NRISINGHA RANJAN MUKHERJEE Vs. SMSOUDAMINI DASI

JUDGEMENT

(1.) (December 2,1925.) The suit out of which this appeal arises was brought for khas possession of a piece of homestead land on ejectment of defendant No.1 after service of notice to quit. The facts on which the question of law which arises for decision in this appeal may be shortly stated thus: The land in dispute along with other properties belonged to one Kshetra Mohan Mukherji and his cosharers, Kshetra Mohan being entitled to l/5 share of the whole. He died leaving his childless widow Tripura Sundari as his heir. During her lifetime her co-sharers who had a 4/oth share in the property granted a mokarrari mourashi lease of the land in suit to one Dina Nath Mukerji by accepting a kabuliyat executed by the tenant, dated 30 September 1891. Tripura Sundari died sometime in 1904. Plaintiff inherited the properties as the reversionary heir of her husband. Defendant No.1 obtained by assignment the interest of Dina Nath in the land in dispute. Under a decree for partition by a Civil Court in a partition suit between the plaintiff and his co-sharers the disputed land along with other lands was allotted to the plaintiff. It has been found by the Court of Appeal below that neither Tripura Sundari nor the plaintiff had granted or acknowledged the mokarrari mourashi right of the tenant in the land. The question then arises as to whether the plaintiff obtained the land in dispute on its being allotted to him by the decree in the partition suit subject to the permanent lease granted by his former co-sharers or not. The Trial Court decided in favour of the plaintiff relying on an unreported decision pf the High Court. On appeal by the defendant the Subordinate Judge has held that the plaintiff is bound by the lease and has dismissed the suit. The plaintiff appealed to this Court, and he being dead his representatives were substituted on the record.

(2.) It is contended on behalf of the appellants that they are entitled to the land allotted to their predecessor free from the mokarrari interest created on the land by the former co sharers of their predecessor. Reliance has been placed on the general principle of equity which was given effect to by the Privy Council in the case of Byjnath Lall V/s. Ramoodeen Chowdhury 1 I.A. 106 : 21 W.R. 233 : 3 Sar. P.C.J. 333 : 2 Suth. P.C.J. 942 (P. C.) which was a case of a mortgage by a co-owner of joint property. Their Lordships say:--" It is, therefore, clear that the mortgagor had power to pledge his own undivided share in these villages; but it is also clear that he could not, by so doing, affect the interest of other sharers in them, and that the persons who took the security took it subject to the right of those sharers to enforce a partition, and thereby to convert what was an undivided share of the whole into a denned portion held in severalty." Their Lordships were further of opinion that the mortgagee had not only the right to accept what had been allotted to his mortgagor but that was, in the circumstances of the case, his sole right, and that, he could not successfully have sought to charge any other parcel of the estate in the hands of any of the former co owners. This principle of equity was applied to the case of a lease by a co-owner in Joy Sankari Gupta v. Bharat Chandra 26 C. 434 : 3 C.W.N. 209 : 13 Ind. Dec. (n. s.) 880. and in Tarini Kanta Majum-dar V/s. Ishur Chandra Chakravarti 18 Ind. Cas. 210 : 21 C.L.J. 603. In those cases the partitions were by the Collector under the Estates Partition Acts, but it is contended that the decisions turned upon the principle of equity recognised in Byjnath's case 1 I.A. 108 : 21 W.R. 233 : 3 Sar. P.C.J. 333 : 2 Suth. P.C.J. 942 (P. C.). and not on any special provisions of the different Partition Acts. Lastly, the unreported decision in Appeal from Appellate Decree No. 384 of 1913 is relied on in support of the appellants contention. That case related to another piece of land appertaining to the same estate as the land in the present case and depended upon the effect of the same partition decree as in this. There is absolutely no distinction between that case and the present case. On the other hand, the principle in Byjnath's case 1 I.A. 108 : 21 W.R. 233 : 3 Sar. P.C.J. 333 : 2 Suth. P.C.J. 942 (P. C.). was not applied to the case of a lease in Shaik Khan Ali V/s. Pestonji 1 C.W.N. 62. This case was distinguished in the casa of Joy Sankari Gupta V/s. Bharat Chandra 26 C. 434 : 3 C.W.N. 209 : 13 Ind Dec. (N.S.) 880 on the ground that the partition in Shaik Khan Ali's case (4) was by the Civil Court. There does not, however, seem to be any distinction on principle where the special provisions of the Estates Partition Act do not come into play. Shaik Khan Ali's case 1 C.W.N. 62 was followed in Bainddi Mandal V/s. Kailash Chandra Sardar 64 Ind. Cas. 448 : 35 C.L.J. 166, in which also a distinction is made between the case of a lease and a mortgage. It may be pointed out that the principle in Byjnath's case 1 I.A. 106 : 21 W.R. 233 : 3 Sar. P.C.J. 333 : 2 Suth. P.C.J. 942 (P. C.) has been applied, where there has been a partition under a decree of the Civil Court, in the case of a mortgage by a co-owner. See Hem Chundur Ghose V/s. Thako Moni Debi 20 C 533 : 10 Ind. Dec. (N.S.) 362.

(3.) It would thus appear that there is a clear conflict of decisions in this Court as to the application of the rule of equity in Byjnath's case 1 I.A. 106 : 21 W.R. 233 : 3 Sar. P.C.J. 333 : 2 Suth. P.C.J. 942 (P. C.) to the case of a lease granted by a co-owner, particularly between the unreported case mentioned above and the cases of Shaik Khan Ali V/s. Pestonji 1 C.W.N. 62 and Binaddi Mandal V/s. Kailash Chandra Sardar 64 Ind. Cas. 448 : 35 C.L.J. 166 which question requires decision by a Full Bench.