NIRANJAN MUKHERJEE Vs. SOUDAMINI DASI

JUDGEMENT

(1.) The question referred to the Full Bench is: Whether a person to whom a parcel of land has been allotted by a decree for partition of a Civil Court takes it subject to a permanent lease granted by his former co-owners without his concurrence when the land was the joint property of all the co-sharers.

(2.) The plaintiffs predecessor-in-title had 1/5 share in the land in dispute along with other properties. His co-sharers who owned the remaining 4/5ths share granted a permanent lease in respect of their shares to the defendant's predecessor-in-title. The plaintiff brought a suit for partition in the Civil Court, and the disputed land was allotted to him in his share on partition. He then brought a suit for ejecting the defendant after service of notice to quit. The defence was that the Plaintiff's predecessor-in-title also had granted the lease, but the finding is against the defendant. It is not disputed that the plaintiff is entitled to joint possession in respect of l/5 share, and the question for consideration as stated above is, whether the land is subject to the permanent lease granted by the co-sharers owning the 4/5ths share before the partition.

(3.) The general principle is that a cosharer in joint property cannot by dealing with such property affect the interest of the other shares therein. In the case of Byjnath Lal v. Ramoodeen [1874] 1 I.A. 106, there was a mortgage of an undivided moiety in some villages forming a joint and undivided estate. Their Lordships observed: 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 the other sharers in them, and that the person 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 defined portion held in severalty.