A co-owner is entitled to purchase the share of a stranger purchaser in a dwelling house belonging to an undivided family under Section 4(1) of the Partition Act, 1893, even if the house is not being used as a dwelling house by the family on the date of the institution of the suit for partition, unless the co-owner has abandoned his right to purchase the share.

1. This is Defendant's appeal against a preliminary decree for partition of a' house at Gondia.

2. On the basis of a mortgage deed dated 12-7-1933 executed by the Defendant's father Rajmal, for himself and on behalf of his minor son (the. present Appellant) the Respondent obtained a decree against the half share of the father and the suit against the minor was dismissed. The mortgaged property was ultimately sold and purchased by the Respondent who was placed in joint possession of the property on 14-4-1942 by the executing Court. The Plaintiff thereafter instituted this suit for partition and separate possession of his half snare in this house.

3. The Defendant pleaded that the house was a dwelling house belonging to the undivided family of himself and his father and that under Section 4, Partition Act, he was entitled to purchase the share of the Plaintiff, who was a strange to the family, at Rs. 6500/- and the Defendant offered to buy the Plaintiff's share at this value.

4. The lower Court found that the value of the Plaintiffs share of the property at the date of suit was Rs. 11,000/- and that the house ceased to be a dwelling house of the undivided family about three years prior to the institution of the suit, that is, in the year 1942, when the property was auctioned as the family moved to Rajnandgaon for good and had no intention of occupying the house in future. The lower Court found that the entire house was let out to the tenants since then.

5. Shri A.V. Khare appearing for the Appellant raised only one contention that the finding of the lower Court that the entire house was let out is erroneous, that the Defendant was in possession of a portion of his house and as such the house did not cease to be a dwelling house of the Defendant. The learned Counsel expressly stated that he did not want to press any other point.

6. The Defendant was a minor when the evidence was recorded and was represented by his guardian mother. Neither she nor his father entered the witness-box to prove their occupation of the house. The learned Counsel relies on the evidence of D.W. 1 whose testimony did not impress the lower Court. The contention that the Defendant or the family were in possession of a portion of the house could have been if true, substantiated by the evidence of the tenants residing in the house. Under these circumstances, we do not see any reason to take a different view of the evidence. We therefore agree with the lower Court that the Defendant ceased to be in occupation of the house since about 1942 and that the house was not being used as a dwelling house of the family on the date of suit.

7. There is no substance in the contention advanced for the Respondents that the property in suit is two houses, one for the shop and the other for dwelling. The map filed with the plaint shows one house on a single nazul plot. From this map and evidence, it appears that the front portion of the house was used for business but that portion is apparently inseparable from the rest. We therefore hold that the whole house was a dwelling house of the family of the Defendant.

8. The learned Counsel for the Appellant cannot be allowed to raise the contention that the Plaintiff's suit for partition of the house in suit without sung for general partition is not tenable, as this contention, which is a mixed question of law and fact, was not raised in the Court below. We will therefore take it for the purpose of this case that the only property of the family for partition was the house in suit.

9. It is not disputed in the instant case that the house vas the dwelling house of the family of the Defendant and that it had no other house for dwelling. It is not clear from the evidence whether the house was used as a dwelling house by the family of the Defendant on the date of the auctior, sale. It is however clear that about that time the family moved to Rajnandgaon for business and the whole house was set out to tenants. The burden was on the Plain