The main legal point established in the judgment is that a property would still be considered a 'dwelling house' under Section 4 of the Partition Act if a major portion is used for residential purposes, even if a small part is used for commercial purposes.

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 7th August, 1979 another legal heir of Nonelal, namely, Naval Kishore sold one-third (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. 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 "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."

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 , (1989) 1 CalLJ 439 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 the Partition Act, 1893 by initially renting a premises for a commercia