PARKASH WANTI Vs. MADAN MOHAN LAL AGGARWAL

JUDGEMENT

(1.) The house in dispute belonged to one Dhanpat Rai and on his death in the year 1970 it devolved on his three daughters and four sons. His three daughters and three sons sold their 6/7 share in the said house to several vendees, the respondents in this petition. The 7th share owned by the fourth son, Om Parkash, devolved on the petitioners, his widow and the minor children.

(2.) The vendee-respondents filed the suit giving rise to this petition for partition of the said house and separate possession of their shares. The petitioners opposed the suit and moved an application under section 4 of the Partition Act, 1893 (hereinafter called the Act) for purchase of six shares of the vendees on the price to be fixed by the Court. The application was dismissed by the learned Sub-Judge 1st Class, Ferozepore, vide order dated November 17, 1980 holding that the house in dispute was not a dwelling house. Aggrieved thereby the defendants have come up is revision.

(3.) The building in dispute is situate in a bazar, that is, a business locality. On the ground floor there are 4 shops and on the first floor six rooms, two out of which are used as godowns, three are on lease with the tenants and only one is in possession of the petitioners where they are residing. It is, therefore, evident that the building in dispute is predominently a commercial building and not a dwelling house though four rooms on the first floor are being used for residential purpose. That apart, at the time of the filing of the suit or of the application under Section 4 of the Act, the building did not belong to an undivided family and only 1/7th share was owned by the heirs of one of the seven members of the family. Six shares out of seven shares were transferred by the members of the family to the strangers who came to be in exclusive possession of the three shops and two rooms. The character of the building at the time of the making of the application could not, therefore, by any stretch of reasoning, be said to be that of a dwelling house of an undivided family and the trial Court rightly rejected the application.