The test is whether the members of the family have abandoned all idea of occupying the house.

The second appeal arises out of a suit for partition filed by the first respondent who purchased 9/16th share in the suit properties from defendants 14 to 16 who are respondents 2 to 4. The suit properties consist of two items the first of them being a house and the second a vacant site. The only question in this appeal is whether the appellants are entitled to purchase the share of the plaintiff under S. 4 of the Partition Act.

2. The plaintiff is the son of one Kayambu Nadar, whose brother was one Peria Karuppa Nadar. In a partition among the brothers, in 1934, the suit properties and two other items fell to the share of Peria Karuppa Nadar. He died leaving five sons and three daughters in 1960. One of his sons died in 1968 leaving defendants 1 to 4 as his heirs. Another son died in 1980 whose heirs are defendants 5 to 12. Defendants, 13, 17 and 18 are the three daughters of Peria Karuppa Nadar while defendants 14 to 16 are his surviving sons. Peria Karuppa Nadar's wife Sankara Avudai died in June 1981. It is admitted in the plaint that Sankara Avudai was living in suit item No.1 till her death. After her death, her children and grandchildren wanted to divide the properties by metes and bounds. As they could not bring about an amicable division, defendants 14 to 16 sold their shares to the plaintiff. The plaintiff claimed that he was put in possession of the property and that it Was sought to be disturbed by defendants 1 to 12. It was in these circumstances, he filed the suit for partition. The suit was contested by defendants 1 to 13, 17 and 18. The written statement was filed by the 6th defendant. In para. 9 of the written statement, it was stated that the first item of the suit property is the ancestral dwelling house of the undivided family of defendants 1 to 18 and the second item is part and parcel of the first item and that it was used as dwelling house till 1982. In paragraph 11 of the written statement, an unconditional undertaking to repurchase the shares held by defendants 14 to 16 was given.

3. Both the Courts below held that item 2 did not form part of item No.1 and that it was only a vacant site. As regards item No.1, it was held by both the Courts that it should not be treated as a dwelling house of the undivided family as the members of the family had abandoned the idea of residing in the house and that it had ceased to be a dwelling house. Consequently, a preliminary decree for partition of the 9/16th share of the plaintiff was passed. It is the correctness of the said decree which is challenged in this second appeal.

4. During the pendency of the appeal in the lower appellate Court, the appellants herein filed a petition under S.4 of the Partition Act, for a direction to the first respondent herein to execute and register a sale deed in their favour with respect to his 9/16th share. That petition was filed in the trial Court in the final decree proceedings. The trial Court dismissed the said petition by an order dt. 30-7-1986 and against that order, the revision petition has been filed.

5. It is contended by learned counsel for the appellants that the Courts below were wrong in holding that the first item of the suit properties ceased to be a dwelling house and the entire approach made by the Courts below was vitiated. It is also argued that the second item is really appurtenant to the first item and should be treated as part and parcel thereof. It is contended by learned counsel that there is absolutely no evidence to support the finding that the members of the family had abandoned the idea of residing in the house. Learned counsel invited my attention to a number of decisions of various Courts under S. 4 of the Partition Act and submitted that the principles laid down in these decisions have been ignored by the Courts below. Per contra, learned counsel for the first respondent submits that there is sufficient evidence on record including certain admitted facts and circumstances to support the conc