RAJENDRA KUMAR BOSE Vs. BROJENDRA KUMAR BOSE

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for partition. The plaintiff and the defendant are two brothers, governed by the Dayabhaga school of Hindu Law. Under a testamentary disposition of their father, now deceased, they are entitled in equal shares to the properties in suit and any other properties. In this suit, the plaintiff seeks partition of an ancestral house at Srinagar two horses at Dacca and a large number of moveables. The defendant contends that all the joint properties should be included in the suit and divided, by the decree therein. The Subordinate Judge has overruled this objection, and has made a preliminary decree. On the present appeal, the defendant has urged that the plaintiff should not be allowed to sue for partial partition.

(2.) The principles applicable to cases of this character are well settled. The general rule is that all property held in co-tenancy and nothing but property held in co-tenancy should be included in a partition suit. A cotenant, whose title to ail undivided share of joint property is admitted of is clear, is entitled to partition as a matter of right a difficulty in making a division of the subject-matter or a resulting prejudice to some of the co-tenants, is not a sufficient ground for refusing a partition; and it has sometimes been maintained that partition may be claimed, even though it be impossible to divide the property without materially impairi, gets value, or even totally destroying it: Norris V/s. Le Neve (1744) 3 Atk. 83 : 62 E.R. 850; Parker V/s. Gerard (1754) Am 1. 236, 27 E.R. 157, Baring V/s. Nash (1813) 1 V. & B. 551 at p. 554 : 35 E.R. Calmady V/s. Calmady (1795) 2 Ves. Jur. 568 : 30 B.R. 780, Turner V/s. Morgan (1803) 8 Ves. 143 : 32 E.R. 307 : 149 R.R. 667; Agar V/s. Fairfax 1808) 17 Ves. 533 at p. 543 : 1 Wh & T.L.C. (7 Ed.) 181 : 34 E.R. 533; Clarendon V/s. Hornby (1718) 1 P. Wms. 446 : 24 E.R. 465 Since artition can be claimed as a matter of right, a co-tenant is hot required to make a demand or to agree upon terms prior to institution of suit. But although, as a general rule, all joint property of the co-tenants must be included in a partition suit, it is within the power of co- tenants, by mutual agreement, to make partition of a part only of the joint property, retaining the rest in common: Darvill V/s. Roper (1855) 3 Drewry. 294 : 3 Eq. R. 104 : 24 L.J. Ch. 779 : 3 W.R. 467 : 61 E.R. 915 : 106 R.R. 355. The principle that a partition suit should include all the property of the co-tenancy is widely recognised, and it has been pointed out that if the rule were not enforced, a co-tenant might institute as may suits to partition the property as his caprice dictated. Consequently a partial partition cannot, as a general rule, be compelled against co-tenants who do not consent thereto. But if some of the co-tenants desire to continue holding their moieties together and undivided, the Court may permit them to do so, and instead of making separate allotment to each set apart, to all who so desire, an allotment to be Hid by them jointly. If it appears, however, that all the defendants have already received all that is equitably due to them, the remainder may be awarded to the plaintiff; this is not partial but complete partition: Hobson V/s. Sherwood (1841) 4 Beav. 184 : 49 E.R. 309 : 55 R.R. 40 Clarendon V/s. Hornby (1718) 1 P. Wms. 446 : 24 E.R. 465. The rule is enunciated in these or similar terms by text-writers of recognised authority. Thus, Breeman (Co-tenancy and Partition, Section 508) states that a tract held in common cannot be partitioned, by fragments, and a suit for partition should always embrace the whole tract held by the co- tenancy. But while it is indispensable that the whole tract should be embraced in the suit for partition it does not follow that those who are mutually desirous of Continuing the relation of co-tenancy among one, another, are obliged to have their several portions allotted to them to hold in severalty. It is true that there are cases where a partial partition bas been treated, as improper and unauthorised under all circumstances: Robertson V/s. Robertson (1852) 2 Swan (Tenn) 199. But the weight of the authorities is in favour of the view that the plaintiff in partition is entitled to have his share set off, if the premises are capable of being divided, far that is his object in instituting the proceedings; if the situation of the defendants is such as to render it for their interest to retain their portion together and undivided, there can be no possible objection in principle in performing it to be done. To the same effect is fate statement by Knapp (Partition p. 192) that common property cannot be partitioned in fragments; it is not the practice of the Court to cause of decree a partial partition. The established rule may accordingly be taken to be that a suit for partition should include all the lands of the co- tenancy and, if it does not, any party interested may insist that the omitted land or lands be included in tie suit.

(3.) There is little doubt that the general principle enunciated above was recognised by Hindu jurists; see Mitakshara, Chap. II, Section 10; Vishnu, XV, 33; Narada XIII, 32, Radha Churn Pass V/s. Kripa Sindhu Dass 5 C. 474 : 4 C.L.R. 428 : 2 Ind. Dec. (N.s.) 911; Manjanatha Shanabhaga V/s. Narayana Shanabhaga 5 M. 362 : 6 Ind. Jur. 518 : 2 Ind. Dec. (N.s.) 252; Sudarsanam Maistri V/s. Narastmhulu Maistri 25 M. 149 : 11 M.L.J. 353. Jolly, Tagore Lectures on Partition, p. 135.