Asman Singh and Others vs Tulsi Singh and Others

Edward Chamier, C.J.—The parties to this appeal are the descendants of one Jehal Singh and were admittedly members of a joint family. It is common ground that on a partition the plaintiffs would be entitled to an 8-annas share in the family property, defendants Nos. 1-8 to a 4-annas share and defendants Nos. 9-12 to the remaining 4-annas. The defendants at one time maintained that the plaintiffs were entitled to no more than a one-third share in the property and the each set of defendants was entitled to a one third share. In their plaint the plaintiffs alleged that they had several times required the defendants to partition the property but that the defendants had refused to do so. Accordingly the plaintiffs prayed for a declaration that they were entitled to an 8-annas share in the family property, the details of which they set out in the schedules attached to the plaint. Some of the defendants pleaded that some of the items entered in the schedules were their separate acquisitions. This plea was rejected by the Court below and some of the defendants have in this Court formally challenged the decision. We have examined the evidence and we have no hesitation in holding that all the properties specified in the plaint schedules belonged to the joint family. It would serve no useful purpose to discuss the evidence at length. The only point that has been seriously pressed it this Court is that the claim for a mere declaration is not maintainable, as the plaintiff could have claimed further relief. This point was taken in the Court below but was overruled by the Subordinate Judge.

According to the decision of the Full Bench in Jogodishury Debea v. Kailash Chundra Lahiry 24 C. 725 : 1 C.W.N. 374 :12 Ind. Dec. (N.S.) 1152, which has been followed in many cases in the Calcutta High Court, Section 265 of the Code of Civil Procedure, 1882, did not and Section 54 of the present Code does not prevent a Civil Court from decreeing partition of a revenue-paying estate where separate allotment of the revenue is not asked for. A different view has been taken by other High Courts. I express no opinion as to the correctness of the Calcutta decisions, but I am of opinion that this Court, for reasons that have been stated more than once, should ordinarily follow a settled course of decisions in the Calcutta High Court prior to the establishment of this Court. If we departed from them in this matter we should cause very great confusion in this province. On the strength of those decisions it is contended that the plaintiffs in the present case might have claimed a decree for partition of the family property. It appears, however, that the bulk of the family property consists of undivided shares in villages in which there is a large number of sharers who have no connection with the parties to the present case, and partition by metes and bounds between the parties to the present case cannot be made without a general partition of all the villages. It is obvious that it would be impossible to effect a partition in this case between all the sharers in the different villages. In similar circumstances in the United Provinces and other provinces where the Calcutta decisions are not approved a decree would be made determining the shares of the parties to the case and, if necessary, putting them formally into possession of those shares, and they would be left to obtain a partition of each village or mahal separately in the Revenue Courts as and when they pleased. In the present suit as constituted it is not suggested that the plaintiffs have been dispossessed in any way and nothing more can be done than to determine the shares of the parties in the family property and declare that the plaintiffs are entitled to enjoy an 8-annas share therein. The plaintiffs unequivocally intimated to their co-sharers that they desired to sever themselves from the joint family and are, therefore, entitled to enjoy their share separately: Girja Bai v. Sadashiv Dhundiraj 37 Ind. Cas. 321 : 43 C. 1031 : 43 I.A. 15 : 20 C.W.N. 1085 : 14 A.L.J. 822 : 20 M.L.T. 78 : 12 N.L.R. 113 : (1916) 2 M.W.N. 65 : 8 Bom. L.R. 621 : 4 L.W. 114 : 24 C.L.J. 207 : 31 M.L.J. 455.

I am not prepared to hold that the maintenance of the present claim for a declaration of the shares of the parties in the family property is barred by Section 42 of the Specific Relief Act. I would dismiss this appeal with costs.

Sharfuddin, J.

I agree.