Shaik Khan Ali vs Pestonji Eduljee Guydar

Petheram, C.J.—In this case, some time before the month of February 1890, the plaintiff bought a one-third share in an undivided estate which included the property which is now in dispute, and on the 27th February 1890, he commenced the present suit for the partition of the property between himself and the remaining two co-sharers. That suit proceeded and in the month of March 1891, before the issues were settled, an application had been made for an injunction to restrain the co-sharers from dealing with their shares in the property; but on the 30th March 1891, before injunctions had been issued, the two co-sharers granted a lease of a particular plot of land, which is the land in dispute, in this matter, to the defendant, and apparently the defendant was placed in possession. The lease was a lease for seven years. After the lease had been granted and, no doubt, in consequence of the lease, the present plaintiff brought another suit against the two co-sharers and the present defendant to restrain the defendant from building any huts or other erections upon the land which was included in his lease. The two cases came on before the Munsiff for disposal on the 22nd of June 1892, and on that occasion the Munsiff made a decree partitioning the land, by which he allotted this particular plot of land under the lease to the plaintiff to the exclusion of the two co-sharers who were defendants in that suit; and he intimated that he did not think it necessary to make any order to restrain the defendants from dealing with the property, probably thinking, that as the land was allotted to the plaintiff, the defendant''s interest had ceased.

From that decree of the Munsiff awarding separate plots in partition, there was an appeal to the District Judge which came on for hearing before the District Judge on the 13th of September 1892. I should have said that in that decree of the Munsiff the present plaintiff was required to pay a small sum of money as compensation to the other sharers in respect of his having obtained a more valuable property. The only question which came on before the learned District Judge on appeal was a question whether that amount of compensation was sufficient and upon the hearing of that appeal an arrangement was come to, between the parties by which it was agreed that the Munsiff''s partition should stand and that the present plaintiff should pay 100 rupees as compensation to the other co-sharers instead of 30 rupees which had been originally fixed by the Munsiff. So the matter stood, the tenant of the land under the co-sharers still remaining in possession.

The present action is then brought by the plaintiff, to whom this land was allotted against the defendants, to recover possession of that piece of land, on the ground that he is entitled to treat that lease as not binding against him, and the Munsiff and the Subordinate Judge have decreed the suit. The question that now comes before us is to consider whether the decisions are right. The learned Subordinate Judge, concurring with the Munsiff has considered that the matter is concluded by section 52 of the Transfer of Property Act, because he thinks that in the partition suit the right to immovable property was directly and specifically in question; and that therefore the property could not be transferred pending that suit, so as to prejudice the rights of the other party.

I do not think that that section applies to a suit for partition in which the shares of the parties and the rights of the parties to the shares are not disputed. It is quite true that in this case there was a dispute as to the right of this particular person to a share at all; but that is not involved in the present question. The present question is, whether the mode, in which the lands should be allotted between the ascertained sharers affects the right to any property specifically. I do not think it does. The shares are ascertained shares and the only office that the Court had to perform was to divide the property which belongs to them all, in such plots of land as are most convenient for the enjoyment of each. I do not think that sec. 52 of the Transfer of Property Act has any bearing on the question; but although that is so, Babu Saroda Charan Mitra has argued, that putting that section entirely out of question, this lease by one co-sharer is over-ridden by the subsequent partitions, and he cited a number of cases in which there were mortgages of undivided sharers, which after partition were held to apply to the particular areas which were allotted to the share of the mortgagor. That appears to be very different from the present case. At the time when this lease was granted by undivided co-sharers, they had a perfect right to grant the lease which would cover their undivided shares, and these shares were their sharers'' in the piece of land included in the lease. I quite fail to see how any subsequent dealing with the property by partition, subsequent to the creation of the estate by a lease and by a person who had a perfect right to create it, could have affected the right of the lessee.

The result is that this appeal must be allowed and the decree of the lower Appellate Court varied, by confirming it to the possession of the one-third share in the land which the plaintiff had at the time when the lease was granted and before the partition took place.

The costs will be in proportion to the success of the parties.

Rampini, J.

I concur.