Chakravartti, A.C.J:— This appeal raises a short point under sec. 4 of the Partition Act.
2. The facts which have led up to this appeal are as follows.
3. There is a house situated within the limits of Konnagar Municipality which was owned at one time by one Nilmoni Mitra and or his death devolved on his four sons, Tinkari, Bishnu Charan, Gangacharan and Gostha Behari. By three separate conveyances executed on three different dates in, 1948 the appellant, Dulal Chandra Chatterjee, purchased the respective shared of Tinkari, Bishnu Charan and Gangacha-ran, and therefter he filed a suit for partition. In that suit the remaining brother Gostha Behari, who is the respondent in this appeal, made an application under sec. 4 of the Partition Act, praying that he might be allowed to buy the shares purchased by the plaintiff at valuation fixed by the Court? That application was met by the appellant with the objection that the application did not lie, inasmuch as the house concerned had been let out to tenants long ago and had therefore ceased to be a “dwelling-house” within the meaning of sec. 4 of the Partition Act. The learned Second Subordinate Judge of Hooghly declined to give effect to that objection and allowed the application made by the respondent. Thereupon the present appeal was preferred.
4. Neither of the parties led any evidence before the learned Judge and the matter seems to have been dealt with as on a demurrer. We also therefore have to proceed on the basis that the statements made by the respondent in his application or in his reply to the objection filed by the appellant are correct. In the absence of evidence the facts, therefore, must be collected from those applications and petitions of objection.
5. The allegation of fact made by the appellant in his petition of objection was, “That the suit property is not a dwelling house but a tenanted one and all the co-sharers have been in possession thereof for a long time by letting out the same to tenants.” The real facts, as explained by the respondent in his written statement in the suit and later on in his reply to the appellant's objection, are that till 1945, all the four brothers were living in the house concerned, which was their ancestral residential house. In 1945 they left Konnagar for Calcutta where they settled down for the purpose of carrying on business and as their old family-priest needed a house and they themselves needed some one to look after the ancestral house left behind, they had let out the house to the said family priest, one Dhirendra Nath Bhattacharjei at a nominal rent of Rs. 12 per month. It is to be noted that in the petition of objection filed by the appellant, he also relied solely on the occupation of Dhirendra Nath Bhattacharjee as a tenant, but did not allege that the house was being habitually let out to tenants or that there had been any other tenants before Dhirendra Nath Bhattacharjee.
6. Even on those facts it was contended by Mr. Nalin Chandra Pal, who appeared on behalf of the appellant that the house had ceased to be a “dwelling-house” within the meaning of sec. 4 of the Partition Act. In his submission, a dwelling-house, as contemplated by the section, was a house in which the members of the undivided family, owning the house, actually dwelt or a house in which it was possible for them to dwell, if they were minded to do so. But if, as the fact was in the present case, the house had been let out to tenants, there could be no question of the Owners of the house dwelling in it any longer, particularly in view of the restrictions introduced by the Rent Acts. In those circumstances, the argument concluded, the house had ceased to be a dwelling-house so far as the members of the undivided family to whom it belonged were concerned, and therefore it was outside the purview of sec. 4 of the Partition Act an a suit as between the co-sharer owners of the house and a stranger purchaser of the share of one or more of them.
7. I am entirely unable to accept the argument of Mr. Pal. Purely as a matter of language, sec. 4(1) of the Partition Act would seem to be satisfied if the house concerned was a dwelling-house in the sense of being a residential house, used or usable for purposes of human dwelling and if it belonged to an, undivided family. The generally accepted view, however, is that it is not sufficient that the house concerned should be a house for the dwelling of human beings, but it should also be a residential house in relation to the members of the undivided family owning it. It is not necessary for the purpose of this case to insist on the extreme view which can perhaps be taken on the strict language of the section, arid I may proceed on the view which has been commonly accepted as to the true meaning of the word “dwelling-house” as used in sec. 4(1) But assuming that the house concerned must be a residential house of the members of the family owning it, I am altogether unable to agree that any suspension of occupation or, for the matter of that, the absence of the owners of the house therefrom or an occupation or terminable occupation by tenants, can have the effect of making the house cease to be a dwelling-house. As is well-known, the object of both sec. 4(1) of the Partition Act and sec. 44 of the Transfer of Property Act is to keep off strangers who may purchase the undivided share of some co-owner of an immovable property and so far as dwelling-houses are concerned, to make it possible for the co-sharer, who has not sold his share, to buy up the stranger purchaser. The whole object therefore is to provide for peaceable enjoyment of the property and to secure privacy. The need, for making such provision cannot possibly come to an end, if by reason of special circumstances the owners of the house find it necessary to let it out to tenants for a time or to allow it to be occupied by a licensee. It has already been held in cases, too numerous to mention, that in order that an application under sec. 4(1) of the Partition Act may lie it is not necessary that the co-sharer owners should be in constant residence at the house. From that position to the position where the house has been let out to tenants is but a short step forward. The creation of a tenancy does not terminate the possibility of the owners of the house returning to its occupation. The tenant may voluntarily give up possession or he may be ejected. What seems to me to be important under sec. 4(1) of the Partition Act is that the house concerned should either be actually in use, though not necessarily in constant occupation, by the owners as a residential house or that conditions should be such that it is still possible for them to return to the occupation of the house at some future time. Judged by that test, it appears to me that the mere grant of a tenancy cannot possibly have the effect of making a house, which is otherwise a residential house of the members of the undivided family owning it, cease to be a dwelling-house. It may be that if a permanent and irrevocable lease is granted to a third party a question may arise as to whether the character of the house as a dwelling-house, in so far as the owners are concerned, still survives. No such question, in my view, can possibly arise where what has been created is nothing more than a tenancy of the Ordinary kind
8. Reliance was placed by Mr. Pal on a Single-Judge decision of the Rangoon High Court in the case of J.C Chatter-fee v. Maung Mye (1) (I.L.R 12 Rang. 343). It was contended on the supposed authority of that decision that if a house was mostly let out to tenants, it could no longer be said to be a dwelling-house and in respect of such a house no application under sec. 4(1) of the Partition Act would lie. I would, in any event, hesitate to accept a decision given by a single Judge of the Rangoon High Court, if the reason on which it was based did not commend itself to me. But it appears that the case relied on by Mr. Pal is clearly distinguishable on the facts. The house with which the learned Judge had to deal in that case was only an ancestral house, but there is no finding that it had ever been the ancestral dwelling-house or even the present dwelling-house of the descendants of the ancestors. All that appears from the report is that the house was built in the father's time and had since been mostly let out to tenants, but there is no finding that so far as the members of the family themselves were concerned, they had ever used the house as a residential house in those circumstances, there could be no question of the house ceasing to be a dwelling-house inasmuch as it had never been a dwelling-house at all.
9. It is not disputed in the present case that the house belongs to an undivided family and that as between the members of that family, it has not been divided. Nor is it disputed that it was the family residential house of, first, the father and then the four sons till the year 1945. The only fact relied upon is that since 1945 the sons have moved out to Cal-cutta for purposes of business and have let out the house to the family-priest who seems to be both a tenant and a caretaker. But even assuming that he is purely a tenant residing in the house in his own right, I am clearly of opinion that his tenancy does not operate to destroy the character of the house as a dwelling-house.
10. In my opinion the view taken by the learned Judge below is clearly right. The appeal accordingly is dismissed with costs.
Das, J.:— I agree.
A.K.D.G