G.K. Misra, C.J.
1. Ramgopal (original plaintiff) who died during the pendency of the suit and Balmakund (defendant No. 9 and D. W. 2) were the sons of one Sitaram Agarwalla. Defendant No. 10 is the son of defendant No. 9. Substituted plaintiffs 1 (a) to 1 (i) (respondents 1 to 10) are the heirs of deceased Ramgopal. Defendants 1 to 8 are the appellants,
2. The case of the substituted plaintiffs may be stated in short. The disputed house is a double storeyed building situate in Jharsuguda town in the district of Sambalpur. Defendants 1 to 8 were admittedly the monthly tenants under Ramgopal and defendant No. 9 from 1941 onwards. The landlords served a notice to quit on the tenants and filed T. S. No. 35 of 1957 for eviction which ended in a compromise decree on 1-7-1.959. Under the compromise, defendants 1 to 8 agreed to vacate the suit house not later than two years from the date of the decree and pay compensation at the rate of Rs. 50/- per month from 1-4-1959. Defendants Nos. 4 to 8 paid Rs. 200/- to Ramgopal and Rs. 50/- to defendant No. 9 towards compensation and did not pay the balance. Taking advantage of the dissension between Ramgopal and defendant No. 9, defendants Nos. 1 to 8 prevailed upon defendants Nos. 9 and 10 to sell away their half share of the suit house in favour of defendant No. 4 by a registered sale deed (Ext A1 on 30-10-1960 for Rs. 8,500/-. The sale deed recited that the northern half of the suit house had fallen to the share of defendants Nos. 9 and 10 in a partition effected on 29-9-1950 though there was no partition. The suit was filed for partition of the house in two equal shares with a prayer that Ramgopal would buy the share of the dwelling-house purchased by defendant No. 4 under Section 4 of the Partition Act Thereinafter to be referred to as the Act) on payment of a price to be fixed by the court. There was a prayer for recovery of Rs. 800/- as damages and for future damages.
Defendants Nos. 4 to 8 contested the suit. In the written statement filed by them they made the following averments. The disputed house was not a dwelling house. It was partitioned by metes and bounds by an agreement dated 29-9-1950. The other properties of Ramgopal and defendant No. 9 had been partitioned amongst them by metes and bounds more than 36 years before the suit Under the compromise in T. S. No. 35 of 1957 defendant No. 5 paid a sum of Rs. 200/- to the plaintiff and Rs. 100/- to defendant No. 9. As the disputed house was not a dwelling-house of the family of Ramgopal and had been divided by metes and pounds in 1950. Section 4 of the Act has no application. Even assuming that Section 4 has application the plaintiffs were liable to pay the price of the half share as on the date of the suit and not as on the date of the sale.
3. The learned Subordinate Judge recorded the following findings:--
(1) All the properties of Ramgopal and defendant No. 9 excepting the disputed house were partitioned by metes and bounds more than 30 years before the suit;
(2) There was no partition of the suit house on 29-9-1950;
(3) The disputed bouse is the dwelling-house of Ramgopal and Balmakund;
(4) They were undivided qua the dwelling-house ;
(5) The suit is not barred by limitation;
(6) The value of the share purchased by defendants Nos. 1 to 8 is Rs. 8,500/-.
On those findings he held that Section 4 of the Act is applicable and directed defendant No. 4 to execute a sale deed within three months in respect of the share purchased by her from defendant No. 9 on payment of Rs. 8,500/- by the plaintiffs and deliver possession failing which the plaintiffs shall be entitled to deposit Rs. 8,500/- in court on the expiry of three months from 16-11-1965 and have a sale deed executed and take delivery of possession through court. He also decreed damages of Rs. 800/-.
4. Against the judgment and decree of the learned Subordinate Judse defendants Nos. 1 to 8 filed an appeal. Our learned brother B. K. Ray. J., dismissed the appeal against the relief granted under Section 4 of the Act and allowed further time for execution of the sale deed by defendants 1 to 8. He set aside the decree for damages of Rs. 800/- saying that such a relief cannot be granted in this suit and the plaintiffs would work out their remedy in execution of the decree in T. S. No. 35 of 1957.
Plaintiffs have not filed any appeal against the decree refusing damages. Defendants have filed the A. H. O. challenging the correctness of the conclusion of the learned single Judge under Section 4 of the Act.
5. Mr. Somanath Chatterjee raised the following contentions in support of the appeal:--
(1) The disputed house is not a dwelling-house of the family of Ramgopal and defendant No. 9;
(2) Assuming that it is a dwelling-house, it had been partitioned by metes and bounds in 1950 and as such by the date of the sale deed Ext. A it was not an undivided dwelling-house;
(3) The sale price of the share purchased by defendants Nos, 1 to 8 should have been determined as on 11-5-1962, the date of the suit. Rs. 8,500/- paid by defendant No. 4 to defendant No. 9 is not the price payable by the plaintiffs.
6. The last point may be disposed of first. It is not in dispute that the market value of the half share sold by defendant No. 4 to defendants Nos. 1 to 8 would be determined as on the date of the suit (See AIR 1963 Orissa 40, Bhikari Behera v. Dharmananda).
In paragraphs 6 and 8 of the written statement the following statements were made:--
'6. ......... The valuation of the property sold is not less than Rs. 8,500/- and it is absolutely false that defendant No. 4 paid only Rs. 2,000/- but the full amount was paid. Plaintiff has no right of repurchase.'
'8. The valuation is hopelessly low. Plaintiff is liable to pay court-fee of Rs. 17,000/- towards valuation and of the house and premises being the market value of the property.'
Thus the market value of the entire suit house was admitted to be Rs. 17,000/-on the date of the suit. In the circumstances Rs. 8,500/- directed to be paid towards the value of the half share is the market value of that share on the date of the suit. This contention has no force and is accordingly rejected.
7. To appreciate the first two contentions. Section 4(1) of the Act may be noticed. It runs thus:--
'4. Partition suit by transferee of share in dwelling-house. -- (1) 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.'
The following ingredients are to be established by a person claiming relief under Section 4(1) of the Act.
(1) A share of a dwelling-house has been transferred in favour of a stranger to the family;
(2) The transfer has been effected by a member of the undivided family;
(3) The transferee sues for partition;
(4) Any of the members of the family shall undertake to buy the share;
(5) The court shall make a valuation of such share as it thinks fit.
8. As to the third ingredient, it is now concluded by a Bench decision of this Court in AIR 1971 Orissa 127 (Alekha v. Jagabandhu) that the relief under Section 4(1) of the Act can be claimed even in a suit instituted by a member of the family and the relief is not confined only to a suit filed by the stranger transferee. In this case the suit is by Ramgopal or his heirs and is maintainable. J
9. We now take up the first ingredient. It is very seriously urged by Mr. Chatterjee that the disputed house is not a dwelling-house of Ramgopal and defendant No. 9. The analysis and conclusion of the learned single Judge on this part of the case may be extracted:--
No doubt, it appears from the evidence that since the year 1941 till the date of institution of the suit In the year 1962, the suit house has never been used for residential purposes by the family of the plaintiffs and defendant No. 9. It also appears from the evidence of D. W. 1 that prior to 1941 this house was in possession of Ramkumar. I am also prepared to accept the contention of the appellants that the evidence of P. W. 1 to the effect that he was born in the disputed house and to the effect that the family of the plaintiffs and defendant No. 9 were living in the disputed house till 1941 when they shifted to Kuchinda is not worthy of any credit, particularly in the face of the evidence of P. W. 1 himself that his ancestors came to Kuchinda before his birth, built dwelling-houses end started their business there. In spite of this, I do not agree with the contention of the appellants that merely because there is no reliable evidence of the suit house being used for residential purposes bv the family of the plaintiffs and defendant No. 9 within a period of thirty years or more, it would follow that the plaintiffs would not be entitled to the relief under Section 4 of the Partition Act.
XX XX XPara 8:
The correct position of law which appears to me is that it is the ownership of the dwelling-house and not its occupation which brings into operation Section 4 of the Partition Act. It is not necessary that the members of an undivided family should constantly reside in the house. There can be no dispute, so far as the facts of the present case are concerned, that the house in question is a dwelling-house. This is borne out by the evidence of D. W. 2. Defendant No. 1 examined as D. W. 3 admits that the defendants are living in the suit house since 1939 or 1940. Defendant No. 9 examined as D. W. 2 says as follows: 'I got the northern part adjacent to the house of Dwa-rikanath Jagannath consisting of 3 rooms including shop room. Ramgopal got 4 rooms including kitchen. Each of us got separate living rooms en bloc but the shop room and the bari could not be so allotted and were divided'.' The evidence of plaintiff No. 1 (b) examined as P. W. 1 is also to the same effect. Therefore, I hold that the house in question is a dwelling-house. Further, the evidence of D. W. 2 discloses that his marriage was performed in the suit house. This indicates that the suit house was for sometime according to the requirements of the family used for residential purposes. This coupled with the assertion made in Ext. 3 saying that the house is required for residential purposes and the averment in the plaint (Ext. B) that the house is needed for personal use clearly establishes that the family has not abandoned the idea of using the house for dwelling purposes.'
We would examine the correctness of this conclusion with reference to the evidence on record. Before doing so we would clarify the correct legal position.
10. The expression 'dwelling-house' is a single word and has not been defined in the Act. There is a well marked distinction between the words 'house' and 'dwelling-house'. The meaning of the word 'dwelling-house' as given in the Chambers's Twentieth Century Dictionary is 'a house used as a dwelling in distinction from a place of business or other building'. Thus every house is not a dwelling-house, though one can dwell in every house whether comfortable or not. Legislature is careful enough to confine the rights under Section 4(1) of the Act only to a dwelling-house and has not extended it to every house. Thus only on the basis of ownership of a house Section 4(1) of the Act cannot be invoked unless it is proved to be a dwelling-house. Without the family having the ownership in a house question of partition thereof does not arise. But mere ownership is not enough. It would be in respect of a dwelling-house. In the ultimate analysis the test would be whether the house is a dwelling-house and for this purpose mere ownership would afford no guide. The object of the section is not to allow strangers to get into a dwelling-house so as to affect the privacy of the family members. There can be no objection to the entry of strangers into other houses.
11. What then is the test of a dwelling-house ?
If in fact a house is used for residential purposes by the members of the family then it can be decisively termed as a dwelling-house. A dwelling-house may be tenanted in certain circumstances. For instance, two brothers who are Government servants were residing in a dwel-ling-house at Cuttack. One was transferred to Sambalpur and the other to Bolan-gir. They shifted with their family members and tenanted the house to have rent, not to keep it vacant and to avoid incurring expenditure over the protection of the house. They did not abandon the idea of occupying it as a residential house as and when necessary. Despite the fact that the house is tenanted, it does not cease to be a dwelling-house.
Similarly a part of the residential house may be tenanted for convenience. Take a case where there are only two brothers but their dwelling-house contains 16 living-rooms. If it is not convenient for the family members to occupy the entire house or if they want to augment their family income it is open to them to tenant a portion of the house. Despite it, the entire house would be treated as a dwelling-house (See ILR (19561 Cuttack 8 = (AIR 1956 Orissa 56) Sushila Baral v. John Bunyan Baral)).
Where, however, a house is used or is intended to be used not for residential purposes but for letting out, business, industrial or other purposes, it is not a dwelling-house. Take for instance, certain houses are constructed by the members of the family for being used as shop-rooms or for being tenanted to others. Those houses are not dwelling houses even though one can dwell therein comfortably.
It is unnecessary to multiply illustrations. Whether a house is a dwelling-house or not is to be determined with reference to the facts and circumstances of each case. The test which is, however, essential is that the house must have been meant for residential purposes though temporarily it might be used for other purposes according to the exigency of circumstances.
The aforesaid legal propositions formulated by us, were presented to the learned counsel for both the parties during the hearing. They accepted them as representing the correct law. We therefore do not propose to burden this judgment with several authorities cited to us.
12. We would now examine the facts of this case in the light of the law laid down. We may indicate that sitting in appeal over the judgment of a single Judge in a First Appeal we are competent to fully go into the questions of fact and ]aw (See 1973 (1) Cut WR 809 = (AIR 1974 Orissa 120), Jagabandhu Senapati v. Bhagu Senapati).
13. On the question whether the disputed house is a dwelling-house or not, the material oral evidence may be noticed.
P. W. 1 is one of the substituted plaintiffs. He is 42 years old. He deposed thus:--
'Examination in chief
Till 1941 we lived in the suit house at Jharsuguda and then shifted to Kuchin-da. Till the partition in 1937 defendant No. 9 stayed with us in the suit house, but thereafter he used to visit us. We had business at Jharsuguda and Kuchinda. ............ We never abandoned the idea of residing in the suit house which is our ancestral house inherited from father's father.
We originally belonged to Jholri village in Rohtak district in Punjab. ............ Sitaram. my father's father and his brother Uderam came to Kuchinda before my birth but I cannot say when they came. They built dwelling-houses at Kuchinda and started business. I cannot say in which year the land where the suit house stands was acquired or when the house was built We have some houses at Bamra station. ............ I was not educated in any school at Jharsuguda. I read English in Kuchinda School in 1937 and 1938. My mother was at that time at Jharsuguda. Since 1941 we have no business at Jharsuguda. I cannot say when we shifted to Jharsuguda but it was before my birth. I was born at Jharsuguda.
It would thus appear from the evidence of P. W. 1 that his grandfather came from Punjab and resided in Kuchinda after constructing dwelling-houses there. They had also their business at Kuchinda. He had no idea of the year when the land on which the suit house stands was acquired or when the suit house was constructed. The learned single Judge rightly discarded his statement as establishing that the disputed house was a dwelling-house of the family.
P. W. 2 went a step further in stating that P. W. 1 was reading with him in the Marwari School at Jharsuguda though P. W. 1 himself denied it. P. W. 2 throws no light on the question in issue. He is also 42 years old.
It appears from the evidence of D. W. 1 that before the house was tenanted to defendants 1 to 8 one Ramkumar was living in the suit house. He has not entered the suit house at any time. Not much reliance can be placed on his evidence to prove whether the suit house was a dwelling-house.
D. W. 2 (defendant No. 9) is 52 years old. He made the following material statements:--
We originally belong to Rohtak District in Punjab and we have a house there. Our family came here at about the year 1900 and stayed at Kuchinda where they acquired lands and built house and settled. ............ The suit house was built at
Tharsuguda for business.
I cannot say when the suit house was built, but it was when I was a small boy. The land was acquired 30 or 40 years back. I cannot deny the suggestion that P. W. 1 was born at Jharsuguda. He might have been born there or at Kuchinda. I married at Jharsuguda about 30 years back in the suit house. We stayed there for a month for the purpose of marriage. I cannot say why marriage was not performed at Kuchinda. The house was not let out then. We had a shop at Jharsuguda and my father used to go there for business whenever necessary.'
The evidence pf D. W. 2 dearly establishes that the disputed house was not constructed for being used as a residential house and was not in fact being used as a residential house. It was constructed for the purpose of doing business and Sitaram used to go to Jharsuguda from Kuchinda for business. He does not know where P. W. 1 was born. His inability to deny the suggestion that P. W. 1 was born at Jharsuguda does not prove that truly P. W. 1 was born at Jharsuguda. In the next sentence he made it clear that P. W. 1 might have been born either at Jharsuguda or at Kuchinda. The only material evidence which has been used by the learned single Judge and which has been pressed into service by Mr. Mohanty is that defendant No. 9 married at Jharsuguda sometime nearabout 1935 in the suit house and stayed there for a month for the purpose of marriage. This admission does not at all establish that the suit house was used for residential purpose or was meant to be used as such. It merely means that at the time of marriage the house was lying vacant and after performance of the marriage therein defendant No. 9 resided there for a month. The learned single Judge acted contrary to law in using the statement as leading to the conclusion that the suit house was a dwelling-house.
D. W. 3 (defendant No. 1) is 77 years old. He is a resident of Jharsuguda. He along with defendants 2 to 8 is in occupation of the disputed house from 1941 till today. He stated thus:
'Examination in chief:
We are living in the suit house since 1939 or 1940. We took it on lease from Ramgopal and occupied it. Before our occupation it was vacant for some time and before that one Ram Kumar Agarwala was staying in it. Ramgopal, the deceased plaintiff, never lived in this house. He was living at Kuchinda where they have many houses. They have houses at Bamra also.
The suit house was vacant for 5 to 6 years for our occupation. I cannot say who was in occupation of the house before Ramkumar. I do not know in what circumstances he was in the suit house.'
The evidence of D. W. 3 establishes that the suit house was never used for residential purposes before. It was tenanted in 1941. It was in occupation of one Ramkumar. who is a stranger. Obviously he must have occupied the house as a tenant and before that the house was for some time vacant during which period the marriage of P. W. 1 was possibly performed therein.
On the oral evidence on record there is absolutely no material in support of the conclusion that the suit house was either used or meant to be used for residential purposes. It cannot therefore be termed as a dwelling-house.
14. In support of his conclusion the learned single Judge used the following statement of D. W. 2:--
'I got the northern part adjacent to house of Dwarikanath Jagannath consisting of 3 rooms including shop room. Ram gopal got 4 rooms including kitchen. Each of us got separate living room en bloc but the shop room and the bari could not be so allotted and were divided.'
This statement purported to speak of the partition of the disputed house in 1950. Admittedly at that time defendants 1 to 8 were in occupation of the house and Ramgopal and defendant No. 9 were not in occupation. This statement should not have been used in support of the conclusion that the disputed house is a dwelling-house. Similarly the learned single Judge used the recital in the notice (Ext. 3) dated 5-7-1951 and the statement in the plaint (Ext. B) dated 10-9-1958 whereby Ramgopal and defendant No. 9 wanted defendants Nos. 1 to 8 to vacate the disputed house for their personal use and possession. The statements in these two documents do not establish that the suit house was a dwelling-house as having been used for residential purposes at any time earlier or meant to be used for that purpose. By the time of the issue of the notice defendants 1 to 8 were in occupation for about 10 years and by the time of the filing of the suit they were in possession for about 16 years. Even in respect of a house which is not a dwelling-house a notice can easily be given and a suit can be filed that it is required for residential purpose. Such statements only refer to future use of the house for residential purposes and not its original or past use. These statements should not have been used in support of the conclusion that the suit house was a dwelling-house.
Thus while we agree with the conclusion of the learned single Judge extracted by us with reference to para. 7 of his judgment we do not agree with his observations in para. 8. The ultimate conclusion was based on wrong statement of law and use of evidence not admissible for being used in support of the conclusion on facts.
15. On our analysis of the facts and law we are satisfied that the disouted house is not a dwelling-house of Ramgopal and defendant No. 9 and consequently Section 4(1) of the Act has no application to this case.
16. We now proceed to examine the second ingredient, that is to say. whether the transfer had been effected by a member of the undivided family. We would first clarify the legal position on the point. It has been consistently held that the family must be undivided qua the dwelling-house (See AIR 1965 Orissa 111, Paluni Dei v. Rathi Mallick). Applicability of Section 4 of the Act is not confined to a Hindu Mitakshara family. It extends to Mahommedan. Christian and other families as well. The family members might have divided their other properties by metes and bounds or there might be severance of joint status amongst them. The family would still be treated as undivided in respect of the dwelling-house if the same has not been divided amongst them by metes and bounds.
17. In this case Ramgopal and defendant No. 9 partitioned all other properties long since by metes and bounds. If the disputed house is a dwelling-house and has not been divided by metes and bounds, it would be a dwelling-house belonging to the undivided family.
As to the question whether the house was divided or not, Mr. Chatteriee places strong reliance on an agreement dated 29-9-1950. This agreement purports to partition the property into two equal shares, northern portion being allotted to defendant No. 9 and southern portion to Ramgopal. Signatures of Ramgopal and defendant No. 9 on this document have been marked as Exts. F and F (1) on the admission of P. W. 1. The document was, however, not admitted by the learned Subordinate Judge and the learned single Judge on the ground that it being a document effecting partition is not admissible in evidence being unstamped and unregistered. Mr. Chatteriee contends that the partition was effected prior to the execution of the agreement and it merely recorded a previous oral partition. The recitals of the document are ambiguous and are not very clear. No case was made out in the written statement that there was a partition first and the agreement was executed only to record the terms of the partition. In the circumstances we agree with the conclusion of the learned single Judge on this point. We are of opinion that there is no proof of partition of the disputed house by metes and bounds.
18. On our conclusion that the disputed house is not a dwelling-house, the plaintiffs are not entitled to invoke Section 4(1) of the Act to their aid. As the house, however, is undivided it must be partitioned amongst the plaintiffs and defendants 1 to 8. A preliminary decree for partition is hereby passed. The disputed house be divided into two equal shares, one of them being allotted to the plaintiffs and the other to defendants 1 to 8.
19. In the result, the judgments of the learned Subordinate Judge and the learned single Judge are set aside and the appeal is allowed as indicated above. In the circumstances parties to bear their own costs throughout.
S.K. Ray, J.