The right of pre-emption under the Partition Act applies when the property is undivided and involves a dwelling house of a joint family.

1. The appellant impugns the judgment of the High Court of Karnataka rendered in a second appeal.

2. The brief facts necessary to dispose of this appeal are as under:
On 11-11-1975 certain property comprising land admeasuring 15 cents was purchased by one Abbas along with the appellant and two of his brothers ("the Pai brothers"). There was a partition effected between Abbas and the Pai brothers as a result of which Abbas got 7 cents of the said property and the Pai brothers retained with them 8 cents of property comprising a party - built dwelling house with land appurtenant thereto. On 20-12-1980 two of the Pai brothers sold and transferred their 2/3rd share in the said property to the respondent Smt Kamarunnisa. The respondent thereafter filed a suit for partition and possession of the property purchased by her. A preliminary decree was rendered by the civil court. At the time of the final decree proceedings, the appellant filed an application under S.4 of the Partition Act and claimed that he had a pre - emptive right to buy the share of the respondent since the property in question comprised a dwelling house with the land appurtenant thereto and the respondent was not a member of the family which owned the dwelling house. The learned Civil Judge allowed the application of the appellant and declared that the appellant was entitled to purchase the 2/3rd share in the property from the respondent before us. An appeal was carried thereagainst to the District Judge. The learned District Judge allowed the appeal and set aside the order of the learned Civil Judge holding that there was no evidence on record to show that the property belonged to a joint Hindu family. A second appeal filed by the appellant before the High Court failed. Hence, this appeal.

3. Shri S. N. Bhat, learned counsel for the appellant, drew our attention to the findings made by the learned District Judge in his judgment. The learned District Judge took the view that as the Pai brothers were residing separately (the appellant residing in the suit property while two of the Pai brothers were residing at Gowri Mutt Street, Mangalore), it could not be held that the dwelling house in question became a family house or that the family continued as a joint Hindu family.

4. The learned District Judge referred to Mayne's Hindu Law and Usage and emphasised the concept of a joint Hindu family and was at pains to point out that the evidence on record did not warrant a finding that the Pai brothers constituted a joint Hindu family. It was only on account of this finding that the learned Judge persuaded himself to hold that S.4 of the Partition Act did not apply and that the appellant had no pre - emptive right to purchase the share of the property bought by the respondent.

5. Learned counsel for the appellant has referred to the judgment of this Court in Dorab Cawasji Warden v. Coomi Sorab Warden , 1990 (2) SCC 117 . This was a case arising under S.44 of the Transfer of Property Act . S.44 of the also has a similar provision which reads as under:
"44. Transfer by one co - owner. - Where one of two or more co - owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling house belonging to an undivided family is not a member