. 78, Rafi Ahmed Kidwai Road, Kolkata. Shakti and Shankar have filed written statement in the C.S. No. 501 of 1976. Shakti and Shankar claim cancellation of the agreement dated September 13, 1973 to be done validly. In the suit, the Woodland also claims partition by metes and bounds of 1/4th portion of premises No. 78, Rafi Ahmed Kidwai Road, Kolkata. Shakti and Shankar have filed written statement in the C.S. No. 501 of 1976. Shakti and Shankar claim cancellation of the agreement dated September 13, 1973 to be done validly. They claim that, Woodland had offered to purchase the whole of lot No. 2 of the premises by three several agreements for sale all dated September 13, 1973. One of such agreement was between Woodland and Deba Prasad Garga, the other being between Woodland and Bhupal Prasad Garga and the third agreement was between Woodland and Shakti and Shankar. Shakti and Shankar claim that, Woodland agreed to purchase the whole of lot No. 2 by one or more conveyances and that none of the members of the Hindu Undivided Family would be required to sell or convey in respect of undivided interest in the said lot separately or at different times. Shakti and Shankar claim that, Woodland enquired into the title of the Gargas, approved of the same and, therefore, the requisition of title was misplaced. According to Shakti and Shankar, Woodland was never ready and willing to complete the transaction, failed and neglected to carry out their obligation and, therefore, Shankar and Shakti along with other family members through their Solicitor’s letter dated June 12, 1975 cancelled the agreement and forfeited the sum paid. Shakti and Shankar refers to the correspondences exchanged between the advocate of the Woodland and the advocate of the family where Woodland had claimed that the family did not make out a marketable title in respect of the premises covered by the agreement concerned. Without prejudice to their contentions on the merits of the claim of Woodland, Shakti and Shankar contend that, Woodland is not entitled to obtain specific performance of the agreement dated September 13, 1973 since the other members of the Hindu Undivided Family are not willing to sell to Woodland. The next suit between Gargas and Woodland is C.S. No. 228 of 1984. This suit is filed by Shakti and Shankar against Woodland, and the other family members of Garga family. Shakti and Shankar trace their family from Raja Iswar Prasad Garga. Late Sati Prasad Garga and Late Gopal Prasad Garga were the two sons of Late Raja Iswar Prasad Garga. This suit is filed by Shakti and Shankar against Woodland, and the other family members of Garga family. Shakti and Shankar trace their family from Raja Iswar Prasad Garga. Late Sati Prasad Garga and Late Gopal Prasad Garga were the two sons of Late Raja Iswar Prasad Garga. Late Sati Prasad Garga died leaving him surviving Late Deba Prasad Garga, Shakti Prasad Garga and a daughter. Shakti Prasad Garga died leaving him surviving a daughter and Shankar Prasad Garga. Late Deba Prasad Garga did not have any issue. He was survived by Smt. Kalyani Garga. Late Gopal Prasad Garga was survived by Late Bhupal Prasad Garga. Bhupal Prasad Garga is one of the sons of Late Gopal Prasad Garga. Hara Prasad Garga is the son of Late Bhupal Prasad Garga. During the pendency of the suit Shakti Prasad Garga died. He made a Will by which he bequeathed the property to his son Shankar. Shankar is the sole plaintiff in C.S. No. 228 of 1984. Deba Prasad Garga died on April 4, 1986. Deba Prasad Garga was survived by Smt. Kalyani Garga. She died on April 19, 2011 leaving behind Shankar as her heir. According to Shakti and Shankar, Late Deba Prasad Garga, Bhupal Prasad and Hara Prasad Garga along with Shakti and Shankar formed and constituted a Hindu Undivided Family governed by the Mitakshara School of Hindu Law. The coparcenary properties belonging to this Hindu Undivided family comprises of, inter alia, the premises No. 78, Rafi Ahmed Kidwai Road, Kolkata. Shakti and Shankar describe the shares of the respective coparcenary at the time of filing of the suit in the plaint. With the death of the member of coparcenary, Shankar is now entitled to 1/2 share and Bhupal and Hara being entitled to the other 1/2 share jointly. In the plaint, Shakti and Shankar claim that, Deba Prasad Garga, Bhupal Prasad Garga and Hara Prasad Garga represented to Shakti and Shankar and proposed to sell lot No. 2 of the premises at and for a sum of Rs. 18,500/- per cottah. Deba Prasad Garga, Bhupal Prasad Garga and Hara Prasad Garga, according to Shakti and Shankar, represented that, the family will sell lot No. 2 jointly to Woodland. 18,500/- per cottah. Deba Prasad Garga, Bhupal Prasad Garga and Hara Prasad Garga, according to Shakti and Shankar, represented that, the family will sell lot No. 2 jointly to Woodland. Three several agreements in writing were executed in September 1973 purporting to sell the undivided shares of all the members of the Hindu Undivided family in lot No. 2 of the said premises to the Defendant No. 1. Shakti and Shankar claim that after the agreements for sale were entered into, it was agreed by and between the members of the Hindu Undivided family and Woodland that, Woodland would purchase the entirety of the lot No. 2 by one or more conveyances to be executed at the same time and that none of the members of the Hindu Undivided family would be required to sell their respective undivided interest in the lot separately without the other members conveying their shares. Shakti and Shankar claim that, Woodland prior to entering into the agreement for sale, enquired into the title of the family in respect of the property and were satisfied with the title. Woodland agreed to complete the transaction within one month from the date of making out title. Shakti and Shankar claim that subsequent to the agreement of September 13, 1973, Woodland began to question the title of the members of the Hindu Undivided Family in respect of the property wrongfully. Consequently, Shakti and Shankar along with the other members of the family through their Solicitor’s letter dated June 12, 1975 cancelled the agreement for sale and forfeited the sum paid as earnest money. Shakti and Shankar refer to C.S. No. 501 of 1976 and the steps taken by Woodland therein. Shakti and Shankar claim that, from the disclosures made in the said suit, they came to learn about two separate conveyances dated July 25, 1978 and July 26, 1978 executed by Deba Prasad Garga (since deceased) and Bhupal Prasad Garga and Hara Prasad Garga purporting to convey their shares in lot No. 2 of the said premises to Woodland. Shakti and Shankar claim that such transfer is void, invalid and of not effect as Shakti and Shankar did not consent to such sale. Shakti and Shankar also claim that the other members of the Hindu Undivided family in collusion and conspiracy with Woodland executed the two conveyances. Shakti and Shankar claim that such transfer is void, invalid and of not effect as Shakti and Shankar did not consent to such sale. Shakti and Shankar also claim that the other members of the Hindu Undivided family in collusion and conspiracy with Woodland executed the two conveyances. Shakti and Shankar sought a declaration that the two conveyances executed by Deba Prasad Garga (since deceased), Bhupal Prasad Garga and Hara Prasad Garga are void and of no effect and not binding on by Shakti and Shankar and for consequential reliefs. Smt. Kalyani Garga (since deceased), widow of Deba Prasad Garga filed a written statement. On her death, her estate devolved upon Shankar, the plaintiff in this suit. Bhupal Prasad Garga and Hara Prasad Garga filed a joint written statement. They, however, did not contest the suit at the final hearing. Woodland has filed a written statement and is contesting the suit. According to Woodland, the Hindu Undivided Family was disrupted in 1938 and that, the members of the Hindu Undivided Family held jointly defined shares of the immovable property. Woodland refers to diverse proceedings and documents in support of such contention. Woodland claims that the members of the Hindu undivided family including Shakti and Shankar became heavily indebted to the Income Tax and Wealth Tax authorities. They also had liabilities of Corporation tax. The property being the subject matter of the suit was not giving any income to the family. In order to meet such liabilities, the family agreed to sell the property in several lots to meet legal necessities and liabilities. The family divided the entire properties into three lots and numbered them lot Nos. 1, 2 and 3. According to Woodland, Shakti, Deba Prasad Garga and Bhupal Prasad Garga approached Woodland and offered to sell the entire property in several lots. Consequently, an agreement was entered into. Such agreement was recorded in writing by the letter dated June 11, 1973 written by Bhupal Prasad Garga as the Chief Manager on behalf of the co-owners. In terms of the letter dated June 11, 1973, three several agreements were entered into on September 13, 1973 in respect of the lot No. 2. Thereafter, the Woodland with the object of developing the property demolished the structures standing in the plot of land. In terms of the letter dated June 11, 1973, three several agreements were entered into on September 13, 1973 in respect of the lot No. 2. Thereafter, the Woodland with the object of developing the property demolished the structures standing in the plot of land. Woodland claims that, Shakti and Shankar illegally resiled from the agreement dated September 13, 1973 while the two other share holders executed the conveyances on July 25, 1978 and July 26, 1978. In view of Shakti and Shankar acting illegally, Woodland has filed C.S. No. 501 of 1976. Woodland also claims that pursuant to the agreement dated June 11, 1973, Bhupal Prasad Garga and Hara Prasad Garga by two registered deeds of conveyance dated April 25, 1981 and February 13, 1982 sold their respective one half shares in lot Nos. 3 and 1 in respect of premises No. 78, Rafi Ahmed Kidwai Road, Kolkata. In its written statement Woodland claims that, Shakti and Shankar are not entitled to the reliefs prayed for by them. The third suit being C.S. No. 684 of 1986 is filed by Shakti and Shankar against Woodland and the other coparceners of the Garga family. At the time of filing of the suit, Shakti and Shankar were entitled to 1/4th share jointly. Smt. Kalyani Garga, widow of Late Deba Prasad Garga, was entitled to 1/4th share and Bhupal and Hara were jointly entitled to one of share. During the pendency of the suit, Shakti died. In terms of the Will of Shakti, Shankar succeeded to the estate of Shakti. Smt. Kalyani Garga also died. Shankar became successor to the estate of Smt. Kalyani Garga. Consequently, Shankar is the owner of one half share, while Bhupal and Hara jointly have one half share. Shakti and Shankar challenge the conveyance dated April 15, 1981 executed by Bhupal and Hara in respect of the lot No. 3 of the premises No. 78, Rafi Ahmed Kidwai Road, Kolkata on similar grounds as that of C.S. No. 228 of 1984. Shakti and Shankar seek a decree for declaration that the conveyance dated April 25, 1981 is void and of no effect and not binding upon by Shakti and Shankar and for consequential reliefs. Woodland has filed a written statement in C.S. No. 684 of 1986. The defence of Woodland is similar to that of C.S. No. 228 of 1984. Shakti and Shankar seek a decree for declaration that the conveyance dated April 25, 1981 is void and of no effect and not binding upon by Shakti and Shankar and for consequential reliefs. Woodland has filed a written statement in C.S. No. 684 of 1986. The defence of Woodland is similar to that of C.S. No. 228 of 1984. Smt. Kalyani Garga (since deceased) has filed a written statement. With her death and upon her estate devolving upon Shankar, her written statement looses significance. Bhupal and Hara have filed a joint written statement. At the time of hearing of the suit, both of them were not represented. The fourth suit is C.S. No. 324 of 1987. The suit is filed by Woodland against Shakti and Shankar and Smt. Kalyani Garga, widow of Late Deba Prasad Garga. Bhupal and Hara are impleaded as proforma respondents/defendants in the suit. Woodland seeks partition of lot Nos. 1 and 3 of premises No. 78, Rafi Ahmed Kidwai Road, Kolkata in this suit. Woodland claims that, it purchased one half share in lot Nos. 1 and 3 of the said premises from Bhupal and Hara by registered deeds of conveyances. Woodland, therefore, claims to be entitled to partition of lot Nos. 1 and 3 of the said premises as Shakti, Shankar and Smt. Kalyani Garga were not agreeable to have partition of lot Nos. 1 and 3 amicably. Shakti and Shankar have filed a written statement jointly. In their defence, Shakti and Shankar claim that, premises No. 78, Rafi Ahmed Kidwai Road, Kolkata, is not divided by metes and bounds into three lots as claimed by Woodland. According to Shakti and Shankar, the entire premises was and continues to remain joint family property and family residents. They point out that Bhupal joined hands with Woodland with a view to handover the family dwelling house to an outsider. The premises concerned was the dwelling house of the Garga family since prior to 1887. Deba Prasad Garga was the Karta of the joint family. Bhupal was acting as a Manager for a considerable period of time. Bhupal was collecting rent till 1987 in respect of the property situated at Mahishadal. Bhupal collected rent from one of the tenants of the premises concerned till 1982. Deba Prasad Garga was the Karta of the joint family. Bhupal was acting as a Manager for a considerable period of time. Bhupal was collecting rent till 1987 in respect of the property situated at Mahishadal. Bhupal collected rent from one of the tenants of the premises concerned till 1982. Shakti and Shankar claim that the deed of conveyance executed by Bhupal and Hara in favour of Woodland purporting to transfer their joint one half share in lot Nos. 1 and 3 of the said premises are illegal and invalid and are subject matter of the C.S. No. 228 of 1984 and C.S. No. 684 of 1986. Shakti and Shankar have made an application being G.A. No. 2330 of 2009 under Section 4 of the Partition Act, 1893 for buying the shares held by Woodland in respect of the premises concerned. According to Shakti and Shankar, premises No. 78, Rafi Ahmed Kidwai Road, Kolkata is a family dwelling house. Woodland is an outsider to the family. Shakti and Shankar are, therefore, entitled to buy share held by Woodland in respect of the said premises. Smt. Kalyani Garga, since deceased filed a written statement. On her death her estate vested with Shankar. Bhupal and Hara filed a joint written statement. They did not appear at the time of hearing of the suit. The fifth suit is C.S. No. 43 of 1989. This suit is filed by Woodland against all the then existing coparceners of the Garga family. Woodland claims specific performance of the agreement recorded in the letter dated June 11, 1973. According to Woodland, the Garga family became heavily indebted by reason of Income Tax, Wealth Tax and Corporation Tax liabilities. The Garga family was also not deriving any income from the premises No. 78, Rafi Ahmed Kidwai Road, Kolkata. The Garga family decided to sell the said premises. In order to facilitate such sale, Garga family divided the premises into three lots; namely, lot Nos. 1, 2 and 3. According to Woodland, Shakti, Deba Prasad Garga and Bhupal approached Woodland with an offer to sell the said premises in several lots and an agreement to that effect was entered into in June, 1973. Woodland agreed to purchase the property. An agreement to such effect was entered into between Woodland and other coparcener of the said family in three lots in June, 1973. Woodland agreed to purchase the property. An agreement to such effect was entered into between Woodland and other coparcener of the said family in three lots in June, 1973. According to Woodland, all the coparcener of the Garga family represented to Woodland that Bhupal who was looking after all the affairs on behalf of the family as the Chief Manager will issue a formal letter embodying the terms and conditions agreed upon. Bhupal issued a letter dated June 11, 1973 for himself and for on behalf of other coparcener to sell the three lots to Woodland. In terms of such letter dated June 11, 1973, all the coparceners of the family entered into an agreement dated September 13, 1973 to sell their respective shares in lot No. 2 to Woodland. Acting in terms of the agreement dated June 11, 1973 and the agreement dated September 13, 1973 in respect of the lot No. 2, Bhupal and Hara sold and conveyed their respective shares in lot No. 2 to Woodland on June 25, 1978. Deba Prasad Garga conveyed his 1/4th share in lot No. 2 on July 26, 1978. In order to enforce the agreement dated September 13, 1978, on the refusal of Shakti and Shankar to sell their one-half share in lot No. 2, Woodland filed C.S. No. 501 of 1976 for specific performance of the agreement dated September 13, 1973. Bhupal and Hara conveyed their one-half share in lot No. 3 to Woodland in April 25, 1981 pursuant to the agreement dated June 11, 1973. Bhupal and Hara sold and conveyed their one-half share in lot No. 1 to Woodland on February 13, 1982 pursuant to the agreement dated June 11, 1973. Since Bhupal and Hara performed their obligations under the agreement dated June 11, 1973, Woodland is not seeking any relief against them, although they are arraigned as proforma Defendant Nos. 4 and 5 respectively in the suit. Woodland claims that Deba Prasad Garga (since deceased) and husband of Smt. Kalyani Garga (since deceased) was all along agreeable to execute a deed of conveyance for conveying his 1/4th share in lot Nos. 1 and 3 of the property to give effect to the agreement dated June 11, 1973. However, he was inclined to execute the deed of conveyance simultaneously with Shakti and Shankar. 1 and 3 of the property to give effect to the agreement dated June 11, 1973. However, he was inclined to execute the deed of conveyance simultaneously with Shakti and Shankar. After the demise of Deba Prasad Garga, Woodland called upon Shakti, Shankar and Smt. Kalyani Garga, widow of Deba Prasad Garga to execute the deed of conveyance which they refused to do so. Woodland, therefore, seeks specific performance of the agreement dated June 11, 1973. This suit is contested by Shakti and Shankar. They filed a joint written statement. According to them, the premises concerned is the property of Hindu Joint family governed by the Mitakshara School of Hindu Law. The coparceners of the Hindu Joint Family did not affect any partition of the said property by metes and bounds. According to them, Deba Prasad Garga was the Karta while Bhupal was the Manager. The property was never partitioned into three lots. These three lots were never demarcated amongst coparceners. The property being vast was described in three lots as a matter of convenience. Tax bill is in respect of entirety of the premises. The sale made by the other coparceners in respect of lot Nos. 1 and 2 are the subject matter of challenge in the separate suit. According to Shakti and Shankar, Bhupal was not authorized to issue the letter dated June 11, 1973. Such letter did not bind upon Shakti and Shankar. Shakti and Shankar denied that the Hindu joint family faced liability in the manner as claimed by woodland and that there was any legal necessity to sell the property lot by lot or otherwise. Shakti and Shankar claim that, the letter dated June 11, 1973 is manufactured subsequently with the active connivance of Bhupal. Bhupal did not have the authority to represent the Hindu joint family or at least Shakti and Shankar. According to Shakti and Shankar, the letter dated April 11, 1973 is unconscionable and in an unequal bargain. Shakti and Shankar reiterated their stand with regard to the transactions in respect of the property between Woodland and the other coparceners as in the earlier fourth suits. Issues in respect of the five suits were framed on May 4, 2004. Such issues are as follows: C.S. No. 501 of 1976 1. Is the suit maintainable in its present form? 2. Is the alleged agreement dated September 13, 1973 valid and subsisting? 3. Issues in respect of the five suits were framed on May 4, 2004. Such issues are as follows: C.S. No. 501 of 1976 1. Is the suit maintainable in its present form? 2. Is the alleged agreement dated September 13, 1973 valid and subsisting? 3. Is or was the plaintiff ready and willing to perform its obligations under the alleged agreement at all material times? 4. Is the plaintiff entitled to a decree for specific performance of the alleged agreement dated September 13, 1973? 5. Is the defendant obliged to execute or register any conveyance in favour of the plaintiff, as alleged? 6. Is the plaintiff entitled to a decree for partition of 1/4 portion of the premises No. 78 Rafi Ahmed Kidwai Road as alleged in the plaint? 7. To what relief, if any, is the plaintiff entitled? C.S. No. 228 of 1984 1. Is the suit maintainable in its present form? 2. Is the suit barred by limitation? 3. Are the conveyance dated July 25, 1978 and July 26, 1978 invalid having no effect and not binding upon the plaintiff as alleged in paragraph 12 of the plaint? 4. Does the plaintiff have a preferential right to purchase the interest and share of the defendant nos. 2, 3 and 4 in the said property? 5. Did the defendants in collusion and conspiracy with each other practice fraud upon the plaintiff in the matter of execution of the said conveyances? 6. Has the defendant no. 1 any right in respect of the property in question described in Schedule B to the plaint in particular? 7. Is the plaintiff entitled to the decree as prayed for? 8. To what relief, if any, is the plaintiff entitled? C.S. No. 684 of 1986 1. Is the suit maintainable in its present form? 2. Is the suit barred by limitation? 3. Is the conveyance dated April 25, 1981 invalid having no effect and not binding upon the plaintiff as alleged in paragraph 11 of the plaint? 4. Does the plaintiff have a preferential right to purchase the interest and share of the defendant nos. 2, 3 and 4 in the said property? 5. Did the defendants in collusion and conspiracy with each other practice fraud upon the plaintiff in the matter of execution of the said conveyance? 6. Has the defendant no. 4. Does the plaintiff have a preferential right to purchase the interest and share of the defendant nos. 2, 3 and 4 in the said property? 5. Did the defendants in collusion and conspiracy with each other practice fraud upon the plaintiff in the matter of execution of the said conveyance? 6. Has the defendant no. 1 any right in respect of the property in question described in Schedule B to the plaint in particular? 7. Is the plaintiff entitled to the decree as prayed for? 8. To what relief, if any, is the plaintiff entitled? C.S. No. 342 of 1987 1. Does the plaintiff have a cause of action against the defendants in the suit? 2. Is the suit maintainable in its present form? 3. Is the plaintiff entitled to a preliminary decree or final decree for partition, as alleged in the plaint? 4. Is the plaintiff entitled to a preliminary decree or final decree for accounts, as alleged in the plaint? 5. To what relief, if any, is the plaintiff entitled? C.S. No. 43 of 1989 1. Is the suit maintainable in its present form? 2. Does the letter dated June 11, 1973 record any agreement between the plaintiff and the defendants as alleged in the plaint? If so, is the alleged agreement valid and subsisting? 3. Is or was the plaintiff ready and willing to perform its obligations under the alleged agreement at all material times? 4. Is the plaintiff entitled to a decree for specific performance of the alleged agreement recorded in letter dated June 11, 1973? 5. Are the defendants obliged to execute or register conveyances, in respect of their respective shares in the said premises, in favour of the plaintiff, as alleged? 6. Is the plaintiff entitled to restrain the defendants from dealing with the said property? 7. Has the plaintiff suffered any damages, as alleged in paragraph 20 of the plaintiff? If so to what extent? 8. To what relief, if any, is the plaintiff entitled? The parties adduced evidence in respect of the five suits. Shankar Prasad Garga gave evidence on behalf of Shakti and Shankar. Radha Krishan Poddar came to the witness box as the witness of Woodland. If so to what extent? 8. To what relief, if any, is the plaintiff entitled? The parties adduced evidence in respect of the five suits. Shankar Prasad Garga gave evidence on behalf of Shakti and Shankar. Radha Krishan Poddar came to the witness box as the witness of Woodland. Bhupal, who is the author of the letter dated June 11, 1973, however, did not come to the witness box, either as a witness of Woodland or as the witness of Shakti and Shankar or for himself. All the five suits relate to premises No. 78, Rafi Ahmed Kidwai Road, Kolkata. Premises No. 78, Rafi Ahmed Kidwai Road, Kolkata comprises an area of about 46 cottahs. Woodland claims that the said premises is divided into three lots; namely lot Nos. 1, 2 and 3. In support of such claim, Woodland relies upon Exhibits "KK" and "LL." Shakti and Shankar claim that the said premises was never divided into three lots by metes and bounds and that since the property is huge it is divided into three lots for administrative convenience. Premises No. 78, Rafi Ahmed Kidwai Road, Kolkata was acquired by Raja Iswar Prasad Garga and Raja Jyoti Prasad Garga in equal shares. Raja Iswar Prasad Garga died leaving him surviving Raja Sati Prasad Garga and Gopal Prasad Garga, who inherited the undivided 1/2 share of Raja Iswar Prasad Garga in the said premises in equal shares. Raja Jyoti Prasad Garga died issueless and on his death, his undivided share in the property devolved on his nephew Raja Sati Prasad Garga and Gopal Prasad Garga. Consequently, Raja Sati Prasad Garga and Gopal Prasad Garga became owners of the said property each having undivided 1/2 share. Gopal Prasad Garga died leaving him surviving Bhawani Prasad Garga and Bhupal Prasad Garga. Bhawani Prasad Garga died issueless. On the death of Bhawani Prasad Garga his undivided 1/4th share in the property devolved on his brother Bhupal Prasad Garga and the son of Bhupal Prasad Garga, namely, Hara Prasad Garga. Therefore, Bhupal Prasad Garga and Hara Prasad Garga became joint owners of undivided 1/2 share in the said premises. Raja Sati Prasad Garga died leaving him surviving two sons; namely, Deba Prasad Garga and Shakti Prasad Garga. Consequently, Deba Prasad Garga and Shakti Prasad Garga became owners of 50% of the said property. Therefore, Bhupal Prasad Garga and Hara Prasad Garga became joint owners of undivided 1/2 share in the said premises. Raja Sati Prasad Garga died leaving him surviving two sons; namely, Deba Prasad Garga and Shakti Prasad Garga. Consequently, Deba Prasad Garga and Shakti Prasad Garga became owners of 50% of the said property. Deba Prasad Garga died issueless leaving him surviving by his widow Smt. Kalyani Garga. Shakti Prasad Garga died leaving him surviving his son Shankar Prasad Garga. Smt. Kalyani Garga died and her share devolved upon Shankar Prasad Garga. The genesis of the five suits is the alleged agreement dated June 11, 1973 and three several agreements dated September 13, 1973. In June 1973, the said premises was owned by Deba Prasad Garga 1/4th share, Shakti and Shankar jointly 1/4th share, Bhupal Prasad Garga and Hara Prasad Garga jointly one half share. During the pendency of the suit and with the death of Garga family, the ownership of the property, if the claim of Woodland is ignored for the present moment, underwent a change. The ownership of the property now is such that, Shankar owns 50% while Bhupal and Hara own 50% jointly. I hasten to add that, this ownership is by ignoring the claim of Woodland. Woodland claims to own 50% in lots 1 and 3 and 75% in lot 2. Woodland claims that, in aggregate Woodland is the owner of undivided 58.9% of the property while Shankar the balance undivided 41.1%. The principal parties contesting the five suits are Woodland on one part and Shankar on the other part. Shakti, prior to his death, was contesting the claim of the Woodland. Although, Bhupal and Hara have filed written statements in the suits as noted above, they did not appear at the final hearing of the suit. The contesting parties in the five suits agree that, the Gargas are governed by the Mitakshara School of Hindu Law. At a given point of time that the Gargas were a Hindu Undivided Family is an admitted position. Woodland claims that, the status of the Hindu Undivided Family of the Garga was severed in 1938 and given further effect to in 1955, that is much prior to 1973. Mr. At a given point of time that the Gargas were a Hindu Undivided Family is an admitted position. Woodland claims that, the status of the Hindu Undivided Family of the Garga was severed in 1938 and given further effect to in 1955, that is much prior to 1973. Mr. Ahin Chowdhury, learned Senior Advocate for Shankar (Shakti having died during the pendency of the suit and having left behind a Will under which Shankar succeeded to the estate of Shakti) submits that, the two suits for specific performance should be taken up first. He submits that, once a decision is reached on the two suits for specific performance, the next question will be whether coparceners in a Joint Hindu Family governed by Mitakshara School of Hindu Law can grant and/or convey any title in respect of an immovable property belonging the joint Hindu Family without the same being partitioned by metes and bounds and without a deed showing the separation of status and partition being registered under the Registration Act, 1908 in respect of an immovable property valued in excess of Rs. 100/- in view of Section 17 thereof. In the event the second contention is answered to say that, a coparcener in a joint Hindu Family governed by the Mitakshara School of Hindu Law is not entitled to convey his share in an immovable property belonging to the joint Hindi Family in absence of partition of such property by metes and bounds and in absence of a document duly registered under the Registration Act, 1908 showing partition by metes and bounds of an immovable property valued in excess of Rs. 100/- then Woodland has no case to pursue. The result of this contention will also govern the parties on the question of the validity of the conveyances executed by Bhupal and Hara in respect of lots 1 and 3 which are subject matter of two suits namely C.S. No. 228 of 1983 and C.S. No. 684 of 1989. I propose to take up the second contention of Mr. Chowdhury first. To my mind, in the event the second contention of Mr. Chowdhury is upheld, Woodland will not have any right to enforce specific performance of the alleged agreement dated June 11, 1973 or the agreement dated September 13, 1973 for the same reasons. Mr. I propose to take up the second contention of Mr. Chowdhury first. To my mind, in the event the second contention of Mr. Chowdhury is upheld, Woodland will not have any right to enforce specific performance of the alleged agreement dated June 11, 1973 or the agreement dated September 13, 1973 for the same reasons. Mr. Chowdhury submits that, a coparcener of the joint Hindu Family governed by the Mitakshara School of Hindu Law cannot transfer his share in an immovable property valued in excess of Rs. 100/- in absence of a registered document declaring the share and effecting partition by metes and bounds in such immovable property in view of section 17 of the Registration Act, 1908. In support of his contention, Mr. Chowdhury relies upon three authorities. He cites Nani Bai vs. Gita Bai Kom Rama Gunge, All India Reporter 1958 Supreme Court 706, Siromani vs. Hemkumar, All India Reporter 1968 Supreme Court 1299 and Muthyalareddy vs. Venkatareddy, All India Reporter 1969 Andhra Pradesh 242. He relies upon State Bank of India vs. Ghamandi Ram, 1969 Volume 2 Supreme Court Cases 33, cited by Mr. Surajit Nath Mitra and submits that, the entire property of a joint Hindu Family governed by the Mitakshara School of Hindu law is held in collective ownership of all the coparceners in a quasi corporate capacity. That being the position in law, he submits that, Bhupal and Hara did not derive any title to lots 1 and 3 for them to pass on to Woodland. There is no deed of partition duly registered under the Registration Act, 1908 dividing the property in three lots. Consequently, Bhupal and Hara could not have acted unilaterally and sold their shares in the joint Hindu Family. The fulcrum of the argument of Chowdhury revolves around the Garga family being a HUF at the time when the conveyances were executed by Bhupal and Hara. Mr. Chowdhury cites Mayne’s Hindu Law Usage 14th Edition page 670. He submits that, on facts there is no document to establish that, the Garga family was divided. Exhibit "B" according to him speaks of the family remaining joint. In absence of a document establishing severance of status of jointness of the family the court has to presume the jointness of the family. He submits that, on facts there is no document to establish that, the Garga family was divided. Exhibit "B" according to him speaks of the family remaining joint. In absence of a document establishing severance of status of jointness of the family the court has to presume the jointness of the family. He submits that, evidence can be adduced to rebut such presumption and that it would vary with the facts of each case. According to him, the onus is on Woodland to establish that, the family is no longer joint. Woodland did not call upon Gargas to give evidence to establish that the Gargas was no longer a joint family. According to him Woodland had, both Bhupal and Hara in its camp to come and give evidence. He refers to the various exhibits and submits that, none of them shows that the family lost its Hindu Undivided Family status or that the immovable properties were partitioned. According to him Exhibit "C" proposes a partition without partition being effected. Exhibit "D" according to him speaks of jointness of the family and that the same does not collectively prove that the family was not joint. He refers to Girijanandi Devi vs. Bijundra Narin, All India Reporter 1967 Supreme Court 1124 and submits that, there is no clear inference that the jointness of the family is lost. He places various answers given by Mr. Poddar to question Nos. 413 to 425 and 430 to 431 and submits that, even according to Poddar, there was no partition in the family. He refers to Exhibit "VV" and submits that, Woodland cannot be allowed to say that the letter is incorrect. The reply to Exhibit "VV" is at Exhibit "YY." He refers to Exhibit "TT" and "ZZ" and submits that jointness of the family is admitted in those exhibits also. Since, according to him, there was no disruption in the status of the joint family, Bhupal and Hara could not have sold their respective shares in lot Nos. 1 and 3 to Woodland. Those conveyances are, therefore, bad in law. Mr. S.N. Mitra for Woodland submits that, jointness of the family was disrupted. He refers to Exhibit B, C and D and submits that, those documents will establish that jointness of the family was disrupted. 1 and 3 to Woodland. Those conveyances are, therefore, bad in law. Mr. S.N. Mitra for Woodland submits that, jointness of the family was disrupted. He refers to Exhibit B, C and D and submits that, those documents will establish that jointness of the family was disrupted. He refers to Exhibit "WW" and submits that, Bhupal approached independently for compensation in respect of the property vested with the state. According to him, Bhupal could approach independently only when there is a disruption of the joint family status. He refers to various affidavits affirmed by Bhupal in writ proceeding in that regard. He refers of Exhibit "DD" where Shakti and Shankar themselves claim disruption in the joint family status. Exhibit "VV" is a writ petition of 1977 which claims disruption of the joint family status. He refers to the Electoral Roll marked as Exhibit "HHH" letter of Collector, Midnapore, and Exhibit "SS" in support of his contention of disruption of the status of the family. Exhibit "E" and "E1" are documents to establish each group represented such group separately. According to him the disruption of the joint family took place between 1955 and 1958. Exhibit "H" speaks of definite shares. Exhibit "H" is a document which is admitted by Shakti and Shankar. He refers to various answers given by Shankar to question Nos. 16 to 19, 28, 29, 46, 47, 48, 49 and answers given in cross-examination by Shankar in reply to question Nos. 270, 276, 279, 283, 385, 395 and 397 in this regard. Mr. Mitra submits that, none of the three authorities relied upon by Mr. Chowdhury speaks in the manner as contended by Mr. Chowdhury. Mr. Mitra submits that, there is overwhelming evidence on record which establishes the disruption of the joint family status of the Gargas. He relies upon Mulla Hindu Law 21st Edition Sections 212, 214 and 277 on formation of coparcenary, undivided coparcenary interest and that each coparcener takes a defined share when inheritance falls in. He submits that, law does not prohibit a coparcener having a definite share in an immovable property to sell his share in the immovable property to an outsider. The share of a coparcener in a joint Hindu family governed by the Mitakshara School of Hindu Law becomes definitive immediately upon such coparcener desiring to separate from the joint family. He submits that, law does not prohibit a coparcener having a definite share in an immovable property to sell his share in the immovable property to an outsider. The share of a coparcener in a joint Hindu family governed by the Mitakshara School of Hindu Law becomes definitive immediately upon such coparcener desiring to separate from the joint family. Once the jointness is severed the shares held by an individual coparcener in the joint family become definitive. The coparceners are, thereafter, free to deal with their definite share in the property of the joint family in the manner they choose including selling the same to any person of their choice. The exercise of this right of a coparcener of a joint Hindu Family does not require a registered document. He relies upon Harkishan Singh vs. Pratap Singh, 42 Calcutta Weekly Notes 1021, State Bank of India vs. Ghamandi Ram, 1969 Volume 2 Supreme Court Cases 33 and Hardeo Rai vs. Sakuntala Devi, 2008 Volume 7 Supreme Court Cases 46, in this regard. Harkishan (supra) is relied upon by Mr. Mitra in support of his contention that, under the Mitakshara School of Hindu Law partition consists in defining shares of the coparceners in the joint property and actual physical division is not necessary. Mr. Chowdhury submits that, Nani Bai (supra) explains Harkishan Singh vs. Partap Singh, 42 Calcutta Weekly Note 1021. Mr. Chowdhury distinguishes Hardeo Rai vs. Sakuntala Devi, 2008 Volume 7 Supreme Court Cases 46, cited by Mr. Mitra on the ground that the facts of that case recorded in the judgment does not state as to whether there was a registered document of partition or not. Harkishan (supra) reached the Privy Council in a suit for partition. The Privy Council observed that there can be a partition of the joint property without an actual division of the property by metes and bounds. It went on to hold that – "According to the Mitakshara law, by which the parties are governed, partition consists in defining hares of the coparceners in the joint property and a physical division of the property is not necessary. Once the shares are defined, there is a severance of the joint status. The parties may then make a physical division of the property or they may decide to live together and enjoy the property in common. Once the shares are defined, there is a severance of the joint status. The parties may then make a physical division of the property or they may decide to live together and enjoy the property in common. But the property ceases to be joint immediately the shares are defined, and thenceforth the parties hold it as tenants in common." Nani Bai (supra) is rendered by the Supreme Court. It holds that – "Partition in the Mitakshara sense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title, has become a divided title though there has been no division of any properties by metes and bounds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family, that effects a partition, so far as he is concerned, from the rest of the family. By this process, what was a joint tenancy, has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition and is, thus, within the mischief of Section 17(1)(b), the material portion of which has been quoted above. But partition in the former sense of defining the shares only without specific allotments of property has no reference to immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property may be effected orally or it may be brought about by a document. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of Section 17(1)(b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport or operate to do any of the things referred to in that section. Hence, in so far as the documents referred to above are evidence of partition only in the former sense, they are not compulsorily registrable under Section 17 and would, therefore, not come within the mischief of Section 49." Siromani (supra) is of the view that, a document effecting partition of a joint family property whose value is more than Rs. 100/- by metes and bounds requires a document duly registered under the Registration Act, 1908. In absence of such registration, such document is inadmissible to prove title of any of the coparceners to any of the property. Such document is, however, admissible to prove an intention of coparceners to become divided in status. Muthyalareddy (supra) is a Full Bench decision of the Andhra Pradesh High Court. It is rendered in a suit for partition. The plaintiff in his suit sought for partition of joint family property. The defence of the defendants was an earlier partition between the plaintiff and the Defendant Nos. 1 to 8. Documents, in this regard, were produced in evidence by the defendants. The trial court decreed the suit in favour of the plaintiff. This defence was ultimately upheld and the suit was dismissed against the Defendant Nos. 1 to 8. Their Lordships are of the following view:- "34. In our view where a partition takes place, the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be looked for the terms of the partition. This defence was ultimately upheld and the suit was dismissed against the Defendant Nos. 1 to 8. Their Lordships are of the following view:- "34. In our view where a partition takes place, the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be looked for the terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners. That document, though unregistered, can however be looked into for the purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family who from thence onwards, hold it as co-tenants. It is now a well-established principle of Hindu law, as held by their Lordships of the Privy Council and the Supreme Court that for a severance in status, all that is required is a communication to the other members of the joint family of an unequivocal intention to separate See for instance, Suraj Narain vs. Iqbal Narain, (1912) 40 Ind App 40 (PC), Garage Bai vs. Sadashiv Dundhiraj, AIR 1916 PC 104 and Raghavamma vs. Chenchamma. This communication of intention could be done orally or by a notice in writing to the other coparceners, or by other means depending upon the facts and circumstances of the case. If the intention is expressed by reducing the same to writing such a document, though unregistered, is admissible and can be looked into, as long as it is not the source of title of any of the properties which each of the erstwhile coparceners hold as a result of that partition." Mr. Chowdhury relies heavily on Muthyalareddy (supra). Mr. Chowdhury contends that, Muthyalareddy (supra) is an authority for the proposition that, a deed showing partition of joint family property requires partition as it is the source of title. Relying on this proposition in the fact of this case, he submits, Deba and Hara did not have any title to pass on Woodland in respect of the lot Nos. 1 and 3 inasmuch as there is no deed of partition duly registered under the Registration Act, 1908 for Deba and Hara to pass on their half share in lot Nos. 1 and 2 to Woodland. 1 and 3 inasmuch as there is no deed of partition duly registered under the Registration Act, 1908 for Deba and Hara to pass on their half share in lot Nos. 1 and 2 to Woodland. He contends that, the entire evidence before the Court in the five suits does not disclose a document duly registered under the Registration Act, 1908 showing partition of the premises concerned into three lots or into any lot. He contends that a document duly registered under the Registration Act, 1908, is a sine quo non for Bhupal and Hara to derive title in respect of lot Nos. 1 and 3 for them to transfer their title in favour of Woodland. The documents on record as and by way of evidence before the Court, does not disclose a document duly registered under the Registration Act, 1908 for Bhupal and Hara to derive title to transfer such title in respect of lot Nos. 1 and 3 in favour of Woodland. Mr. Chowdhury relies upon Girijanandini Devi (supra) to contend that mere defining of shares of coparceners in a Joint Hindu Family ipso facto is no severance of joint family status. Mr. Mitra relies upon Hardeo Rai (supra) to contend that, a coparcener of a Hindu Undivided Family can sell his undivided share in the joint family property. The purchaser of such undivided share derive title to the property subject to the condition that such purchaser without the consent of the other coparceners cannot get possession of what he has purchased. Such purchaser, however, acquires a right to sue for partition. According to him, his client, Woodland, has sought for partition also without prejudice to its rights and contentions that, Shakti and Shankar are bound by the agreement dated June 11, 1973 and which Woodland is entitled to specifically enforce against Shakti and Shankar. Hardeo Rai (supra) relates to a suit for specific performance of an agreement entered into by a coparcener with an outsider. The defence of the coparcener was that he was forcibly made to sign blank stamped papers and that the property was a joint family property. On facts, it was found that the coparcener had failed to prove joint possession and the existence of a coparcenary. The defence was disbelieved and the suit was decreed. The appeal was allowed on the ground that the suit property was a joint family property. On facts, it was found that the coparcener had failed to prove joint possession and the existence of a coparcenary. The defence was disbelieved and the suit was decreed. The appeal was allowed on the ground that the suit property was a joint family property. The Supreme Court notes the distinction between a Mitakshara coparcenary property and a joint family property. It says in paragraph as follows:- "18. There exists a distinction between a Mitakashra Coparcenary property and Joint Family property. A Mitakashra Coparcenary carries a definite concept. It is a body of individuals having been created by law unlike a joint family which can be constituted by agreement of the parties. A Mitakashra Coparcenary is a creature of law. It is, thus, necessary to determine the status of the appellant and his brothers." "22. For the purpose of assigning one's interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a co-parcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as joint tenants but as tenants in common. The decision of this Court in State Bank of India (supra), therefore is not applicable to the present case." "23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property." "26. Thus, even a coparcenary interest can be transferred subject to the condition that the purchaser without the consent of his other coparceners cannot get possession. He acquires a right to sue for partition." Mr. Chowdhury submits that Hardeo Rai (supra) does not disclose whether there was any document duly registered under the Registration Act, 1908 for a coparcener to sell the property to an outsider. According to him, Hardeo Rai (supra) does not address the issue that for a coparcener to sell his right in a joint family, a document duly registered under the Registration Act, 1908 is required. Hardeo Rai (supra) considers State Bank of India (supra) and finds the same not to be applicable to the facts of that case. According to him, Hardeo Rai (supra) does not address the issue that for a coparcener to sell his right in a joint family, a document duly registered under the Registration Act, 1908 is required. Hardeo Rai (supra) considers State Bank of India (supra) and finds the same not to be applicable to the facts of that case. State Bank of India (supra) discussed the concept of joint family property according to the Mitakshara School of Hindu Law in the context of the provisions of Displaced Persons (Debt Adjustment) Act, 1957. In the facts of that case a joint Hindu family pledged goods with the predecessor in interest of State Bank of India. Such pledged goods were sold by the predecessor in interest of State Bank of India. On facts it was found that, the joint Hindu family concerned did not effect partition amongst themselves. It was held that the joint Hindu family concerned could not be treated as an individual within the meaning of a notification of the Pakistan Government dated February 19, 1952. In paragraph 5 it was held as follows:- "5. According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Ch. I, 127). The incidents of coparcener-ship under the Mitakshara law are – first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a co-parcenor with his adoptive father as regards the ancestral properties of the letter. The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body (Gan Savant Bal Savant vs. Narayan Bhond Savant) and Mayne’s ‘Hindu Law Usage, 6th edition, Paragraph 270 and the possession of property by such corporate body. The first requisite therefore is the family unit and the possession by it of property is the second requisite. For the present purpose, female member of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition, viz. the undivided state it forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, stranger may be affiliated as a member of that corporate family." Girijanandini Devi (supra) is of the following view: "(6) In a Hindu undivided family governed by the Mitakshara law, no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the property of the family. The rights of the coparceners are defined when there is partition. Partition consists in defining the shares of the coparceners in the joint property, actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property." "(7) Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrators, by a demand for a share in the properties, or by conduct which evinces an intention to sever the joint family: it may also be effected by agreement to divide the property. But in each case the conduct must evidence unequivocally intention to sever the joint family status. Merely because one member of a family severs his relation, there is no presumption that there is severance between the other members, the question whether there is severance between the other members is one of fact to be determined on a review of all the attendant circumstances." Girijanandini Devi (supra) notes the Privy Council decision rendered in Palaniammal vs. Muthuvenkatacharlamoijar, All India Reporter 1925 Privy Council 49. A paragraph of a Privy Council decision is quoted. The passage of the Privy Council quoted is as follows: "In coming to a conclusion that the members of a Mitakshara joint family have or have not separated, there are some principles, of law which should be borne in mind when the fact of a separation is denied. A Mitakshara family is presumed in law to be a joint family until it is proved that the members have separated. That the coparceners in a joint family can by agreement amongst themselves separate and cease to be a joint family and on separation are entitled to partition the joint family property amongst themselves is now well established law. But the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be." Shakti and Shankar, therefore, have the presumption of law in their favour. Gargas are to be presumed to be a joint family until approved otherwise. The onus is, therefore, on Woodland to prove separation. The question, therefore, whether the Gargas severed the joint family status or not is relevant. Parties agree that, the Gargas are a Hindu Undivided Family at a given point of time. Woodland claims severance of the joint family status in 1938 which was confirmed in 1956. Woodland claims that the joint family status was severed due to various documents and the conduct of the coparceners of the Gargas family. Shakti and Shankar claim such status not to be severed. The evidence on record namely, the documents exhibited as well as the oral testimony of the two witnesses are required to be considered on the question of the jointness of the Garga family. Shakti and Shankar claim such status not to be severed. The evidence on record namely, the documents exhibited as well as the oral testimony of the two witnesses are required to be considered on the question of the jointness of the Garga family. The question required to be answered is whether as on the date of the alleged agreement dated June 11, 1973 and the three agreements dated September 19, 1973 was the Garga family a joint Hindu family governed by the School of Mitakshara Hindu Law or not. That the Gargas are governed by the Mitakshara Hindu Law is an admitted position. Therefore, the status of the joint family of the Gargas remains for consideration. Shakti and Shankar contend that, the joint family status was never severed. Woodland contends that, there was a division of the immovable properties belonging to the Gargas and that there was a severance in the joint family status of the Gargas. Law requires the jointness of Hindu family governed by the Mitakshara School of Hindu Law to be presumed. However, such presumption is rebuttable. Therefore, it is for Woodland to rebut such presumption. In support of the contention that, Garga family severed its status as a joint family reliance is placed on various exhibits. Exhibit "B" is a registered agreement between Deba, Shakti, Bhawani, Bhupal. Exhibit "B" is an agreement dated October 17, 1938. The agreement seeks to settle a suit for partition. It provides that except a portion of the movable properties, the parties to the agreement agreed that the Mahishadal Raj estate that is the Garga family will continue to be joint as before and that the parties to the agreement will not exercise their right of partition of the estate for a period of 15 years. Undertaking of the plaintiff to withdraw a suit for partition being Suit No. 1605 of 1938 was recorded in the agreement. Exhibit "B" therefore, establishes that, the Garga family was joint. It continued to remain joint on the date of the agreement being October 17, 1938. It provided for the jointness to continue for a period of another 15 years. Exhibit "C" is an agreement in Bengali vernacular between Deba, Shakti, Bhawani, Bhupal and Shakti representing Shankar the minor. By this agreement the respective parties defined their shares in the immovable properties. The Calcutta property in question is mentioned in this agreement. It provided for the jointness to continue for a period of another 15 years. Exhibit "C" is an agreement in Bengali vernacular between Deba, Shakti, Bhawani, Bhupal and Shakti representing Shankar the minor. By this agreement the respective parties defined their shares in the immovable properties. The Calcutta property in question is mentioned in this agreement. Exhibit "D" is a deed of partition dated April 8, 1955. Exhibit "D" is in Bengali vernacular with the English translation thereof provided. Exhibit "E" is an agreement entered into between Deba, Shakti, Bhawani, Bhupal. Shakti representing Shankar the minor. The agreement states that the five parties thereto have defined their individual shares in the immovable properties belonging to the family. It also provides that every co-sharer will allow the properties to be managed jointly by a manager to be appointed by them. In Exhibit "D" the premises in question is mentioned. Exhibits "C" and "D" taken together, therefore, shows that the coparceners of the joint Hindu family severed the status of a joint family by defining their respective shares in the immovable properties on April 8, 1955. All the coparceners of the Garga family entered into the agreement dated April 8, 1955 being Exhibit "C" by which their individual shares in the immovable properties were defined. When the coparceners defined their shares it cannot be said that, the family continued to remain as a joint Hindu family thereafter. Exhibit "D" shows that the coparceners agreed to keep the immovable properties under one management. Exhibit "E" is a letter dated June 9, 1969 written by Shakti for himself and on behalf of Shankar to the member of the Board of Revenue. In this letter Shakti states that the individual coparceners of the family has become separated and requested the member of the Board of Revenue to consider Shakti and Shankar to separate in status as that of the Garga family. Exhibits "WW" and "DD" are writ petitions filed before this Court. Exhibit "WW" is a writ petition filed by Bhupal. Exhibit "DD" is a writ petition filed by Shakti and Shankar. Exhibits "WW" and "DD" are writ petitions filed before this Court. Exhibit "WW" is a writ petition filed by Bhupal. Exhibit "DD" is a writ petition filed by Shakti and Shankar. In the affidavit in reply filed on behalf of Shakti and Shankar in the writ petition Bhupal by an affidavit stated that in terms of the agreement dated October 17, 1938 being Exhibit "B" the coparcener of the Garga family executed an agreement for partition on April 12, 1955 being Exhibit "D" where the coparceners defined the 1/4th shares of every coparcener in the immovable properties on April 8, 1955 being Exhibit "C." Therefore, reading Exhibit "B" with Exhibits "C" and "D" the conclusion is that, the Garga family separated in status on April 8, 1955. This is the declared position of Shakti and Shankar in the writ petition filed by them before this Court. Such writ petition is of the year 1969 much prior to the disputes between the parties. Shakti and Shankar cannot be allowed to take a stand contrary to the stand taken by them in their writ petition. Mr. Chowdhury refers to Exhibit "ZZ" to establish that the family was joint even in May 1985. Exhibit "ZZ" is a letter dated May 14, 1985 written by Bhupal to Shakti in relation to the induction of Goodlass Nerolac into the premises. Bhupal refers to the family as joint. In my view, Bhupal is treating the family as joint qua the family dwelling house. The letter seeks to address an issue arising out of the occupation of a portion of the family dwelling house by an outsider. It does not establish jointness of the family for the rest of the immoveable properties as all the family members took definite shares by severing the status. The family has severed the joint status in 1955. It could no longer be treated as joint in 1985. However, the family dwelling house remained undivided by metes and bounds and therefore, could be treated as the family dwelling house of an undivided family. In my view, the fact that the Garga family separated in status is established. Once the Garga family separated themselves in status each coparcener became owner of a definite share in the joint family property. However, the family dwelling house remained undivided by metes and bounds and therefore, could be treated as the family dwelling house of an undivided family. In my view, the fact that the Garga family separated in status is established. Once the Garga family separated themselves in status each coparcener became owner of a definite share in the joint family property. There is no bar for such coparcener to deal with his definite share of an immovable property including selling such definite share to any person in view of the ratio of Hardeo Rai (supra). State Bank of India (supra) will not apply as there is severance of joint family status. Severance of status of a coparcener can happen orally or by a document. If it happens by way of a document, it does not require registration so long as such document does not purport to divide an immovable property held jointly on that day, by metes and bounds. In the event, the immovable properties held jointly are sought to be divided by metes and bounds, and the value of such immovable properties are in excess of the prescribed limit of Section 17 of the Registration Act, 1908, such document will require registration to be looked into as evidence of title. In absence of registration of such document, the same cannot be looked into for the purpose of establishing partition of the joint immovable properties by metes and bounds. Mr. Chowdhury contends that, the presumption of jointness of the Garga family is not rebutted by Exhibits "C" and "D" or for that matter any of the other documents on record. He submits that none of the documents on record are registered documents for the Court to look into the same as evidence of partition. He goes on to submit that the three agreements dated September 13, 1973 speaks of undivided family. Exhibits "C" and "D" as well as Exhibit "E" Exhibits "WW" and "DD" are not registered documents. I am not looking into those documents to find out partition of any immovable property by metes and bounds. Those documents can be looked into for the purpose of finding out whether the joint family severed its status with the coparceners taking definite shares in the immovable properties or not. I am not looking into those documents to find out partition of any immovable property by metes and bounds. Those documents can be looked into for the purpose of finding out whether the joint family severed its status with the coparceners taking definite shares in the immovable properties or not. Exhibits C, D, E, WW and DD demonstrate that the coparceners of the Garga family severed their status as a joint family by defining the respective shares of each coparcener in the immovable properties and proceeding on the basis thereof. There are two suits for specific performance between the parties. The first suit being C.S. No. 501 of 1976 is filed by Woodland for specific performance of an agreement dated September 13, 1973. The next suit for specific performance is also filed by Woodland. In this suit being C.S. No. 43 of 1989, Woodland seeks specific performance of an agreement claimed to be recorded in the letter dated June 11, 1973. I will take up C.S. No. 501 of 1976 being the suit for specific performance of the agreement dated September 13, 1973 as it is the first in the point of time of the two suits. Mr. Chowdhury for Shankar submits that, Woodland is not entitled to prayer (d) of the plaint of C.S. No. 501 of 1976. Prayer (d) of C.S. No. 501 of 1976 seeks partition of the immovable property. According to Mr. Chowdhury, all the co-sharers of the Garga property are not made parties to the suit and, therefore, Woodland cannot have decree for partition in terms of prayer (d) of C.S. No. 501 of 1976. He refers to various pleadings made in the plaint, particularly paragraphs 6 to 9 of the plaint and paragraphs 7 to 9 of the written statement. He submits that, the agreement dated September 13, 1973 was validly terminated and/or cancelled by his clients. He refers to Clauses 1, 4, 6, 8, 9, 10, 11 and 12 of the agreement dated September 13, 1973. This agreement dated September 13, 1973 is marked as Exhibit "H." Similar agreements were entered into by the Woodland in respect of 3/4th portion of the property with the remaining coparceners of the Garga family. He submits that Exhibit "H" is an agreement for sale which stipulates a time period of completion of the transactions. This agreement dated September 13, 1973 is marked as Exhibit "H." Similar agreements were entered into by the Woodland in respect of 3/4th portion of the property with the remaining coparceners of the Garga family. He submits that Exhibit "H" is an agreement for sale which stipulates a time period of completion of the transactions. He goes on to submit that, assuming but not admitting, time is not essence of the contract, the contemporaneous of conduct of Woodland will demonstrate that it was neither ready nor willing to perform its obligations under the terms and conditions of Exhibit "H." He contrasts the correspondences exchanged between the advocates for Woodland and the Gargas in respect of completion of the transactions with that of the oral evidence given by Radha Krishan Poddar on behalf of Woodland. While the advocate for Woodland had at the contemporaneous point of time sought various documents and raised various issues with regard to the title of the Gargas leading up to the cancellation of the agreement by the Gargas, Poddar for Woodland claimed in his oral testimony that Woodland was satisfied with the title of the Gargas in respect of the property concerned on and from June 11, 1973 when Bhupal had allegedly made over photocopies of the title deeds in respect of the property to Poddar of Woodland and that Poddar and Woodland were satisfied with the title of the Gargas in respect of the property. Mr. Chowdhury submits that, the stand of Woodland through the oral testimony of Poddar is contrary to and inconsistent with that of the letters exchanged between the advocates of the contracting parties contemporaneously. He submits that, both the versions of the transactions cannot stand side by side. The version appearing from the correspondences exchanged between the parties, according to him, is the authentic version and the readiness and willingness of the Woodland has to be judged from such correspondences and not from the oral testimony given by Poddar. Mr. Surajit Nath Mitra, learned senior advocate for Woodland submits that, the contemporaneous correspondence exchanged between the advocates for the contracting parties of Exhibit "H" was nothing other than a routine requisition for title given by an advocate for a purchaser to an advocate for a vendor. Mr. Surajit Nath Mitra, learned senior advocate for Woodland submits that, the contemporaneous correspondence exchanged between the advocates for the contracting parties of Exhibit "H" was nothing other than a routine requisition for title given by an advocate for a purchaser to an advocate for a vendor. The correspondences exchanged between the advocates for the contracting parties of Exhibit "H" does not demonstrate unwillingness or lack of readiness of Woodland to discharge its obligations in terms of Exhibit "H." He submits that Poddar while at the witness box clarified the position. Poddar is categorical in his evidence that, Woodland was ready and willing to perform its part of the obligations of Exhibit "H" at the material point of time. In support of the contention that, Woodland was ready and willing to perform its obligations under the terms and conditions of Exhibit "H" Woodland relies upon the balance sheet of Woodland as at March 31, 1973 till March, 31, 2003, which are marked as Exhibit "AAA" as also the balance sheet of Calicut Engineering Works Limited an associate company of Woodland for the period 1973-1983 which are marked as Exhibit "BBB." Reliance in this regard is also placed on Exhibit "EEE." Mr. Chowdhury submits that, readiness and willingness to perform a contract has to be discovered from the circumstances prevailing. In support of such contention Mr. Chowdhury, relies upon N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao, 1995 Volume 5 Supreme Court Cases page 115, His Holiness Acharya Swami Ganesh Dassji vs. Sita Ram Thapar, 1996 Volume 4 Supreme Court Cases 526. He also submits that specific performance is a discretionary relief. In the facts and circumstances of the case, discretion should be exercised in favour of his client. Sale of immovable property at Kolkata at the rate of Rs. 18,500/- per cottah even in 1973 is unconscionable, unjust, unrealistic and unfair to the Gargas. In support of the proposition that, specific performance of contract is a discretionary relief, he relies upon Gobinda Ghosh and others vs. Biswanath Ghosh and Others, All India Reporter 2005 Calcutta 359. Mr. Surajit Nath Mitra submits that, inadequacy of consideration at the present market rate is not a criterion for disallowing a decree in a suit for specific performance. In support of the proposition that, specific performance of contract is a discretionary relief, he relies upon Gobinda Ghosh and others vs. Biswanath Ghosh and Others, All India Reporter 2005 Calcutta 359. Mr. Surajit Nath Mitra submits that, inadequacy of consideration at the present market rate is not a criterion for disallowing a decree in a suit for specific performance. In support of such contention, he relies upon Jai Narayan Parasrampuria vs. Pushpa Devi Saraf, 2006 Volume 7 Supreme Court Cases 756, S.V.R. Mudaliar vs. Rajabu F. Buhari, All India Reporter 1995 Supreme Court 1607 and P.S. Ramakrishna Reddy vs. M.K. Bhagyalakshmi, 2007 Volume 10 Supreme Court Cases 231. He also submits that, the judgment of Gobinda Ghosh vs. Biswanath Ghosh, All India Reporter 2005 Calcutta 359, was reversed in Biswanath Ghosh vs. Gobinda Ghosh, All India Reporter 2014 Supreme Court 1582. Mr. Mitra for Woodland contends that, Shakti and Shankar did not discharge their obligations enumerated in Clauses 4 to 6 and 8 of Exhibit "H." Shakti and Shankar did not respond to the requisition on title. They also failed to produce necessary clearance certificate under Section 230A of the Income Tax Act, 1961. The letter of cancellation issued on behalf of the Gargas being Exhibit "R" was sought to be withdrawn by Deba Prasad and Bhupal by two several letters dated April 17, 1973 being Exhibits "W" & "X." Shakti and Shankar did not withdraw the letter of cancellation. That the agreement dated September 13, 1973 being Exhibit "H" was entered into between Woodland and Shakti and Shankar is an admitted position. That the Gargas terminated Exhibit "H" is also an admitted position. Two Gargas, namely, Deba and Bhupal, however, withdrew the letter of cancellation. The question is, therefore, was there a continuous readiness and willingness on the part of Woodland to perform its part of the obligations under Exhibit "H" or not. Woodland seeks specific performance of the agreement dated September 13, 1973 being Exhibit "H." Exhibit "H" is an agreement between Woodland and Shakti and Shaker. Woodland had entered into similar agreement in respect of the portion with Deba, Bhupal and Hara. Exhibit "H" contains diverse clauses. Clauses 4, 5, 6, 8, 10 and 11 of Exhibit "H" are important. Woodland seeks specific performance of the agreement dated September 13, 1973 being Exhibit "H." Exhibit "H" is an agreement between Woodland and Shakti and Shaker. Woodland had entered into similar agreement in respect of the portion with Deba, Bhupal and Hara. Exhibit "H" contains diverse clauses. Clauses 4, 5, 6, 8, 10 and 11 of Exhibit "H" are important. Such clauses of the agreement are as follows:- "Clause 4 – That the vendor shall within three days from the date of execution of these presents deliver or cause to be delivered to the purchaser’s Solicitor, Sri. P.K. Sen Barat on his accountable receipt, copies of the plain or map and also the original title deed of the said premises for inspection. Clause 5 – The vendor shall at his own costs make out a good marketable title to the said premises and shall for such purpose at his own costs prepare for and deliver without delay to the purchaser’s said Solicitor, certified copies of necessary documents including records of Court, if any. Clause 6 – The purchaser’s solicitor shall within four weeks from the date of delivery of all necessary copies of documents of title, send requisitions, if any, on the title to the vendor who shall answer the same within two weeks there from and the purchaser’s Solicitor shall within a week there from inform the vendor their approval or non-approval of the title of the vendor. Clause 8 – The vendor shall produce necessary clearance certificate under section 230A of the Indian Income Tax seven days before the date of completion of the conveyance. Clause 10 – On the title being made out by the vendor aforesaid the purchase shall be completed within one month from date the roof when the Vendor shall execute and caused to be registered at the cost of the Purchaser a proper conveyance of the premises agreed to be sold in favour of the Purchaser or his nominee or nominees and the Purchaser shall the balance of the purchase money and upon such payment vacant possession of the premises shall be made over by the Vendor to the Purchaser. Clause 11 – If the title is not made out as aforesaid the Vendor shall refund the earnest money on demand with interest thereon, @ 12% per annum and a sum of Rs. Clause 11 – If the title is not made out as aforesaid the Vendor shall refund the earnest money on demand with interest thereon, @ 12% per annum and a sum of Rs. 500/- (Rupees five hundred) only being the amount of settled costs for investigation of title. Clauses noted above contemplate that Shakti and Shankar will deliver copies of the plan or map and the original title deed of the premises for inspection within three days from the date of Exhibit "H." Shakti and Shankar will make out a good marketable title at their cost and will deliver to the Solicitor of Woodland certified copies of necessary documents including records of Court, if any. Exhibit "H" empowers the Solicitor of Woodland to send requisition of title within four days from the date of delivery of all necessary copies of documents of title and Exhibit "H" obliges the Solicitor for Shankar and Shakti to reply to such requisition within two weeks therefrom. On receipt of such reply, Exhibit "H" allows the Solicitor for Woodland within a week to inform Shakti and Shankar their approval and non-approval of title of Shakti and Shankar. Exhibit "H" also requires Shakti and Shankar to produce necessary clearance certificate under section 230 A of the Income Tax Act, 1961 within seven days before the date of completion of the conveyance. Clauses 10 and 11 provide for eventualities when title to the property is made out and when it is not made out. Therefore, on reading Exhibit "H" one can safely conclude that the Gargas were to make out a marketable title to the satisfaction of Woodland, or in other words, title to the property was yet to be made out by the Gargas to the satisfaction of Woodland. The oral testimony of Poddar in answer to question Nos. 375 and 388-411 is that Woodland received all documents of title along with the letter dated June 11, 1973. If that be the case, Woodland was satisfied with the title of Shakti and Shankar prior to Exhibit "H." To put it in other words, Shakti and Shankar complied with the Clauses 4, 5 and 6 of Exhibit "H" prior to entering into the agreement being Exhibit "H" Clauses 4, 5 and 6 stood performed by Shakti and Shankar. If that be the case, Woodland was satisfied with the title of Shakti and Shankar prior to Exhibit "H." To put it in other words, Shakti and Shankar complied with the Clauses 4, 5 and 6 of Exhibit "H" prior to entering into the agreement being Exhibit "H" Clauses 4, 5 and 6 stood performed by Shakti and Shankar. The correspondences exchanged between the advocates of the contracting parties of Exhibit "H" however, speak of a different story than the oral testimony of Poddar on behalf of Woodland. The first letter issued after Exhibit "H" is the letter dated December 31, 1973 written on behalf of the Gargas being Exhibit "K." This letter gives the genealogical table of the Gargas. Exhibit "M" is the requisition of title given by Woodland to Shakti and Shankar. In view of the oral testimony of Poddar, this requisition of title is also redundant. So also the letter being Exhibit "K" as the Woodland was satisfied with title on June 11, 1973. The next letter dated August 12, 1974, being Exhibit "O" which is a letter written by Solicitor for Woodland to the Solicitor for Shakti and Shankar. By Exhibit "1" being letter dated August 16, 1973, the Solicitor for Shankar and Shakti stated that their clients were prepared to supply certified copy of the title deeds and that his clients never deposited original title deed with another person with intent to create any security over the property. Various other correspondences ensued between the advocates for the contracting parties. Two hand written letters written by Bhupal addressed to M/s. T. Banerjee, Solicitor being Exhibit "4" and "5" reveal that Bhupal had authorized such Solicitor to terminate the agreements for sale signed by Deba as well as himself. Exhibits "4" and "5" are marked subject to objection. Exhibits "4" and "5" are claimed to be a letter written in hand by Bhupal. Bhupal has not come forward to give evidence. None of the parties have called on Bhupal to give evidence. M/s. T. Banerjee, Solicitor acted on instructions as Solicitor and had proceeded to terminate Exhibit "H." This termination was made by the letter June 12, 1975 being Exhibit "R." The letter of termination dated June 12, 1975 was received by the Advocate for Woodland. No reply was given to such letter till August 28, 1975 by Woodland. M/s. T. Banerjee, Solicitor acted on instructions as Solicitor and had proceeded to terminate Exhibit "H." This termination was made by the letter June 12, 1975 being Exhibit "R." The letter of termination dated June 12, 1975 was received by the Advocate for Woodland. No reply was given to such letter till August 28, 1975 by Woodland. Exhibit "R" states that Woodland was not ready and willing to complete the transaction and that Woodland had questioned the title of the Gargas. It records that by the letter dated August 26, 1974 Woodland was called upon to send the draft conveyance in respect of the property. No reply was given to such letter. It was also recorded that Woodland did not send other draft conveyances so far as Shakti and Shankar were concerned. The letter of termination dated June 12, 1975 being Exhibit "R" was replied to on behalf of Woodland on August 28, 1975 being Exhibit "S." By Exhibit "A" Woodland reiterates its earlier stand as to Income Tax clearance, requisition of title and others. In the second last paragraph of Exhibit "S" Woodland claimed that it is ready and willing to complete the transaction subject to the Gargas complying with the requisitions and subject to the Gargas making out a good marketable title of the premises. By the letter dated September 8, 1975 being Exhibit "T" Solicitor for the Gargas stated that, application for necessary Income Tax clearance can only be made after the draft conveyance was approved. By a letter dated September 30, 1975 being Exhibit "U" Solicitor for Woodland traces the entirety of the transactions taking place between the parties. At internal page 3 of Exhibit "U" it is stated that the draft deed of conveyance was sent to the former Solicitors of the Gargas. However, it goes on to say that, the deed of conveyance can only be finalized after the Gargas fulfilled the conditions noted in Exhibit "U." In the second last paragraph of Exhibit "U" it is stated that, Gargas had failed to make out a marketable title in respect of the property. However, it goes on to say that, the deed of conveyance can only be finalized after the Gargas fulfilled the conditions noted in Exhibit "U." In the second last paragraph of Exhibit "U" it is stated that, Gargas had failed to make out a marketable title in respect of the property. A reminder to Exhibit "U" was issued by the letter dated November 28, 1975 by Exhibit "U" as the Gargas did not respond to Exhibit "U." Bhupal for himself and his the then minor son Hara as well as the constituted Attorney of Deba issued two letters on April 13, 1976 being Exhibit "W" and ‘X’ claiming that, they were ready to perform the transaction. The suit for specific performance was contested by Shankar (Shakti having died in the meantime). By Exhibits "Z" and "AA" Bhupal as the constituted Attorney of Deba and himself by two several letters September 17, 1976 confirmed the validity of the agreement dated September 13, 1973. This leaves the question of Clause 8 being the obligation of Shakti and Shankar to obtain Income Tax clearance under Section 230A of the Income Tax Act, 1961 to be decided. Compliance of Clause 8 is possible only if a draft conveyance is given by Woodland to Shakti and Shankar for obtaining clearance under Section 230A of Income Tax Act, 1961 after Woodland being satisfied as to the title of Shakti and Shankar. The Solicitor for Woodland by his letter dated August 12, 1974 being Exhibit "N" sent a draft conveyance subject to the title being approved. Therefore, as on that date, title to the property was not approved by Woodland. Section 230A of the Income Tax Act, 1961 as it stood then was governing the transaction between the Garga and Woodland at the material point of time. Section 230A lays down restrictions of registration of transfer of immovable properties in the cases specified. It provides that notwithstanding anything contained in any other law for the time being in force where any document is required to be registered under the provisions of the Section 17 of the Registration Act, 1908 to transfer right, title and interest of any person in an immovable valued at more than Rs. 5,00,000/- such document cannot be taken up for registration unless the Assessing Officer issues the certification giving the requisite details under Section 230A of the Income Tax Act, 1961. 5,00,000/- such document cannot be taken up for registration unless the Assessing Officer issues the certification giving the requisite details under Section 230A of the Income Tax Act, 1961. In the facts of the instant case, the value of the immovable property sought to be sold in terms of the agreement dated September 13, 1973 attracted the provisions of Section 230A of the Income Tax Act, 1961. Shakti and Shankar were required to take requisite permission under Section 230A of the Income Tax Act, 1961. However, Shakti and Shankar can be approached to take such permission only after Woodland was satisfied with the title of Shakti and Shankar. The correspondence between the parties on the subject prior to the cancellation of the agreement dated September 13, 1973 is a letter dated June 12, 1974 being Exhibit "O." By such letter the Solicitor for Woodland forwarded a copy of the draft deed of conveyance for Shakti and Shankar to obtain Income Tax clearance under Section 230A of the Income Tax Act, 1961. This Exhibit "O" states that the draft conveyance was sent subject to the title being approved. Even as late as September 13, 1975 being Exhibit "U" Woodland stated that they were not satisfied with the title of Shakti and Shankar. Shakti and Shankar consistently in the contemporaneous correspondences claimed that, they were owners by virtue of inheritance and that, they had not other document in original to give to Woodland save what were already provided. Woodland through its Solicitors expressed doubt as to the title of the Shakti and Shankar to the property in Exhibit "N." Even in the reply to the letter of cancellation the Solicitor for Woodland in Exhibit "S" claimed that, Woodland would continue with the transaction subject to Shakti and Shankar making out marketable title. In Exhibit "U" being a letter dated September 30, 1975, the Solicitor for Woodland stated that – "Since your clients have failed to make out a marketable title in respect of the property under sale. Upto the date of filing of the suit for specific performance of Exhibit "H" Woodland’s stand was the failure of Shakti and Shankar to make out a marketable title to the property concerned. Therefore, I am of the view that, Shakti and Shankar cannot be called upon to obtain Income Tax clearance when Woodland itself doubted the title of the Shakti and Shankar. Therefore, I am of the view that, Shakti and Shankar cannot be called upon to obtain Income Tax clearance when Woodland itself doubted the title of the Shakti and Shankar. Since title was yet to be approved by Woodland, there was no question of Shakti and Shankar proceeding to obtain income tax clearance on the basis of a draft conveyance in respect of Woodland as the purchaser was in doubt as to the title of Shakti and Shankar as the Vendor. When Woodland itself was doubting the title of Shakti and Shankar, as would appear from various exhibits including Exhibits "N" and "U" Woodland cannot be allowed to turn around and say that, having made over the draft conveyance to Shakti and Shankar, they failed to obtain Income Tax clearance in terms of Clause 8 of the Exhibit "H." Shakti and Shankar were justified in not applying for income tax clearance as Woodland was yet to be satisfied about their title. Therefore, in the facts and circumstances of the instant case, it cannot be said that Shakti and Shankar was in breach of Clause 8 of Exhibit "H." The conduct of Woodland, as noticed above, demonstrates that after it entered into an agreement being Exhibit "H" with Shakti and Shankar, it was not satisfied with the title of Shakti and Shankar in respect of the property concerned. The non-satisfaction of the title by Woodland appears, in writing, in the correspondences exchanged between the Solicitors of the contracting parties of Exhibit "H." Oral evidence on behalf of Woodland given through Poddar that Woodland was ready and willing to perform its obligations in terms of Exhibit "H" and that it was satisfied with the title of Gargas is contrary to the contemporaneous correspondences exchanged between by the Solicitors of the parties. This stand of Woodland in its oral testimony that they were satisfied with the title with Gargas and that they had all requisite documents relating to the property with them since June 11, 1973, in my view, justifies the forfeiture of the earnest money by the Gargas. N.P. Thirugnanam (supra) speaks of continuous readiness and willingness on the part of a person seeking specific performance of contract. It lays down that continuous readiness and willingness is a condition precedent to grant relief of specific performance. It is of the following view:- "5. N.P. Thirugnanam (supra) speaks of continuous readiness and willingness on the part of a person seeking specific performance of contract. It lays down that continuous readiness and willingness is a condition precedent to grant relief of specific performance. It is of the following view:- "5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under S.20 of the Specific Relief Act 1963 (for short, the Act). Under S.20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract." In His Holiness Acharya Swami Ganesh Dassji (Supra) the Supreme Court notes the distinction between readiness to perform a contract and willingness to perform a contract. It is of the following view: "2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized. The factum of readiness and willingness to perform plaintiff’s part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract." Gobinda Ghosh (supra) was reversed by the Supreme Court in Biswanath Ghosh (supra). Applying the ratio of N.P. Thirugnanam (supra) and His Holiness Acharya Swami Ganesh Dassji (supra) the Court is required to look into the continuous readiness and willingness of Woodland, in the facts of this case, to perform the contract. As I have noted the stand of Woodland in the correspondences exchanged between the parties is inconsistent with the stand of the witness of Woodland while giving oral testimony. In its oral testimony, the witness of Woodland claims that Woodland was satisfied with the title of the Gargas since 1973, that is much prior to the Exhibit "H" and that Woodland had in its custody and possession copies of documents of title to the property since 1973 also. The correspondences subsequent to Exhibit "H" therefore, amply demonstrate the fact that, Woodland was not willing to perform the contract since even while it sent a draft conveyance for Gargas to obtain clearance under Section 230A of the Income Tax Act, 1961 Woodland by its Solicitor’s letter dated June 12, 1974 being Exhibit "O" by the same letter Woodland was doubting the title of the Gargas. The letter of the Advocate enclosing the draft of conveyances state that Income Tax clearance under the Income Tax Act, 1961 is to be obtained by Shakti and Shankar subject to the title to the property being approved. Therefore, even at that point of time, Woodland did not approve of the title of Shakti and Shankar to the property concerned. Subsequent thereto in the letter dated September 30, 1975 being Exhibit "U" written on behalf of Woodland states that Shakti and Shankar had failed to make out a marketable title to the property concerned. It is not the case of Woodland that the letters written on its behalf by its Solicitors on the subject were without its instructions. The contents of the letter are in stark contrast to the oral testimony of Poddar of Woodland. The testimony of Poddar of Woodland is that Woodland was satisfied about the title of the Gargas since 1973 and that it was in custody and possession of the copies of documents relating to the property since 1973. The entire exercise, therefore, of Woodland subsequent to Exhibit "H" questioning the title of the Gargas to the property concerned, in my view, demonstrates the unwillingness of Woodland to perform its obligations under Exhibit "H." It was unwilling to perform its obligations between the date of Exhibit "H" till the date of filing of the suit for specific performance. In fact, in my view, such unwillingness continued till the date of the oral testimony of Poddar, when Woodland expressed satisfaction with regard to title. In such view, Woodland is not entitled to a decree for specific performance of Exhibit "H." Exhibit "BBB" and other exhibits relating to the balance-sheet of associate companies of Woodland are irrelevant in the facts and circumstances in the instant case. Woodland was unwilling to complete the transaction on the pretext of marketable title not being made out by the Gargas at the contemporaneous point of time. Availability of funds with Woodland, therefore, is an irrelevant consideration. The authorities cited by Mr. Mitra in support of the contention that, inadequacy of price is not a relevant consideration in a suit for specific performance, I am afraid, in view of the failure of Woodland to establish its continuous readiness and willingness to perform its obligation under Exhibit "H" will have no relevance. The next suit for specific performance is C.S. No. 43 of 1989. The next suit for specific performance is C.S. No. 43 of 1989. The suit is filed by Woodland seeking specific performance of the agreement recorded in the letter dated June 11, 1973. Mr. Chowdhury for Shankar had Shakti claims that the letter dated June 11, 1973 is suspect. In support of such contention, he submits that, the letter dated June 11, 1973 is written by Bhupal as the manager of the HUF. No authority of Bhupal to issue such letter is disclosed. There is no whisper of this letter dated June 11, 1973 in any of the pleadings, contemporaneous documents, correspondences exchanged between the parties till 1985. This letter is not signed by Shankar and Shakti. He goes on to submit that, Bhupal was not the Chief Manager of the estate in 1973. In any event such letter cannot come to existence on June 11, 1973 for the various reasons stated in the preceding paragraphs. Even Bhupal on the conveyance that he executed in favour of Woodland did not refer to the letter dated June 11, 1973. He submits that the letter dated June 11, 1973 is not a binding contract between Shankar and Shakti with Woodland. This letter cannot be specifically enforced as against his client. His client did not receive any consideration for the alleged contract. The letter dated June 11, 1973 is at best an agreement to enter into a further agreement. He submits that, an agreement to enter into a further agreement cannot be specifically enforced and he relies upon Speech and Software Technologies (India) Limited vs. Neos Interactive Limited, 2009 Volume 1 Supreme Court Cases 475, in this regard. He goes on to submit that, the letter dated June 11, 1973 is sought to be enforced in a suit of 1989. The claim, therefore, is barred by the laws of limitation. The demand for specific performance of this letter was made for the first time in May 1986. He refers to paragraph 12 of the plaint and submits that, it is extremely strange for Woodland to demand specific performance of the letter after 13 years. He points out that the letter dated June 11, 1973 was introduced in evidence and marked as Exhibit "G" in questions 45 to 47 of the examination in chief of Poddar. He refers to paragraph 12 of the plaint and submits that, it is extremely strange for Woodland to demand specific performance of the letter after 13 years. He points out that the letter dated June 11, 1973 was introduced in evidence and marked as Exhibit "G" in questions 45 to 47 of the examination in chief of Poddar. While placing the contents of Exhibit "G" he submits that, Exhibit "G" does not speak of any document being enclosed thereto nor does it speak of handing over of any document of title of any immovable property of Gargas to Woodland. However, in answer to question No. 46, Poddar of Woodland stated that, copies of all documents of title were received by Woodland. He also comments upon question Nos. 180, 382 to 385, 405 and 406 of the oral testimony of Poddar. He points out that the existence of Exhibit "G" surfaced for the first time at Exhibit "UU." Mr. Surajit Nath Mitra submits that, Bhupal is the author of Exhibit "G." Bhupal was not called to the witness box by Shakti and Shankar. Therefore, according to him, Shakti and Shankar cannot deny that Bhupal did not write Exhibit "G." He points out that Exhibit "G" was allowed to be marked as an exhibit without any objection. That Bhupal was not authorized to issue the letter dated June 11, 1973 is not the stand of Shankar and Shakti in the written statement. He submits that the contention of Mr. Chowdhury raised in his argument in respect of Exhibit "G" was not raised in the written statement of his client. He refers to various question and answers given by Poddar as also by Shankar Prasad Garga with regard to Exhibit "G." He submits that, Woodland is, therefore, entitled to specific performance of the letter dated June 11, 1973. Speech and Software Technologies (supra) is of the view that an agreement to enter into an agreement is not enforceable nor does it confer any right upon the parties. The letter dated June 11, 1973, being Exhibit "G" is a letter written by Bhupal as the Manager of the Hindu Undivided Family. Bhupal is not the Karta. No evidence is on record to establish that Bhupal is authorized by the other members of the family to issue the letter. The letter dated June 11, 1973, being Exhibit "G" is a letter written by Bhupal as the Manager of the Hindu Undivided Family. Bhupal is not the Karta. No evidence is on record to establish that Bhupal is authorized by the other members of the family to issue the letter. Deba was the Karta of the family at the point of time when Exhibit "G" came into being existence. This is an admitted position between Woodland and the Gargas. Exhibit "G" is a letter written by Bhupal. The document was marked exhibit without any objection. There is nothing on record to establish that Bhupal did not write the letter dated June 11, 1973. Exhibit "G" is dated June 11, 1973. Subsequent to Exhibit "G" the parties exchanged correspondences between them. The Gargas executed three agreements for sale with Bhupal and Hara executing three conveyances in respect of lot Nos. 1 and 3 of the premises concerned. None of the correspondence subsequent to June 11, 1973 till the letter of termination being Exhibit "R" as well as the three agreements for sale dated September 13, 1973 being Exhibits H, I, J and the four conveyances being Exhibits EE, FF, GG and HH do not refer to the letter dated June 11, 1973. All of these documents did not even remotely suggest the existence of Exhibit ‘G’. The correspondences between the parties prior to termination of exhibit and subsequent to its termination at Exhibits "U" and "V" do not refer to the letter dated June 11, 1973. Exhibits "W" to "CC" being correspondences between the other Gargas with Woodland also do not refer to this letter. The letter dated June 11, 1973 surfaces in Exhibit "UU." Exhibit "UU" in a letter dated February 15, 1985 written by Woodland to Goodlass Nerolac Paints Limited, an occupant of a portion of the premises concerned. This letter is replied to by Shakti in his letter dated April 18, 1985 being Exhibit "YY" addressed to Goodlass Nerolac. The suit for specific performance in terms of Exhibit "G" is filed in 1989. This letter is replied to by Shakti in his letter dated April 18, 1985 being Exhibit "YY" addressed to Goodlass Nerolac. The suit for specific performance in terms of Exhibit "G" is filed in 1989. All of these taken together lead to one irresistible conclusion that Exhibit "G" was brought about at least subsequent to 1982 being the last deed of conveyance dated February 13, 1982 marked as Exhibit "HH" and prior to February 15, 1985 being Exhibit "UU." The moment such conclusion is reached, Shakti and Shankar cannot be made bound by the contents of Exhibit "G." Exhibit "G" speaks of the premises in question to be an undivided property and it proceeds to describe the respective shares of the coparceners in the property. Exhibit "G" evinces an intention of the Gargas to be ready and willing to enter into a separate agreement in the individual capacity of the coparceners in respect of the respective shares of the coparceners. In my view, Exhibit "G" is at best an agreement to enter into a further agreement. The letter, therefore, cannot be specifically enforced and it creates no right in favour of Woodland. This is another ground why specific performance of Exhibit "G" is not granted. Mr. Chowdhury contends that, the claims made in C.S. No. 43 of 1989 are barred by the laws of limitation. I am inclined to hold so. Woodland seeks specific performance of a letter dated June 11, 1973 in a suit filed in 1989 without any material on record to demonstrate that the cause of action of Woodland was not barred by the laws of limitation till the date of filing of the suit. As rightly pointed out by Mr. Chowdhury the case of Woodland in paragraph 12 of the plaint of C.S. No. 43 of 1989 is that Woodland sought specific performance of Exhibit "H" in 1986, that is, after 13 years. Two suits are filed by Shakti and Shankar challenging the various conveyances executed by the other Gargas in favour of Woodland. These are C.S. No. 228 of 1984 and C.S. No. 684 of 1986. Two suits are filed by Shakti and Shankar challenging the various conveyances executed by the other Gargas in favour of Woodland. These are C.S. No. 228 of 1984 and C.S. No. 684 of 1986. The challenge of Shakti and Shankar to the various conveyances executed by the other Gargas in favour of Woodland is based on the concept of the Garga family remaining undivided as on the date of the execution of such conveyance, and there being no partition of the immovable properties by metes and bounds by a document duly registered under the Registration Act, 1908, individual coparcener had no right to sell his share in the properties. The facts demonstrate that, the Garga family severed its status as a joint Hindu family at least as on April 8, 1955. The conveyances questioned in the two suits were executed subsequent to April 8, 1955. A coparcener of a joint Hindu family can sell his share in the immovable properties upon severance of the status of the joint family upon the coparceners defining their respective shares in the joint family properties on expressing an intention to severe the joint family status. The contention on behalf of Shakti and Shankar that, Deba and Hara did not have any right in respect of the property concerned to convey and sale it to Woodland is, therefore, not accepted. Their challenge to the conveyances fails. The suit for partition remains for consideration. The suit for partition is filed by the Woodland and is registered as C.S. No. 324 of 1987. In this suit, Shakti and Shankar made an application under Section 4 of the Partition Act, 1893 being G.A. No. 2330 of 2009. Shakti and Shankar claim that, the property is a family dwelling house. Mr. Chowdhury for Shankar submits that, the property concerned is acknowledged to be a family dwelling house by Woodland. This will appear from Exhibit "H" being the agreement dated September 13, 1973. He refers to the conveyances executed by the other Gargas being Exhibit "HH." He also refers to the oral testimony of Poddar of Woodland in answer to the question Nos. 425, 430 and 431. According to him, in the oral testimony Woodland accepts that it is a family dwelling house and claims that it requires partition. The Gargas are in possession of the family dwelling house. 425, 430 and 431. According to him, in the oral testimony Woodland accepts that it is a family dwelling house and claims that it requires partition. The Gargas are in possession of the family dwelling house. Possession of the Gargas in the family dwelling house is protected by an interim order dated June 15, 1987 passed by the Court. He refers to the answer given by Shankar to question No. 350 where Shankar states that, the property concerned is a family dwelling house. Mr. Chowdhury submits that, even if it is held that the status of jointness of the Garga family stood severed, then also an application under Section 4 of the Partition Act, 1893 is maintainable. According to him, to maintain an application under Section 4 of the Partition Act, 1893, all that is required to be shown is that the property concerned is a dwelling house of the family. In support of the contention that, once a dwelling house of the family is established, a member of the family is entitled to invoke Section 4 of the Partition Act, 1893 he relies upon Chaudhri Mohammed Sulaiman Khan vs. Mt. Amir Jan, All India Reporter 1941 Allahabad 281, Alekha Mantri vs. Jagabandhu Mantri, All India Reporter 1971 Orissa 127, Monomohan Saha vs. Smt. Usharani Ghosh, All India Reporter 1979 Calcutta 79, Krishna Chandra & Others vs. Smt. Kaneez Fatima & Others, All India Reporter 1983 Allahabad 146, Smt. Nirupoma Basak vs. Baidyanath Pramanick, All India Reporter 1985 Calcutta 406 and Dorab Cawasji Warden vs. Coomi Sorab Warden & Others, All India Reporter 1990 Supreme Court 867. He submits that, an application under section 4 of the Partition Act 1893 is maintainable at any stage and even at the state of execution. In support of such contention, he relies upon Madan Mohan Ghosh vs. Ghanteswar Ghosh & Others, 1991 Volume 1 Calcutta High Court Notes 464. Mr. Surajit Nath Mitra, learned counsel for Woodland contends that, the property concerned lost the status of a family dwelling house by the induction of tenants there at. The Gargas themselves inducted tenants at the premises. In such view, once the property lost its status as a family dwelling house by induction of tenants, an application under Section 4 of the Partition Act, 1893 is not maintainable. He submits that, the Gargas did not treat the property concerned as a family dwelling house. The Gargas themselves inducted tenants at the premises. In such view, once the property lost its status as a family dwelling house by induction of tenants, an application under Section 4 of the Partition Act, 1893 is not maintainable. He submits that, the Gargas did not treat the property concerned as a family dwelling house. In the letter of cancellation being Exhibit "R" the property was not described as a family dwelling house. According to him, it is for Shankar to establish that, the property concerned is a family dwelling house. He submits that, the family broke up. The property concerned was not treated as a dwelling house of the family subsequent to the separation in the family. One branch moved out of the family dwelling house. He refers to the voter’s list. He relies upon Exhibit "HHH" to submit that, three branches were at Midnapore as will appear from the Voter’s list on 1970. Exhibit "JJ" is relied upon which is a voter’s list of 1988 showing Shankar as a voter in Midnapore. Exhibit DD, VV and WW also show that the Gargas has a residence in Midnapore. He relies upon Harkishan Singh vs. Pratap Singh, 42 Calcutta Weekly Note 1021, Abinash Chandra Chakravarty vs. Smt. Kamala Devi, All India Reporter 1953 Patna 344, J.C. Chatterji & Others vs. Maung Mye & Another, All India Reporter 1940 Rangoon 53, Durgapada Pal vs. Debidas Mukherjee & Others, All India Reporter 1974 Calcutta 14 and Dulal Chandra Chatterjee vs. Gosthabehari Mitra, All India Reporter 1953 Calcutta 259 on what would constitute a family dwelling house for the purpose of invocation of section 4 of the Partition Act, 1893. Section 4 of the Partition Act, 1893 has to be read along with Section 44 of the Transfer of Property Act, 1882. Section 44 of the Transfer of Property Act, 1882 lays down that a transferee acquires the transferor’s right to joint possession or other common or part enjoyment of the property as that enjoyed by a transferor who is a co-owner of an immovable property legally competent to transfer his share in such property. It also provides that the transferee is entitled to enforce a partition of the immovable property subject to the conditions and liabilities affecting the property at the date of the transfer. It also provides that the transferee is entitled to enforce a partition of the immovable property subject to the conditions and liabilities affecting the property at the date of the transfer. So far as a dwelling house belonging to an undivided family is concerned, Section 44 of the Transfer of Property Act, 1982 provides that where the transferee of a share in a dwelling house belonging to an undivided family is not a member of the family, noting in Section 44 of the Transfer of Property Act, 1882 will entitle him to joint possession or other common or part enjoyment of the house. Section 4 of the Partition Act, 1893 allows a member of an undivided family to apply for and purchase a share of an outsider the share into dwelling house belonging to one undivided family. Mohammed Sulaiman (supra) lays down that, in order for Section 4 of the Partition Act, 1893 to apply, it is not necessary that members of the family should actually be residing in the house, nor is it necessary that they should be undivided with regard to the rest of their property. It also goes on to say that the phrase undivided family in Section 4 of the Partition Act, 1893 is used in a very wide and general sense. Two members of the same family can be considered as members of an undivided family within the meaning of the Partition Act, 1893, if the house is undivided and if one of the family members permanently occupied the house and the other has not permanently abandoned all intentions of occupying the house should it be necessary to do so. Alekha Mantri (supra) is of the view that, Section 4 of the Partition Act, 1893 is a logical sequel of or corollary to Section 44 of the Transfer of Property Act, 1882. According to it, the principle underlying Section 4 of the Partition Act, 1893 is that, it is inequitable to permit a stranger to intrude upon the privacy of an undivided family residence. Section 44 of the Transfer of Property Act, 1882 however, left the stranger purchaser free to have his share carved out in a suit for partition. It is this mischief which is sought to be prevented by section 4 of the Partition Act, 1893. Section 44 of the Transfer of Property Act, 1882 however, left the stranger purchaser free to have his share carved out in a suit for partition. It is this mischief which is sought to be prevented by section 4 of the Partition Act, 1893. The object of Section 4 of the Partition Act, 1893 is to prevent the stranger transferee from forcing his way into the dwelling house in which other members of his transferor’s family have a right to live. Manomohan Saha (supra) is of the following view:- "For Section 4 to be applicable it is manifest that the following conditions must be shown to exist – (a) The house is dwelling house being to an undivided family. (b) Share of a co-sharer is transferred to a stranger to that family. (c) Purchaser – transferee has sued for partition. (d) Any other member or members of the family being share-holder undertake to bury the share of the stranger-purchaser. Undivided family does not mean joint family as commonly understood, but undivided family qua dwelling house and it mattered not that possession of any portion of the premises was obtained by the stranger-transferee at any point of time and/or that his name was mutated in the records of the Corporation. Nor does the same debar the defendants from claiming-the benefits under section 4. Where there is no division of the residential dwelling house and the shares of the respective share owners have not been partitioned in metes and bounds, the dwelling house being undivided, the character or status of an undivided family exists, and it does not matter that certain members are enjoying separate messing and/or are not permanently residing in the suit premises. As separate application is not necessary to entitle the defendants to seek relief under Section 4." Krishna Chandra (supra) lays down that, the expression undivided family in Section 4 of the Partition Act, 1893 does not mean undivided Hindu Family but it means undivided families of all castes and communities and all that is necessary is that, the family should be undivided qua the dwelling house which is the subject matter of partition. It is not necessary that, the family should be undivided with regard to other properties also. Nirupoma Basak (supra) explains the meaning of a dwelling house belonging to an undivided family in Section 4 of the Partition Act, 1893. It is not necessary that, the family should be undivided with regard to other properties also. Nirupoma Basak (supra) explains the meaning of a dwelling house belonging to an undivided family in Section 4 of the Partition Act, 1893. It is of the view that, the expression dwelling house belonging to undivided family house in Section 4 of the Partition Act, 1893 means family not divided qua the dwelling house. The essential of the matter is that, the house itself should be undivided even when the co-sharers have defined shares. As long as the dwelling house, which has not been divided qua the family it might be said to be a dwelling house belonging to an undivided family for the purpose of Section 4 of the Partition Act, 1893. In Dorab Cawasji Warden (supra) is of the view that, even if the family is divided in status in the sense that they are holding the property as tenants in common but undivided qua the property, that is, the property has not been divided by metes and bounds it would be within the provisions of Section 44 of the Transfer of Property Act, 1882. Dorab Cawasji Warden (supra) is at the interim stage of a suit. An application for injunction reached the Supreme Court. Madan Mohan Ghosh (supra) is of the view that, the object of Section 4 of the Partition Act 1893 is to prevent intrusion of a stranger into the dwelling house of an undivided family by creating a right in favour of the members of such family and to negate the right of strangers. Undividedness of the family is to be determined with reference to qua the dwelling house and that such undividedness continues so long as the dwelling house is not actually partitioned by metes and bounds. The right to preempt is available with regard to dwelling house of the undivided family only and no other property of the undivided family. An application under Section 4 of the Partition Act, 1893 is maintainable even at the stage of execution. Woodland in its defence to the application under section 4 of the Partition Act, 1893 contends that, the premises concerned has lost the status as a family dwelling house. It also contends that, the family of the Gargas is no longer undivided within the meaning of Section 4 of the Partition Act, 1893. Mr. Woodland in its defence to the application under section 4 of the Partition Act, 1893 contends that, the premises concerned has lost the status as a family dwelling house. It also contends that, the family of the Gargas is no longer undivided within the meaning of Section 4 of the Partition Act, 1893. Mr. Mitra relies on J.C. Chatterjee & Others vs. Maung Mye & Another, All India Reporter 1940 Rangoon 53, Abinash Chandra Chakravarty vs. Kamala Devi, All India Reporter 1953 Patna 344 and Durgapada Pal vs. Debidas Mukherjee & Others, All India Reporter 1974 Calcutta 14 on the meaning of a dwelling house belonging to an undivided family. The expression dwelling house belonging to an undivided family is explained in the three authorities citied by Mr. Mitra. Chatterjee (supra) cited by Mr. Mitra is of the view that, the transferee of a share in undivided property is entitled under S.44, T.P. Act, to his transferor’s right to joint possession or other common or part enjoyment of the property in all cases except where the subject matter of the transfer is a share of a dwelling house belonging to an undivided family of which he (the transferor) is not a member in which case he is not entitled to joint possession or other common or part enjoyment of the property but is entitled to a partition of the property which, however must be denied to him under Section 4, Partition Act, in the event of a member of the family being a shareholder undertakes to buy the share of the transferee. It is also of the view that, the expression dwelling house belonging to an undivided family appearing in Section 4 of the Partition Act, 1893 has been borrowed from Section 44 of the Transfer of Property Act, 1882 and bears the same meaning. It goes on to say that, the word family includes a group of persons related by blood, who live in one house under one head or management and it is not restricted to a body of persons who can trace their descent from a common ancestor. It goes on to say that, the word family includes a group of persons related by blood, who live in one house under one head or management and it is not restricted to a body of persons who can trace their descent from a common ancestor. It is not necessary for the members to constitute an undivided family that, they should constantly reside in the dwelling house, nor is it necessary that they should be joint in mess, it is sufficient if the members of the family are undivided qua the dwelling house which they own. Thus, the expression dwelling-house belonging to an undivided family refers to the family dwelling house. It does not mean any house or building for human dwelling belonging to an undivided family. Where the houses are for most of the time in the occupation of tenants, such property is not a dwelling house belonging to an undivided family within the meaning of Section 4 of the Partition Act, 1893. Abinash Chandra (supra) is of the view that, the expression dwelling house belonging to an undivided family in Section 4(I) refers to the family dwelling house and not to any house or building for human dwelling belonging to an undivided family. Thus a house which is in the occupation of tenants cannot be said to be a family dwelling house." Gurupada Pal (supra) is of the view that Section 4 of the Partition Act, 1893 applies to a dwelling house owned by an undivided family that families who are its owners in some shares. Section 44 of the Transfer of Property Act, 1882 permits a transferee of an undivided share in an immovable property to sue for partition. Section 4 of the Partition Act, 1893 allows a co-sharer in a dwelling house belonging to an undivided family to apply for and buy the share of the outsider co-sharer in a suit for partition. Section 4 of the Partition Act, 1893 is available to persons of all religions and is not restricted to Hindus only. For a co-sharer to invoke Section 4 of the Partition Act, 1893 in a suit for partition he has to be a member of the undivided family holding a share in the family dwelling house and that a person not a member of such undivided family is claiming ownership of a share in the family dwelling house. For a co-sharer to invoke Section 4 of the Partition Act, 1893 in a suit for partition he has to be a member of the undivided family holding a share in the family dwelling house and that a person not a member of such undivided family is claiming ownership of a share in the family dwelling house. For the family to be considered an undivided, the family must be undivided qua the family dwelling house. It is of no consequence for a partition under Section 4 of the Partition Act, 1893 to succeed that, the members of the family have severed the status of the undivided family and have partitioned the rest of the immovable properties. The shares of the co-sharers in a dwelling house can be definitive. However, for the house to be considered as a dwelling house, the house must not be divided by metes and bounds despite the co-sharers having definitive shares therein. In other words, the family dwelling house must not be divided by metes and bounds amongst the members of the family. A house belonging to a family will be considered as a family dwelling house for the purposes of Section 4 of the Partition Act, 1893 when the members of the family ordinarily reside at the house. It is not necessary for all the members of the family to reside at the house concerned all the time. The dwelling house needs to be occupied by one of the co-sharers of the undivided family with the other co-sharers not giving up the intention to reside in the dwelling house. The fact that portions of the dwelling house is let out to tenants will not take away the character of the house to be a family dwelling house. The induction or existence of tenants in portions of a dwelling house will not take away the character of the house from being a family dwelling house. Possession of a tenant at a part of the dwelling house is temporary as it is liable to be evicted. Possession of an outsider in a family dwelling house if not arrested under Section 44 of the Transfer of Property Act, 1882 and Section 4 of the Partition Act, 1893 will be permanent. Possession of a tenant at a part of the dwelling house is temporary as it is liable to be evicted. Possession of an outsider in a family dwelling house if not arrested under Section 44 of the Transfer of Property Act, 1882 and Section 4 of the Partition Act, 1893 will be permanent. Poddar in cross-examination in his answer to question No. 417 says that Woodland wanted to purchase the lot even after knowing that the shares were divided only because the Gargas agreed to sale the property jointly. The lot referred to in answer to question No. 417 is lot No. 2. In answer to question No. 422 Poddar on behalf of Woodland says that the property was actually not divided, only the shares were divided. He repeats his stand as to the non-division of the property in answer to question No. 423. In answer to question No. 425 Poddar says that the shares of the individual Gargas were defined but the partition did not take place. In answer to question No. 430 he states that, he visited the property and on his first visit he did not find the property to be partitioned physically. On the date of his evidence, in answer to question No. 431, he states that, the property was not physically partitioned. The physical partition of the property concerned into the three lots or amongst the co-sharers of the property is not proved. In fact, the evidence on record is overwhelmingly in favour of no partition of the immovable property concerned at all. The facts of the instant case demonstrate that, the rival parties considered the property concerned to be a family dwelling house of the Gargas. Woodland seeks specific performance of Exhibit "H." Woodland is, therefore, accepting the contents of Exhibit "H" to be true and correct. Exhibit "H" is signed on behalf of Woodland. Exhibit "H" describes the property concerned to be the dwelling house of Shakti and Shankar. The property concerned is described as a dwelling house at various places of Exhibit "H." It is so described in the recitals as well as in the schedule of Exhibit "H." In cross-examination Shankar states that, he was residing at the premises concerned since his birth in answer to question No. 305. The property concerned is described as a dwelling house at various places of Exhibit "H." It is so described in the recitals as well as in the schedule of Exhibit "H." In cross-examination Shankar states that, he was residing at the premises concerned since his birth in answer to question No. 305. He says thereafter that, he used to visit Mahishadal especially during the festival but the property concerned was the address at which he lived. He says that the property concerned was his permanent address and that the same will appear from various documents that he executed. He goes on to say in various answers to questions put to him in cross-examination that Deba used to live at Mahishadal and used to stay at the premises concerned when in Kolkata. So far Bhupal was concerned, he had a residence at Lansdown Road and that prior to 1968-1970 Bhupal used to reside at the property concerned. No evidence is on record to show that any co-sharer had given up the intention to reside at the suit premises. On this aspect, Mr. Mitra contends that, a Garga had taken up a separate residence in Kolkata. Taking up separate residence, per se, without the intention to give up the property concerned as the residential property will not take away the character of the property being a family dwelling house. Intention of a Garga to give up the property concerned as the family dwelling house is not proved. A member of the family may move out of the family dwelling house for various reasons, including lack of accommodation at the family dwelling house. The movement of the family member on its own out of the family dwelling house and without any other evidence of establishing the intention of that family member to give up the family dwelling house for all times to come, will not take away the character of the family dwelling house from such house. Mr. Mitra also contends that, the voters list of diverse areas will show that Shakti and Shankar were voters elsewhere and that, they were not permanent residents of the property concerned. Again the authorities cited at the bar on the concept of a family dwelling house does not require all the co-sharers to occupy the property concerned at every point of time. Again the authorities cited at the bar on the concept of a family dwelling house does not require all the co-sharers to occupy the property concerned at every point of time. Only on the ground a member of the family has his voting rights at a different premises, without the intention to give up the property concerned as the dwelling house permanents, will not a property which is otherwise a family dwelling house anything less. On consideration of the evidence on record, I am of the view that the property concerned is a family dwelling house of the Gargas. Mr. Mitra contends that, it may be a family dwelling house but it is not dwelling house of an undivided family as the Gargas had separated long back. Again authorities cited are of the view that, undivided family will mean qua the family dwelling house. So long as the family dwelling house remains undivided by metes and bounds and it belongs to the family it will be considered as the dwelling house of the undivided family. No registered document is on record to show actual physical division of the property by metes and bounds. The entirety of the property concerned is shown in various documents, including documents executed by Shakti and Shankar to be divided into three lots. This division of the property concerned into three lots does not militate against the character of the property as a family dwelling house of the Gargas. The three lots are for the sake of convenience of the Gargas. They did not divide the property concerned into three lots with allotment of a specific lot a coparcener or a group of coparcener to the exclusion of other coparcener or a group. They continued to remain joint owners of every lot in the same ratio as they owned the entirety of the property, the three lots are not a partition by metes and bounds of the family dwelling house amongst the coparceners. Even Woodland accepted the position the property concerned was not partitioned by metes and bounds in its oral testimony through Poddar. In such circumstances, the contention of Mr. Mitra that, the property concerned is not a dwelling house of undivided family as the Gargas had separated, cannot be accepted. In view of the discussions herein, G.A. No. 2330 of 2009 is allowed on the terms provided herein. In such circumstances, the contention of Mr. Mitra that, the property concerned is not a dwelling house of undivided family as the Gargas had separated, cannot be accepted. In view of the discussions herein, G.A. No. 2330 of 2009 is allowed on the terms provided herein. During the submissions of the parties, I had enquired of Shankar as to whether, he was agreeable to the to the Court imposing restrictions on transfer of the property for a period of time in the event his right of pre-emption is allowed. The submission was in the affirmative. Shankar is wanting to preserve the family dwelling house as such. Therefore, in accordance with the acceptance of such terms by Shankar as also independent thereto, Shankar will not sell, alienate, encumber, dispose of, part with possession or transfer his share in respect of the suit premises in any manner whatsoever for a period of 25 years from date. In view of the discussions above, the issues settled by the Order dated May 4, 2004 are answered therein. The two suits for specific performance namely, C.S. No. 501 of 1976 and C.S. No. 43 of 1989 are taken up first. The first issue of C.S. No. 501 of 1976 was not pressed by the defendants of the suit. So far as the second issue is concerned, the agreement dated September 13, 1973 was valid when it was entered into. It was not subsisting on the date of filing of the suit as it was validly terminated. So far as the third issue is concerned, the plaintiff was not ready and willing to perform its obligations under the agreement dated September 13, 1973 at all material time. This answers issue no.4 as the plaintiff in this suit is not entitled to a decree for specific performance. Consequently, the issue no. 5 is also answered as the defendant in the suit is not obliged to execute or register any conveyance in favour of the plaintiff. So far as the issue nos. 6 and 7, the plaintiff is not entitled to a decree for partition as all the co-sharers are not parties to the suit. The first issue in C.S. No. 43 of 1989 was not pressed. So far as the second issue is concerned, I am of the view, that Woodland is not entitled to specific performance of the letter dated June 11, 1973. The first issue in C.S. No. 43 of 1989 was not pressed. So far as the second issue is concerned, I am of the view, that Woodland is not entitled to specific performance of the letter dated June 11, 1973. Consequently, this answers issue no. 4 also. Issue no. 3 is answered by saying that, the question of readiness and willingness does not arise as there is no agreement to enforce. Since there is no agreement to enforce, the defendants are not obliged to execute any conveyance and the issue no. 5 is answered accordingly. Issue nos. 6, 7 and 8 were not pressed at the time of hearing. There are two suits for declaration of the conveyances executed by other Gargas to be invalid. C.S. No. 228 of 1983 is the first of such suit. Issue nos. 1 and 2 therein were not pressed. The conveyances dated July 25, 1978 and July 26, 1978 are valid and issue no. 3 is answered accordingly. The preferential right of Shankar to purchase the interest or share of the outsider in the property is allowed under Section 4 of the Partition Act, 1893 in the suit for partition being C.S. No. 324 of 1987 and as such issue no. 4 is answered accordingly. Issue no. 5 is answered in the negative. Issue nos. 6, 7 and 8 were not pressed at the time of hearing. So far as in the second suit being C.S. No. 684 of 1989 challenging the conveyances, issue nos. 1, 2, 6, 7 and 8 are not pressed at the hearing. Issue no. 4 is answered in the affirmative. The preferential right of the plaintiff to purchase the interest of the Defendant Nos. 3 and 4 of the property is allowed in the suit for partition under Section 4 of the Partition Act, 1893. Issue no. 4 is answered accordingly. So far as issue no. 5 is concerned the same was no pressed at the time of argument and is answered in the negative. C.S. No. 324 of 1987 is the suit for partition filed by Woodland. Issue no. 1 is answered in the affirmative. Woodland is a co-sharer is entitled to sue for partition under Section 44 of the Transfer of Property Act, 1882. However, it being an outsider to the family is not entitled to joint possession. Issue no. C.S. No. 324 of 1987 is the suit for partition filed by Woodland. Issue no. 1 is answered in the affirmative. Woodland is a co-sharer is entitled to sue for partition under Section 44 of the Transfer of Property Act, 1882. However, it being an outsider to the family is not entitled to joint possession. Issue no. 2 was not pressed at the time of hearing. Issue nos. 3 and 4 does not arise inasmuch as Shakti and Shankar applied under Section 4 of the Partition Act, 1893 for purchasing the share held by Woodland in the family dwelling house being property concerned. Such application for reasons recorded herein is allowed. Therefore, issue nos. 3 and 4 need not be answered. Shakti and Shankar did not seek any relief other than purchasing the rights of Woodland in the suit premises. No other relief is, therefore, afforded to any of the parties in the suit for partition. Since I have allowed the application of Shakti and Shankar under Section 4 of the Partition Act, 1893, I need to issue consequential directions to give effect to it. The plaintiff in suit being C.S. No. 324 of 1987 will transfer and convey all its right, title and interest over in respect of the suit property to Shankar at and for a consideration to be determined as directed herein. Shankar will apply to the Registrar of Assurance, Kolkata for the market value of the suit premises as on the date of making of the application under Section 4 of the Partition Act, 1893. Such application will be made before the Registrar of Assurance within seven days hereof. Within a fortnight from date of receipt of communication of the market value of the suit property on the date of an application under Section 4 of the Partition Act, 1893, from the Registrar of Assurance, Kolkata, Shankar through his advocate on record will communicate such decision of the Registrar of Assurance, Kolkata to the advocate for the plaintiff in C.S. No. 324 of 1987. Such computation of the market price of the Registrar of Assurance, Kolkata will be treated as the consideration for purchase of right, title and interest of the plaintiff of C.S. No. 324 of 1987 by Shankar in respect of the suit property. Such computation of the market price of the Registrar of Assurance, Kolkata will be treated as the consideration for purchase of right, title and interest of the plaintiff of C.S. No. 324 of 1987 by Shankar in respect of the suit property. Simultaneously with the communication of the decision of Registrar of Assurance, Kolkata, Shankar through his advocate on record, will forward the conveyance required to be executed by Woodland for transfer of its rights, title and interest in respect of the property to Shankar. Within seven days from the date of receipt of such communication, Woodland will execute the conveyance and present the same before the Registering Authority for registration. Shankar will make over the consideration to Woodland by a demand draft or instrument of lime nature simultaneously with Woodland presenting the conveyance for registration. In the event of default on the part of Woodland to either execute or present the conveyance for registration on the date fixed by Shankar, the Registrar, Original Side will execute and present such deed before the Registering Authority. In such event, Shankar will deposit the consideration payable to Woodland with the Registrar, Original Side who shall make over the same to Woodland as and when demanded by Woodland. The four suits namely, C.S. No. 501 of 1976, C.S. No. 228 of 1984, C.S. No. 684 of 1986, and C.S. No. 43 of 1989 are dismissed. C.S. No. 324 of 1987 is decreed by allowing G.A. No. 2330 of 2009. The parties will bear their respective costs. The department will draw up and complete the decree as expeditiously as possible.