NARAINDAS BHADURI Vs. SATYANARAIN BHADURI

JUDGEMENT

(1.) For convenience I propose to divide my judgment as follows : (A) Preliminary observations ; (B) Bhaduri V/s. Bhaduri No. 174 of 1931, Mr. S.K. Basu's partition, specimen accounts and final return; (C) Costs and payments on account; (D) Preliminary decree. (A) Preliminary observations : On 20 July 1939 there were in the list three cases of partition of the aggregate age of 66 years. One of these cases, Mt. Mahmuda Bibi V/s. Mt. Nainoo Bibi and Ors., Suit No. 1221 of 1916, afforded an interesting study. The original Commissioner Mr. Mitter who died pending the partition was one of the ablest officers of this Court and an expert in partition. Yet such was the condition of this partition in 1939, mainly by reason of orders obtained from the Court and advances made to parties and to their attorneys on account of costs that it was found absolutely impossible to bring it to an end in a regular manner. The eight or ten attorneys acting fully realised the impossibility to which I have referred and it was only with their assistance and consent to a rough and ready division of what remained that the matter could at all be concluded. Our senior partition suit pending, Bannerjee V/s. Mukherjee, Suit No. 145 of 1900, is forty-one years old. The plaintiff is himself an attorney of this Court and the main defendant another attorney is 73 of age. Two Commissioners have been buried. The status and respectability of the parties precludes in this case the possibility of wilful obstruction, and indicates for this chronie paralysis some cause other than the rapacity of lawyers or perversity of parties. Such other cause exists. As I hope to explain our system is so designed that even with the best of Commissioners, the most disinterested attorneys and the most reasonable of parties, no partition can ever be closed. I refer especially to the ridiculous dilemma of Commissioner, precluded from making up and filing his final return because the costs have not been taxed, and the attorneys precluded or inhibited from taxing their bills because of the general rule "no taxation without completion." A failure to realise such anomalies has exaggerated their effects, and prevented the application of remedies.

(2.) Moreover, apart from such anomalies, there has been, I suggest, a very general failure to appreciate the peculiarities of our system such as it is, and consequently on the part of Commissioners and others concerned, a failure to work the machinery in the only way in which it can be worked. I hope to explain and justify the above criticism. Partitions may remain at a stand still. Not so, Nature. In most of the old partitions now pending we have lost two, often three, Commissioners. Or should the Commissioner survive, the parties die, and procreate so that the suit is never fully or properly constituted. Living Commissioners seek escape from the situation by one of two devices, (a) they either partition and retain some balance in hand which involves a series of ever diminishing partitions, on the La Fontaine principle or (b) like Mr. S.K. Basu in Bhaduri V/s. Bhaduri, Suit No. 174 of 1931, estimate the amount of costs, extract undertakings, put in a return on that basis and then leave it to Providence, the parties and the attorneys accounts clerks thereafter to make an adjustment, which in my experience never takes place.

(3.) Before I deal with Bhaduri V/s. Bhaduri, I mention in advance the main features of our existing system, and for convenience give a name to the two distinct species of partition in vogue, (i) Apart from the Registrar and partitions under a certain figure, private Commissioners, (ii) Theoretical control of Court. (iii) "Gross" and "net" partitions. By "gross" partition I mean a partition in which the costs of partition are not dealt with in the partition by the Commissioner but left to be adjusted after the partition between the parties and the attorneys. By "net" partition I mean one in which costs are dealt with by the Commissioner and taken out of the estate before the partition is concluded, the net shares only being divided and allotted to the parties. "Net" partitions are and have been for a considerable number of years the general rule. (B) Bhaduri V/s. Bhaduri Suit No. 174 of 1931, only ten years old. This is a simple case of one house sold in June 1934 but the partition not yet completed. I propose to discover why not ; and to discuss how it could and should have been completed. The facts are as follows : One house ; three parties or sets of parties, shares 1/2, 7/16 and 1/16 ; property sold on 30 June 1934 to the 7/16 party for Rs. 13,250. The Commissioner from time to time in accordance with the usual practice made advances to the parties. On 24 September 1934, he estimated the total costs at Rs. 2800, took undertakings, paid the three attorneys three quarters of the estimated amount and retained Rs. 698-15-0. In the absence of taxation, it was the only thing he could do. On this basis he submitted a return in July 1938. It is not and could not be a final return. The parties and their attorneys did nothing. This petition was filed in May 1941 by the solicitors for the plaintiffs asking for an order on the Commissioner to divide the balance in his hands and confirmation of the return. In para. (15) with sweet simplicity the petition states that "the solicitors for the parties have not got their bills taxed up till now." So oblivious are attorneys to the obvious ; that a system of net partition cannot be carried out unless the costs are ascertained prior to the final return.