Surendra Nath Sarkar vs Mahabir Roy

Das, J.—This is an appeal by the plaintiff and is directed against a judgment and decree passed by Janab N. Ahmed, Subordinate Judge, 1st Court, Howrah, dated the 12th of May, 1947.

The property in dispute belonged to three sisters Hedatan Bibi, Latifan Bibi and Kanij Fatema Bibi. It is not disputed at this stage that the interest of Hedatan Bibi has devolved ultimately on defendant No.1, Mohabir Roy. Latifan Bibi is defendant No.2, Kanij Fatema Bibi''s interest was purchased by the plaintiff by a Kobala on the 17th of June, 1942. The position, therefore, was that the plaintiff had a one-third share in the disputed property. Defendant No.1 had another third share and defendant No.2 had the remaining one-third share. It is not disputed further that the entire property is in the occupation of defendant No.1, Mohabir Roy as a monthly tenant. The plaintiff instituted the present suit for partition of his one-third share by metes and bounds. Defendant No.1, Mohabir Roy raised several defences but it is necessary to state only two of them for the purpose of the present appeal. It was pleaded that the present suit being a suit for partition of the property in the possession of a tenant, no decree for partition should be made because the plaintiff has no actual possession of the premises. It was also pleaded that ad valorem Court-fees had to be paid on the plaint. The learned Subordinate Judge dismissed the plaintiff''s suit on these two grounds.

It may be pointed out that the learned Subordinate Judge repelled the plaintiff''s allegations that the defendant Mohabir Roy had surrendered the disputed tenancy or that there was a merger of the tenancy held by the defendant No.1 in the superior interest held by the plaintiff and defendants Nos.1 and 2. Mr. Bakshi appearing for the plaintiff appellant has not contested the propriety of these two findings of the learned Subordinate Judge. He has contested the propriety of the two findings reached by the learned Subordinate Judge, namely, that ad valorem Court-fees were payable on the plaint and that the suit for partition was not maintainable, the property being in the possession of a tenant.

As regards the first contention although the property in dispute is in the possession of a tenant from month to month, the plaintiff along with his co-sharers has judicial possession in the same. As such, the plaintiff must be deemed to be in possession of his interest in the joint property and no ad valorem Court-fees is payable. The suit should be regarded as a suit for partition, pure and simple. The first ground on which the learned Subordinate Judge dismissed the plaintiff''s suit must, therefore, be set aside.

As regards the second contention, namely, whether a suit for partition is maintainable as the sole item of property which is the subject matter of partition is in the possession of a tenant who, in the present case, happens to be a co-sharer in the disputed property, the learned Subordinate Judge has answered the same in negative.

As I have already indicated, the shares of the plaintiff, defendant No.1 (who is also the tenant) and defendant No.2 in the disputed property are equal and this fact is not disputed. It cannot be disputed that the nature of property is such as does not preclude a partition of the same. The only contention is that as the property is in the occupation of a tenant, actual partition by metes and bounds and delivery of actual physical possession being impossible, a suit for partition cannot be made. If an item of property is joint and is held by co-sharers, each of the co-sharers has a right to get his share partitioned and to convert his joint tenancy into a tenancy held in severally by each one of the co-sharers. The fact that there may be inconvenience in partitioning the property or that a partition may prejudice the rights of one or the other of the parties is per se no ground for disallowing the right of a co-sharer to claim partition of his undivided interest. It is quite true that in a case like the present it may not be possible for the Court to put the plaintiff into physical possession of the property after a final decree for partition has been made and the plaintiff may have to content himself with a decree entitling him to symbolical possession of his undivided share in the property. That such possession can be delivered is apparent from the provisions of Order XXI, Rule 36 of the CPC which lays down the procedure for delivery of possession of property in the possession of a tenant. In my opinion, the mere fact that the subject matter of partition is tenanted does not preclude the Court from passing a preliminary decree for partition.

The view taken by me in supported by two decisions of the Madras High Court, in the case of Suryanarayanmurti v. Tammanna (ILR 25 Mad 504) and in the case of Uppala Raghava Charlu v. Uppala Ramanuja Charlu, (ILR 26 Mad 78). In both these cases the Madras High Court took the view that the mere fact that the property which is the subject matter of partition is in the occupation of a tenant does not disentitle a co-sharer in an undivided property from claiming partition. The second contention raised by Mr. Bakshi must therefore be given effect to.

The result is that the decision of the learned Subordinate Judge must be set aside and a preliminary decree for partition must now be made. The plaintiff appellant will have a decree for costs of the trial Court to the extent of one-third. He will also have his costs of this appeal, hearing fee being assessed at five gold mohurs.

Guha Ray, J.

I agree.