A.K. Nandi, J.
1. This second appeal has been preferred against concurrent judgments of the Courts below. In a suit for partition by a co-sharer both the Courts below granted him a decree for pre-emption Under Section 4, Partition Act.
2. The property comprised of two rooms, one on the Ground Floor and another on the First Floor, and a chalaghar on a piece of land measuring 3 decimals only.
3. The property originally belonged to one Sashi Bhusan Mondal who died leaving behind him two sons, the plaintiff and Kanai Charan Mondal. Kanai died leaving his son Amarnath. Amarnath sold his eight annas share to defendants on 13.7.63. The plaintiff filed this suit for partition and pre-emption.
4. Admittedly the property was recorded in the record of right as bastu comprising two rooms and a chalaghar. In the deed of purchase of the defendants the property has been described as bastu. There is no dispute that the property originally belonged to Sashibhusan who died leaving behind him the plaintiff and Kanaicharan. It is not disputed that Sashi's original homestead was swept away by flood in 1320 B.S. and that he lived in this suit homestead thereafter. Evidently the defendants are in occupation of half share of the disputed property as tenants since long and that they are carrying on business there. It is not disputed either that the plaintiff is living in the other half of the suit house with his family since twelve or thirteen years before the institution of the suit.
5. It is urged on behalf of the appellant that the plaintiff cannot sue for partition in order to take advantage of the provision of pre-emption as contained in Section 4, Partition Act. A plain reading of Section 4 of course may lend some assurance to the view that a co-sharer can ask for preemption only if the stranger purchaser sues for partition. The Section reads 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.
6. The words 'to sue' may be applied indifferent either to the defendant or the plaintiff and it signifies not only 'to protect' but also 'to defend' or to do something which the law requires for the better prosecution or defence of the cause (Stroud's Judicial Dictionary). This interpretation has been adopted in Haradhone Haider v. Umacharan Karmakar : AIR1955Cal292 and Abu Isha Thakur v. Dinabandhu Banik (51 CWN 639). In Haradhone Haider (supra) there were only two co-sharers, one original and another by purchase as we find in the instant case. It was held that the original co-sharer can sue for partition and still ask for pre-emption. As pointed out in Abu Isha Thakur (supra), 'the object of the section is to prevent intrusion of strangers into the dwelling house of an undivided familly' and that 'this object would be frustrated if a stranger purchaser forces himself into the dwelling house of an undivided family, drives other co-owner to file a suit as plaintiff and then figuring as a defendant is allowed to defeat the claim for pre-emption Under Section 4'. Similar view was subscribed in Satyendu Kundu v. Amar Nath Ghosh and Ors., reported in AIR 1964 Cal. 54. It was held that even where a suit for partition was not brought by the transferee but by a member of the joint family Section 4 would apply. In the Division Bench decision in Santosh v. Kalipada (AIR 19S1 Cal. 278 at 280) Anil Kumar Sen, J. held that a co-sharer can ask for pre-emption whether he is arrayed as a plaintiff or a defendant in a partition suit. In a later Division Bench decision in Gopal v. Kalipada (1987-1 CHN 214) A. M. Bhattacharya, J. reiterated the same view. The weight of authority is very much against the submission made on behalf of the appellant and,-therefore, the argument on this score is bound to fail.
7. A substantial portion, or for the matter of that, half of the house, it is urged, having been given in tenancy the suit property has lost the character of undivided family dwelling house. The property has been recorded as ancestral bastu. It is so described in the purchase deed of the defendants. Sashibhusan lived in this house since after his other homestead was swept away by flood in 1320 B.S. It is immaterial that Sashibhusan's son Kanai Charan or the grandson Amarnath, the vendor of the defendants did not reside here and instead, gave away their share in the property in tenancy. The fact remains that the plaintiff lived in the disputed house since ten or twelve years before the institution of suit. Once the disputed property is held to be an undivided family dwelling house, partial occupation of the house by tenants would not divest the same of the character of an undivided family dwelling house. In Satyendra Kundu v. Amar Nath Ghosh (supra) the entire two storeyed house comprising two bed rooms and one small room on each floor excepting one room was given away in tenancy. In Dulal Chandra Chatterjee v. Gostha Behari Mitra : AIR1953Cal259 the entire house was let out to a tenant and the family shifted elsewhere. In both the cases it was held that the house did not cease to be a dwelling house. Demise ipso facto would not forfeit the character although a permanent lease may forfeit. The test is whether there is still the scope or opportunity of the demised portion being used as a homestead, if necessary, and the further Jest is whether the co-sharers have finally abandoned the intention to occupy the property as a dwelling house, In a given case, however, the Court may grant partition only and decline granting preemption as in Manik Lal Singh v. Gouri Sankar Shah : AIR1968Cal245 where the plaintiff purchased the share of one of the two brothers and sued for partition of a property comprised of the distinct Blocks A and B. The original co-sharers used to live in Block B. Block A was never used for residential purpose and was let out to tenants all along. The Court took notice of this fact and further found that block A was not necessary for convenient use of the residential portion of the suit property. It was further found that the severance of Block A from Block B by means of partition will cause no inconvenience, The case at hand is, however, different. There are only two rooms, one on each floor and a chala. It cannot be said that the property can be conveniently partitioned or that one is not necessary for the convenient use of the other. The argument on this score therefore fails.
8. The fact that the bastu is located in a commercial area or that the Ground Floor is being used for business will, it is argued, convert the dwelling house into commercial house. The local features in the urban as also in rural area are fast changing with the increase of population. What is solely a residential to-day becomes partly commercial to-morrow. A person may carry on a business in a part of his house and reside in other portion. It does not thereby cease to be a bastu. The only consideration is as to whether the co-sharers have abandoned the intention to occupy it as a dwelling house. It is true that if it is found that a property is in use exclusively for business or commercial purpose for a considerable length of time, then, in a suitable case, an inference may be made that the co-shaters abandoned the intention of using it as a dwelling house and in that event a property once used as a dwelling house may lose its character as such. In our case, however, it is not disputed that the plaintiff is living in a part of the house with his family. It cannot, therefore, be held that there has been any abandonment of intention to use the property as a dwelling house.
9. It is not evident that the plaintiff ever lived together with his brother Kanai Charan or his son Amarnath, Nevertheless the disputed house/ remains on undivided family dwelling house. The expression undivided family means the family not divided qua the dwelling house. This was the view taken by the Full Bench of the Allahabad High Court in Sultan Begum v. Debt Prasad (ILR 30 Allahabad 324). Sir Ashutosh adopted this view in Kshirode Chandra Ghosal v. Sarada Prosad Mitra (12 CLJ 525). In other words, the dwelling house must not have been divided. A family may be separated in mess or may have partitioned all other properties and still may be an undivided family qua a dwelling house so long as the dwelling house is not divided among themselves. This view of ours will find support from the decision in Botokrishto v. Akshoy (54 CWN 66). The disputed property was never partitioned. So it cannot but be held to be an undivided family dwelling house.
10. The defendant claim to have become members of the family by virtue of their long occupation of a substantial portion of the property. A definition of 'family' has been given in Kshirode Chandra Ghosal v. Saroda Prosad Mitra (12 CLJ 525). It has been held that 'family includes a group of persons related in blood, who live in one house, or under one head or management. It does not mean a body of persons who can trace their descent from a common ancestor'. This 'inclusive' definition was assigned in order to avoid a narrow construction. The Supreme Court held in Commissioner of Income Tax v. Taj Mahal Hotel : [1971]82ITR44(SC) that the word 'includes' in interpretation clause is used to enlarge the meaning of the word or phrase. The word or phrase must be construed as comprehending not only such thing as it signifies according to its natural import but also these things which the interpretation clause declares that they shall be included.
11. The defendants claim to be members of the family. They do not come even within the comprehensive definition of 'family'. By more occupation they do not become members of the family. In Haradhone Haider v. Uma Charan Karmakar : AIR1955Cal292 and in Bhuban Mohan v. Brojendra Chandra (AIR 1941 Cal. 311) it was ruled that joint possession of a stranger with a co-sharer does not ordinarily make him a member of the family. In the instant case the defendants were tenants. They became co-owners by purchase only on 13.7.63 and the suit was filed on 21.9.67. They are neither related in blood nor lived in the same house with the plaintiff under one head or management. There is no substance in this argument.
12. We therefore find that there is no scope for difference with the two Courts below. We accordingly dismiss the appeal, but make no order as to costs.
A.M. Bhattacharjee, J.
13. I agree with my learned brother Nandi, J. that this second appeal should be dismissed and also with the process of reasoning adopted by him. But I would also like to approach the matter from a slightly different point of view.
14. The plaintiff and his erstwhile co-sharer, the vendor of the defendants, were admittedly members of an undivided family vis-a-vis the disputed house and the other co-sharer having sold his undivided moiety, the plaintiff has filed the suit giving rise to this second appeal for partition and also pre-emption Under Section 4 of the Partition Act. The law is well-settled, as pointed out by Nandi, J., that for the invocation and application of Section 4, Partition Act, the transferee need not necessarily sue and formally figure as the plaintiff, but the non-transferee co-sharer may also initiate the action as the plaintiff for partition and invoke Section 4, if the provisions of that Section are otherwise applicable. Reference may be made to a rather recent Division Bench decision of this Court in Santosh v. Kalipada : AIR1981Cal278 and also to a much more recent Division Bench decision in Gopal v. Kalipada (1987 (1) C.H.N. 214) to which one of us was a party and which has followed the earlier Division Bench decision. This aspect has been sufficiently dealt with by Nandi, J. in some details.
15. It is not disputed that the plaintiff occupies his half portion of the disputed house as his dwelling house. It is also not disputed that the other co-sharer let out his half portion to be used for commercial purposes, and has eventually sold his share to the tenant. It was urged that such letting of the disputed half-share having been for commercial and non-residential purpose, the disputed house has ceased to be a dwelling-house for the purpose of Section 4 Nandi, J., has given elaborate reasons for repelling that contention and, agreeing with him, I would only add that acceptance of such contention would go a long way to nullify the provisions of Section 4. For in that case, a co-sharer and his proposed purchaser can easily outweigh the provisions of that Section 4 by, firstly, letting out or making a show of letting out the co-sharer's portion to the intending purchaser for non-residential purpose and then to sell out the same to the tenant. The letting out could not be objected to by the other co-sharer and he could not proceed to sue for partition and pre-emption, because the expression 'and the transferee sues for partition' in Section 4 would obviously indicate that the Section would operate only when the transfer is such as to enable the transferee to sue for partition and a tenant under a co-sharer cannot obviously sue for partition. To accept the contention would really mean, that though one co-sharer cannot object to another co-sharer's using or letting out his portion for non-residential purpose, he would nevertheless be without any remedy of pre-emption when that portion, so used or let out for non-residential purpose, is thereafter sold out to the tenant or some other person, on the ground that a portion of the disputed house having already been used for non-residential purpose, the same has ceased to be a dwelling-house for the purpose of pre-emption within the meaning of Section 4. I do not think that one co-sharer, by using his undivided portion for non-residential purpose whether by himself or through his tenant, can deprive another cosharer of his right of pre-emption, when the former eventually sells out his undivided portion to one who is not a member of the family. In my view, all that is necessary for the operation of Section 4 is that the disputed house was a dwelling house belonging to an undivided family, and that the cosharer claiming pre-emption is using his portion as his dwelling-house and the other co-sharer has transferred his share to a person who is not a member of such family, notwithstanding that such transferred portion was then being used for non-residential purpose by the co-sharer or by someone under him.
16. It may be noted that Section 23 of the Hindu Succession Act dealing with dwelling-house has qualified the expression dwelling-house by the words 'wholly occupied by members of family' and that no such qualifying words are to be found in Section 4 of the Partition Act. A dwelling-house, for the purpose of the latter provisions need not necessarily be 'wholly occupied by the members of the family' and if the co-sharer suing for preemption is using his undivided portion as dwelling-house, that would be good enough.
17. This second appeal accordingly stands dismissed and without cost, as ruled by Nandi, J.