PARTHASARATHI IYER Vs. KESAVAN NAIR

JUDGEMENT

(1.) This appeal is by the fourth defendant,in a suit for partition instituted by the plaintiffs,thirteen in number,some of whom are the respondents in this second appeal,and may be referred to briefly as the respondents.The appellant is the jenmi of item 8 of the suit properties,which,though outstanding on lease with the first defendant,a member of the respondent 's tarwad,had been surrendered by him to the appellant.In the suit,the respondents had impeached the deed of surrender.By the preliminary decree for partition which has become final,the surrender was held to be not binding on the respondents and the leasehold was held to be available for partition In second appeal 1703 of 1950 against the preliminary decree,the appellant set up before the High Court of Madras an equity,that item 8 may be allotted on final partition to the share of the first defendant.It was held,that no decree could be made allotting item 8 to the share of the first defendant;all the same,the court indicated that this may be done,if at the time of the final allotment,it would be possible to do so without injustice to the other members,leaving it entirely to the court which would pass the final decree.The judgment also directed that the appellant would be at liberty to apply to that court for the purpose.No steps for passing the final decree were taken by the respondents or any of the other sharers,though the preliminary decree had provided,that the sharers would be at liberty to apply for the final decree.

(2.) The appellant then moved I.A.778 of 1956 for passing a final decree,which was objected to by the respondents,who apparently did not want a final decree to be passed.The Munsiff entertained the application,relying upon the direction in the judgment of the High Court and called upon the appellant to make a deposit for the issue of a commission.Aggrieved by this,the respondents and others preferred an appeal to the court of the Subordinate Judge at Palghat,which held that the appellant had no locus standi to make the application and allowed the appeal;hence this second appeal.

(3.) It was strenuously contended on behalf of the appellant,that the legal position being,that a suit for partition does not terminate with the passing of the preliminary decree,but continues till the final decree is passed and that no application,is necessary to enable the court to take steps for the passing of the final decree,the appellant is competent to make the application.It is well established,that the suit continues till the passing of the final decree,and that an application for a final decree is not governed by Article 181 of the Limitation Act.This has been so ruled in Abdul Kareem Sab v.Gowlivada S.Silar Saheb,1957 AIR(AP) 40.It was held in Bhusan Chandra Mondal v.Chhabimoni Dasi, 1948 AIR(Cal) 363 that no application is necessary for passing a final decree,and the court may appoint a commissioner mo motu,and direct the plaintiff to deposit the commissioner 's fees and in default,ask any one of the parties to carry on the proceedings.The court cannot dismiss the suit because it cannot force a partition against the will of the cosharers.I am not prepared to hold that the appellant,can compel a partition by metes and bounds against the will of the respondents and possibly also of the rest of the cosharers.The appellant 's legal right to the allotment of item 8,as prayed for by him,stands negatived by the judgment of the High Court.In my view,the leave granted to him by that judgment to make an application,was conditional upon the issue of a commission for making an allotment for the final decree,upon a motion by competent parties.The view of the Munsiff to the contrary is plainly erroneous and was not contended to be right.