P.N. Mookerjee, J.
1. This appeal is by the plaintiffs and it arises out of a suit for partition, in which the plaintiffs made a claim for pre-emption under Section 4 of the Partition Act.
2. The suit was instituted on March 20, 1957. The plaint was a simple plaint for partition on the allegation inter alia that the plaintiffs had l/3rd undivided share in the disputed property. Within two days, namely, on March 22, 1957, the plaintiffs applied for a temporary injunction to restrain the defendant from erecting structures on the suit land or changing its character and, in the said application, a reference was made to theplaintiffs' claim for pre-emption, or right in that behalf, -- under Section 4 of the Partition Act upon the ground that the defendant was a stranger purchaser, although he had purchased the major share, namely, 2/3rds, and, on the implication, though not very expressly stated, that the disputed property comprised the ancestral dwelling house of the plaintiffs' family. Thereafter, the suit proceeded for some time and, eventually, on September 22, 1959, there was a specific application for pre-emption under Section 4 of the Partition Act, mentioning all the requirements under the said section.
3. The learned Trial Judge, after finding that the plaintiffs had l/3rd share in the disputed property and the defendant the remaining 2/3rds, made a preliminary decree for partition, and, upon the plaintiffs' above application under Section 4 of the Partition Act, came to the conclusion that, having regard to the nature of the disputed property and the circumstances of this case, it could be treated as coming sufficiently within the expression 'dwelling house belonging to undivided family', as used in the said section, and, accordingly, the plaintiffs were entitled to pre-emption under the said statutory provision. In that view, he allowed the plaintiffs' said claim for pre-emption.
4. On appeal, this decision was modified by disallowing the plaintiffs' claim under Section 4 of the Partition Act and giving them, in lieu thereof, only a decree for partition to be worked out in the ordinary way by a Commissioner by allotment of the disputed property to the parties in accordance with their shares, keeping in view their present possession.
5. From this appellate decree, the present second appeal has been filed by the plaintiffs, who press their claim for pre-emption under Section 4 of the Partition Act and challenge the findings and the decision of the Lower Appellate Court on the point and ask for restoration of the Trial Court's decision in respect of the same.
6. For the decision of this appeal, it will be convenient now to state, in brief, the relevant facts.
7. The suit property originally belonged to one Satya Charan, who was the grandfather of the present plaintiffs. Satya Charan died, leaving three sons Gouri, Bimal and Nirmal, Plaintiffs are the sons of Gouri and are his heirs and legal representatives. On June 15, 1954, the plaintiffs appear to have sold their l/3rd share in the disputed property to their co-sharer, uncle Nirmal, who thus got 2/3rds share in the disputed property, l/3rd under this purchase and l/3rd originally by inheritance from Satya Charan. On March 19, 1955, the plaintiffs appear to have purchased, from co-sharers Bimal's heirs, their l/3rd interest in the disputed property, and, on August 4, 1956, Nirmal appears to have sold his above 2/3rds share of the disputed property to the defendant.
8. The disputed property, as it now stands, comprises vacant land but it is well established that, upon this land, stood the original ancestral dwelling house of the plaintiffs' undivided family, or, in other words, that the disputed property was the site of that ancestral dwelling house. That house, along with the land underneath, forming its site, appears to have been requisitioned under the Defence of India Act by the military authorities, sometime in the year 1942, and it remained in their occupation until derequisition till about 1950. In the meantime, the structures on the said land, which had become dilapidated, were demolished by the military authorities and razed to the ground with the result that the site of the plaintiffs' ancestral dwelling house, or, more accurately, what was once the said dwelling house became vacant land. This was the state of the property, when the same was derequisitioned by the military authorities, and, thereafter, as we have seen above, there were certain transfers, which passed the title to undivided shares to the different parties, and, eventually, the plaintiffs became l/3rd owners of the same under the purchase from their co-sharers (Bimal's heirs) and the defendant obtained the remaining 2/3rds from the other co-sharer Nirmal.
9. The principal question now is whether the disputed property can be held to be the dwelling house for purposes of the above statutory provision, namely, Section 4 of the Partition Act. Admittedly, there are no structures on the same at the present moment and there were never any at any time after 1950. The point is whether the absence or demolition of structures would alter the nature of the property, which was once the dwelling house of the family, and take it outside the purview or benefit of the above Section 4 of the Partition Act.
10. So far as this Court is concerned, the above statutory provision has almost always been liberally construed and widely interpreted in favour of the members of the family and strictly against the stranger purchaser. That will appear from all the relevant decisions, on the point, of this Court up till this time. Indeed, that is the view, which has been almost universally accepted in this Court and almost without demur at all times. Whether this rule of liberal construction and wide interpretation would have the effect of bringing the disputed property.which is now vacant land, within the meaning of 'dwelling house', as used in the said section, is the principal mattes for consideration in this appeal.
11. We may state here that, although the plaintiffs sold their original l/3rd share to another co-sharer Nirmal and thus became divested of any interest ton some time in the disputed property, they, by the acquisition of the l/3rd interest of co-sharer Bimal from his heirs in tha year 1955, that is, before the defendant's purchase and before the institution of the present suit, brought themselves within the category of persons, entitled to claim pre-emption under the above Section 4 of the Partition Act (vide Botokrishna Ghose v. Akhoy Kumar Ghose : AIR1950Cal111 ).
12. It is also well settled in this Court that the above statutory provision (Section 4 of the Partition Act) applies not only in the case of a suit by the stranger purchaser as plaintiff but, also, to a case, where the said stranger purchaser is sued as a defendant for partition (vide Abu Isa Thakur v. Dinabandhu Banik : AIR1947Cal426 and Haradhone Haldar v. Usha Charan Karmakar, 96 Cal LJ 168=(AIR 1953 Cal 292)).
13. A point has been raised by Mr. Mitra, appearing on behalf of the defendant-respondent in this case, that that interpretation would be applicable or available, only where the defendant himself was claiming a share of the disputed property and not to a case, where the defendant's claim was, as in the instant case, that the property was not undivided joint property but had already been partitioned between the parties or their predecessors. This argument, however, having regard to the concurrent findings of the two Courts below that the defence of previous partition was unacceptable, cannot be accepted as a relevant distinction. The property, if it is really joint or undivided, would entitle the defendant (stranger purchaser) to his share, acquired by him by purchase, as aforesaid, --and he is actually claiming the same, --and so, the mere fact that he raised the defence of previous partition, which was ultimately negatived, would not alter the position. Indeed, in no view, can the stranger defendant be said to have given up or abandoned his claim to the purchased 2/3rds share or to a partition of the same, in case the property is held to be joint property of the parties, and, as a matter of fact, he has pressed for the same.
14. We are, accordingly, of the view, that, provided the disputed property which, as we have said above, is vacant land at the present moment, can be treated as 'dwelling house' within the meaning of the aforesaid statutory provision,that provision would apply to the instant case to entitle the plaintiffs to their claim for pre-emption. Vide, in this connection, the authorities, already cited, and Ramaswami Pillai v. Subramania Pillai : AIR1967Mad156 .
15. On the above material question, the position, as we have sufficiently indicated above, appears to be as follows:
On the vacant land in question, there was originally the ancestral dwelling house of the plaintiffs' family. During military requisition, the structures were demolished and the property was transformed to vacant land, The parties got possession in the year 1950 but, up till now, no structure has been built upon the same, although the plaintiffs claim that they had and have an intention of erecting their residence or dwelling house on it.
16. In the kobala, by which the plaintiffs' share was sold to Nirmal, there was a recital that the same was being given to Nirmal, so that he may use it for purposes of the residence of his family, the plaintiffs' shifting elsewhere for purposes of their residence. The plaintiffs, thereafter, acquired Bimal's interest in the disputed property but it is not clear from the materials, now before us, including the kobala, by which the said purchase was made, for what purpose the same was acquired. It has been ruled by this Court in Nil Kamal v. Kamakshya Charan. : AIR1928Cal539 , that the mere fact that the structures on the disputed land, which was once the site of the family dwelling house of the parties, had disappeared, would not by itself, be conclusive on the point, whether it had ceased to be the dwelling house of the family. In the said decision Mukherji, J., laid down the relevant test in the following terms:
'The fact that the huts have blown down does not make the dwelling house any the less a dwelling house so long as the members have not abandoned it or, at any rate, given up the idea of using it as such.'
That test seems to us to be a valuable and reasonable test, relevant and cogent on the point, and decisive on the question of the character of the property for purposes of the above statutory provision and It will be necessary to find out whether, in the instant case, that test is satisfied. This aspect of the matter, however, does not appear to have been appreciated or fully realised, either by the parties or by the Courts below, and, accordingly, sufficient materials on this point are not available on the present records.
17. In the above view, we are unable to dispose of the matter finally now in this Court and the same will have to beremitted to the Lower Appellate Court for a decision on the said question on the materials, already on record and on such further materials as may be produced before it by the parties in support of their respective cases on the point.
18. The view, we have taken above of the relative position in law and the view, we have taken of the decision, reported In : AIR1928Cal539 will be sufficiently, though not directly, supported by another decision of this Court, reported in Kalipada Ghose v. Tulsidas Dutt : AIR1960Cal467 , See also : AIR1950Cal111 , Supra.
19. A more or less similar view appears also to have been taken by the Allahabad High Court in Bhagirath v. Afaq Rasul : AIR1952All207 although It may be pointed out that the said decision may be distinguishable from some points of view. The decision of the Orissa High Court in Bikal Swain v. Iswar Swain : AIR1959Ori173 , no doubt supports the contrary, but in our opinion, the said decision did not take a correct and comprehensive view of the decision of this Court in the above cited case : AIR1928Cal539 and did not make the same liberal approach for the Section in question as has so often been stressed and recommended by this Court. We further feel that the broad view we have taken above, seems to be supported by the object and scheme of the section under consideration and its underlying spirit and purpose and the liberal approach and wide outlook, advocated by this Court almost on all occasions, whenever the said statutory provision came up for consideration, to solve difficulties and complications that would have otherwise arisen and remained outstanding, and that no other view would be consistent or in consonance with the same, remembering that this Court has almost as a rule, striven to apply the aforesaid section to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible. We may also add that the relative observations in : AIR1961Ori203 are obiter and do not seriously affect the position.
20. We would, accordingly, allow this appeal, set aside the decree of the Court of appeal below and send the matter back to the said Court for further consideration and for final disposal in the light of the observations, made in this judgment.
21. Costs of this appeal will abide the final result of the suit.
22. I agree.