CHANDAR SHEKHAR Vs. KUNDAN LAL

JUDGEMENT

(1.) THIS appeal is against an order of an Assistant Collector whereby he rejected the application of the plaintiff for partition of certain property. There were four brothers jointly entitled to certain property. They were Sheo Ram, Sheo Shankar, Kesho Ram and Sewak Ram. Sheo Shankar died childless, and upon his death the three surviving brothers became entitled equally to the property in question. Kesho Ram in the year 1904 applied for partition of the property and also brought a suit for partition in the Civil Court, the defendants to that suit being Kundan Lal and Kanhaia Lal, the sons of Sheo Ram, and the present plaintiff Chandar Shekhar the son of Sewak Ram. It was agreed in that suit that Kesho Ram's one-third share should alone be partitioned, and that the shares of the defendants should remain joint. On the 2 March, 1906, the plaintiff made the application out of which this appeal has arisen for partition of his share, and his application has been rejected on the ground that it is barred by the terms of the compromise entered into in the previous suit. It was held by the Assistant Collector that, inasmuch as the plaintiff, or his guardian on his behalf, agreed on the former application that his share should, remain joint, it is not open to him to institute proceedings for partition. We may mention that the plaintiff in the previous proceedings applied for partition o? his share under Section 110 of Act III of 1901, but his application was rejected on the ground that it had not been brought within 60 days, the period allowed for such application. So far as regards the former proceedings, no doubt, the plaintiff could not take advantage of the order for partition and obtain partition of his share, but this only applied to the proceedings then pending. It in no way prevented him from instituting a fresh application for the separation of his share, and the partition of the property remaining joint. The right of a co-owner to have partition of his share is incident to the right of ownership, and an agreement not to partition for an indefinite period would be contrary to that right and therefore not enforceable. In the present case there was no agreement not to claim partition. Therefore in our opinion the learned Assistant Collector was wrong in rejecting the plaintiff's claim. As he disposed of the case upon a preliminary point, we set aside an order and remand the case to him under the provisions of Section 562 of the Civil P. C., with directions that it be reinstated in the file of pending applications and be disposed of according to law. The plaintiff appellant will have the costs of this appeal. All other costs will abide the event.