Viswanatha Sastri, J.- The question referred for decision is as follows: - “Whether on the facts and in the circumstances of the case the applicant had a dwelling place maintained for him and was a resident in British India within the meaning of section 4-A(a)(ii) in the year of account.”

The years of assessment in question are 1941-1942 and 1942-1943. The facts found by the Tribunal and adverted to in the statement of the case are these. The assessee, a Muhammadan merchant, carried on business in Ceylon and usually resided there. His parents lived at Sathankulam in the Tinnevelly district in a house owned by his mother. The assessee’s wife whom he married in 1940 lived some times with his parents and some times with her parents in their respective villages in the Tinnevelly district. The assessee was remitting monies now and then to his parents for their maintenance. The assessee visited British India during the years of account and during such visits stayed with his parents in their house at Sathankulam. On these facts the Appellate Tribunal held that the assessee was resident in British India within the meaning of section 4-A(a)(ii) of the Incometax Act overruling the decision of the Appellate Assistant Commissioner. Under the statutory provision above referred to, an individual is resident in British India if he “maintains or has maintained for him a dwelling place in British India for a period or periods amounting in all to 182 days or more in that year and is in British India at any time in that year”. The latter requisite is satisfied in this case and the dispute is whether the assessee maintained or had maintained for him a dwelling place in British India in the years of account.

It cannot be said in this case that the assessee maintained a dwelling place. The house where the assessee stayed during his visits to British India belonged to his mother where she and the assessee’s father lived. The expression “maintains a dwelling place” connotes the idea that the assessee owns or has taken on rent or on a mortgage with possession a dwelling house which he can legally and as of right occupy if he is so minded, during his visit to British India. That is not the case here for the assessee has no legal right to occupy the house in Sathankulam which belongs exclusively to his mother. The further question is whether it can be said that the assessee “has maintained for him a dwelling place at Sathankulam.”

In our opinion the expression “has maintained for him” would certainly cover a case where the assessee has a right to occupy or live in a dwelling place during his stay in British India though the expenses of maintaining the dwelling place are not met by him in whole or in part. A member of an undivided Hindu family or of a Malabar tarwad or of an Aliasanthana family has a right to live in the family house when he goes there, though the house is maintained by the manager of the family and not by the assessee from his own funds. If the undivided family is sufficiently affluent or if the members are large enough a separate dwelling house might be set apart by the manager for the occupation of one or more members of the family as a matter of convenience. In such cases it can be said that the assessee has a dwelling place maintained for him by the manager of the family for he has a right to occupy the house during his visits to British India.

Would the actual or de facto use or occupation of the house of another person by reason of some relationship or friendship without any kind of right to use or occupy the premises make a person a “resident” within the meaning of the above definition. The decision in Loewenstein v. De Salis1, which proceeds on the basis that an assessee need not be the owner or the lessee of a dwelling place or be holding any proprietary interest therein to make him a resident has been relied upon by Mr. Rama Rao Saheb, the learned advocate for the Commissioner of Income-tax. In that case Rowlatt, J., observed that

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