Fractional ownership is not enough for a dwelling house test unless the assessee can occupy it as of right and benefit from it.

A fractional co-heirship in a house does not, by itself, satisfy the requirement of a dwelling house maintained for an assessee within the taxable territories under section 4A(a)(ii) of the Income-tax Act, 1922. The house was actually occupied by other co-heirs as their own dwelling, while the assessee's wife and children lived elsewhere and his temporary visits did not make the property his home. The statutory test required more than the existence of property in India: the assessee had to be able to occupy it as of right and the house had to be maintained for his benefit. On those facts, the condition was not met, and the view was against the Revenue and in favour of the assessee.

---

---

Issues: Whether the assessee's fractional inheritance in a house, without occupation by him or his family and without maintenance of the house for his benefit, satisfied the requirement of a dwelling house maintained for him within the taxable territories under section 4A(a)(ii) of the Income-tax Act, 1922.

Analysis: The assessee was only a co-heir with a fractional share in the house. The house was in the actual occupation of other co-heirs, who used it as their own dwelling house. The assessee's wife and children lived elsewhere, and his temporary visits to India did not make the house his home or dwelling house. Mere ownership of a fractional share, without a right actually exercised to occupy the house as of right and without any maintenance of the house for the assessee's benefit, was insufficient to satisfy the statutory requirement. The requirement was not merely that a house exist in the taxable territories, but that it should be the assessee's home and be maintained for him.

Conclusion: The statutory conditions were not satisfied, and the answer was against the Revenue and in favour of the assessee.

Ratio Decidendi: Mere ownership of a fractional share in a house does not constitute a dwelling house maintained for the assessee unless he can occupy it as of right and it is maintained for his benefit.

---