Judgment.- One Raman Chettiar and his two brothers constituted a joint Hindu family which possessed, in addition to a residential house and site appurtenant thereto, which form the subject-matter of the present litigation, some other landed properties as well. They divided the landed properties amongst themselves and left the house and compound undivided. Thereafter, the undivided share of Raman Chettiar in the house and the appurtenant compound was sold in Court auction and purchased by some one whose name it is unnecessary to refer, who thereafter sold his right to the plaintiff. The plaintiff therefore as the holder of an undivided one-third share in the house and site brought this suit O.S. No. 3 of 1948 on the file of the Sub-Court, Sivaganga, for partition and recovery of his one-third share in the property. A preliminary decree was passed. One of the brothers is dead and his legal representatives are defendants 6 to 8 in the Court below. The other brother was the first defendant whose sons are defendants 2 to 5. The plaintiff will be entitled to a one-third share of the disputed property; defendants 1 to 5 to another one-third share and defendants 6 to 8 to the third one-third share. After the passing of the preliminary decree defendants 6 to 8 filed I.A. No. 182 of 1948 invoking the provisions of section 4 of the Partition Act praying that they must be allowed to purchase the plaintiff’s share in the dwelling house. Both the lower Courts have upheld the request of defendants 6 to 8 and this second appeal is by the plaintiff against that decision. Mr. T. Krishna Rao, for the appellant, raises three points. The first of them is that in view of the report of the commissioner to the effect that the building in the site would have been constructed 50 or 60 years ago and it is now in a very dilapidated condition being unfit for residential purposes, the conclusion arrived at by the learned Judge that section 4 of the Partition Act is applicable cannot be justified. It is urged that the structure must be usable as a dwelling house at the time the application is made and it would not be sufficient if it had been a dwelling house which on account of lapse of time or of its dilapidated condition is not fit for occupation now. It is urged that the structure must be usable as a dwelling house at the time the application is made and it would not be sufficient if it had been a dwelling house which on account of lapse of time or of its dilapidated condition is not fit for occupation now. Learned counsel relies upon a decision of the Bombay High Court in Bai Fatma v. Gulamnabi1, where this question was left undecided by the learned Judge. Therefore, in my view, that decision cannot be of any assistance to us. On the other hand, there is a more recent decision of the Allahabad High Court in Bhagirath v. Afaq Rasul2, where it has been decided that in order to determine whether a particular house is a family dwelling house within section 4 of the Partition Act, the question is whether the family has abandoned all idea of occupying the house as a residential house and not the state in which the house is. The learned Judge further goes on to say that a person may not be able to reconstruct or renovate a house on account of poverty and various other reasons but that would not detract from its nature as a dwelling house if the family has not given up its intention to use it as a dwelling house. In this case there is evidence that defendants 1 to 5 are living in a portion of this house, though as tenants. Under those circumstances it cannot be said that the family has ever given up the idea of using it as a dwelling house. It is also urged that the mere fact that defendants 6 to 8 are not living there would show that they have no such idea. In my opinion, that cannot be an argument for holding that it is not a dwelling house. The conclusion of the learned Judge that the structure in question is a dwelling house belonging to an undivided family is therefore correct. The next point argued by the learned counsel is that even though section 4 of the Partition Act can be applied to the dwelling house in question, the site adjoining and surrounding it should not be made the subject-matter of purchase. The next point argued by the learned counsel is that even though section 4 of the Partition Act can be applied to the dwelling house in question, the site adjoining and surrounding it should not be made the subject-matter of purchase. For, it is urged that all that section 4 of the Partition Act lays down is that a member of the family being a shareholder is entitled to purchase the plaintiff’s rights only in the house and not in the site surrounding. In Kshirode Chunder Ghosal v. Saroda Prosad Mitra3, Ashutosh Mookerjee, J., in discussing this question has laid down that “The term house’ embraces not merely the structure or building but includes also adjacent buildings, curtilage, garden, court-yard, orchard and all that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier. It includes the land on which the structure of the dwelling house stands. Whether a particular plot of adjacent land is or is not necessary to the enjoyment of a house is to be determined upon evidence.” Now, applying the principle enunciated here, we have to see whether the land appurtenant is necessary for the convenient enjoyment of the house. The entire area including the site on which the house stands is nearly 16,600 square feet and the house itself stands on an area of more than 8,000 square feet. That being the case, the structure of the house has taken in more than half the area and a mere glance at the plan of the locality shows that the lands all round the house are necessary for its proper occupation. After all the entire area is only about 40 cents of which the house itself has taken in about 20 cents. I am therefore of opinion that the lower Court is right in directing the plaintiff’s share in the land also to be sold to defendants 6 to 8. The third question argued is with regard to the valuation. Both the lower Courts have agreed on that and nothing has been placed before me to show that that conclusion is wrong or is not supported by acceptable evidence. The second appeal fails and is dismissed with costs. No leave. K.S. ----- Appeal dismissed.