MATILAL DEY SARKAR Vs. KAMAKSHYA CHARAN DEY SARKAR

JUDGEMENT

(1.) This appeal arises out of a suit for partition of a homestead. The plaintiff's claim for partition is based on the following facts: There was a howla called Jadu Nandan which was held by five persons; Rup Chand and Sreenath Das had a 4 anna share and in the remaining 12 annas Taranath and Prionath had 9-1/2 annas share and Kali Kumar 6-1/2 annnas share treating the 12 annas interest in the howla as 16 annas. About 60 years ago, according to the defence, the predecessor of defendant 1 took a jote settlement of the 4 annas of Rup Chand and Sreenath. In 1300 B.S. the plaintiff took a jote settlement of 6 annas of the howla from Taranath, Prionath and Kali Kumar and about that time the defendants also took a jote settlement of the remaining 6 annas from these persons. In 1315 B.S. the defendants took mirash settlement of Kali Kumar's 6-1/2 annas share in the 12 annas of the howla reckoned as 16 annas. In 1327 B.S. they purchased the maliki interest of Kali Kumar in that share. At the date of the institution of the suit, the position therefore was that the plaintiff had a jote right to 6 annas of the howla and defendants 1, 2 and 3 the same right to the remaining 10 annas. But they had also maliki right in about 5 annas of the howla. The plaintiff by the suit claimed partition of the jote from the defendants in respect of his share in it by metes and bounds. The defendants mainly contended that the suit was not maintainable, as there had been a previous partition under which the parties were in possession of different portion of the homestead, and that as the defendants had become cosharer landlords, the suit. was not maintainable in law. The defendants also pleaded limitation and abandonment under the terms of the lease to the plaintiff.

(2.) The trial Court overruled the defendants objections and decreed the plaintiff's suit. The learned Subordinate Judge on appeal has concurred in the decree. Both Courts have found that the defendants have failed to prove previous partition. Defendants 1, 2 and 3 have appealed and several points have been raised on their behalf.

(3.) It is contended in the first place that the present suit is not maintainable, in asmuch as the plaintiff has only a temporary interest in the land in suit and as such is not capable of maintaining a suit for partition. The plaintiff's lease appears to be a yearly lease for no definite period. In support of this contention reliance has been placed on the Full Bench decision in Himadri Nath Khan V/s. Ramani Kanta Roy [1897] 24 Cal. 575 and on the case of Bhagwat Sahai V/s. Bipin Behari Mitter [1910] 37 Cal. 918. The Full Bench Case was one between the patnidar and the zamindar. In a previous decision of this Court in Mukunda Lal Pal V/s. I. Lehuraux [1893] 20 Cal. 379 it was held that in order to maintain a suit for partition the plaintiff must be of equal status with the defendant. The Full Bench decided that it was not necessary that parties should have equal rights in the joint property. In that case the suit was by a cosharer zamindar against a patnidar. In Bhagwat Sahai's case [1910] 37 Cal. 918 the suit was brought by a proprietor of a mukarrari interest in the properties in suit against the owners of shares of the zamindari interest therein, and their Lordships approving the decision of the Full Bench in Himadri Nath Khan's case [1897] 24 Cal. 575 held that the suit was competent. But the contention before us is that those cases lay down that the holder of a permanent interest, only is entitled to maintain a suit for partition against the holder of a different-permanent interest. It so happened that in those cases the parties were holders of permanent interests though of different kinds. But I do not think that they are-authorities for the view that a suit for partition can only be maintained by one who has some sort of permanent interest, in the property in suit. It appears from the judgment of Banerji, J. in Himadri Nath's case [1897] 24 Cal. 575 (p. 582), that it was urged, before the Full Bench that partition: could be enforced only as between co-owners whose interests were co-ordinate in degree, for otherwise parties having permanent interest might be put to frequent and needless expenses and trouble by having to watch the partition proceedings instituted at the instance of a holder of a temporary interest. The objection: was not, however, considered because there both the parties had permanent interests in the property in suit and hence there was no apprehension of the division effected not having an enduring effect." Beaverly, J., expressed an opinion that "the right to partition can only exist as between coparceners holding similar- interests in the property." But how similar interests" could be defined the learned Judge felt difficult to say, though he opined that they should probably be transferable permanent interests. In. Bhagwat Sahai's case [1910] 37 Cal. 918 their Lordships of the Judicial Committee have-left the question expressly open but they agree with the opinion of the Full Bench in the case referred to, Himadri Nath V/s. Ramani Kanta [1897] 24 Cal. 575 that the right of partition exists when two parties are in joint possession of the lands under permanent titles, although these titles may not be identical.