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12. Learned counsel for the appellant contended that the lower c,ourt has not understand the real scope of Section 4 of the partition Act, that defendants 12 and 13 who were the purchasers from defendants 1 to 11 are not members of the family that 1st plaintiff had undertaken to purchase shares of strangers and that in the circumstances it is incumbent on the part of the Court to direct the sale of shares of strangers to the 1st plaintiffs. Learned counsel also submitted that expression 'dealing house' in Section 4 of the Partition Act would include the land on which the building is situated. To understand the contentions of learned counsel in this behalf, it is profitable to refer to Section 4 of the Partition Act which reads as follows:

17. The counsel for defendants 11 and 12 contended that item No. 1 is not a dwelling house, that it does not belong to an undivided family and that the building is situated in the commercial locality and that therefore the provisions contained in Section 4 of the Partition Act have no application. He also contended Section 4 would take in only the dwelling-house and not the vacant space.

18. Learned counsel for the appellant placed reliance on a recent ruling of the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden 1990 (2) SCC 117 : AIR 1990 SC 867 in support of appellant's claim based on Section 4 of the Partition Act. In that case there was a transfer of share in a dwelling house belonging to an undivided family by a co-owner. Other co-owners filed a suit for grant of interlocutory mandatory injunction restraining the transferee from having joint possession with the non-transferor co-owner. The Supreme Court considered the scope of Section 44 of the Transfer of Property Act, 1882 also in this context. It is provided in Section 44 where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in Section 44 would be deemed to entitle him to joint possession or other common or part enjoyment of the house. Whatever be the right of the purchaser of a share from a member of an undivided family, that is subject to what is contained in Section 44 of the Transfer of Property Act and Section 4 of the Partition Act, if it relates to a dwelling house belonging to an undivided family. If transferee of the share is not a member of that family such a tranferee will not be entitled to joint posession or other common or part enjoyment of the house. Section 4 of the Partition Act and Section 44 of Transfer of Property Act, while recognising the transfer of a share of a co-owner Act as a valid one, place restriction on his right as co-owner, and if any member of the family being a shareholder undertakes to buy the share of such transferee, the Court has to make a valuation of such share in such manner as it thinks fit and direct the sale of such share of strangers to such shareholder. The purchaser of a share in the dwelling house cannot insist for partition of the dwelling-house by metes and bounds. The Supreme Court in the above decision held that in view of the provisions contained in Section 44 that even after the transferee comes into possession of the property. Court can grant an injunction which amounts to a direction for his ejectment. The Supreme Court rejected the contention that the words "undivided family" as used in the Section means a joint family and are confined to Hindus or Mahammadans, who have adopted the Hindu rule as to joint family property. The Supreme Court approved the decision of Full Bench of the A1lahabad High Court in Sulthan Begam v. Debi Prasad (1908 ILR 30 A1l 324) and held that the provision of the statute is clearly of general application, that this provision is intended to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferor's family have a right to live, and that the words 'undivided family' must be taken to mean 'undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it. The Supreme Court quoted with approval the following observations of the Orissa High Court in Bhim Singh v. Ratnakar Singh (AIR 1971 Ori 198) (at page Ori 201; AIR 1971):

20. Learned Counsel for the appellant also contended that not only the building and the land on which the building is situated but entire land where the building is situated will be treated as dwelling house for the purpose of Section 4 of the Partition Act. In support of his contention, the learned Counsel relied on the decision of this Court in Leelamma v. Madhavan (1984 Ker LT 25). There the question arose whether the Courts below were right in their interpretation of the term "dwelling house" occurring in Section 4 of the Partition Act to mean not merely the house but also the entire extent of 42 cents where the building is situate even though the house itself was in a corner of the property. The holding was 42 cents of land in Calicut city with a lot of vacant space. The lower courts held that the entire holding will constitute a single dwelling house within the meaning of Section 4 of the Partition Act. Dealing with the question this Court held:

21. Though the Supreme Court was mainly concerned in Dorab Cawasji War-deo's case (supra) with the question of issue of an injunction of a mandatory character directing ejectment in the light of provisions contained in Section 44 of the Transfer of Property Act, the scope of Section 4 of Partition Act has been elaborately discussed by the Supreme Court in that context and the principles enunciated therein are applicable to the cases coming under Section 4 of the Partition Act.

22. Learned Counsel for the respondents submitted that the building is acquired for residential purpose, that it is situated in a commercial area in Calicut city and that the entire extent of 8.463 cents where the building is situate cannot be treated as, a dwelling house. He also submitted that defendants 12 and 13 were running a hotal in the adjacent plots and were about to be evicted and it was under such circumstances they purchased the shares. He further submitted that the court below has safeguarded the interest of plaintiff by directing the building to be allotted to her share as for as possible. Learned Counsel argued that as found by the court below, there is ample vacant space which can be utilised for commercial purposes. Learned Counsel submitted that the elder sister of the 1st appellant and her children were living in the house, that Kali Shankaran gave a registered lease of item I in favour of the husband of the elder sister of 1st plaintiff in 1117, that when the latter was appointed as a Munsiff he kept the building under his lock and key and later permitted the appellant to live in the building but he continued to stay there with his family during the holidays and delivery period of his wife. Learned Counsel brought to my notice paragraphs of Ext. B1, the preliminary judgment in O.S. 109/1120 on the file of the Court of the principal Subordinate Judge, Trivandrum where the contention of the 1st defendant in that suit was stated. 1st defendant therein stated that B Schedule item No. 11 (item No. 1 in O.S. 283/81) belonged to him and was in his possession through his lessee, the 73rd defendant. On the basis of the above circumstances, learned Counsel contended that the 1st plaintiff in O.S. 283/81 is in occupation of the house only as permitted by her sister and her husband and that her residence is referable only to the permission granted by lessee and not as a member of the family. He also argued that there is no evidence that the lease was surrendered. He also submitted that there was settlement of properties as per Ext. A9 and later Ext. A9 and other properties were divided and 10 items were allotted to the appellant as D Schedule. According to the consel two houses and one out-house were allotted to other sharers and the appellant could have got any of these houses allotted to her if she really had no other house. According to the learned Counsel for the above reasons, 1st plaintiff in O.S. 283/81 is not entitled to any relief under Section 4 of the Partition Act. Learned Counsel submitted that what was placed in the plaint in O.S. 283/81 and in the written statement in O.S. 432/80 is that the building was purchased for residence for educational purposes of the members of the family, but that will not make the building a dwelling house within the meaning of Section 4 of Partition Act. It is difficult to accept these contentions of the learned Counsel. What is relevant is whether the building belonged to the family and the building is used by the 1st plaintiff as her residence and whether she is a member of the family. The evidence would show that the 1st plaintiff in O.S. 283/81 has been in the possession of the building for the last several years. The fact that the building belonged to the family and the 1st plaintiff is one of the members of the family also cannot be disputed. Defendants 12 and 13 are strangers to the family and they purchased rights of some of the members of the family. Ext. B2 and B3 which are the title deeds relied on by them proceed on the basis that the property belonged to the family and is undivided. Nobody has claimed tenancy in respect of this item and it has not been established that any tenancy subsists in respect of this property. Whatever be the nature of her initial occupation, the 1st plaintiff is in occupation of the house and she is residing there. In these circumstances, the contention of the learned Counsel for the respondents that (sic) itself is not a dwelling house within the meaning of Section 4 of the Partition Act, cannot be accepted. It is settled position that the expression "undivided family" used in the Section has wider interpretation and is not confined to Hindu undivided family. The expression is applicable to property enjoyed by members of family as co-owners. Neither the fact that the property is situated in the city of Trivendrum nor the circumstances that there are several commercial establishments near the house will destroy its character as a dwelling house. The circumstance that the defendants 12 and 13 were running hotel in the adjacent plot and that it was when they were about to be evicted the shares of some of the co-owners in these items were purchased by them would not be relevant in determining the question of applicability of Section 4 of the Partition Act. In my view, such considerations are extraneous and alien to Section 4 of the Partition Act. So also the circumstance that she claimed an oral partition and allotment of item No. 1 to her share will not take away her right to invoke Section 4 of the Partition Act. No doubt, in the case of a residential house in a commercial locality, the question whether the whole land is required for residential purpose is a relevant consideration, but in the instant case only 8.463 cents is involved and it is not possible to say that the whole extent is not required for residential purposes. Learned Counsel for the respondents invited my attention to the report of the Commissioner evidenced by Ext. CI. Of course C1 shows that there is some vacant space. But since the total extent is only 8.463 cents it cannot be said that the vacant space should not be treated as part of the dwelling house,