Point of Law: Principle under Section 44 of the T.P.Act is that of subrogation or substitution. When one of several co-owners transfers her share, the transferee stands in the shoes of the transferor. This Section assures the transferee the right to joint possession or common enjoyment of the property, but does not confer on her any right to exclusive possession without enforcing partition.

JUDGMENT :

This second appeal is filed against the judgment and decree dated 26.2.2019 in A.S.No.209/2015 on the file of the District Court, Palakkad (hereinafter referred to as 'the first appellate court'), arising from the final judgment and decree dated 20.8.2015 in FDIA. No.1592/2011 in O.S.No.86/1983 on the file of the Munsiff Court, Alathur (hereinafter referred to as 'the trial court'). For the sake of convenience, the parties shall be hereinafter referred to as referred in the original suit unless otherwise stated.

2. A substantial question of law arises for consideration before this Court in this second appeal. The substantial question of law is whether the allotment of the dwelling-house in favour of respondent, a stranger to the family, is illegal and in violation of the principles behind Section 44 of the Transfer of Property Act, 1882 (hereinafter referred to for short as 'the T.P. Act').

3. The matter arises out of a suit for partition. The first appellant is the plaintiff. Appellants 2 and 3 are defendants 2 and 3 respectively. As per the preliminary decree passed by the trial court and as modified in appeal, the suit property has to be divided into four equal shares and the plaintiff and the defendants are entitled to one-fourth share each. The first defendant-Meenakshi Amma died after the preliminary decree was passed. After the death of Meenakshi Amma, the respondent/petitioner filed the final decree application viz., FDIA 1592/2011 in O.S.No.86/1983 claiming rights on the basis of a gift deed alleged to have been executed by deceased Meenakshi Amma in her favour.

4. The suit property is 12 cents of land with a dwelling-house thereon wherein the appellants reside. The Commissioner deputed to effect partition in the final decree proceedings, divided the property into four plots, namely A,B,C and D and the plot A, which includes the dwelling-house, was allotted to the respondent herein. Accordingly, the final decree court accepted the Advocate Commissioner's plan and report, and passed the final judgment and decree.

5. Feeling aggrieved, the appellants/plaintiff and defendants 2 and 3 preferred an appeal before the first appellate court. When the appeal was pending, an application was filed by the appellants as I.A.No. 127/2017 to pass a final decree allotting the dwelling-house to the share of the appellants. The first appellate court was of the view that such an application could not be entertained separately by the first appellate court as the court was considering an appeal challenging the preliminary judgment and decree of the trial court. Hence, the I.A. was dismissed. Consequently, the appeal was also dismissed. Dissatisfied with the judgment and decree of the first appellate court, the appellants are before this Court.

6. Heard Sri.P.R.Venkatesh, the learned counsel for the appellants and Sri. K.G.Balasubrahmanian, the learned counsel for the respondent.

7. Learned counsel for the appellants contended that Section 4 of the Partition Act, 1893 (for short as 'the Partition Act') can be pressed into service by any of the co-owners of the dwelling-house belonging to the undivided family pending the suit for partition till final decree is passed and thereafter, even at the stage of execution of the final decree for partition so long as the execution proceedings have not effectively ended and the decree for partition has been fully executed and satisfied by putting the share holders in actual possession of their respective shares. The learned counsel further contended that Section 44 of the T.P. Act provides that the transferee of a share in a dwelling-house, if he is not a member of that family, gets no right to joint possession or common enjoyment of the house. The only manner in which an outsider can get possession is to sue for possession and claims separation of his share. Thus, it is contended that Section 4 of the Partition Act comes into play and the appellants are entitled to make an application to get the