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Civil Appeal No. 32 of 1954, decided on 31st January 1958.

S. 4 (I)‑"Dwelling‑house" Mere grant of an ordinary tenancy cannot make a house which s otherwise a residential house of members of undivided family owning it, cease to be a dwelling‑house.

Under section 4 (1) of the Partition Act what is important is that the house concerned should either be actually in use, though not necessarily in constant occupation, by the owners as a residen tial house or that condition should be such that it is still possible for them to return to the occupation of that house at some future time. 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 can possibly arise where what has been created is nothing more than a tenancy of the ordinary kind.

Dulal Chandra Chatterjee v. Gosthabehari Mitra 56 C W N 681 fol.

P. C. Nag for Appellants.

B. C. Das for Respondent No. 1.

This appeal by defendants Nos. 1 to 3 arises out of as uitfor partition. The plaintiff on the basis of a share purchased in the disputed properties from pro forma defendant No. 7 instituted the partition suit on the following allegations. One Jamaluddin Talukdar was the owner of the three properties recorded in C. S. Khatians Nos. 696, 252 and 251 of Mouza Sutrapur in the district of Bogra, and he was by inheritance and purchase owner to the extent of Thanna 18 gandas 3 karas 1 krant 15 tils share in the properties. He died leaving behind four sons, defendants 1 to 3 and pro forma defendant No. 7, and two daughters, namely, defendants Nos. 4 and 5, and a widow, defen dant No. 6, as his heirs. Pro forma defendant No. 7, and defendants Nos. 1 to 3 inherited 7/40th share in the said properties treating the share of Jamaluddin Talukdar to be 16 annas. Thereafter defendants. 2‑3 and pro forma defendant No. 7 pur chased 1 anna share from one of the co‑sharers of the properties of Naimuddin Talukdar and each one of them therefore got a total share of 13 gandas 1 kara 1 krant 5/8 til share in the said pro perties. There was a previous partition suit in which defendants Nos. 1 to 6 and pro forma defendant No. 7 got the disputed properties of the two Schedules and their share in the said properties was 2 annas 18 gandas 3 karas 1 krant and 15 tils. They were in joint possession of the properties. Pro forma defendant No. 7 sold his 13 gandas 1 kara 2 krant 5/8 til or 3 annas 12 gandas 63/713 kara share treating the above joint share to be 16 annas to plaintiff by a kabala dated 28th of Baisakh 1352 B. S. The plaintiff demanded partition in respect of her share and, on the refusal of the defendants, instituted the suit.

2. Defendants Nos. 1 to 3 filed a written statement. Their defence inter alia was that the purchase from Naimuddin Talukdar was really by Jamaluddin Talukdar in the benami of his three sons and therefore the share of pro forma defendant No. 7 in the disputed properties was 2 annas 16 gandas and not the share claimed by her. The defendants further contended that in the disputed properties they had their family dwelling‑houses and, as such, they were entitled to purchase the share of the plaintiff who is an outsider to the family. An additional written statement was filed in which they claimed some amounts which they spent for the properties on account of rents and municipal taxes and for improvement of the suit properties.

3. The learned Subordinate Judge, Bogra, rejected all the contentions of the defendants and decreed the suit of the plaintiff for partition.

4. Mr. P. C. Nag who appeared for the defendant‑appellants raised three points in this appeal. His first contention was that the learned Subordinate Judge was wrong in not holding that the purchase from Naimuddin Talukdar was really a benami purchase of Jamaluddir, Talukdar in the name of his three sons. He contended that at the time when this purchase was made, pro forma defendant No. 7 was a minor and there is evidence on record to show that the money was supplied by the father and the sons had no funds of theirs to purchase the property. On going through the evidence in this case, we are, however, unable to agree with Mr. Nag so far as his contention that this was a benami purchase is concerned. There is no evidence worth the name which would go to show that the money was supplied by the father. The only evidence is of D. W. 1 Tabibar Rahman Talukdar who said that the consideration money of the kabala was paid by his father. He, however, admitted in his cross- examination that there is no paper to show that the consideration money was really paid by the father. It is difficult to hold in favour of benami on the simple oral testimony of a very interested witness as D. W. 1 We, therefore, hold that there is no substance so far a this contention is concerned.

5. The next point that was raised by Mr. Nag was that the learned Subordinate Judge was wrong in holding that the defen dants were not entitled to the benefit of section 4 of the Partition Act. The learned Subordinate Judge in this case held against the defendants because he came to the conclusion that the disputed properties are not used by any one of the defendants as a dwelling house now. The properties have been let out to tenants and the defendants lived elsewhere. He further held that as the defendants have got their ancestral homestead at Shikarpur and when they have also a dwelling‑house in another part of the town, there was no necessity for them to have any other dwelling house within the disputed properties. Mr. Nag on the basis of certain decisions to which we shall presently refer, contended that the learned Subordinate Judge was wrong in dismissing the claim of the defendants only the ground that they are not now living in the disputed properties. He, in this connection, referred to a recent decision of the Calcutta High Court in the case of Dulal Chandra Chatterjee v. Gosthabehari Mitra (56 C W N 681.). In that case, the facts were more or less similar. But before we deal with that in details, it is necessary to refer to the evidence in this case on this point. It cannot be disputed that it has been established in this case that the properties were used before by the predecessors of the defen dants as a dwelling house. D. W. 1 Tabibar Rahman Talukdar stated that his uncle Naim and Kasiruddin resided in property iv o. 2 with family and; hi father and mother resided in property No. 1. We do not find that these facts have been very seriously challenged in cross‑examination. It is, therefore, clear that at one time these properties were used by the members of the defen dants' family as dwelling‑house.

6. The only contention of Mr. B. C. Das who appeared for the plaintiff‑respondent was that since these properties were not used now as a dwelling‑house and the defendants have shifted to some other place after letting out these properties, it must be held that these are not dwelling‑houses to which section 4 of the Partition Act would apply. In the case of Dulal Chandra Chatter jee v. Gosrhabehari Mitra it was also found that the house in question was let out to a tenant and the members of the family shifted to a different place and the contention that is put forward by Mr. Das was also put forward in that case by the party who resisted the purchase under section 4 of the Partition Act. Chakrabortti, A. C. J., who delivered the judgment, after taking into consideration these contentions and the fact of the case observed thus :‑

"What seems to me to be important under section 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; A occupation of the house at some future time. Judged by the test, it appears to me that the mere grant of a tenancy cannot) possibly have the effect of making a house, which is otherwise al 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 f where what has been created is nothing more than a tenancy of the ordinary kind."

We respectfully agree with this decision. In this case also it has not been established that the properties or any portion thereof have been let out permanently. Moreover, it has been stated in this case and that is not disputed that some of the defendants themselves are carrying on their own business in these properties. In that view of the matter, we are unable to agree with the learned Subordinate Judge that the defendants were not entitled to the claim to purchase the share of ‑the ‑plaintiff under section 4 of the Partition Act. The finding of the learned Subordinate Judge in this respect, therefore, must be set aside.

7. The last contention of Mr.' Nag was that the learned Subordinate Judge was wrong in deciding the question of the recovery of the amounts which the defendant claimed on account of payment of rent, taxes and for effecting repairs, as it was agreed between the parties that the said question should be kept open at this stage and should be gone into at the time of the final decree. With a view to establish that Mr. Nag drew our atten tion to a petition which was filed by his clients on 1‑7‑53 and Order LXIX, dated 1‑7‑53, passed by the learned Subordinate Judge. The petition which was filed by the defendants stated that it had been agreed to between the parties that the question of payment of money on the above accounts should be kept open and the learned Judge also agreed to that. In the order, however, the fact that such a petition was filed is mentioned, but the learned Subordinate Judge diet not pass any order on that. On a perusal of the record, however, we are unable to see how it can be said that this was agreed to by the plaintiff. No copy of this petition appears to have been served on the plaintiff's lawyer. It is unfortunate, however, that the learned Judge did not pass any definite order on this petition. He, however, in his judgment, while considering, the issues with regard to these matters; stated:‑

"These issues are not pressed at the time of hearing nor any evidence has been adduced by the defendant in this respect. Hence these issues are found in favour of the plaintiff".

Unless the question whether the plaintiff was at all liable for any part of these amounts was decided at the time of the preliminary decree, we are unable to see how this question can be at all gone into at the time of passing the final decree. Mr. Nag, however, at the time of his argument said that if his clients are given the reliefs under section 4 of the Partition Act, then the question of keeping these matters open till the time of the final decree could not arise. In that view of the matter, we do not think it is necessary for us to decide this point. No other point was raised in this appeal.

8. In the result, the defendants are allowed to make an application to the Court below to exercise their rights under section 4 of the Partition Act within one mouth from the date of arrival of the records in the lower Court. On the defendants' making such an application, the learned Subordinate Judge will assess the value of the plaintiff's share in the disputed properties and the defendants would pay the price of the plaintiff's share within six months from the date the valuation is made by the Court and the judgment and decree of the Court below will stand modified as indicated above. In default of the application being made by the defendants or of the payment of the price of the plaintiff's share as above, the appeal will stand dismissed with costs.

‑I agree.

K.B.A. Order accordingly.

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