B.C. Chakrabakti, J.
1. These two appeals are directed against a common judgment disposing of Misc. Case No. 41 of 1962 and Misc. Case No. 10 of 1963 of the 6th Court of learned Subordinate Judge at Alipore.
2. The two Misc. Cases arose out of two independent applications for pre-emption under Section 4 of the Partition Act arising out of Title Suit No. 34 of 1959 of the said Court.
3. Sm. Panchanani Dasi defendant No. 4 in the said suit was the petitioner in Misc. Case No. 41 of 1962. The other Misc. Case No. 10 of 1963 was filed by Kalipada Das, defendant No. 3,
4. The case of the two petitioners are practically identical. Their case is that the disputed properties namely premises No. 27/1A, Srish Chowdhury Lane, and 6A, Tarak Bose Lane form part of the same house and was the joint family dwelling house of Binodini Dasi and Tinkari Dasi. Binodini made a gift of her 8 annas shares in favour of Manmoth (the original plaintiff) who possessed the same jointly with his sisters, - Shyamasundari, Krishnabhamini, Durgabala and Panchanani. Shyamasundari, Krishnabhamini and Durgabala gifted away their 6 annas shares to the plaintiff and defendants Nos. 1 to 3 by a deed of gift dated 18-7-1957. Defendants Nos. 1 and 2 sold away their shares to the sons of defendant No. 4, while the plaintiff Manmoth Nath Das sold his 9 annas 6 paise share of the joint family dwelling house to Santosh Kumar Mitra on 27-4-62. The petitioner in Misc. Case No, 41 Panchanani Dasi and the petitioner in Misc. Case No. 10 of 1963 Kalipada Das prayed for purchasing the share transferred by the plaintiff to Santosh Kumar Mitra who was a stranger to the family, on payment of the consideration under Section 4 of the Partition Act.
5. Santosh Kumar Mitra opposed both the cases. His contention in the Court below was that the disputed property was not the joint family dwelling house of Tinkari and Binodini or for the matter of that their successors, that they never lived in the suit premises which were all through Jet out to tenants and that the provisions of Section 4 of the Partition Act were not applicable to the case.
6. Both parties adduced evidence. The learned Subordinate Judge upon a consideration of the evidence found that P. W. 1 Promotha Nath Das and defendant No. 3 Kalipada Das are living in the disputed house, that the disputed house is a dwelling house belonging to the undivided family and that the fact that the house was let out for more than 20 years was not a matter of much moment. On such findings the learned Subordinate Judge allowed Misc. Case No. 10 of 1963 arising out of the application of Kalipada Das. But with regard to the other Misc. case at the instance of Panchanani Dasi the learned Subordinate Judge found that she has been living at Entally since her marriage and ceased to be a member of the family. Tn that view of the matter the other Misc. case namely Misc. Case No. 41 of 1962 was dismissed on contest.
7. Santosh Kumar Mitra and Panchanani Dasi preferred the present appeals, one against the order allowing the prayer of petitioner Kalipada Das and the other dismissing the prayer of Panchanani Dasi.
8. Mr. Nirendra Krishan Milra appearing in support of the appellant Santosh Kumar Mitra urged two points in support of the appeal namely :
(1) that Section 4 of the Partition Act on its own terms is not applicable to the case and
(2) that at any rate the property in dispute is not a dwelling house belonging to an undivided family.
9. Section 4 of the Partition Act provides that 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 shareholder 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 shareholder and may give all necessary and proper directions in that behalf. Let us assume for the present and assuming as such that the disputed property is a dwelling house belonging to an undivided family, it was argued that this section applies only where the transferee sues for partition and not otherwise. The object of Section 4 of the Partition Act is 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. In order to achieve this object the Courts have always preferred to put a liberal construction upon the Partition Act and to. interpret its provisions in such a way as would promote and fulfil the said object. In a suit for partition the question as to who is arrayed in the category of plaintiff and who in the category of the defendants is not of importance for a party in partition suit whether a plaintiff or a defendant is at the same time a plaintiff as well as a defendant (AIR 1949 Cal 245). Therefore the contention that Section 4 cannot be attracted unless the transferee himself sues for partition does not seem to hold! good. In this particular case however the question has lost importance in view of the fact that the original plaintiff Monmoth Nath Das was the transferor from whom the appellant Santosh Kumar Mitra purchased a share of the dwelling house. Thereafter Santosh Kumar Mitra was substituted in place of Monmoth Nath Das. He is therefore transposed in the category of the plaintiff and he is certainly a person suing for partition. That being the position the first objection that Santosh Kumar Mitra not having sued for partition, Section 4 would have no application to this case, has no merits.
10. The next point for consideration is whether the disputed property is a dwelling house of an undivided family as contemplated by Section 4 of the Partition Act. There is no dispute that the property in suit is a house property. There is also no dispute that it was originally in the occupation of the then owners Binodini and Tinkari. Subsequently -- it is not very clear from the evidence at that point of time -- the house was let out. There also is no dispute that one of the co-sharers namely Panchanani, since after her marriage has been residing elsewhere at Entally. The appellant Santosh Kumar Mitra who was a tenant and has since acquired a share in the property is a stranger to the family. The question is whether in such circumstances the property can be said to be a dwelling house belonging to an undivided family so as to attract the provisions of Section 4 of the Partition Act.
11. P. W. 1, Promotha Nath Das is a brother of Panchanani. He says that the disputed house is the undivided dwelling house of the family, that during the war period the disputed house was let out and that for the last 7-8 years he has been living in the suit house along with Kalipada Das, another admitted co-sharer. P. W. 2 Diba-kar Bose is a neighbour. He says that the parents of Monmotho Nath Das and Kalipada Das lived in the disputed house and the marriage ceremonies of their sons and daughters took place there and that it was let out about 20 years ago. From the cross examination it appears that he has made some confusion about the period. But he is specific that it was used as a family dwelling house until it was let out. P. W. 3 is Panchanani Dasi, one of the applicants under Section 4. She says that the disputed property is their dwelling house, that she was married in that house and) her sons were also born there. On behalf of the opposite party Monmotho Nath Das says that the disputed house was let out to provide a source of income and that thereafter they moved to Gopalpur, never to return to the house. This was, according to the witness about 40 years ago. He also admits in cross-examination that Kalipada at present lives in the disputed house.
12. From the evidence thus on record it follows that the disputed property certainly was at one time used as the dwelling house of the family and that the house was let out to tenants for a considerable period, the appellant Santosh Kr. Mitra being one of them and that two of the co-sharers have been in occupation of the house for some years before the litigation commenced. Since the house was not used as a dwelling house by the co-sharers for sometime it was argued on the authority of the case of Iqbal Uddin v. Ramnath, AIR 1935 All 894, that the house is not a dwelling house within the scope of Section 4. This was a case of a hut which was capable of being used as a dwelling house but not so used for a number of years -- not even at the time when the application under Section 4 was preferred. This decision however is in conflict with the view taken by our High Court.
13. In the case of Manicklal v. Gouri Sankar, : AIR1968Cal245 , the question arose in connection with a house property having two distinct blocks -- A and B. The owners lived in a portion of Block-B and let out the rest of Block-B and the whole of Block-A to tenants. In a suit for partition by a purchaser from one of the owners, the defendant applied for relief under Section 4 of the Partition Act. It was -found that Block-A which was never used as a residential house and which was not necessary for the convenient user of Block-B was not a dwelling house, but that even the tenanted portion of Block-B was a part of the dwelling house.
14. Another case (Durgapada v. Debi-das, : AIR1974Cal14 ) was. referred to on behalf of the appellant, in support of his contention that in the facts and circumstances of the case the property could not be called a dwelling house. There the alleged dwelling house was situate in a village. The co-sharers who were separate in mess did not live there. Whenever they used to come to the village from different places for purpose of collection of paddy and for attending Kalipuja held in the adjoining plot, they used to stay in the property. It was held that the property could not represent a dwelling house. The reason behind the decision was that a dwelling house connotes to some extent a permanent abode of the undivided family where such family resides or intends to reside generally and not a house intended for a stray or temporary residence for a specified purpose.
15. In a single Bench decision of this Court in the case of Mohinddin Molla v. Jitendra Nath, : AIR1976Cal288 , it was observed that even if at the time of institution of the suit there is one member of the undivided family having any interest in the suit property which is the dwelling house of the undivided family, he shall have the right to file an application under Section 4 of the Partition Act. In the instant case before us there is clear evidence that Kalipada Das has been residing in the house for 7-8 yenrs before 1964 when he was examined as a witness. This takes us to a period prior to the purchase by the appellant Santosh Kr. Mitra. Therefore there can be no doubt that he has a right to file an application under Section 4.
16. In the case of Botokrishna v. Akshoy Kumar, : AIR1950Cal111 , the expression 'undivided family' has been interpreted to mean a family not divided qua the dwelling house; the emphasis is on the undivided character of the house and it is this attribute of the house which imparts to the family, its character of an undivided family. So long as the dwelling house has not been completely alienated to a stranger, the actual position is that it is still an undivided family house, the possession and enjoyment of which are conferred on the members of the family (see Monomohan v. Usha-rani, : AIR1979Cal79 ). In the case before us there is no dispute that the members of the family did not separate and were not divided qua the dwelling house. Consequently it seems that a member of such family is entitled to ask for relief under Section 4 of the Partition Act.
17. The only point on which the claim is sought to be resisted js that a part of the house, may be a considerable part of it has been let out to tenants. The question is whether this amounts to cessation of the house being a family dwelling house. In the case of Dulal Chandra v. Gosthabehari, : AIR1953Cal259 , it was observed that any suspension of occupation or for the matter of that, the absence of the owners of the house therefrom or an occupation or terminable occupation by tenants, cannot have the effect of making the house ceasing to be a dwelling house. In the case of Satyendu v. Amarnath, : AIR1964Cal52 , a Division Bench of this Court has held that the mere fact that a major part of the house was let out to tenants did not prima facie take the case put of the operation of Section 4 of the Partition Act. Relying on these decisions we may justifiably hold that the fact that the premises was let out to tenants by itself is inconsequential unless it can be shown that it was so let out by the owners with the intention of never returning to it or using it as a residential house. From the evidence on record such an intention cannot be spelt out. On the other hand, it will bear repetition that some of the cosharers have come back to reside in the house. The intention to use the house as dwelling house is an important criterion in determining whether a house continues to be a dwelling house of the family or not. In the case of Bhagirath v. Afaq Rasul, : AIR1952All207 , it was observed that even though the house may fall into a state of complete disrepair and not actually in use as a dwelling house, it will nevertheless continue to be a family residential house if the members of the family intend to use it as such as soon as they can conveniently do so.
18. All these tests are satisfied in this case and we do not see why the claim of Kalipada Das for relief under Section 4 of the Partition Act should not be ailowed.
19. As regards Panchanani Dasi the learned Subordinate Judge has found against her relying upon a decision of the Bombay High Court (AIR 1936 Bom 197). This decision lays down that a female of an undivided family marrying and going to live in her husband's house prima facie gives up her intention of residing in the old house belonging to the family and being married is also no longer a member of the family and as such is not entitled to the benefit of Section 4 of the Partition Act. We have already indicated that undivided family has been used in Section 4 of the Partition Act to mean a family not divided qua the dwelling house. It does not mean a joint family as commonly understood. Therefore from the fact that one of the cosharers being married has been residing in her husband's house, it does not follow that she has lost her right to claim relief since the dwelling house remains undivided of which she is a cosharer. The Bombay case relied on by the learned Subordinate Judge came to be considered in the case of Rukia Bi v. Rajia Bibi : AIR1963Mad298 , and the view taken in the Bombay case was dissented from. This was a case where reliefs were sought for by a Mohammedan female marrying into another family. It was held that under Section 4 it is not necessary that the cosharer applying for relief should continue to be a member of the family. Where therefore, there is no doubt that the house is a family dwelling house and that the petitioner is a cosharer who is entitled to a share in that house on partition even though married and living in her husband's house would be entitled to maintain an application under Section 4 of the Partition Act. In the case before us the claim of Panchanani Dasi cannot be defeat-ed in view of the decision in the Bombay case. Apart from anything else that was a case before the commencement of the Hindu Succession Act. The position of Hindu female even though married into another family has since considerably changed and she is entitled to claim relief on partition of the dwelling house. The view expressed by the Bombay High Court in the case relied on by the learned Subordinate Judge came to be considered by this High Court also in the case of Salyendu v. Amarnath : AIR1964Cal52 (supra) but the view was found unacceptable. In that view of the matter we are unable to sustain the order of dismissal passed in Misc. Case No. 41 of 1962 filed at the instance of Panchanani Dasi. Her claim is sustainable in law and consequently her application also must succeed.
20. The position therefore now is that two of the cosharers namely Kalipada Das and Panchanani Dasi have severally applied for leave to buy and the claim of both is sustainable. In that view of the matter Appeal No. 237 of 1964 arising out of Misc. Case No. 10 of 1963 is dismissed and the Appeal No. 553 of 1964 arising out of Misc. Case No. 41 of 1962 is allowed. Both* Panchanani and Kalipada having succeeded in establishing their right to relief under Section 4 of the Partition Act, the learned Court below should now proceed according to the procedure laid down in Sub-section (2) of Section 3 of the Partition Act The appeals are thus disposed of. There will be no order for costs.
Preparation of formal decree in the ap- peals is dispensed with.
Let this order along with the records be sent down to the Court below forthwith.
Anil K. Sen, J.
21. I agree.