The interpretation of 'dwelling house' under Section 4 of the Partition Act includes the portion of the structure actually used for residential purposes, together with appurtenants used by the family members as part of their residential house, considering equities in partition.

( 1 ) THIS is a second appeal from the decision of the subordinate judge, Alipore in a suit for partition. The plaintiff is a purchaser from one of the co-sharers, a brother of the defendant. The plaintiff instituted the suit for partition claiming one half share in the disputed property. The defendant filed a petition under Section 4 of the Partition Act and applied for a relief under that section on the ground that the property was a dwelling house. It belonged to an undivided family and it has been transferred to a person who is not a member of such family. The application under Section 4 was allowed by the trial court; against that there was an appeal and the appeal has been dismissed. The appeal to this Court is against the decision of the appellate court At an earlier stage of the proceeding we sent the matter to the court below for enquiry as to whether whole of the property was a dwelling house or not and whether the portion which has been in use and occupation of the tenant is a separate and distinct portion from that which has been used for the purpose of residence of the members of the family. The second point for which the matter was sent to the Court below was to find out whether the two brothers were the members of an undivided family or not.

( 2 ) AFTER taking evidence the trial court reported in favour of the defendant on both the points. The first point urged by Mr. Monomohan Mukherjee, on behalf of the plaintiff-appellant, is as there was a previous partition, the present application is not maintainable. It is enough to say that the plaintiff himself filed the partition suit on the allegation that the property was not partitioned and the plaintiff now wants to say that there was a previous partition. The plaintiff cannot be heard to say so. The defendant again at the time of the argument in the trial court admitted that the suit property was not partitioned before and that each of the members of the family had eight annas share. This point must, therefore, require no further consideration and the point is overruled.

( 3 ) WE now come to the real question as to whether the petition under Section 4 of the Partition Act should be allowed. Section 4 (1) of the Partition Act is as follows:"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 shall, 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 the sale of such share to such share-holder and may give all necessary and proper directions in that behalf. "

( 4 ) WE have first to see whether the whole of the property in question is a dwelling house within the meaning of the Act or not. A plan has been prepared and that shows that there are two structures on the plot or land marked 'a' and 'b'. The evidence of the defendant who has applied under Section 4 of the Partition Act is that he and his brother used to reside in two rooms in block 'b'. It is also clear from his evidence that block 'a' was never used by the members of the family for dwelling purpose. It was all along let out to tenants. There was a case that there was an amicable arrangement by which the plaintiff's vendor realised rent with regard to block 'a' and the defendant resided in block 'b' and also let out portion of it to tenants and realised rent with respect to that. The plaintiffs vendor in his kobala has also stated that he was in possession of block 'a' by letting out to tenants. Therefore, it is the statement of both the members of the family that block 'a' was not used for dwelling purposes and was always let out to the tenants. Block 'a' is not necessary for the convenience of dwelling in block 'b', it is not and was not used by the members of the family for dwelling or allied purposes. The meaning of the word 'dwell