P. Chatterjee, J.
1. This is a second appeal from the decision of the subordinate judge, Alipore in a suit for partition. The plaintiff is a purchaser from one of the co-sharers, a brother of the defendant. The plaintiff instituted the suit for partition claiming one half share in the disputed property. The defendant filed a petition under Section 4 of the Partition Act and applied for a relief under that section on the ground that the property was a dwelling house. It belonged to an undivided family and it has been transferred to a person who is not a member of such family. The application under Section 4 was allowed by the trial court; against that there was an appeal and the appeal has been dismissed. The appeal to this Court is against the decision of the appellate court At an earlier stage of the proceeding we sent the matter to the court below for enquiry as to whether whole of the property was a dwelling house or not and whether the portion which has been in use and occupation of the tenant is a separate and distinct portion from that which has been used for the purpose of residence of the members of the family. The second point for which the matter was sent to the Court below was to find out whether the two brothers were the members of an undivided family or not.
2. After taking evidence the trial court reported in favour of the defendant on both the points. The first point urged by Mr. Monomohan Mukherjee, on behalf of the plaintiff-appellant, is as there was a previous partition, the present application is not maintainable. It is enough to say that the plaintiff himself filed the partition suit on the allegation that the property was not partitioned and the plaintiff now wants to say that there was a previous partition. The plaintiff cannot be heard to say so. The defendant again at the time of the argument in the trial court admitted that the suit property was not partitioned before and that each of the members of the family had eight annas share. This point must, therefore, require no further consideration and the point is overruled.
3. We now come to the real question as to whether the petition under Section 4 of the Partition Act should be allowed. Section 4(1) of the Partition Act is as follows:
'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.'
4. We have first to see whether the whole of the property in question is a dwelling house within the meaning of the Act or not. A plan has been prepared and that shows that there are two structures on the plot or land marked 'A' and 'B'. The evidence of the defendant who has applied under Section 4 of the Partition Act is that he and his brother used to reside in two rooms in block 'B'. It is also clear from hisevidence that block 'A' was never used by the members of the family for dwelling purpose. It was all along let out to tenants. There was a case that there was an amicable arrangement by which the plaintiff's vendor realised rent with regard to block 'A' and the defendant resided in block 'B' and also let out portion of it to tenants and realised rent with respect to that. The plaintiffs vendor in his kobala has also stated that he was in possession of block 'A' by letting out to tenants. Therefore, it is the statement of both the members of the family that block 'A' was not used for dwelling purposes and was always let out to the tenants. Block 'A' is not necessary for the convenience of dwelling in block 'B', it is not and was not used by the members of the family for dwelling or allied purposes. The meaning of the word 'dwelling house' has been considered in a large number of decisions. Sir Asutosh Mukherjee in 12 Cal LJ 525, Kshirode Chunder Ghosal v. Saroda Prosad Mitra, deduced the meaning of the term 'house' from various cases both English and Indian and that meaning is as follows:
'The term 'house' embraces, not merely the structure or building, but includes also adjacent buildings, curtilage, garden, court-yard, orchard and all that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier.'
The first part states what is a dwelling house and the second part of it states what is not a dwelling house; according to the first part, the term 'dwelling house' includes all that is necessary for the convenient occupation of the house. But difficulty arises when we want to give a practical meaning to the aforesaid rule. What may be necessary for convenient occupation of one may not be necessary for convenient occupation of another. The second part answers this difficulty and lays down that it does not include that portion which is for the personal use and convenience of an occupier. That means a particular occupier who may be a tenant of the owner or who may be in possession by some other rights may require certain portion which, according to the status of the occupier, would be necessary for convenient occupation but which would not be necessary for convenient occupation according to the status and financial position of the the owners, i.e., the members of the family. Let me consider the family now in question. The defendant and his brother are no rich people. They have let out most of their rooms to Doseds and Chamars. Had there been a garage in the house that was let out from the very beginning, the members of the family would not require the garage for their use but had the house been let out to a tenant, he might have required the garage as a matter of necessity and, therefore, even if that garage was necessary for the convenient use of a tenant, it will not be considered to be necessary far the convenient occupation of the house by the owners in question, This of course suggests that necessity would be judged with reference to the members of the family. Therefore, a dwelling house means a house where the members of the family reside or used to reside and it includes all that they used for their convenient enjoyment of the house in question. Hence, garage would be included within the dwelling house when it was so used by the members of the family; but a garage which has been let out all along may not be considered part of the dwelling house. But if the structure be a garage, further considerations may arise; if the dwelling house is sold except the garage, the garage would be too small for partition, it would be convenient for partition to include that garage in the dwelling house. Otherwise, that garage being too small for partition would have to be sold again under Section 3 of the Partition Act and no useful purpose would be served by keeping it apart. Hence, in such matters, convenience of partition cannot be overlooked. In : AIR1928Cal539 M. N. Mukherjee, J. considered the aforesaid matter and relied on the same definition. His lordship referred to the aforesaid decision and further observed whether a particular plot of land is or is not necessary to the convenient enjoyment of a house is to be determined on evidence. I have next been referred to a decision reported in : AIR1953Cal259 Dulal Chandra Chatterjee v. Gosto Behari Mitra where it has been held that family dwelling house does not cease to be so within the meaning of Section 4(1) of the Partition Act simply because it is let not to tenant of the ordinary kind. The real test was considered to be whether the house concerned was actually in use though not in constant occupation, by the owners as a residential house or that the conditions are such that it is possible for them to return to the occupation of the house in future. The facts were that the village home was left in charge of the family priest and the members of the family went out of the village. The question was whether it ceased to be a dwelling house and the aforesaid observation was made with reference to such facts.
5. We have applied the same test to block 'B' a compact block, a part of which was let out to the tenants and another part was used for the purpose of residence of the family. They were let out to ordinary monthly tenants. There was also a tea shop. We have not considered that portion of block 'B', which was tenanted, would cease to be a dwelling house as it would not be convenient, as we can see from the plan itself, to divide that portion into two, because this forms a part of the same block and it would not be convenient to detach a portion actually used for residential purpose from that which has been let out to tenants. We hold that block 'B' is a part of the dwelling house. Again, with reference to block 'A', we find that that part has neverbeen in actual use by the members of the family for their residential purpose and secondly, that block is not necessary for more convenient use of residential portion. Therefore, it was not used for residential purpose nor was it necessary that this would form a part of the residential house. Further, no inconvenience would arise if that part be detached from the dwelling house. We may note here that Chief Justice Chakrabarty has considered the matter of actual use rather than the matter of necessity as was considered by Sir Asutosh Mukherjee. We may say from the aforesaid two decisions that a dwelling house includes the portion of the structure which was actually used for residential purpose together with such other structures and all such lands which were used as part of residential house and it would be inconvenient if those parts be detached from the residential portion.
6. We have next been referred to 60 Cal WN 871 in case of Ganga Dutt Murarka v. Bibhabeti Debi. Here also their Lordships relied upon the aforesaid decision in 12 Cal LJ 325. The facts were that there were different premises and the matter was sent back to the court below for investigation. We have finally been referred to a judgment in : AIR1964Cal52 . In that case it was held that if a person lets out the major portion of his residential house but keepsroom for himself and subsequently, purchases another house and uses the latter house also for residential purpose, the former house does not cease to be a residential house. In determining whether a house isa dwelling house, we shall first find out whether the house in question was used by the members of the family for residential purpose; secondly, it would include not merely the structure where the members of the family actually reside or used to reside but it would include all appurtenants, that means, if the there is a court-yard which was used by the members, such a court-yard, if there was another structure, as for example, a kitchen or a cowshed or a shed for garage, if those are or were used by the members of the family as parts of their residential house, all such parts would also be included within the word 'dwelling house' Finally we have to consider the equities in partition We have to define 'dwelling house' with reference to partition and equities in partition are required to be considered. Applying, therefore all these tests we find that the portion of Block 'B' which was used for residential purpose of the members of the family, is a part of the dwelling house. We find from the facts of this case that it would not be convenient to sever the tenant's portion in Block 'B' from the residential portion of the Block B as that would affect the value of the land on partition and it would create further difficulties in partition. Therefore, we hold, that the tenanted part of Block 'B' must be deemed to be a part of the dwellinghouse. Block 'A' may be severed from the rest of the house. Block 'A' has never been used for residential purpose; no inconvenience would arise if block 'A' is severed from the rest, block 'A' is not necessary for better use of the residential portion. We, therefore, hold Block 'A' does not comprise a part of the dwelling house.
7. We take into consideration the fact mat block 'A' may be partitioned because if we direct an order for sale of the rest of the property except block 'A'. Block 'A' would still be the joint property and the court will have to partition it; if block 'A' could not have been partitioned another order for sale would be necessary and no useful purpose would be served by severing block 'A' from the rest of the house. But we find from the plan that block 'A' is capable of being partitioned as between the parties. This may be divided in two portions; one portion, the southern portion, may include room No. 3, room No. 4, and a room described as rest house in the plan which is to the immediate north of the municipal drain and an outer court-yard and the other portion, the northern portion, may be room no 2, the attached verandah and another small room on the extreme north. The defendant who may purchase block 'B' may be allotted the northern portion, i.e., room No. 2, the attached verandah and the room to the north of that room and the other co-sharer the plaintiff may be allotted the room Nos. 3 and 4, the verandah, the 'roak' and rest room and the attached court-yard 10' wide. As block 'A' is severed from the dwelling house and after such severing, block 'A' may be partitioned in two blocks as stated above. We hold therefore that block 'A' may be left out of sale under Section 4(1). But the court-yard 10' wide to the north of municipal drain upto a distance of 21 '.9' from the extreme south-eastern boundary of block 'A' should also be included in block 'A' because that is necessary for the convenient use of block 'A' and that is not necessary for the convenient use of the rest of the house. There is also some vacant land in the back portion which has been used and which is capable of being used by the members of the family Further, such vacant land is not necessary for the co-sharer, who get the southern portion of block 'A'. It is necessary for use of the northern portion of block 'A' and the dwelling house. Therefore, such vacant land should also form a part of the dwelling house. Hence, we hold that the dwelling house of the members of the family consists of the entire disputed property except block 'A' and except that portion of outer court-yard which is to the north of the municipal drain to the west of the room described as rest room upto a distance of 21'.9' from the extreme south-eastern corner of block 'A'. We have demarcated the western boundary of the court-yard by a line 'a' and 'b' on the plan. Hence, the dwelling house wouldexclude block 'A' and the portion of outer court-yard upto the line 'a' and 'b' from the rest house; this court yard is about 13' longand 10' wide.
8. The next question is whether brothers were the members of a family in view of the large number of decisions of this Court we must hold that the property belonged to an undivided family. It does not mean that the property at the date of the suit belonged to undivided family. It means that the property belonged to an undivided family before a member transferred his share. We must find that it belonged to the members of a family and on the facts of this case the said members of the family were undivided on that date. Mere separation in mess will not make the family divided if they had joint property and there is no doubt that the two brothers were the members of a family the property of which was not partitioned.
9. Hence, the third point must also beanswered in favour of the defendant who has applied for sale under Section 4 of the Partition Act.
10. The result, therefore, is we allow the appeal in part, direct that the disputed property, less block 'A' and less the afore-said portion of the 'outer court-yard which is 10' wide and which covers an area up to a distance of 21' 9' from the extreme southeastern corner of that block and which court-yard has an approximate area of 13' X 10' to the immediate north of the municipal drain, be sold in terms of Section 4 of the Partition Act. With regard to the afore-said block, 'A' there may be a partition if the parties so desire and the trial court will pass further orders. We have held that block 'A' is no part of the dwelling house and we have also suggested that the northern portion of block 'A' which includes room No. 2 and the room to the north of it and the verandah may be allotted to the co-sharer who purchases block 'B' and the rest of it namely, rooms Nos. 3 & 4, the attached verandah, the attached 'roak' the room described as rest room 9'7' x 8'7' as also the court-yard upto the line (a) and (b) from the east and which we have described above should be partitioned between the parties and if there isa difference in valuation, the owelty money would be available from the sale of the dwelling house.
11. There is no order for costs so far as this Court is concerned.
A.C. Gupta, J.
12. I agree.