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.
1
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
2
(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.
4. 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.
5. 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.
6. 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.
3
ft. was being used as residential premises
whereas an area of 481 sq. ft. was being
used by the respondents as tailoring
shop.
7. 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.
8. We have heard the learned counsels
for the parties.
9. The sole question arising for
determination in this case is: if a suit
property is substantially used for
4
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.
10. 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.
5
11. 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.
12. 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
6
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.
13. 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
7
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
8
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).
14. 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
9
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.
15. 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
10
suit property would still remain a
dwelling house.
16. 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
11
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]
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.
1
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
2
(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.
4. 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.
5. 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.
6. 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.
3
ft. was being used as residential premises
whereas an area of 481 sq. ft. was being
used by the respondents as tailoring
shop.
7. 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.
8. We have heard the learned counsels
for the parties.
9. The sole question arising for
determination in this case is: if a suit
property is substantially used for
4
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.
10. 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.
5
11. 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.
12. 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
6
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.
13. 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
7
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
8
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).
14. 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
9
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.
15. 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
10
suit property would still remain a
dwelling house.
16. 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
11
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]
