Syed Shamsul Huda, J.
1. This appeal arises out of a suit brought by the plaintiff for declaration that he was a qualified voter under Section 15 of the Bengal Municipal Act and that the Chairman's conduct in removing his name from the voter's register was illegal and Without jurisdiction. There was also a prayer for an injunction. The First Court passed a decree in favour of the plaintiff and declared that the plaintiff was a qualified voter under Section 15 of the Bengal Municipal Act and was entitled to have his name entered in the register of voters but refused to declare that the whole election of the Municipal Commissioners was void and also dismissed the rest of the plaintiff's suit. There was an appeal by tie plaintiff and a cross-appeal by the defendant Chairman with the result that the who e suit was dismissed. The learned Vakil for the plaintiff-appellant argues that the plaintiff had established his right as a voter by showing that he was qualified to vote under Section 15 of the Bengal Municipal Act in two different ways. First, it is urged that plaintiff was assessed to income-tax, and was, therefore, a qualified voter. There can be no doubt that the income of the plaintiff along with that of his father was assessed for purposes of income-tax, but the learned Judge, having found that the plaintiff and his father were members of a Hindu joint family and the income of both was jointly assessed, held that the assessment of the joint family gave: the plaintiff no right to vote. I do not think this is a correct view of the law. It is clear that the income of both the father and the ton was assessed, and that, in my opinion, qualified both of them to claim to be a voter under Clause (2) of Section 15. In support of the contrary view the case of Narendra Nath Sinha v. Nagendra Nath Biswas 10 Ind. Cas. 43 : 38 C. 501 : 13 C.L.J. 471 : 15 C.W.N. 586 was cited, but I do not think that case has any bearing on the present question. There was no assessment in that case but there was undoubtedly an assessment in this case. Plaintiff also claims to be a qualified voter under Clause (3) of that section. He claims that he was a graduate of the Calcutta University and occupies a holding or part of a holding within the Municipality.
2. The Court below was of opinion that as the houses occupied in its ordinary sense by the plaintiff belonged to the father and plaintiff was living there as the son of his father and not as an owner and as his occupation was not exclusive, he cannot be regarded to be in occupation within the meaning of Section 15 of the Act. This argument finds some support in a reported decision of this Court in Ambika Churn Mozumdar v. Satish Chunder Sen 2 C.W.N. 689 in which it was held that the mere fact of a person living with a particular individual occupying a holding by reason of some connection with or relation to him, such as son or servant, cannot be considered to be a person occupying a holding within the meaning of Section 85 and cannot be separately assessed under that section. In England it has been held that it is not sufficient to constitute occupation for the purpose of the franchise that a son living with his parents should be allowed the sole use of the rooms without contract or payment of rent Macdonell v. Dickson 16 R. 143. A similar view was taken in the case of Gobinda Chandra Ganguly v. Kailash Chandra Sanyal 15 Ind. Cas. 909 : 15 C.L.J. 689. Having regard to these authorities I am not prepared to dissent from the view taken by the lower Court that plaintiff is not a person qualified to vote under Section 15(3) of the Bengal Municipal Act. I However hold he is qualified under Clause (2) and accordingly set aside the decree of the lower Appellate Court and restore that of the Munsif.
3. The plaintiff is entitled to half his costs both in this Court and the Courts below.