JUDGMENT : This second appeal is filed against the judgment and decree dated 26.2.2019 in A.S.No.209/2015 on the file of the District Court, Palakkad (hereinafter referred to as 'the first appellate court'), arising from the final judgment and decree dated 20.8.2015 in FDIA. No.1592/2011 in O.S.No.86/1983 on the file of the Munsiff Court, Alathur (hereinafter referred to as 'the trial court'). For the sake of convenience, the parties shall be hereinafter referred to as referred in the original suit unless otherwise stated. 2. A substantial question of law arises for consideration before this Court in this second appeal. The substantial question of law is whether the allotment of the dwelling-house in favour of respondent, a stranger to the family, is illegal and in violation of the principles behind Section 44 of the Transfer of Property Act, 1882 (hereinafter referred to for short as 'the T.P. Act'). 3. The matter arises out of a suit for partition. The first appellant is the plaintiff. Appellants 2 and 3 are defendants 2 and 3 respectively. As per the preliminary decree passed by the trial court and as modified in appeal, the suit property has to be divided into four equal shares and the plaintiff and the defendants are entitled to one-fourth share each. The first defendant-Meenakshi Amma died after the preliminary decree was passed. After the death of Meenakshi Amma, the respondent/petitioner filed the final decree application viz., FDIA 1592/2011 in O.S.No.86/1983 claiming rights on the basis of a gift deed alleged to have been executed by deceased Meenakshi Amma in her favour. 4. The suit property is 12 cents of land with a dwelling-house thereon wherein the appellants reside. The Commissioner deputed to effect partition in the final decree proceedings, divided the property into four plots, namely A,B,C and D and the plot A, which includes the dwelling-house, was allotted to the respondent herein. Accordingly, the final decree court accepted the Advocate Commissioner's plan and report, and passed the final judgment and decree. 5. Feeling aggrieved, the appellants/plaintiff and defendants 2 and 3 preferred an appeal before the first appellate court. When the appeal was pending, an application was filed by the appellants as I.A.No. 127/2017 to pass a final decree allotting the dwelling-house to the share of the appellants. 5. Feeling aggrieved, the appellants/plaintiff and defendants 2 and 3 preferred an appeal before the first appellate court. When the appeal was pending, an application was filed by the appellants as I.A.No. 127/2017 to pass a final decree allotting the dwelling-house to the share of the appellants. The first appellate court was of the view that such an application could not be entertained separately by the first appellate court as the court was considering an appeal challenging the preliminary judgment and decree of the trial court. Hence, the I.A. was dismissed. Consequently, the appeal was also dismissed. Dissatisfied with the judgment and decree of the first appellate court, the appellants are before this Court. 6. Heard Sri.P.R.Venkatesh, the learned counsel for the appellants and Sri. K.G.Balasubrahmanian, the learned counsel for the respondent. 7. Learned counsel for the appellants contended that Section 4 of the Partition Act, 1893 (for short as 'the Partition Act') can be pressed into service by any of the co-owners of the dwelling-house belonging to the undivided family pending the suit for partition till final decree is passed and thereafter, even at the stage of execution of the final decree for partition so long as the execution proceedings have not effectively ended and the decree for partition has been fully executed and satisfied by putting the share holders in actual possession of their respective shares. The learned counsel further contended that Section 44 of the T.P. Act provides that the transferee of a share in a dwelling-house, if he is not a member of that family, gets no right to joint possession or common enjoyment of the house. The only manner in which an outsider can get possession is to sue for possession and claims separation of his share. Thus, it is contended that Section 4 of the Partition Act comes into play and the appellants are entitled to make an application to get the dwelling-house allotted in their favour during the pendency of the proceedings. 8. Per contra, the learned counsel for the respondent contended that Section 44 of the T.P.Act and Section 4 of the Partition Act are not applicable in this case. 8. Per contra, the learned counsel for the respondent contended that Section 44 of the T.P.Act and Section 4 of the Partition Act are not applicable in this case. According to the learned counsel, the Kerala Joint Hindu Family System (Abolition) Act, 1975 (for short 'the Joint Family Abolition Act') had come into force on 1.12.1976 and from that date onwards, joint tenancy ceased to be in existence, and the sharers take the property as tenants in common. The sum and substance of the contention is that Meenakshi Amma is competent to assign her share to the respondent and therefore, the plaintiff is not entitled to any relief under Section 4 of the Partition Act as a member of an undivided Hindu family. 9. It is a well established principle that in a partition suit, even a defendant is for many purposes at the same time a plaintiff and a defendant and that even if the stranger-transferee is arraigned as a defendant in a suit for partition, if he claims a share in a dwelling-house, he can be treated as a plaintiff for the purpose of Section 4. It is, therefore, abundantly clear that when a defendant does assert his claim for separation of a share from the dwelling- house even in his capacity as a defendant, the right under Section 4 can be availed of by the members of the undivided family. 10. Section 4 of the Partition Act, undoubtedly, is a logical sequel to or corollary to Section 44 of the T.P. Act (IV of 1882) as amended by Act 29 of 1930, and is only an extension of the privilege given to the shareholders by Section 44 of the T.P.Act. Section 44 of the T.P.Act runs thus :- “44. Transfer by one co-owner.—Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.” 11. In order to attract the operation of Section 4 of the Partition Act, (i) there must be a dwelling-house in existence belonging to an undivided family; (ii) a share thereof should have been transferred to a person, who is not a member of such family; (iii) the transferee should sue for partition; and (iv) that a member of the family being a shareholder claims or undertakes to buy the share of the stranger-transferee. 12. One of the conditions to attract the operation of Section 4 of the Partition Act is that there must be a dwelling-house in existence belonging to an undivided family at the time of transfer. It is mandatory upon the plaintiff to plead and prove that there was in existence an undivided dwelling-house and that a share thereof was transferred to the defendant before his claim for pre-emption right under Section 4 of the Partition Act. Thus, Section 4 has application only when there is a suit for partition by the transferee as noted earlier. However, a co-sharer of an undivided joint Hindu family is legally entitled to apply for pre-emption under Section 4 even though the transferee does not sue for partition. The provisos to Section 44 were enacted to relieve a co-sharer from his apprehension of inconvenience naturally to be felt in consequence of the taking of joint possession by a stranger-purchaser of other sharer or sharers. Such a purchaser could, however, seek his remedy by way of partition. Section 4 of the Partition Act is 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. 13. Meenakshi Amma, the mother of the plaintiff and the grandmother of defendants 2 and 3 obtained the plaint schedule property under the partition deed in their family. Subsequently, the plaintiff instituted a suit for partition as O.S.No. 86/1983 before the Munsiff Court, Alathur. A preliminary decree was passed. Subsequently, Meenakshi Amma executed a gift deed in favour of the respondent-petitioner gifting her share in the suit property. Subsequently, the plaintiff instituted a suit for partition as O.S.No. 86/1983 before the Munsiff Court, Alathur. A preliminary decree was passed. Subsequently, Meenakshi Amma executed a gift deed in favour of the respondent-petitioner gifting her share in the suit property. Apprehending that the respondent/petitioner may claim right over the dwelling house, O.S.No.281/91 was filed before the Munsiff Court, Alathur, seeking protection under Section 44 of the T.P.Act. 14. On evaluation of the evidence, the trial court took the view that the declaration sought for on the basis of Section 44 of the T.P. Act is misconceived and the remedy available to the plaintiff is to move for passing a final decree and seek protection under Section 4 of the Partition Act. Accordingly, the suit was dismissed. The plaintiff took up the matter in appeal as A.S.No. 187/92 before the District Court, Palakkad. The first appellate court took the view that since the Joint Family Abolition Act had come into force on 1.12.1976, from that date onwards, the joint tenancy ceased to be in existence and the sharers take the property as tenants in common. Challenging the above judgment and decree, the plaintiffs preferred S.A.No.971/2000 before this Court. In Vijayalakshmi C. v. Ammini Amma [2015 KHC 3681], this Court allowed the appeal, reversing the judgment and decree of the first appellate court. Paragraphs 21 and 25 of the above judgment are relevant in this context which are extracted as under:- “21. One must remember that on the gift deed being executed by Meenakshi Amma, the defendant stepped into the shoes of Meenakshi Amma and she became a party to the partition suit. As already noticed, only a preliminary decree has been passed in the suit and the final decree is yet to be passed. It does not appear that anybody has moved for passing the final decree. It is under these circumstances that one has to consider the effect of Section 44 of the TP Act. Obviously, the situation where Section 4 of the Partition Act has not arisen in the facts of the case. It is well settled from the above decisions that Section 4 of the Partition Act is, as of now, not attracted and Section 4 of the Partition Act alone can have application. Obviously, the situation where Section 4 of the Partition Act has not arisen in the facts of the case. It is well settled from the above decisions that Section 4 of the Partition Act is, as of now, not attracted and Section 4 of the Partition Act alone can have application. The latter portion of Section 44 makes it sufficiently clear that a stranger who has been assigned share by a sharer, will not be entitled to joint possession or enjoyment of a house occupied by a member of the family. xxxx xxxx xxxx 25. What now remains to be considered is the extent of property to which Section 44 applies. Strictly speaking, Section 44 applies only to the dwelling house and not to the property which is the subject matter of assignment in favour of the stranger. But, as well settled, building takes in appurtenant land also. The defendant is not entitled to joint possession and joint enjoyment of the family house of the plaintiffs till a final decree for partition is passed. It is not necessary in these proceedings to consider whether Section 4 of the Partition Act has to be applied. That question is left open to be decided at the appropriate stage.” 15. Judged by the above standards, this Court granted a decree for injunction simpliciter restraining the respondent/ petitioner from interfering with the peaceful possession and enjoyment of the dwelling-house by the plaintiff till an arrangement was made in the final decree proceedings. 16. The preliminary decree for partition has become final as per the judgment and decree dated 30.11.1985 in A.S.No.42/1984 arising from the preliminary decree and judgment dated 31.1.1984 of the Munsiff Court, Alathur in O.S.No.86/1983. Thereafter, the plaintiff did not pursue the matter and no final decree proceedings was initiated till FDIA No. 1592/2011 was filed by the respondent/petitioner. The respondent filed the final decree application claiming that she obtained the right of the first defendant over the plaint schedule property by the gift deed executed by the first defendant as document No.1889/1991. The appellants are not disputing the gift deed in favour of the respondent. 17. The principle under Section 44 of the T.P.Act is that of subrogation or substitution. When one of several co-owners transfers her share, the transferee stands in the shoes of the transferor. The appellants are not disputing the gift deed in favour of the respondent. 17. The principle under Section 44 of the T.P.Act is that of subrogation or substitution. When one of several co-owners transfers her share, the transferee stands in the shoes of the transferor. This Section assures the transferee the right to joint possession or common enjoyment of the property, but does not confer on her any right to exclusive possession without enforcing partition. 18. The Supreme Court in Gautam Paul v. Debi Rani Paul And Ors [ (2000) 8 SCC 330 ] has held as follows:- “23.....................There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of share of a dwelling-house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case, Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act, there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider.........” 19. Availing the benefit of Section 4 of the Partition Act, the conditions laid down in Ghantesher Ghosh v. Madan Mohan Ghosh & others [ (1996) 11 SCC 446 ] have to be fulfilled. In paragraph 17 of the judgment, the Apex Court held as follows:- “17. As a result of the aforesaid discussion, it must be held that Section 4 of the Act can validly be pressed in service by any of the co-owners of the dwelling house belonging to the undivided family pending the suit for partition till final decree is passed and thereafter even at the stage of execution of the final decree for partition so long as the execution proceedings have not effectively ended and the decree for partition has not been fully executed and satisfied by putting the shareholders in actual possession of their respective shares. Beyond that stage, however, Section 4 will go out of commission.” 20. Beyond that stage, however, Section 4 will go out of commission.” 20. In the case at hand, the appellants filed an application before the first appellate court as I.A.No.127/2017 seeking to invoke pre-emption right presumably under Section 4 of the Partition Act. The said application was erroneously dismissed by the first appellate court. In the former suit between the parties, certain matters were concluded including the operation of the Joint Family Abolition Act. It is not necessary to reopen the issue in this second appeal. 21. At this stage, on the aforesaid conclusions to which this Court has arrived at, it is not just and proper to remand the case to the first appellate court for fresh consideration of the application seeking pre-emption right. Two options are available before this Court; first, to remand the case to the first appellate court to consider the application seeking pre-emption right filed by the appellants; second, to confirm the final judgment and decree of the first appellate court without prejudice to the rights and liberties of the appellants to move an application for identical purpose before the executing court. Nevertheless, as the proceedings are very old and have been pending before the courts for the last so many years, the learned counsel for the appellants fairly suggested with a view to put an end to this litigation that the appellants, who had moved an application under Section 4 of the Partition Act before the first appellate court, are prepared to move an application afresh before the executing court in case this Court is inclined to confirm the final decree passed by the first appellate court in this second appeal. Considering the facts and circumstances involved, this Court is of the view that it is just and proper to confirm the final judgment and decree of the two courts below without prejudice to the rights and liberties of the appellants to move an application under Section 4 of the Partition Act before the executing court as held in Ghandeshwar Ghosh (supra). In case such an application is filed by the appellants, the executing court is directed to dispose of the application in accordance with law. In case such an application is filed by the appellants, the executing court is directed to dispose of the application in accordance with law. The result is that this appeal is dismissed and the final judgment and decree of the courts below are confirmed without prejudice to the rights and liberties of the appellants to invoke Section 4 of the Partition Act as stated hereinabove. There would be no order as to costs. Pending applications, if any, stand closed.