SATYENDU KUNDU Vs. AMAR NATH GHOSH

JUDGEMENT

(1.) THIS is an appeal against an order of the learned additional District Judge, Howrah, affirming an order of the learned Additional Subordinate Judge, Howrah, made under Section 4 of the Partition Act IV of 1893. (hereinafter referred to as the 'Said Act'). The facts in this case are briefly as follows: One Debendra Nath Ghosh became the owner of house and premises No. 154, Panchanantola Road, at present known as premises No. 74, Deshpran Sashmal Road, Howrah. The house is two -storeyed, situated on land of the area of about 1 cottah 14 chitlahs. There are two big rooms and one small room on the first floor and a corresponding number of rooms with one verandah on the ground floor. It is necessary here to set out the genealogical table of Debendra Nath Ghosh and his descendents. <FRM>Judgement_52_Air(Cal)_1964.htm</FRM>

(2.) IT will appear from the genealogical table set out above that Debendra had one son and seven daughters. The son Jnanendra, has a son named Amar Ghosh. Debendra died in February, 1957. Both Jnanendra and Amar Ghosh are alive. It has been found as a fact by the Courtsbelow that Debendra, together with his large family was in actual possession of the entire premises uptil the year 1943 -44. Since then, he gradually began to let out different portions of the said premises to tenants. The major portion of the premises was ultimately let out to tenants butat least one room was retained and occupied by him, and after his death by Jnanendra and others from time to time. It is in evidence that in 1949, Jnanendra acquired for himself another house being premises No. 28, Raja Basanta Roy Road, Howrah. This was however his individual acquisition and his evidence given in the proceedings below is that he continued to occupy a room in the family dwelling house and never abandoned the intention of occupying the same. Debendra died on the 18th February, 1957. On or about the 11th May, 1957 Umashashi, Jnanendra, Kamala, Bimala and Reba made a gift of their 5/8th share in the said premises to Amar Ghosh.' On 29th December, 1958 Parul Bala, by a sale deed sold her share in the said premises to the opposite party No. 1, Sri Satyendu Kundu. In the sale deed, her share has been described as one -sixth share in premises No. 74, Deshpran Sasmal Road, Howrah, although in reality Parul Bala had a one -eighth share and could convey no more. In 1960, Amar Ghosh and others instituted a partition suit. The parties in the suit are indicated in the genealogical table given above. The transferee, the opposite party No. 1 was also mad9 a party. It was numbered as T.S. No. 84 of 1960 in the Court of the First Subordinate Judge, Howrah. Thereafter, the petitioners made an application under Section 4 of the Partition Act, claiming to purchase the share of Parul Bala transferred to the opposite party No. 1. The relevant part of Section 4 of the said Act runs as follows: 4 (1). 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.'

(3.) IN the application, three points were raised. The first point was as to what was the share of the petitioners in the suit premises and what share the opposite partly No. 1 had purchased from Parul Bala. The second question was as to whether the premises in question was the family dwelling house of Debendra Nath Ghosh, and the third question was as to whether the petitioners were entitled to apply under Section 4 of the Partition Act in respect of the share purchased by the opposite party No. 1. The first question arose, because the share transferred by Parul Bala was stated in the sale deed to be one -sixth, whereas in fact, Parul Bala had only a one -eighth share. It was held that the share transferred could only be one -eighth share in the premises and this point is not disputed before us. With regard to the points Nos. 2 and 3 it was held that the property. was purchased by Debendra Nath Ghosh in 1935 and upto 1943 -44 the said Debendra Nath Ghosh and his large family were in actual occupation thereof. From 1943 -44, Debendra Nath Ghosh began to let out portion of the house to tenants and ultimately a major portion of the house came to be let out. At least one room was retained by Debendra Nath Ghosh and was occupied by him and his son Jnanendra, and others. In 1949, Jnanendra purchased another house but he did not abandon occupation of the room in the said premises -There is no finding as to whether the daughters of Debendra are all married or not, and whether they or any of them ever came to reside in the said room at the time when the partition suit was filed, it was held by the trial Court that the petitioners 1 to 5 constituted an undivided family so far as this dwelling house was concerned and that it was their 'dwelling house' within the meaning of Section 4 of the said Act. Against the order of the trial Court dated 9th February, 1961, an appeal was taken before the learned Additional District Judge, Howrah, whko by his order dated 22nd/23rd December, 1961 affirmed, the decision of the trial Court and dismissed the appeal. It is against this order that the present appeal has been preferred.