1. This appeal arises from the judgment of the Assistant District Judge (I) Silchar passed in Title suit No. 32 of 1972.
2. Facts,— Five (5) brothers, namely Romen Ch Dey, Birendra Kr Dey, Binoy Ch Dey, Banka Behari Dey and Aswini Kr Dey, were members of a joint Hindu family.
3. Birendra (since deceased) and the heirs of Romen, Binoy and Banka Behari, instituted the suit against Aswini (since deceased) for partition of the suit properties by metes and bounds and claiming allottment of specific areas of lands and particular houses standing thereon described in Schedules — 1 and 2 as regards the non-agricultural land and division of the agricultural land. Birendra and Aswini died during the pendency of the suit and, therefore, their legal representatives have been made parties in the suit. The case of the plaintiffs is that five brothers jointly purchased the lands described in Schedules —1 and 3 under registered deeds of sale, Exts— 4 and 8. The land described in Schedule — 2 is a joint family property although it was purchased in the name of Aswini as the purchase was made with the aid of the joint family property. The five brothers were in common possession of the suit land and after their death, their heirs have been in joint possession of the suit lands, but a friction has arisen about the enjoyment and possession of the suit properties. Defendant — 1 Aswini (since deceased) contested the suit denying the allegations made in the plaint. The defendant has further taken a plea that the suit does not embrace all the joint family properties to make a complete and final partition and, therefore, the suit is not maintainable. What are the properties not included in the suit are stated in the written statement.
4. The trial Court dismissed the suit holding, interalia, that the suit for partial partition is not maintainable. Hence this Appeal.
5. The plaintiff has admitted that about 15 bighas of agricultural land has not been included in the suit as a partition case has been instituted before the Revenue authority. Be that as it may, a reading of Ext— 4, the registered sale deed, indicates that an area of land 1— B 8 — K Ch —10 Gandas under Rs. Patta No. 210/261. which was purchased by the five brothers, has not been included in the partition suit. No reason has been given by the plaintiffs as to why it has been left out. Therefore, the suit is not for total partition.
6. The question which arises for consideration is whether a suit for partial partition is maintainable.
7. The fundamental rule is that the partition suit should embrace all the joint family properties by bringing into hotchpot all the properties including undivided properties held by the coparcener who sues for partition so as to make a complete and final partition. However, in my judgment, this rule shall not be inelastic, if an effective decree can be passed. I approach the matter as follows. As the parties are governed by the Dayabhaga School of Hindu law, I would like to confine myself to the subject as under the Dayabhaga law, According to the Dayabhaga law unlike the coparcenary property under the Mitakshara law, the essence of coparcenary is unity of possession, and not unity of title and possession. Under the Dayabhaga law every coparcener takes a defined share in the coparcenary property of which he is the owner and on his death his share passes to his heirs as tenants-in-common, and not to his coparceners by survivorship as under the Mitakshara law. Section 19 of the Hindu Succession Act, 1956 also provides that heirs succeed together to the property of an intestate as tenants-in-common and not as joint tenants. Therefore, I am of the opinion that under the Dayabhaga law “partition” means disruption of unity of possession and actual division of property by metes and bounds and allotment after separating them When there is a defined share in the common property, there may not be difficulty in making division of the property and, therefore, in such cases suit for partial partition will be maintainable, if an effective decree can be passed.
8. Keeping the above principle in view, let me now deal with the case on hand. It has already been concluded that the suit does not embrace all the joint family properties. The question then is, —Whether the present suit for partial partition can-be entertained? The case of the plaintifts is that all the coparceners have been possessing the lands described in the 1st and 2nd schedules by constructing their respective houses according to their own choice and convenience. The plaintiffs have sought allotment of specific areas of the non-agricultural lands with the particular house standing thereon, as already stated. It would be important to note here that, in a suit for partition allotment of specific area or portion of every (different) plots of land cannot generally be claimed, however, in the course of the actual division and allotment of shares, the possession of each of the coparceners is to be maintained as far as it can be, and at the same time the rule of equity is also to be considered, if physical possession is to be disrupted. Therefore, in the present case, an adjustment of the possession and share will be required while making division of the properties and distributing the shares considering the facts stated above that the coparceners have been in possession of the lands by constructing their respective houses according to their own choice and convenience. In such a situation, while settling the claims of the parties, one house or a part of it, or more than one house, will be demolished or disrupted. This being the position the principle of equity will be attracted. For these reasons, in the absence of all the properties an effective decree cannot be passed. In this view of the matter, it would meet the ends of justice, if it is held that the present suit for partial partition is not maintainable. I do so accordingly. However, it is made clear that I am not giving any opinion about the partition of joint family business, as alleged by the plaintiff, as well as about the properties alleged by the defendent to have been left out in the suit as I am disposing of the appeal on the basis of Exhibit —4. The question is left open and the findings of the trial court shall be of no consequence.
9. For the foregoing reasons, the appeal is dismissed.