DILDAR ALI KHAN Vs. BHAWANI SAHAI SINGH

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in an action for partition of joint property, and the only portion of the decree which is challenged is that which relates to costs. A preliminary objection is taken on behalf of the respondents that the appeal ought not to be entertained, as the question of costs was purely in the discretion of the lower Court. It is well settled, however, that an appeal will lie upon a question of costs when a matter of principle is involved: Bunwari Ball V/s. Chowdhry Drup Nath Singh (1886) I.L.R. 12 Calc. 179, Mothingan v. Mozari Sajad (1885) I.L.R. 12 Calc. 271; and as an important question of principle is raised before us, the appeal is maintainable. The preliminary objection, therefore, is overruled.

(2.) The facts, so far as it is necessary to state them, to elucidate the question of principle raised on behalf of the appellant, may be briefly outlined. The plaintiff and the defendants are joint owners of the zemindari which is the subject-matter of partition. Defendants 1 to 9 have a share in the estate as proprietors and they have also taken mokarari of a fraction of the share owned by the plaintiff; these defendants stand, consequently, in a two-fold relation to the property, namely, they are proprietors of a share and are lessees of another share under one of the proprietors. The partition which has been effected by the Court below allots to these defendants two parcels, one corresponding to their share in the proprietary interest, and the other corresponding to their share comprised in their mokarari. The plaintiff, On the Other hand, has been allotted a parcel which represents his share in the proprietary interest reduced by the share of which he has granted a mokarari to defendants 1 to 9. In substance, therefore, the lands which correspond to the entire proprietary share owned by the plaintiff have been sub-divided into two, inasmuch as the lands which represent the share granted in mokarari to defendants 1 to 9 have been carved out and separated. Under these circumstances, the Subordinate Judge directed that each party should pay his own costs up to the stage of the preliminary decree and that the costs of partition should be paid by the parties in proportion to their respective shares in the estate. This order has been assailed on behalf of the plaintiff on two grounds, namely, first, that the costs of the partition in respect of the share held in mokarari by the defendants 1 to 9 should be paid by them, and secondly, that the costs of the suit should not be home by the parties themselves but ought to be rateably distributed.

(3.) In support of his first contention, reliance was placed by the learned vakil for the appellant upon the case of Khetterpal Sritirutno V/s. Khelal Kristo Bhuttacharjee (1894) I.L.R. 21 Calc. 904 which is an authority for the proposition that where a mortgagee of a share of joint property takes the benefit of a partition of that property and accepts and approves of it as part of his title, he is liable in respect of a proportionate share of the charge for costs of the partition, even, though, he is not formally a party to the partition suit. In our opinion, the analogy deducible from the case of a mortgagee does not necessarily apply to the case of a lessee; but upon general principles which we shall presently explain, the contention of the appellant appears to us to be partially well founded and must prevail.