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Gour Chand Basak and ors. Vs. Khirode Nath Basak and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1948Cal73
AppellantGour Chand Basak and ors.
RespondentKhirode Nath Basak and ors.
Excerpt:
- .....another holding nearby, namely, holding no. 16, being c.s. plots nos. 341 and 342, which was their main dwelling house. this was separated from the disputed property by a narrow municipal lane; but the two houses were, as stated before, in close proximity to each other. none of the members of the family proper slept in the disputed premises, but the servants, durwans, karmacharis and the guests of the family used to live there, and one of the rooms was used as a baithakkhana by the junior members of the family. both the courts below held that it could not be said that the holding no. 3 was absolutely necessary for the convenient occupation of the main residential building in holding no, 16. they were accordingly of the opinion that the property could not be regarded as part of the main.....
Judgment:

Biswas, J.

1. The short point which arises in this appeal is whether Section 4, Partition Act (4 [IV] of (1893) applies. The plaintiffs are the purchasers of an eight annas share in a holding, which is referred to in the plaint as holding No. 3, being C.S. Plot No. 275 of map, Ex. 2, from two members of an undivided Hindu family, who owned that share. The defendants, who are the other members of the family are the owners of the remaining eight annas share. After purchase, the plaintiffs brought a suit for partition and the only defence which was put forward in answer to it was a claim under Section 4, Partition Act to buy out the plaintiffs on a valuation to be made by the Court as prescribed in that section. That raised the question whether the interest, which had been purchased by the plaintiffs, could be described as 'a share of a dwelling house belonging to an undivided family' within the meaning of Sub-section (1) of that section.

2. The facts relevant to the point under consideration, as found by the lower appellate Court, are as follows: Admittedly, the joint family of which the defendants were members owned another holding nearby, namely, holding No. 16, being C.S. Plots Nos. 341 and 342, which was their main dwelling house. This was separated from the disputed property by a narrow municipal lane; but the two houses were, as stated before, in close proximity to each other. None of the members of the family proper slept in the disputed premises, but the servants, durwans, karmacharis and the guests of the family used to live there, and one of the rooms was used as a baithakkhana by the junior members of the family. Both the Courts below held that it could not be said that the holding No. 3 was absolutely necessary for the convenient occupation of the main residential building in holding No, 16. They were accordingly of the opinion that the property could not be regarded as part of the main dwelling house. In this view of the matter, the trial Court made a decree in favour of the plaintiffs, negativing the defendants' right to buy them out. The learned Additional District Judge on appeal while agreeing with the trial Court that the disputed property could not be regarded as a part of the family dwelling house in holding No. 16, took the view that the property by itself constituted a dwelling house under Section 4, Partition Act. In his opinion it was not necessary that the family members should themselves have slept in the premises. It was sufficient that the premises were used for their dwelling by servants, durwans, karmacharis and guests of the family and a part of the premises was used as a baithakkhana by the junior members.

3. In this view of the matter, the lower appellate Court allowed the appeal and remanded the suit to the trial Court for a proper valuation of the plaintiffs' share in order that the defendants might exercise their right of purchase under Section 4, Partition Act.

4. On the present appeal Dr. Sen Gupta has stoutly challenged the view of the learned Additional District Judge before us. In answer, Mr. Gupta on behalf of the defendants has contended not only that the lower appellate Court was right in holding that the disputed property by itself was a dwelling house belonging to an undivided family within the meaning of Section 4, but that it came within that description also as forming part of the admitted main dwelling house of the family in holding No. 16. On the last mentioned point, Mr. Gupta's argument was that the disputed property was really a part of the main dwelling house, because the main dwelling house did not contain sufficient accommodation for the whole family. Only between the two houses could the family meet their requirements and it was immaterial that none of the members themselves actually slept in the premises. According to Mr. Gupta, actual sleeping was not necessary in order that the premises could be recorded as a dwelling house; sleeping was only one of the purposes for which a dwelling house might be used. A dwelling house was equally necessary for other purposes. The accommodation of servants, officers and of guests of the family was as much a purpose of a dwelling house as actual sleeping by the members themselves. A dwelling house was also required for the purposes of a baithakkhana or a place where one could meet visitors and carry on ordinary business. We are inclined to agree with Mr. Gupta that a house does not cease to be a dwelling house merely because members of the family do not actually sleep there, though it may be used or required by the family for other purposes incidental to their use of it as their residence. In the same way, the mere fact that a person sleeps in any premises would not make it his dwelling house. From this point of view, the question whether the disputed property was a dwelling house because it formed part of the main dwelling house, or was independently a dwelling house itself, would not make much difference. In either view the material point is that purposes for which it was used were purposes incidental to user as a dwelling house.

5. A number of decisions were cited before us, but none of them covers a case like the present. The facts were all different. Without trying to lay down a hard and fast definition of a dwelling house under Section 4, Partition Act, which would apply in all cases, it is sufficient for the purposes of this case to hold that upon the findings and having regard to the actual user of the property, it did constitute a dwelling house within the meaning of that section. The view taken by the learned Additional District Judge must, therefore, be upheld. The appeal, accordingly, fails and is dismissed with costs.

Akram, J.

6. I agree.


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