An application under Section 4 of the Partition Act, 1893 is maintainable at the execution stage. Determination of whether a property is a dwelling house of an undivided family is a factual issue requiring evidence and must be decided on merits by the executing court.

(1) HAVING heard learned Senior Counsel for the parties, in our view, from the impugned judgment two points arise for our consideration:

(i) Whether the application under Section 4 of the Partition Act, 1893 was maintainable at the execution stage? (ii) Even if it is maintainable, whether Section 4 of its own even applies to the facts of the present case and whether the property in question was a dwelling house belonging to an undivided family as laid down in that section?

(2) SO far as the first point is concerned, the High Court by its impugned judgment has held that the application was maintainable even at the execution stage. That decision of the High Court is fully governed by a decision of this Court in Ghantesher Ghosh v. Madan Mohan Ghosh wherein this Court has taken a view that Section 4 of the Partition Act can be pressed into service even at execution stage after the final decree in partition suit is passed. Consequently, the view taken by the High Court on this point remains well sustained.

(3) THAT takes us to the consideration of the second point. So far as this point is concerned, learned Senior Counsel for the appellant, Mr Mishra vehemently contended placing reliance on objections to the Section 4 application as filed before the executing court, that amongst other objections, objection as per para (g) was required to be properly thrashed out on evidence. Objection (g) reads as under:

"An application must relate to a dwelling house of an undivided family nor is it at present a dwelling house for the purpose to invoke the provision of Section 4 of the said Act. Even considering the position of the house before the final decree it cannot be said to be a dwelling house of an undivided family There are 8 families of different States of India, viz., Uttar Pradesh, Rajasthan, West Bengal and Punjab in the said house. Apart from these families there are business houses of printing press, electrical goods, repairing workshop, tailoring shop, furniture shop and cloth shop. Above all there is a school for girls run by the State of West Bengal where a large number of students come to take their lessons. Only the two sons of the applicant (deceased) reside in one room of Block C of the said premises, which has been allotted to them in the final decree and not any other member of alleged family. Such a house cannot be called a dwelling house for the purpose of Section 4 of the Partition Act."

(4) NOW, it is of course true that this point was not considered by the executing court on merits after permitting the parties to lead proper evidence on this point as the executing court decided the application under Section 4 of the Partition Act as not maintainable at execution stage. So far as the revisional proceedings were concerned, the High Court has gone into the question but at the stage of revision, in the absence of evidence no appropriate decision could have been arrived at. It is of course true that the High Court has noted that there was no evidence on this aspect but there could not have been any clear evidence when the executing court had not taken into consideration this question by allowing the parties to join issues on merits. Therefore, the proper order which the High Court should have passed was to remand the matter to decide the aforesaid second point instead of examining the same which the High Court itself has found to be not supported by relevant evidence. Only on this short ground and without expressing any opinion on the merits of the controversy, the appeal is partly allowed.

(5) THE finding of the High Court that the suit house is a dwelling house is set aside. However, the impugned final order of the High Court remanding the proceedings is confirmed. The proceedings are remanded, while upholding the view of the High Court that the Section 4 application was maintainable as aforesaid, to the executing court with a direction to consider the main question as to whether even if the applic