K V SRINIVASATHATHACHAR Vs. NARAVALUR SRINIVASATHATHACHAR

JUDGEMENT

(1.) The question raised relates to the construction of Section 54, Civil Procedure Code. The Lower Court has made an order directing the decree to be forwarded to the Collector for partition being effected. Mr. Venkatachari for the appellant contends that the order is wrong. It is first urged that the section does not apply unless the partition is not only of the land but also of the revenue assessed on it ; in other words, unless the division of the land is to be followed by the apportionment of the revenue. This construction is opposed to the plain provisions of the section. What the section refers to is, the partition of the estate assessed to the payment of revenue and not the partition of the estate as well as the revenue. Why in construing the section, which is plain and unambiguous, words not to be found there should be imported into it, I fail to see. I agree with the observations of Rankin, C. J., on this point in the two cases cited at the bar, namely, Moulvi Abdul Razak V/s. Sreenath Ghose (1930) I.L.R. 58 Cal. 122 : 34 C.W.N. 892 at 894 and Rai Kiran Chandra Roy Bahadur V/s. Rama Nath Dutta Chowdhury (1930) 34 C.W.N. 895. But it is unnecessary to pursue this point, as the second contention of Mr. Venkatachari is, in my opinion, clearly well founded. He argues that what the section contemplates is an entire undivided estate and not merely a part of it. In the present case, the plaintiff and the defendant were entitled to a portion of the undivided estate and the decree directed that that portion should be divided into two equal halves. Such a decree does not fall within the terms of the section. Is this decree one for the partition of an undivided estate ? Or again, is it for the separate possession of a share of such an estate ? The answer is in the negative. A share of an estate is not equivalent to a share of a portion of an estate ; when the decree relates to the separate possession of a share of a portion, that decree does not fall within the terms of the section. Trevelyan, J., expresses this tersely in Jogodishury Debea V/s. Kailash Chundra Lahiry (1897) I.L.R. 24 Cal. 725 (F.B.), in a passage extracted by Rankin, C. J., in the first of the two cases already cited. Says Mr. Justice Trevelyan: The section applies only to a case where the decree comprehends the partition of the whole of the estate paying revenue to Government. A decree for possession of a share of a portion of an undivided estate is not a decree for possession of a share of an undivided estate in any sense.

(2.) The intention of the statute seems to be, that where the duty is cast upon the Collector of executing the decree, the partition he has to effect is to be both complete and perfect, that is, not only is the land to be divided, but the revenue also is to be allocated, the object being that the interests of the Government are safeguarded and there is also a final adjudication of the rights and liabilities of the parties in the sense, that one sharer shall no longer be at the mercy of the other co-owners; and such a course the Collector can appropriately adopt only when the decree relates to the whole, and not merely a part of, the undivided estate and all the parties interested and to be affected by the proposed division, are before him.

(3.) I agree with the view taken of the section by the learned Judges of the Calcutta High Court in Moulvi Abdul Razak V/s. Sreenath Ghose (1930) I.L.R. 58 Cal. 122 : 34 C.W.N. 892 at 894 and Rai Kiran Chandra Roy Bahadur V/s. Rama Nath Dutta Chowdhury (1930) 34 C.W.N. 895 referred to by me. The result is, the Subordinate Judge's order is set aside and the appeal is allowed with costs.