1. The plaintiffs in OS No.281/91 before the Munsiff’s Court, Alathur, are the appellants before this Court. They instituted the suit, seeking protection under Section 44 of the Transfer of Property Act, 1882. That was declined by the courts below.

2. The facts absolutely essential for the disposal of the second appeal are as follows :

Meenakshi Amma, the mother of the first plaintiff and the grand mother of plaintiffs 2 and 3 obtained the plaint schedule property under the partition deed in their family. Subsequently, the plaintiffs instituted a suit for partition as OS No.86/83 and a preliminary decree was passed in the said suit. No final decree has been passed so far. While so, Meenakshi Amma executed Ext.B3 gift deed in favour of the defendant, gifting her 1/4 share in the suit property. Apprehending that the defendant may try to force herself into the dwelling house said to be occupied by the plaintiffs, the suit was laid seeking protection under Section 44 of the Transfer of Property Act, 1882.

3. The suit was resisted by the defendant. It was pointed out by her that the relationship between Meenakshi Amma and the plaintiffs was far from cordial and the affairs of Meenakshi Amma were being looked after by the defendant. Meenakshi Amma was residing in a building in the suit property and the plaintiffs were residing elsewhere. Meenakshi Amma had gifted 1/4 share in the house to the defendant and the defendant had accepted the gift. The keys of the house were also handed over to the defendant. There is no justification for the plaintiffs to seek exclusion of the defendant from the joint possession of the house. On the basis of these contentions, she prayed for a dismissal of the suit.

4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendant had DWs 1 to 3 examined and Exts.B1 to B3 marked. Exts.C1 and C2 commissioner’s report and plan were also marked.

5. On an evaluation of the evidence, the trial court took the view that the declaration sought for on the basis of Section 44 of the Transfer of Property Act is misconceived and the remedy available to the plaintiffs is to move for passing the final decree and seek protection under Section 4 of the Partition Act. Accordingly, the suit was dismissed.

6. The plaintiff took up the matter in appeal as AS No.187/92 before the District Court, Palakkad. The lower appellate court took the view that since the Kerala Joint Hindu Family System (Abolition) Act, 1975 had come into force on 01.02.1976, from that date onwards, joint tenancy ceased to be in existence and the sharers take the property as tenants in common. Meenakshi Amma was competent to assign her share to the defendant and therefore, the plaintiffs were not entitled to any reliefs. Accordingly, the appeal was also dismissed. Hence the second appeal.

7. Notice is seen issued on the following questions of law raised in the second appeal :

1. Does not a Hindu undivided qua dwelling house continue to be such family notwithstanding the passing of a preliminary decree for partition of such dwelling house and till there is division of the property by metes and bounds.

2. Whether an assignee of a fractional share of a dwelling house belonging to an undivided family, such assignee not being a member of such family, is entitled to be in joint possession of such house along with the members of the undivided family.

3. Is not a member of a Hindu undivided family entitled to resist the claim of a transferee of an undivided share of one of the sharers, to be in joint possession and enjoyment of a dwelling house which belongs to the undivided family.

4. Whether merely by virtue of assignment of an undivided right of a member of the family in respect of a dwelling house, and nothing more, a transferee of such right could claim any right in respect of a dwelling house belonging to such