MUHAMMAD ALI KHAN Vs. MULCHAND; JADDU BIBI

JUDGEMENT

(1.) This appeal has been referred to a Full Bench. It involves an important question arising out of the section of the Civil P. C. dealing with commissions to make partition. The appellants contended in the Courts below that the allotment of shares by one commissioner is contrary to the provisions of Section 396 and is illegal. This section, it is said, contemplates the appointment of more than one commissioner and renders it compulsory on the Court to appoint more than one. Chapter XXV of the Code deals with four classes of commissions, namely: (a) Commissions to examine witnesses; (b) Commissions for local investigations; (c) Commissions to examine accounts and (d) Commissions to make partitions.

(2.) In the case of commissions to examine witnesses, Section 385 expressly provides that the commission may be issued to any person whom the Court thinks fit to execute the same. In the case of commissions for local investigations likewise the Court may issue a commission to such person as it thinks fit. In the case of commissions to examine accounts, the language is the same. But when we come to commissions to make partitions, instead of the singular number we find the plural is used. In the first portion of the Section (a. 396) the Court is empowered to issue a commission to such persons as it thinks fit. The second paragraph of the section provides that "the commissioners shall ascertain and inspect the property, etc., and the third paragraph directs the commissioners to "prepare and sign a report, or (if they cannot agree) separate reports appointing the share of each party." In this case the use of the plural "persons," and "commissioners" is noticeable. But it is argued that in view of Section 13 of the General Clauses Act of 1897, the use of the plural is by no means decisive of the question before us. It is provided by that section that words in the singular shall include the plural and vice versa, unless there is anything repugnant to this construction in the subject or the context. We have therefore to see whether there is anything in Section 396 to make it repugnant to treat the plural nouns "persons" and "commissioners," as used in the section, as applicable to a single individual. In my opinion the direction in the third clause of the section shows beyond doubt that the Legislature intended that more than one commissioner should be appointed. That clause directs that the commissioners shall prepare and sign a report, or, if they cannot agree, separate reports. This shows that the appointment of two or more commissioners was in the contemplation of the Legislature. If it had been intended that one or more commissioners might be appointed, we should have expected to find before the words "if they cannot agree "words such as "in case there be two or more commissioners." It appears to me that the Legislature advisedly used the plural number in the case of commissions to make partition, and therefore that the Court cannot legally issue a commission to one commissioner only.

(3.) I would therefore allow the appeal on the ground that the allotment of shares carried out by one commissioner is contrary to law. George Knox, J.