TARINI CHARAN CHAKRAVARTY Vs. DEVENDRA LAL DEY

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration on plaintiff's title to 8 annas share of C.S. plots Nos. 395 and 593 and for recovery of khas possession of the same after partition. Plaintiff based his claim on a purchase from a Hindu widow Satyabhama in Pous 1334 B.S. The father of defendants Nos. 1 and 2 and the husband of Satyabhama were two brothers. The disputed land was a part of the joint family property of the said two brothers. Plaintiff's case is that the disputed plots were in the joint possession of defendants Nos. 1 and 2 and Satyabhama after the death of the father of defendants Nos. 1 and 2 and the husband of Satyabhama. The defence of the defendant No. 2 who alone contested the suit was that by an amicable partition in the year 1308 B.S. between his father and Satyabhama the disputed plots were allotted to the share of the defendants Nos. 1 and 2 and consequently plaintiff acquired no title on the basis of his purchase from the lady. The defendant further pleaded that the suit was not maintainable in the present form as the plaintiff is not entitled under the law to have a partition of only a portion of the joint family property of the defendants Nos. 1 and 2 and Satyabhama. The Courts have disbelieved the story of previous partition set up by the defendant and have decreed the plaintiffs suit; hence the present appeal by the defendants Nos. 1 and 2.

(2.) The only point urged in support of the appeal is that the plaintiff, being the purchaser of a small portion of the joint family property from one of the co-owners is not entitled under the law to get a partition only of the land purchased by him. In other words the contention is that a suit for a partial partition does not lie. There has been some divergence of judicial opinion on the question whether an alienee from a co-sharer is entitled to institute a suit for partition of the property in which he alone is interested. On the one hand it has been maintained that the purchaser is exactly in the same position as his vendor, on the other hand it is said that the transfer effects a severance and the only joint property held in common by the purchaser and the co-sharers of his vendor is what forms the subject-matter of the conveyance. To give effect to the former view would be to affirm the principle that a plaintiff can institute a suit for partition in respect of property in which he has no interest at all. The learned Advocate for the appellant, however, contended that the principle applicable to transfer of portions of joint property is not applicable to transfer of a part of joint family property of Hindus. In support of this contention the learned Advocate cited the following passage from Mayne's Hindu Law, 9th Edition, Art. 494 at page 716: Where a stranger to the family acquires a title to a portion of the family property by purchase or under an execution, his remedy is by a suit to compel his vendor to come to a partition and so give him an absolute title. But he cannot demand a partition merely as to the portion over which he has claim. The vendor mast have a complete and final partition so that all the family accounts may be taken against him and all the other members of the family must be made parties to the suit,

(3.) Mr. Mayne does not appear to have relied on any special rule of Hindu Law for the above observations. The ordinary rule is that a suit for partition must embrace all joint properties owned by the parties thereto. But there is also the complimentary rule that a suit for partition cannot include properties in which each of the parties does not claim an interest. It is true that the general rule that a partition suit should embrace all joint property ensures a just partition; otherwise parties might be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements and adjustment of accounts; see Rajendra Kumar Bose V/s. Brojendra Kumar Bose 77 Ind. Cas. 790 : 37 C.L.J. 191 at p. 197 : A.I.R. 1923 Cal. 501.