B. Rajamma v. S. Ananthakrishnan Potti — 1990 DIGILAW 324 (KER)

JUDGMENT:- The 1st defendant in O.S. No. 432/80 on the file of the Sub Court, Trivandrum is the appellant in A.S. No. 433/ 83. The 1st plaintiff in O.S. No. 283/81 on the file of the same Court is the appellant in A.S. No. 487/83. Both the suits were filed for partition and were tried together by the lower court and a common judgment was rendered. 2. The material averments in the plaint in O.S. No. 432/80 may be summarised as follows : The plaint schedule property originally belonged to Kali Padmanabhan and Kali Sankaran and it was B schedule item No. 11 in O.S. No. 109/1120 of the District Court, Trivandrum. It consisted, of 8.463 cents of land in Sy. No. 1062 and the building thereon. This property and item No. 2 in O.S. No. 283/81 belonged to two brothers Kali Padmanabhan and Kali Sankaran. Item No. 2 in O.S. 283/81 belonged to Kali Sankaran exclusively. There was a suit O.S. 109/1120 for partition of 2 items jointly belonged to two brothers. A final decree was passed in that suit. Ext. A1 dated 30-8-73 is the copy of the final decree and Ext. B 1 dated 5- 11 -58 is the copy of preliminary judgment. 3. Kali Sankaran was the 1st defendant in that suit and on his death defendants 54 to 59 were impleaded in the suit as his legal representatives. They were his wife Kali Bharathy and children, Padmanabhan Krishnan, Bharathi Devayani, Bharathi Rajamma, Bharathi Umayamma and Padmanabhan Narayanan. Kali Padmanabhan had a daughter Chellamma and she was represented by her legal representatives defendants 97 to 101. Padmanabhan Krishnan died pending suit and his legal representatives defendants 108 to 110 were impleaded. As per the final decree passed in that suit two items were allotted to the share of two brothers Kali Sankaran and Kali Padmanabhan represented by legal representatives 54 to 59, 97 to 101 and 108 to 110. Kali Padmanabhan's share devolved on the defendants in this suit. Kali Sankaran had assigned his right in favour of defendants 54 to 59 and 97 to 101. This suit was filed after the decree was passed in O.S. 109/1120. Some of the sharers, viz. defendants 56, 59, 97 to 101 transferred their shares in item 1 (House property) in favour of the 2nd plaintiff. 58th defendant sold her share in favour of the 1st plaintiff. This suit was filed after the decree was passed in O.S. 109/1120. Some of the sharers, viz. defendants 56, 59, 97 to 101 transferred their shares in item 1 (House property) in favour of the 2nd plaintiff. 58th defendant sold her share in favour of the 1st plaintiff. Thus the 1st plaintiff acquired 13 /70 shares and the 2nd plaintiff acquired 31/ 70 shares in the House property. 1st defendant got 13 / 70 shares and defendants 2 to 4 got 13 / 70 shares in the said property. The defendants had agreed to sell their shares to the plaintiffs at the same rate at which the other shares had been sold to the plaintiffs but subsequently they backed out. The plaintiffs are prepared to purchase their rights at the same rate. Since the defendants in the reply notice denied the agreement to sell their shares the plaintiffs filed O. S.432 of 1980 for partition and separate possession of their 44 / 70 shares in the plaint schedule property. 4. In the written statement filed by the 1st defendant she contended that the plaintiffs have no rights or possession over the plaint schedule property and it exclusively belonged to her and she is in possession of the same. She admitted that the schedule property was B schedule item No. 11 in O.S. 109/ 1120. The schedule property and 1 acre 85 cents, which was A schedule item No. 8 in O.S. 109/ l120 ME were allotted to the successors of Kali Padmanabhan and Kali Sankaran, defendants 56 to 59, 97 to 101and 108 to 110,in that suit towards their 2/9 shares as per the final decree passed on 30-8-73 in that suit. Thus, the 1st defendant, Devayani, Umayamma and Narayanan, got 1/5 share each and defendants 2 to 4 together got 1/5 share in Kali Sankaran's 1/ 2 right in the properties, In Kali Padmanabhan's 1/2 share, the 1st defendant, Devayani, Umayamma and Narayanan got 1/7 share each and defendants 2 to 4 together got 2/7 share and defendants 97 to 101 together got 1/7 share. The 1st defendant is in exclusive possession of the schedule property continuously from 1119 ME onwards residing in the building as authorised by Kali Sankaran, the then Manager of the family. Apart from the building and the courtyard around it there is no land in the property. The 1st defendant is in exclusive possession of the schedule property continuously from 1119 ME onwards residing in the building as authorised by Kali Sankaran, the then Manager of the family. Apart from the building and the courtyard around it there is no land in the property. That property itself was acquired for the residence of the members of the family for their educational purposes as provided in the earlier partition deed in the family. There was another item of property having an extent of 1 acre 50 cents belonging to the 1st defendant, Devayani, Umayamma, Narayanan and Krishnan as the successors of Padmanabhan Shankaran. In May 1974 all the above 3 items including the schedule property were partitioned orally. The 1st defendant has no other building of her own, whereas the other sharers have got building of their own allotted from the family. Considering the same and her long exclusive possession and residence the schedule property was exclusively allotted to the 1st defendant and other sharers took shares in the other two items. Thus the 1st defendant is in exclusive independent possession of the schedule property and the building therein from May 1974 in continuation of her prior possession. So as a matter of fact, the executants of the sale deeds in favour of the plaintiff had no right or possession over the schedule property at the time of the execution of those sale deeds and the plaintiffs also did not get any right over the schedule properties as per those sale deeds. The 1st defendant has renovated the building spending more than Rs. 20,000 / -. Additional structures were also put up and compound wall and gate were constructed by her. Mutation was effected in her name. Patta was also obtained by her and tax is also being paid by her. The plaintiffs who were conducting hotel business in the adjoining eastern compound, till recently purchased litigation knowing fully well the above stated facts. As some of the sharers have executed the sale deeds ignoring the oral arrangement, the defendants have filed O.S. 283 / 81 for partition of all the three items so that the schedule property may be allotted to the 1st defendant's share. On these allegations, she prayed that the suit may be dismissed. As some of the sharers have executed the sale deeds ignoring the oral arrangement, the defendants have filed O.S. 283 / 81 for partition of all the three items so that the schedule property may be allotted to the 1st defendant's share. On these allegations, she prayed that the suit may be dismissed. 2nd defendant on her behalf and on behalf of her minor children defendants 3 and 4 filed a separate written statement adopting the contentions raised by 1st defendant. 5. Defendants in O.S. 432/80 is the plaintiff in O.S. 283/81. The allegations raised in the plaint are more or less the same as the contentions by them in the written statement in O.S. 432/ 80. 6. Defendants 1 to 3 in O.S. 283 / 81 filed a joint written statement in which they contended that they are entitled to 1 / 5 share each in Kali Shankaran's 1/2 right in schedule items 1 and 2 and 1/ 5 share in item No. 3 and also 1/7 share each in Kali Padmanabhan's 1/ 2 share in schedule items 1 and 2. Schedule item No. 1 was in the possession of the husband of the 1st defendant, who was 73rd defendant in O. S. 109 / 1120 as a lessee of Kali Shankaran. When the 1st defendant's husband became a Munsiff he allowed the 1st plaintiff to occupy a portion of the building and during vacation the 1st plaintiff and her husband used to come and stay in the house and it is not, correct to say that the 1st plaintiff was in exclusive possession of schedule item No. 1. The 1st plaintiff was not authorised by Kali Shankaran to stay there nor was it acquired for the purpose of the family for residence for educational purposes. There was no provision with regard to the schedule item No. 1 in the family partition as alleged in the plaint. The 1st plaintiff has got properties from her parents and she can construct building if she has no building of her own. The allegation that there was an oral partition in May 1974 and the 1st plaintiff was allotted the schedule item No. 1 is absolutely false. The schedule item No. 1 is a very valuable property. Nobody has taken any share in the schedule property as alleged in the plaint. The allegation that there was an oral partition in May 1974 and the 1st plaintiff was allotted the schedule item No. 1 is absolutely false. The schedule item No. 1 is a very valuable property. Nobody has taken any share in the schedule property as alleged in the plaint. The defendants are not aware of any Patta being transferred in the name of the 1st plaintiff, and she has not renovated the house nor spent any money for it. The expenses incurred for maintenance and repairs of the house are met by all the members of the defendants' family. It is true that defendants 1 to 7 and the predecessor of defendants 8 to 11 executed sale deeds with respect to schedule item No. 1 in favour of defendants 12 and 13 and for partition of that item O.S. No. 432/ 80 was filed. These defendants were competent to execute those sale deeds with respect to their shares in schedule item No. 1. Since there was no partition of the schedule properties, the defendants are also agreeable for partition of all the schedule items. But the 1st plaintiff was not entitled to the entire schedule item No. 1 towards her share. It is not a residential building of the 1st plaintiff alone and no inconvenience would be caused by the partition of schedule item No. 1. Defendants 12 and 13 are entitled to get the shares which their vendors have in schedule item No. 1. They prayed that all the schedule items may be devided and each of these defendants may be given 1/5 share of Kali Shankaran's 1/2 share in schedule items No. 1 and 1/5 of schedule item No. 3 and 1/7 of Kali Padmanabhan's 1/2 right in schedule item No. 2, and defendants 12 and 13 may be given their 3/5 share in Kali Shankaran's 1/2 right and 3 / 7 share in Kali Padmanabhan's 1/2 right in schedule item No. 1 and they paid necessary court fee for the same. 7. Defendants 4 to 11 have filed another joint written statement adopting the contention of defendants 1 to 3. 8. Defendants 12 and 13 in their joint written statement adopted the contentions and allegations in the plaint. 9. As indicated above, as per the order on I.A. 4668/82 both these suits were tried together and evidence was taken in O.S. 283/81. Defendants 4 to 11 have filed another joint written statement adopting the contention of defendants 1 to 3. 8. Defendants 12 and 13 in their joint written statement adopted the contentions and allegations in the plaint. 9. As indicated above, as per the order on I.A. 4668/82 both these suits were tried together and evidence was taken in O.S. 283/81. On a consideration of the oral and documentary evidence of the case, the court below found against the oral partition pleaded by the 1st plaintiff in O.S. 283 / 81. It also held that the 1st plaintiff is not exclusively entitled to item No. 1. It further held that the defendants 12 and 13 in O.S. 283/81 who purchased the undivided share have an equitable right for partition and therefore as a bona fide purchasers for the value, defendants 12 and 13 are entitled to get their shares in item No. 1 of schedule property (House property) as far as possible in equity. Accordingly a preliminary decree was passed declaring that plaintiffs 1 and 2 in O.S. 432 / 80 are entitled to 41/70 shares in the schedule property in that suit which is schedule item No. 1 in O.S. 283/81 and the 1st plaintiff in O.S. 283/ 81 is entitled to 12/70 shares in schedule items 1 and 2 and 1/5 share in schedule item No. 3 in that suit and plaintiffs 2 to 4 in that case together are entitled to 17 / 70 shares in schedule items 1 and 2 and 1 / 5 share in schedule item No. 3 and defendants 1 to 3 are entitled to 12/70 shares each in schedule item No. 2 and 1/5 shares each in schedule item No. 3 and defendants 4 to 11 together are entitled to 5 / 70 share in schedule item No. 2 and they are entitled to get their shares partitioned. It was further ordered that any of the parties can take out a commission to effect partition. There is also a direction that the commissioner will effect partition of schedule item No. 1 in such a way that the plaintiffs in O.S. 432 / 80 will get their shares in schedule item No. 1 as far as possible and the 1st plaintiff in O.S.283/81 will get the benefit of the building in that item as far as possible. There was also a direction that the building in schedule item No. 1 and the property must be valued separately and an equitable division may be effected. 10. In these appeals, the appellants have challenged the direction contained in the preliminary decree in O.S. No.432/80 that the plaintiffs there will get their shares in schedule item No. 1 as far as possible. The learned counsel in this context relied on S.4 of the Partition Act. 11. The question of applicability of S.4 of the petition Act has been considered by the lower court in paragraph 15 of its judgment. The lower court rejected the prayer based on S.4 holding that the plaintiffs have filed O. S. 283/81 not u/S.4 of the partition Act of claiming any benefit of the said provision, that the purchaser of an undivided share has an equitable right for partition, that defendants 12 and 13 were conducting hotel business in the adjacent building and that it was when they had to surrender that building that they purchased the shares of defendants 1 to 11 in schedule item No. 1 to continue their business. The lower court also observed that from Ext. CL. (a) plan it could be seen that the building in schedule item No. 1 is situated in the north western side of that property and there is vacant space in that property and the evidence of the Commissioner would show that the building was also partible to some extent. It is on the basis of this finding a direction was given that the Commissioner will effect partition of schedule item No. 1 in such a way that the plaintiffs in O.S. 432/ 80 will get their shares in schedule item No. 1 as far as possible. Of course, the court below also gave a direction that the 1st plaintiff in O.S. 293 / 81 will get the benefit of the building in that item as far as possible. 12. Of course, the court below also gave a direction that the 1st plaintiff in O.S. 293 / 81 will get the benefit of the building in that item as far as possible. 12. Learned counsel for the appellant contended that the lower court has not understand the real scope of S.4 of the partition Act, that defendants 12 and 13 who were the purchasers from defendants 1 to 11 are not members of the family that 1st plaintiff had undertaken to purchase shares of strangers and that in the circumstances it is incumbent on the part of the Court to direct the sale of shares of strangers to the 1st plaintiffs. Learned counsel also submitted that expression 'dealing house' in S.4 of the Partition Act would include the land on which the building is situated. To understand the contentions of learned counsel in this behalf, it is profitable to refer to S.4 of the Partition Act which reads as follows : "(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferse once for partition, the Court shall, if any member of the family bring a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder and may give all necessary and proper directions in that behalf. (2) If in any case described in sub-sec.(1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-s.(2) of the last foregoing section. " Sub-s.(2) of S.3 states that "if two or more shareholders apply for leave to buy as provided in sub-s.(1), the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court. " 13. Defendants 12 and 13 in O.S. 283 / 81 are the purchasers of the 41/ 70 shares in item No. 1 and it is not disputed that they are strangers to the family. " 13. Defendants 12 and 13 in O.S. 283 / 81 are the purchasers of the 41/ 70 shares in item No. 1 and it is not disputed that they are strangers to the family. The 1st plaintiff is entitled to 12 / 70 shares and plaintiffs 2 to 4 are entitled to 17/70 shares and the total shares to which the plaintiffs are entitled to in item No. 1 are 29/70 shares. 14. Learned counsel for the appellant brought to my notice the averments contained in para 5 of the plaint in O.S. No. 283 / 81 that the 1st plaintiff is in exclusive possession of item No. 1 continuously from 1119 ME and she is residing with her family in the building thereon from that year, as authorised by Kali Shankaran, the then manager of the family, that the equisition item No. 1 was for the residence of the members of the family for educational purposes as provided in the earlier partition deed, that the ls1 plaintiff had no other building to reside and that she is a widow from 1959 and had no male issue. It was also averred that others have buildings of their own and considering all these, item No. 1 was allotted to 1st plaintiff's share exclusively when the plaint items were orally partitioned in May 1974, i.e. immediately after getting possession of item No. 2 which was in the custody of the receiver and that the other sharers took shares in items 2 and 3. She has also averred that she was in exclusive independent possession of item No. 1 and the building thereon from May 1974 onwards in continuation of her prior possession and that the building item 1 was renovated by her spending more than Rs. 20,000/-. In para 8 of the plaint she averned that the plaintiffs are entitled to a decree for partition of all the three items together and to have item 1. allotted to the share of the 1st plaintiff. It was further averred therein that item 1 being a small bit of property with the residential building of the 1st plaintiff it will cause much inconvenience if item 1 was divided, and that defendants 12 and 13 who are strangers and who have purchased litigation knowing the true facts, are not entitled to get item 1 divided. It was further averred therein that item 1 being a small bit of property with the residential building of the 1st plaintiff it will cause much inconvenience if item 1 was divided, and that defendants 12 and 13 who are strangers and who have purchased litigation knowing the true facts, are not entitled to get item 1 divided. Therefore there are averments seeking allotment of item 1 to her share. It is true that the 1st plaintiff in O.S. 283/81 raised a plea of oral partition and allotment of item 1 to her share and the court below found that such an oral partition was not established. She claimed partition of all the three items and allotment of item No. 1 to her share on the ground that item No. 1 was used by her as her residential house. It is true that there is no undertaking in the plaint to purchase the share of defendants 12 and 13. 15. It can also be seen from the written statement filed by the 1st plaintiff in O.S. 283/81 as 1st defendant in O.S. 432/80 that she made a claim for allotment of the building to her share. The averments in paras 7 and 12 of the written statement are on the same pattern as her averments in the plaint to which reference has already been made. She further averred that the plaintiffs and their father who were conducting hotel business in the adjoining eastern compound were fully aware of the facts and purchased litigation knowing the true facts from the persons who had no right in the suit property. 16. The 1st plaintiff in O.S. 283/ 81 who was examined as P.W. 1 in her evidence has stated that in reply to the notice issued by defendants 12 and 13 she sent a notice setting out the true facts and that in the reply she stated that she was prepared to pay consideration to defendants 12 and 13 for their documents. Reading these averments along with her evidence, it is clear that she was willing to purchase the shares of defendants 12 and 13 and also undertook to purchase the same. In the memoranda of appeals also she invoked the relief based on S.4 of the Partition Act. Reading these averments along with her evidence, it is clear that she was willing to purchase the shares of defendants 12 and 13 and also undertook to purchase the same. In the memoranda of appeals also she invoked the relief based on S.4 of the Partition Act. The lower court has also understood her claim in that sense and it was under such circumstances the lower court considered her claim u/ S.4 of the Partition Act. 17. The counsel for defendants 11 and 12 contended that item No. 1 is not a dwelling house, that it does not belong to an undivided family and that the building is situated in the commercial locality and that therefore the provisions contained in S.4 of the Partition Act have no application. He also contended S.4 would take in only the dwelling-house and not the vacant space. 18. Learned counsel for the appellant placed reliance on a recent ruling of the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden 1990 (2) SCC 117 : AIR 1990 SC 867 in support of appellant's claim based on S.4 of the Partition Act. In that case there was a transfer of share in a dwelling house belonging to an undivided family by a co-owner. Other co-owners filed a suit for grant of interlocutory mandatory injunction restraining the transferee from having joint possession with the non-transferor co-owner. The Supreme Court considered the scope of S.44 of the Transfer of Property Act, 1882 also in this context. It is provided in S.44 where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in S.44 would be deemed to entitle him to joint possession or other common or part enjoyment of the house. Whatever be the right of the purchaser of a share from a member of an undivided family, that is subject to what is contained in S.44 of the Transfer of Property Act and S.4 of the Partition Act, if it relates to a dwelling house belonging to an undivided family. If transferee of the share is not a member of that family such a tranferee will not be entitled to joint posession or other common or part enjoyment of the house. If transferee of the share is not a member of that family such a tranferee will not be entitled to joint posession or other common or part enjoyment of the house. S.4 of the Partition Act and S.44 of Transfer of Property Act, while recognising the transfer of a share of a co-owner Act as a valid one, place restriction on his right as co-owner, and if any member of the family being a shareholder undertakes to buy the share of such transferee, the Court has to make a valuation of such share in such manner as it thinks fit and direct the sale of such share of strangers to such shareholder. The purchaser of a share in the dwelling house cannot insist for partition of the dwelling house by metes and bounds. The Supreme Court in the above decision held that in view of the provisions contained in S.44 that even after the transferee comes into possession of the property. Court can grant an injunction which amounts to a direction for his ejectment. The Supreme Court rejected the contention that the words "undivided family" as used in the Section means a joint family and are confined to Hindus or Mahammadans, who have adopted the Hindu rule as to joint family property. The Supreme Court approved the decision of Full Bench of the Allahabad High Court in Sulthan Begam v. Debi Prasad (1908 ILR 30 All 324) and held that the provision of the statute is clearly of general application, that this provision is intended to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferor's family have a right to live, and that the words 'undivided family' must be taken to mean 'undivided qua' the dwelling house in question, and to be a family which owns the house but has not divided it. The Supreme Court quoted with approval the following observations of the Orissa High Court in Bhim Singh v. Ratnakar Singh (AIR 1971 Ori 198) (at page Ori 201; AIR 1971) : "If in this state of things, a member of the family transfers his share in the dwelling house to a stranger para 2 of S.44 of the Transfer of Property Act comes into play and the transferee does not become entitled to joint possession or any joint enjoyment of the dwelling house although he would have the right to enforce a partition of his share. The object of provision in S.44 is to prevent the intrustion of the strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share therein in favour of a stranger. The factual position as has been determined is that the property is still an undivided dwelling house, possession and enjoyment whereof are confined to the members of the family. The stranger-transferees being debarred by law from exercising right of joint possession which is one of the main incidences of co-ownership of the property should be kept out." The Supreme Court also approved the following observations in an earlier decision of the Orissa High Court in Udayanath Sahu v. Ratnakar Bej (AIR 1967 Ori 139) (at page Ori 141 and 142; AIR 1967 :- "If the transferee (stranger) get into possession of a share in the dwelling house, the possession becomes a joint possession and is illegal. Courts cannot countenance or foster illegal possession. The possession of the defendant-transferee in such a case becomes illegal. Plaintiff's co-owners are entitled to get a decree for eviction or even for injunction where the transferee threatens to get possession by force. If there had been a finding that there was severance of joint status but no partition by metes and bounds, defendant 1 was liable to be evicted from the residential houses and Bari u.S.44 of the Transfer of Property Act. If there had been a finding that there was severance of joint status but no partition by metes and bounds, defendant 1 was liable to be evicted from the residential houses and Bari u.S.44 of the Transfer of Property Act. " Dealing with the question whether a mandatory injunction for ejection can be ordered in such a case, the Supreme Court said : "Once it is held that the plaintiff is entitled to protection under the second part of S.44 of the Transfer of Property Act and the stranger purchasers are liable to be restrained, it would follow that even if the defendants have been put in possession or have come jointly to possess they can be kept out by injunction. The effect of that injunction would necessarily mean ejectment. In that sense and to the said extent, the decree of the trial court upheld by the lower appellate court must be taken to be sustainable. The remedy of the stranger purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession". 19. Learned counsel for the appellant submitted that the right of pre-emption u/S.4 of the Partition Act is a right given by the statute and can be made at any stage while suit is pending and even in cases where final decree for partition is passed and appeal against decree is pending. In this connection Learned counsel relied on the decision of the Division Bench of the Calcutta High Court in Birendra Nath Banerjee v. Sm. Shehalatha Devi (AIR 1968 Cal 380). The Court observed (at page Cal 382; AIR 1968) : "It is well settled now that an application for pre-emption u/S. 4 of the Partition Act can be made at any stage of the suit or, in other words, at any stage, while the suit is pending. There has, no doubt, been a final decree passed in the instant case by the learned trial Judge, but that decree is under appeal to this Court and the matter is sub-judice. The suit, therefore, must be held to be pending and, during its pendency, the above application has been filed. " This is the view taken in Pran Krishna Bhaduri v. Surath Chandra Roy (AIR 1919 Cal 1055), Sm. The suit, therefore, must be held to be pending and, during its pendency, the above application has been filed. " This is the view taken in Pran Krishna Bhaduri v. Surath Chandra Roy (AIR 1919 Cal 1055), Sm. Satyabhama De v. Jatindra Mohan Deb (AIR 1929 Cal 269) and Dwaraka Das v. Godhana AIR 1939 All 313 : 1939 ALJ 166. In Bharatsingh v. Rishi Kumar (AIR 1977 MP 40) it was held that the right of pre-emption can be exercised from the date of institution of suit by stranger for partition till final decree therein. Learned counsel for the appellant also relied on a Full Bench decision of Gujarat High Court in Gulamrasool Sarfuddin Malek v. Dulhanbibi (AIR 1980 Guj 110). It was held (at page Guj 117 and 118; AIR 1980) : "On a true interpretation of S.4 of Partition Act, 1893 we hold that the fight conferred thereunder to compel a transferee of a share of a member of an undivided family in a dwelling house when such a transferee is not himself a member of the family, to sell his share at a valuation, can be availed of by a member of the undivided family having a share in the said dwelling house irrespective of whether the suit has been instituted by such transferee as a plaintiff. The right can be availed of even if the suit has been instituted by a member of the undivided family as plaintiff and the stranger transferee is arraigned as a defendant, and even if such stranger transferee does not in terms claims the separation of his share in the property." 20. Learned Counsel for the appellant also contended that not only the building and the land on which the building is situated but entire land where the building is situated will be treated as dwelling house for the purpose of Section 4 of the Partition Act. In support of his contention, the learned Counsel relied on the decision of this Court in Leelamma v. Madhavan (1984 Ker LT 25). There the question arose whether the Courts below were right in their interpretation of the term "dwelling house" occurring in Section 4 of the Partition Act to mean not merely the house but also the entire extent of 42 cents where the building is situate even though the house itself was in a corner of the property. There the question arose whether the Courts below were right in their interpretation of the term "dwelling house" occurring in Section 4 of the Partition Act to mean not merely the house but also the entire extent of 42 cents where the building is situate even though the house itself was in a corner of the property. The holding was 42 cents of land in Calicut city with a lot of vacant space. The lower courts held that the entire holding will constitute a single dwelling house within the meaning of S.4 of the Partition Act. Dealing with the question this Court held : "S.4 of the Act must be given a wider interpretation, having regard to the object underlying the provisions of the enactment, namely, to prevent an outsider transferee of a share in the family house from forcing his way into the dwelling house in which other members of the family had been living. " This Court observed that the question whether a particular property would constitute a dwelling house is essentialy a question of fact and that since both the lower courts took a concurrent view that both the entire extent of land and building constituted a dwelling house this Court did not find sufficient ground for upsetting the concurrent finding of the lower courts even if a different view was possible. 21. Though the Supreme Court was mainly concerned in Dorab Cawasji Wardeo's case (supra) with the question of issue of an injunction of a mandatory character directing ejectment in the light of provisions contained in Section 44 of the Transfer of Property Act, the scope of Sec. 4 of Partition Act has been elaborately discussed by the Supreme Court in that context and the principles enunciated therein are applicable to the cases coming under S.4 of the Partition Act. 22. Learned Counsel for the respondents submitted that the building is acquired for residential purpose, that it is situated in a commercial area in Calicut city and that the entire extent of 8.463 cents where the building is situate cannot be treated as a dwelling house. He also submitted that defendants 12 and 13 were running a hotal in the adjacent plots and were about to be evicted and it was under such circumstances they purchased the shares. He also submitted that defendants 12 and 13 were running a hotal in the adjacent plots and were about to be evicted and it was under such circumstances they purchased the shares. He further submitted that the court below has safeguarded the interest of plaintiff by directing the building to be allotted to her share as for as possible. Learned Counsel argued that as found by the court below, there is ample vacant space which can be utilised for commercial purposes. Learned Counsel submitted that the elder sister of the 1st appellant and her children were living in the house, that Kali Shankaran gave a registered lease of item 1 in favour of the husband of the elder sister of 1st plaintiff in 1117, that when the latter was appointed as a Munsiff he kept the building under his lock and key and later permitted the appellant to live in the building but he continued to stay there with his family during the holidays and delivery period of his wife. Learned Counsel brought to my notice paragraph 3 of Ext. B1, the preliminary judgment in O.S. 109/1120 on the file of the Court of the principal Subordinate Judge, Trivandrum where the contention of the 1st defendant in that suit was stated. 1st defendant therein stated that B Schedule item No. 11 (item No. 1 in O.S. 283/81) belonged to him and was in his possession through his lessee, the 73rd defendant. On the basis of the above circumstances, learned Counsel contended that the 1st plaintiff in O.S. 283/81 is in occupation of the house only as permitted by her sister and her husband and that her residence is referable only to the permission granted by lessee and not as a member of the family. He also argued that there is no evidence that the, lease was surrendered. He also submitted that there was settlement of properties as per Ext. A9 and later Ext. A9 and other properties were divided and 10 items were allotted to the appellant as D Schedule. According to the counsel two houses and one out-house were allotted to other sharers and the appellant could have got any of these houses allotted to her if she really had no other house. A9 and later Ext. A9 and other properties were divided and 10 items were allotted to the appellant as D Schedule. According to the counsel two houses and one out-house were allotted to other sharers and the appellant could have got any of these houses allotted to her if she really had no other house. According to the learned Counsel for the above reasons, 1st plaintiff in O.S. 283 / 81 is not entitled to any relief under Sec.4 of the Partition Act. Learned Counsel submitted that what was placed in the plaint in O. S. 283 / 81 and in the written statement in O.S. 432/80 is that the building was purchased for residence for educational purposes of the members of the family, but that will not make the building a dwelling house within the meaning of Section 4 of Partition Act. It is difficult to accept these contentions of the learned Counsel. What is relevant is whether the building belonged to the family and the building is used by the 1st plaintiff as her residence and whether she is a member of the family. The evidence would show that the 1st plaintiff in O.S. 283/81 has been in the possession of the building for the last several years. The fact that the building belonged to the family and the 1st plaintiff is one of the members of the family also cannot be disputed. Defendants 12 and 13 are strangers to the family and they purchased rights of some of the members of the family. Ext. B2 and B3 which are the title deeds relied on by them proceed on the basis that the property belonged to the family and is undivided. Nobody has claimed tenancy in respect of this item and it has not been established that any tenancy subsists in respect of this property. Whatever be the nature of her initial occupation, the 1st plaintiff is in occupation of the house and she is residing there. In these circumstances, the contention of the learned Counsel for the respondents that (sic) itself is not a dwelling house within the meaning of Section 4 of the Partition Act, cannot be accepted. It is settled position that the expression "undivided family" used in the Section has wider interpretation and is not confined to Hindu undivided family. The expression is applicable to property enjoyed by members of family as co-owners. It is settled position that the expression "undivided family" used in the Section has wider interpretation and is not confined to Hindu undivided family. The expression is applicable to property enjoyed by members of family as co-owners. Neither the fact that the property is situated in the city of Trivendrum nor the circumstances that there are several commercial establishments near the house will destroy its character as a dwelling house. The circumstance that the defendants 12 and 13 were running hotel in the adjacent plot and that it was when they were about to be evicted the shares of some of the co-owners in these items were purchased by them would not be relevant in determining the question of applicability of Sec.4 of the Partition Act. In my view, such considerations are extraneous and alien to Sec.4 of the Partition Act. So also the circumstance that she claimed an oral partition and allotment of item No. 1 to her share will not take away her right to invoke Sec.4 of the Partition Act. No doubt, in the case of a residential house in a commercial locality, the question whether the whole land is required for residential purpose is a relevant consideration, but in the instant case only 8.463 cents is involved and it is not possible to say that the whole extent is not required for residential purposes. Learned Counsel for the respondents invited my attention to the report of the Commissioner evidenced by Ext. Cl. Of course Cl shows that there is some vacant space. But since the total extent is only 8.463 cents it cannot be said that the vacant space should not be treated as part of the dwelling house. 23. The lower court has not properly considered legal effect of Sec.4 of the Partition Act and proceeded on the basis that in equity defendants have got right to joint possession of the plaint item No. 1 in O. S. 283 / 81 by virtue of transfers of shares as per Exts. B2 and B3. 24. The foregoing discussion would show that the claim of the appellant based on S.4 of the Partition Act to purchase shares of defendants 12 and 13 is legally sustainable. It is clear from the judgment of the court below that in the lower court the appellant had undertaken to buy the shares of defendants 12 and 13. 24. The foregoing discussion would show that the claim of the appellant based on S.4 of the Partition Act to purchase shares of defendants 12 and 13 is legally sustainable. It is clear from the judgment of the court below that in the lower court the appellant had undertaken to buy the shares of defendants 12 and 13. In the memoranda of appeals also, the appellant has claimed right of pre-emption in respect of shares of defendants 12 and 13 in O.S. 283 / 81. She is entitled to the relief in this regard. 25. In the result, while confirming the judgments and decrees of the court below in regard to the partition of the plaint schedule properties in O.S. 283/81 and in O.S. 432/80, I declare that the 1st plaintiff in O.S. 432/80 is entitled to purchase the shares of defendants 12 and 13 therein by virtue of provisions contained in Sec.4 of the Partition Act. No other points were raised. In the result, appeals are allowed to the above extent and dismissed in other respects. The parties will bear their respective costs. Order accordingly.