S.4 Partition Act | Dwelling House Includes Adjacent Building Necessary For Family's Convenient Occupation, Buy-Out Permitted Till Execution: Kerala HC

The Kerala High Court on Wednesday observed that although the term 'dwelling house' is not defined in the Partition Act, 1893 however, by way of judicial interpretation, it has been held to include adjacent buildings, gardens, courtyards, orchards, etc., which are necessary for the convenient occupation of the dwelling house.

Justice C. S. Dias further observed that the pre-emptive right of family members under Section 4 of the Act to buy out undivided share of the stranger co-owner can be invoked in such cases, even at the stage of execution, until the decree is fully satisfied.

The Court was dealing with an original petition preferred by two sisters who reside in an undivided family dwelling house and the appurtenant land, which comprised over 6 cents of land that originally belonged to their mother.

The 1st respondent, a real estate businessman, had purchased shares in the property and sued for partition and allotment of his share.

As per the final decree, plot 'A' was allotted to the respondent and plot 'B' was allotted to the petitioners and other sharers. However, as per the final decree, the toilet, bathroom and cattle shed, which are an integral part of the dwelling house, were allotted to the first respondent.

Subsequently, the petitioners filed an application under Section 4 of the Partition Act in the execution proceedings seeking permission to purchase the share of the 1st respondent, a stranger to the undivided family. However, that application was dismissed.

Before the High Court, the Counsel appearing for the petitioners, Advocate K M Firoz, contended that under Section 4 of the Act, unbridled powers have been conferred on the members of an undivided family to purchase the share of the dwelling house from a transferee who is not a member of such family and it was invoking this provision that the petitioners had filed the application. 

The lower court had dismissed the application on the ground that the share allotted to the first respondent does not touch the dwelling house.

At the outset, the High Court relied on Ghantesh Gosh v. Madan Mohan Ghosh and Others, where the Apex Court had observed that the statutory right of pre-emption under Section 4 is made available to the co-owners who undertake to buy out such undivided share of the stranger co-owner, with a view to seeing that such homogeneous life of co-owners belonging to the same joint family and residing in the joint family dwelling house is not adversely affected by the entry of a stranger to the family.

If such a right flowing from Section 4 of the Act is restricted in its operation only up to the final decree for partition, the very benevolent object of the section would get frustrated, Supreme Court had observed.

In this background, the High Court observed,

"Although the term 'dwelling house' is not defined in the Act, by way of judicial interpretation, it has been held to include adjacent buildings, gardens, courtyards, orchards etc., which are necessary for the convenient occupation of the dwelling house. Law also stands crystallised, that the pre-emptive right under Section 4 of the Act can even be invoked till the decree is fully satisfied."

The Court allowed the Original Petition thereby setting aside the impugned order, reserving the right of the petitioners to file a fresh application under Section 4 of the Act within a month. 

Case Title: Bhanumathi & Anr. v. K. Abdurahiman Haji & Ors. 

Citation: 2022 LiveLaw(Ker) 492

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