HANUMAN BHAGAT Vs. BIMOLA PRASAD CHATTERJI

JUDGEMENT

(1.) This is an appeal against the decision of the Subordinate Judge of Darbhanga, dismissing the plaintiff's suit for partition. The plaintiffs are admittedly eight annas proprietors of about 19 villages, and the defendants are proprietors of the remaining" eight annas in those villages. It appears that a mukarrari lease was granted in respect of these 19 villages many years ago, and at present the plaintiffs have acquired a 12 annas interest in the mukarrari, and Mr. Manners, the proprietor of Mesiisa Concern, has acquired a four annas interest in the mukarrari. Mr. Manners was impleaded as defendant third party in the suit, and he supported the plaintiffs claim for partition. The learned Subordinate Judge has refused partition, but the reasons which he has given for the refusal cannot in my opinion be supported in law. The learned advocate for the appellant relied in the course of his argument upon Ishwar Chunder Dutt V/s. Ram Krishna Dass (80) 5 cal. 902, Ajoodhya Persad V/s. Collector of Durbhungah 9 Cal. 419, Hemadri Nath Khan v. Ramani Kanta Roy (97) 24 Cal. 575 and Lala Bhagwaft Sahai V/s. Bepin Behari Mitter (10) 37 Cal. 918 : 37 I. A. 198. The facts of those cases are different from those of the present case, but some of the observations which were made in 24 Cal. 5753 by Banerjee J. might be usefully quoted. The learned Judge in dealing with the question as to whether the proprietor of an entire estate can claim partition against the patnidar of a six annas interest pointed out: As a general rule, every joint owner of property , should be held entitled to obtain partition, or in other words to be placedin a position, to enjoy his own right separately and without interruption or nterference by his cosharer It is against good sense if not also against good morals, as the Roman law viewed it, to compel joint owners to hold a thing in common, since it could not fail to occasion strife and disagreement among them .... It is not suggested that the property sought to be divided in this case is either impartible, or is from its nature such that the partition asked for will impair the value of any of the shares into which it is to be divided. Nor is it suggested that the applicant for partition has only a limited interest, and that a partition at his instance will not be of any permanent effect.

(2.) In Lala Bhagwaft Sahai V/s. Bepin Behari Mitter Cal. 918 : 37 I. A. 198, the Privy Council affirmed the view taken in this case and held that the proprietors of a mukarrari interest were entitled to partition as against the owners of a share in the zemindary interest therein. In my opinion, therefore, the order of the learned Subordinate Judge cannot be supported in law and I would allow this appeal, reverse his judgment, and direct that a preliminary decree for partition may be passed. The appellant is entitled to his costs in this Court and in the Court below. Imam, J.

(3.) I agree.