Das, J.:— The only question of law raised in this appeal is, if the plaintiff was entitled to any relief under Section 4 of the Partition Act (Act No. 4 of 1895). The facts are these:
2. The plaintiff brought a suit for partition of the homestead plot No. 1277, measuring 0.03 acre and the Bari plot No. 1309, measuring 0.07 acre and desired to enforce his right to purchase the undivided share previously purchased by the defendant. The plaintiff's whole case was that though the other properties had been divided, the aforesaid two plots in dispute were in joint possession and accordingly he is entitled to the relief under Section 4 of the Partition Act. The defence was that the two disputed plots had also been divided between the two branches of the family, each branch being in separate possession of his portion of the property. Since the plots were rather too small, separate possession was not shown in the settlement records. The trial court came to the finding that the two suit-plots were not divided between the plaintiff and his cousin and the defendant was not a member of the family. The concurrent findings of fact therefore were that the defendant was not a member of the family and that the homestead and the Bari plots remained undivided. The trial court, however, relying on a decision of the Patna High Court: Babulal Tiwari v. Hulla Mallah reported in AIR 1938 Pat 13, came to the conclusion that the plot No. 1309 (Bari) was ordinarily and_reasonably necessary for the enjoyment of plot No. 1277 (homestead) and hence the plaintiff is entitled to relief under Section 4 of the Partition Act and directed him to pay a sum of Rs. 72/- towards the valuation of the two disputed plots.
3. The lower appellate court on a reconsideration of the evidence on record came to the finding that the plaintiff was not entitled to any relief under Section 4 of the Partition Act and accordingly allowed the defendant's appeal, while maintaining the decree for partition as passed by the trial court. It is against this decree that the plaintiff preferred the present second appeal.
4. Mr. B. Patnaik, learned counsel on behalf of the plaintiff-appellant urged that the plaintiff is entitled to the relief under Section 4 of the Partition Act. In order to fully appreciate the point, the facts have got to be stated in a little more detail. One Bali Swain had two sons, Udi and Sanai. The plaintiff is the son of Udi. Sanai's son Panu died issueless leaving his mother Sulei Bewa. Sulei sold Panu's admitted share of eight annas and ten pies interest in the aforesaid two plots to the defendant, Iswar Swain by a registered deed of sale dated 5-7-1941 (Ext. A). In the record of rights the two disputed plots have been recorded joint in the name of the plaintiff and Panu whose share has been noted as eight annas and ten pies and the plaintiff's share as seven annas and two pies. It is also the admitted case of both, parties that Panus' branch and the plaintiff's branch Had separated before the settlement operation in? mess and interest and there had been actual division of movables and most of the immovable properties, whereas the two disputed plots have been shown in the record of rights to be in joint possession with defined shares as aforesaid.
5. In the plaint although the plaintiff had referred to the homestead plot he did not categorically state that there was an undivided dwelling house standing thereon. The homestead plot may be undivided, but there can be no necessary presumption that a dwelling house stood thereon and even if a dwelling house was standing thereon, it cannot be presumed that it is an undivided dwelling house. The categorical evidence in this case is that by 1941 no dwelling house whatsoever was standing on plot No. 1277 and the dwelling house that existed previously had been burnt down and razed to the ground. The plaintiff's own evidence was that of the two houses now standing, one is a residential house and other is a shed. The residential house was constructed by the plaintiff two years prior to the shed constructed by the defendant, that is, in or about the year 1948. Hence the residential house constructed by the plaintiff, according to his own evidence, could be in or about the year 1946.
6. According to P.W 3, the Commissioner there is no other house on the suit-land except the aforesaid two houses, the residential house belonging to the plaintiff and the shed belonging to the defendant. Although the plaintiff did not categorically say as to when the house was burnt, he has admitted that it occurred prior to the construction of these two new houses. Thus, the learned Judge rightly came to the conclusion that there was no undivided dwelling house standing on the disputed homestead plot by the time the defendant made his purchase. Section 4 of the Partition Act, as is relevant for the present purpose, runs as follows:
“Section 4(1). Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court, if any member of the family being a share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct a sale of such share to such shareholder and may give all necessary and proper direction in that behalf”.
7. This section was presumably enacted by the Legislature to afford the benefit of the law of pre-emption to the other communities in India, as far as the dwelling house is concerned. Section 4 undoubtedly is a logical sequel of section 44 of the Transfer of I Property Act and is only an extension of the privilege I given to the share-holders by Section 44 of the latter Act in order to attract the operation of S. 4:
(1) There must be a dwelling house in existence belonging to an undivided family;
(2) A share thereof should have been transferred to a person who is not a member of such family;
(3) The transferee should sue for partition;
(4) That a member of the family being a share holder claims or undertakes to buy the share of the stranger transferee.
8. Hence in order to attract the operation of S. A the first condition necessary is that there must be a dwelling house in existence belonging to an undivided family at the time of transfer. From the evidence as I have discussed above, it is clear that by the time the share in the homestead plot was transferred there was no dwelling house standing on the disputed plot, for, the dwelling house now standing on the disputed plot according to plaintiffs own admission was constructed in or about the year 1946. It is incumbent upon the plaintiff to plead that there was in existence an undivided dwelling house and he must prove that a share thereof was transferred to the defendant before he can claim privilege under S. 4. In the present case the plaintiff had done nothing.
9. Mr. Patnaik sought to rely upon a case in Nilkamal v. Kamakhya Charan, AIR 1928 Cal 539. Mookerjee, J. in that case held that the word ‘family’ used in S. 4 ought to be given a liberal and comprehensive meaning. The object of the section is 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. The fact in that case was that the huts had been blown down and new constructions had appeared; but there was no finding if the house was built by different members of the undivided family, nor was there any finding as to when the purchase was effected whether before the huts were blown down or after.
10. Thus, in view of the findings in the present case, this case does not help the contention urged on behalf of the appellant. In the case of Boto Krishna v. Akhov Kumar, AIR 1950 Cal 111, the learned judges held that S. 4(1) itself recognizes that a person may be a member of the family although he may not be owning a share in the dwelling house. It confers the right to apply to buy the share transferred by “any member of the family being a share-holder”. The additional qualification of being a share-holder would not be necessary if the intendment of the section was that membership of the family was equivalent to co-ownership of the house, nor is there anything in the section which disqualifies a member who having previously alienated his share, has reacquired it and is owning it at the time he makes his claim under S. 4. The qualification of the applicant has to be; judged with reference to his position at the date of the application.
11. A member of the family not himself having a share may, for the first time, purchase a share from another member of the family or a share-holder may sell his share to another member or even to a stranger and may repurchase it from the vendee. But if he shows that he is a co-sharer of the family at the date of his application, he establishes his competence to make the application. The cosharers having their own separate sites forming part of the undivided property integrity of the dwelling house is not destroyed. In this case the finding by Chakravarty (as he then was) was that as the cosharers had separate huts of their own, there was no common dwelling house to which the section would be attracted was confirmed by the Division Bench while hearing the appeal under the provisions of the Letters Patent.
12. There being no finding as to when exactly the purchase was made this case is clearly distinguishable. Following the Calcutta decision in AIR 1928 Cal 539, the Allahabad High Court in the case of Bhagirath v. Afaq Rasul, AIR 1952 All 207, held that in order to determine whether a particular house is a family dwarfing house within the meaning of Section 4 of the Partition Act, the question to be decided in each case is whether the family has abandoned the idea of occupying the house as a residential house and not the state in which the house is. A person may not be able to reeoutruct his house for considerable length of time owing to poverty or owing to disputes with a stranger to the family regarding its occupation.
13. A house may fall into a complete state of disrepair owing to these circumstances, but it will nevertheless continue to be a family residential house if the members of the family intend to use it as such is soon as they can conveniently do so. Thus, in that case, there was in existence an undivided family dwelling house although in a dilapidated condition. Hence in none of these cases the purchase by the transferee was of a vacant homestead site as in the present case. The only other case that remains to be, considered is a decision of this court in Bhabani Bewa v. Akshoy Kumar Das, AIR 1955 Orissa 143. Narsimham, J., (as my Lord then was) held that the expression ‘dwelling house’ in S. 4 embraces not merely the structure of the building, but includes also adjacent buildings, curtilage, garden, court-yard, orchard and all that is necessary for the convenient occupation of the house, but that which is only for the personal use and convenience of the occupier.
14. The question whether a particular plot of adjacent land is or is not necessary to the enjoyment of the house is to be determined on evidence. The mere fact that there is an intervening lane between the actual residential house and a plot which is claimed as appurtenant to it will not necessarily show that the latter plot does not form part of the dwelling house, if it could be reasonably held on the evidence that the latter plot is used for the accommodation of servants or guests or for other purposes incidental to the use of the house by way of residence. The actual condition of the disputed dwelling house, on the date of the commencement of the litigation is not very material.
15. Thus, the mere fact that a but forming part of a dwelling house was in dilapidated condition on the date of the suit would not make it anytheless a dwelling house so long as the members had not abandoned the idea of using the but as part of that dwelling house. While corning to the aforesaid conclusion My Lord rehed upon the decisions in R.D Mehta v. Gadadhar Rai, 12 Cal LJ 526 : AIR 1938 Pat 13, Gour Chand v. Khirode Nath, AIR 1948 Cal 73 and AIR 1928 Cal 539. The finding in that case being that at the time of transfer there was a dwelling house in existence, this case would not apply to the present case. Thus, in all these cases the finding was that there was some sort of an undivided dwelling house in existence on the alleged date of the transfer which necessarily attracted the application of Section 4 of the Partition Act. What is necessary for a decision in the present case is if there was an undivided dwelling house in existence at the time of the transfer in favour of the defendant. But in view of our finding that there was no dwelling house, belonging to the undivided family in existence on the date of the transfer, the plaintiff clearly is not entitled to the benefit_of Section 4 of the Partition Act. In the result, the judgment and decree of the learned District Judge of Cuttack, dated 30-11-1954, are affirmed and the appeal is dismissed with costs.
Narasimham, C.J:— I agree.
K.S.B
16. Appeal dismissed.