A house let out to tenants does not cease to be a 'dwelling house' within the meaning of Section 4 of the Partition Act.

( 1 ) THIS appeal raises a short point under Section 4, Partition Act.

( 2 ) THE facts which have led up to this appeal are as follows. There is a house situated within the limits of Konnagar Municipality which was owned at one time by one Nilmoni Mitra and on 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 shares of Tinkari, Bishnu Charan and Gangacharan, and thereafter 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 Section 4, Partition Act, praying that he might be allowed to buy the shares purchased by the plaintiff at a 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 Section 4, Partition Act. The learned Second Subordinate Judge of Hooghly declined to give effect to that objection and avowed the application made by the respondent. Thereupon the present appeal was preferred.

( 3 ) 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.

( 4 ) 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 someone to look after the ancestral house left behind, they had let out the house to the said family priest, one Dhirendra Nath Bhattacharjee, 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.

( 5 ) 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 Section 4, 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 Section 4, Partition Act in a suit as between the co-sharer owners of the house and a stranger-purchaser of the share of one or more of them.

( 6 ) I