Section 4 of the Partition Act, 1893 for a right of pre-emption claiming the suit property to be a dwelling house. =,what is dwelling house – if a major part of the suit property is used as a dwelling house the same would not cease to be a dwelling house merely because a portion thereof may be used for commercial purpose.therefore, take the view that in the present case as a major portion of the suit property, namely, 1082 sq. ft. was used as a dwelling house and only 481 sq.ft. was used for commercial purpose the suit property would still remain a dwelling house. -when the right of premption arose = It is only in cases when the transferee sues for partition, which may be by way of initiating proceedings for partition or even claiming partition in execution, that the provision of Section 4 of the Partition Act come into play. The language of Section 4 of the Partition Act was contrasted with the then provision of Section 23 of the Hindu Succession Act.

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S) 1634 OF 2019
[ARISING OUT OF SPECIAL LEAVE PETITION
(CIVIL) NO. 22977/2016]
RISHABH KUMAR JAIN …APPELLANT(S)
VERSUS
GYANCHAND JAIN & ANR. …RESPONDENT(S)
ORDER

  1. Leave granted.
  2. One Nonelal (died in the year 1951)
    was owner of house property No.25 and 26,
    Lordganj, Jabalpur. He left behind three
    legal heirs, namely, Naval Kishore,
    Sunderlal and Surkhi Chand. Surkhi Chand
    son of Nonelal died in the year 1972.
  3. The appellant is the son of Surkhi
    Chand. He had filed a suit for partition.
    During the pendency of the suit, on 7 th
    August, 1979 another legal heir of Nonelal,
    namely, Naval Kishore sold one-third

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(1/3rd) share of the suit property to the
present respondents Nos. 1 and 2 who were
in occupation of the suit property as
tenants from the year 1966-1967.

  1. The partition suit was finally
    decreed and each heir of Nonelal i.e. Naval
    Kishore, Sunderlal and Surkhi Chand (since
    deceased) was held to be entitled to one-
    third (1/3rd) share and separate possession
    of the suit property.
  2. The respondents Nos. 1 and 2 filed
    execution proceedings seeking possession of
    the one-third (1/3rd) share of Naval
    Kishore which they had purchased.
  3. In the execution proceedings, the
    appellant filed an application under
    Section 4 of the Partition Act, 1893 for a
    right of pre-emption claiming the suit
    property to be a dwelling house. The
    Executing Court found that the major
    portion of the suit property i.e. 1082 sq.

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ft. was being used as residential premises
whereas an area of 481 sq. ft. was being
used by the respondents as �tailoring
shop�.

  1. Taking into account that the major
    portion of the suit property was used as
    �dwelling house�, the Executing Court
    granted right of pre-emption in favour of
    the appellant leading to revision
    proceedings before the High Court where the
    High Court reversed the conclusion of the
    Executing Court by holding that the suit
    property could not be termed as �dwelling
    house� as a part of the suit property was
    being used for �commercial purpose�.
    Aggrieved, this appeal has been filed.
  2. We have heard the learned counsels
    for the parties.
  3. The sole question arising for
    determination in this case is: if a suit
    property is substantially used for

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�dwelling house� and a small part is used
for �commercial purpose� it would cease to
be a �dwelling house� within the meaning of
said expression as appearing in Section 4
of the Partition Act, 1893.

  1. Section 4 of the Partition Act is
    in the following terms:
    �4. Partition suit by transferee
    of share in dwelling-house.- (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 transferee sues
    for partition, the Court shall,
    if any member of the family being
    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 shareholder,
    and may give all necessary and
    proper directions in that behalf.
    (2) If in any case described
    in sub-section (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-section (2) of
    the last foregoing section.�

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  1. In the course of the arguments
    advanced, learned counsel for the appellant
    has drawn our attention to the views of the
    Calcutta High Court in an identical matter
    in Kartick Chandra Basu & Anr . vs. Subal
    Chandra Mondal 1
    wherein the High Court had
    taken the view that if a major part of the
    suit property is used as a dwelling house
    the same would not cease to be a dwelling
    house merely because a portion thereof may
    be used for commercial purpose.
  2. We have perused the grounds and
    reasons on the basis of which the High
    Court of Calcutta had thought it proper to
    take the above view. We are in respectful
    agreement with the views expressed by the
    High Court of Calcutta in Kartick Chandra
    Basu (supra). Any other view, in our
    considered opinion, would permit a co-
    sharer to defeat the object of Section 4 of
    1 . (1989) 1 Cal LJ 439

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the Partition Act, 1893 by initially
renting a premises for a commercial purpose
and thereafter in transferring the same to
such tenant which actions could be
unilateral to the exclusion of the other
co-sharer leaving him with no remedy.

  1. Section 4 of the Partition Act was
    interpreted in Srilekha Ghosh vs. Partha
    Sarathi Ghosh 2
    , after referring to earlier
    judgments of different High Courts, to mean
    that the dwelling house must belong to an
    undivided family and the transfer must be
    to a person who is not a member of such
    family to whom the dwelling house belongs.
    Reference was made to Section 44 of the
    Transfer of Property Act and Section 23 of
    the Hindu Succession Act to observe that
    Section 4 of the Partition Act does not
    provide the co-sharer right to pre-empt
    where the stranger/outsider does nothing
    2 . (2002) 6 SCC 359

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after purchasing the share. It is only in
cases when the transferee sues for
partition, which may be by way of
initiating proceedings for partition or
even claiming partition in execution, that
the provision of Section 4 of the Partition
Act come into play. The language of Section
4 of the Partition Act was contrasted with
the then provision of Section 23 of the
Hindu Succession Act. Referring to
Narashimaha Murthy vs. Susheelabai 3
it was
emphasised that Section 4 of the Partition
Act stands enacted to preserve the dwelling
house when the stranger-transferee sues for
partition and separate possession of the
undivided share transferred to him by the
co-owner. This decision defines the
expression �dwelling house� to mean a house
for habitation and domicile and would
embrace the dwelling itself or such
3 . (1996) 3 SCC 644

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buildings as are used in connection with
it. Dwelling house also would refer to a
house which is capable of being used for
human habitation i.e. the place used for
residence, a board or home. A building
would not cease to be a dwelling house if
the dwellers are absent only temporarily
and have animus revertendi and legal
ability to return (see opinion authored by
Punchhi, J. for himself and Kuldip Singh,
J. in paragraph 27).

  1. In Ghantesher Ghosh vs. Madan Mohan
    Ghosh and others 4
    this Court while
    interpreting Section 4 of the Partition Act
    on the question of right of the transferee,
    made the following observations to protect
    the interest and rights of the stranger-
    transferee:
    �6. In order to answer this
    moot question, it has to be kept
    in view what the legislature
    intended while enacting the Act
    4 . (1996) 11 SCC 446

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and specially Section 4 thereof.
The legislative intent as
reflected by the Statement of
Objects and Reasons, as noted
earlier, makes it clear that the
restriction imposed on a
stranger transferee of a share
of one or more of the co-owners
in a dwelling house by Section
44 of the T.P. Act is tried to
be further extended by Section 4
of the Partition Act with a view
to seeing that such transferee
washes his hands off such a
family dwelling house and gets
satisfied with the proper
valuation of his share which
will be paid to him by the pre-
empting co-sharer or co-
sharers, as the case may be.
This right of pre-emption
available to other co- owners
under Section 4 is obviously in
further fructification of the
restriction on such a transferee
as imposed by Section 44 of the
T.P. Act.”
This dictum would equally apply to the
present case.

  1. We, therefore, take the view that
    in the present case as a major portion of
    the suit property, namely, 1082 sq. ft. was
    used as a �dwelling house� and only 481 sq.
    ft. was used for �commercial purpose� the

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suit property would still remain a
�dwelling house�.

  1. For enforcement of the rights of
    the co-sharer under Section 4 of the
    Partition Act the order of the High Court
    is set aside and the appeal is allowed in
    the above terms. Execution Court would
    proceed accordingly.
    ………………..,CJI.
    (RANJAN GOGOI)
    ……………….,J.
    ( L. NAGESWARA RAO)
    ……………….,J.
    ( SANJIV KHANNA)
    NEW DELHI
    FEBRUARY 12, 2019

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ITEM NO.5 COURT NO.1 SECTION IV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (C) NO(S). 22977/2016
(ARISING OUT OF IMPUGNED FINAL JUDGMENT AND ORDER DATED 28-04-2016
IN CR NO. 6/2016 PASSED BY THE HIGH COURT OF M.P PRINCIPAL SEAT AT
JABALPUR)
RISHABH KUMAR JAIN PETITIONER(S)
VERSUS
GYANCHAND JAIN & ANR. RESPONDENT(S)

Date : 12-02-2019 This petition was called on for hearing today.
CORAM :
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE L. NAGESWARA RAO
HON’BLE MR. JUSTICE SANJIV KHANNA
For Petitioner(s) Mr. Amol Chitale, Adv.
Mrs. Pragya Baghel, AOR

For Respondent(s) Mr. Dinesh K. Garg, Adv. (AOR)
Mr. Abhishek Garg, Adv.
Mr. Dhananjay Garg, Adv.
Mr. Deepak Mishra, Adv.

      UPON hearing the counsel the Court made the following
                         O R D E R

Leave granted.
The appeal is allowed in terms of the signed order.
[VINOD LAKHINA] [ANAND PRAKASH]
AR-cum-PS BRANCH OFFICER
[SIGNED ORDER IS PLACED ON THE FILE]