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Rajendra Kumar Bose v. Brojendra Kumar Bose
Factual and Procedural Background
This is an appeal by the defendant in a suit for partition between two brothers governed by the Dayabhaga school of Hindu Law. Under a testamentary disposition of their deceased father both brothers are entitled in equal shares to the properties in dispute and to any other properties. In the suit the plaintiff sought partition of an ancestral house at Srinagar, two horses at Dacca and a large number of moveables. The defendant objected that all the joint properties should be included in the suit and divided by the decree. The Subordinate Judge overruled this objection and made a preliminary decree. The defendant has appealed, urging that the plaintiff should not be allowed to sue for a partial partition (i.e., exclude other joint properties).
Legal Issues Presented
- Whether a partition suit must, as a general rule, include all property held in co-tenancy or whether a plaintiff may maintain a suit for partial partition excluding other joint properties.
- Whether any recognized exceptions permit a suit for partial partition (for example, where different portions lie in different jurisdictions, portions are not in possession, are impartible, or are held jointly with strangers), and whether any such exception applies in the present case.
- Whether the preliminary decree made by the Subordinate Judge (allowing partial partition) should be set aside and the matter remanded with directions to include all joint properties in the suit.
Arguments of the Parties
Appellant's (Defendant's) Arguments
- The defendant contended that all the joint properties should be included in the partition suit and divided by the decree; the plaintiff should not be allowed to sue for partial partition.
Respondent's (Plaintiff's) Arguments
- The plaintiff urged that if all the joint properties were included in the suit it would take a long time to complete partition (delay and complexity of dividing the entire joint estate).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Norris v. Le Neve (1744) 3 Atk. 83 : 62 E.R. 850 | Authority for the proposition that partition may be claimed as a matter of right even where division is difficult. | Cited as supporting the general rule that a cotenant is entitled to partition as of right. |
| Parker v. Gerard (1754) Am 1. 236, 27 E.R. 157 | Same — partition as a matter of right. | Cited to demonstrate historic equity authorities supporting the right to partition. |
| Baring v. Nash (1813) 1 V. & B. 551 at p. 554 : 35 E.R. | Same — partition as matter of right despite difficulty of division. | Cited as part of authorities establishing the general rule. |
| Calmady v. Calmady (1795) 2 Ves. Jur. 568 : 30 B.R. 780 | Same—supporting entitlement to partition. | Cited as supporting the general proposition. |
| Turner v. Morgan (1803) 8 Ves. 143 : 32 E.R. 307 | Same—partition as a right even if division impairs value. | Cited in support of the principle that partition can be claimed as right. |
| Agar v. Fairfax (1808) 17 Ves. 533 at p. 543 : 34 E.R. 533 | Same—partition as right; courts' approach to partition. | Cited among English authorities establishing the general rule. |
| Clarendon v. Hornby (1718) 1 P. Wms. 446 : 24 E.R. 465 | Historical authority regarding partition principles. | Cited as part of the body of authorities supporting the general rule. |
| Darvill v. Roper (1855) 3 Drewry. 294 : 3 Eq. R. 104 | Authority that co‑tenants, by mutual agreement, may partition part only of the joint property. | Cited to show that partial partition may be permissible by agreement of co‑tenants. |
| Hobson v. Sherwood (1841) 4 Beav. 184 : 49 E.R. 309 | Principle that if defendants have already received what is equitably due to them, the remainder may be awarded to the plaintiff (not partial but complete partition in effect). | Cited to illustrate circumstances where what appears to be a partial set-off amounts to complete partition. |
| Robertson v. Robertson (1852) 2 Swan (Tenn) 199 | A contrary view treating partial partition as improper under all circumstances (expressed in some authorities). | Cited as an example of authority against partial partition but noted as contrary to the weight of authorities. |
| Mitakshara, Chap. II, Section 10; Vishnu, XV, 33; Narada XIII, 32 | Hindu juristic texts cited as recognising the general principle of inclusion of family property in partition. | Cited to show that Hindu jurists recognised the general principle that partition should include the family property. |
| Radha Churn Pass v. Kripa Sindhu Dass 5 C. 474 : 4 C.L.R. 428 : 2 Ind. Dec. (N.s.) 911 | Indian authority cited in support of the principle. | Cited as Indian case law reflecting the same principle. |
| Manjanatha Shanabhaga v. Narayana Shanabhaga 5 M. 362 : 6 Ind. Jur. 518 : 2 Ind. Dec. (N.s.) 252 | Indian case supporting the rule. | Cited to show recognition by Indian courts/hindu law authorities. |
| Sudarsanam Maistri v. Narastmhulu Maistri 25 M. 149 : 11 M.L.J. 353 | Indian authority aligned with the principle. | Cited as further support from Indian decisions. |
| Jolly, Tagore Lectures on Partition, p. 135 | Textual authority on partition principles under Hindu law. | Cited to show scholarly support for the principle. |
| Nanabhai Vallabdas v. Nathabhai Haribhai 7 B.H.C.R.A.C.J. 46 | Authority affirming that suit must comprise entire family property. | Cited as part of numerous cases affirming the rule in Indian jurisprudence. |
| Trimbak Dixit v. Narayan Dixit 11 B.H.C.R. 69 | Same — affirmation of comprehensive inclusion rule. | Cited among cases affirming the general rule. |
| Venkatesh v. Ganpaya (1876) Bom. P.J. 110 | Same — affirmation. | Cited as supporting authority. |
| Gopal v. Narnapa (1883) Bom. P.J. 3 | Same — affirmation. | Cited in support of rule. |
| Parbatt Churn Deb v. Ain-ud-deen 7 C. 577 : 4 Shome. R. 46 : 9 C.L.R. 170 : 3 Ind. Dec. (N.S.) 920 | Same — affirmation. | Cited as an authority upholding the general rule. |
| Upendra Narain Myti v. Gopee Nath Bera 9 C. 817 : 12 C.L.R. 356 : 4 Ind. Dec. (N.S.) 1193 | Same — affirmation. | Cited among affirming cases. |
| Haridas Sanyal v. Pran Nath Sanyal 12 C. 566 : 6 Ind. Dec. (N.S.) 385 | Same — affirmation. | Cited as supportive precedent. |
| Ramjoy Ghose v. Ram Ranjan Chukerbutty 8 C.L.R. 367 | Same — affirmation. | Cited among authorities. |
| Kalka Pershad v. Budree Sah 3 N.W.R.H.C.R. 267 | Same — affirmation. | Cited as authority confirming rule. |
| Hoolas Khan v. Munsub Ali 3 N.W.R.H.C.R. 37 | Same — affirmation. | Cited among supporting cases. |
| Venkivya v. Lahshmayya 16 M. 98 : 5 Ind. Dec. (N.S.) 775 | Same — affirmation. | Cited as part of aggregate authority. |
| Jugoo Lall Oopadhya v. Manohar Lal Oopadhya 19 W.R. 43 | Same — affirmation. | Cited among supportive decisions. |
| Shivmurteppa v. Virappa 24 B. 128 : 1 Bom. L.R. 620 : 12 Ind. Dec. (N.S.) 623 | Same — affirmation. | Cited as one of the decisions affirming the rule. |
| Kristayya v. Narasimham 23 M. 608 : 10 M.L.J. 141 : 8 Ind. Dec. (N.S.) 827 | Same — affirmation. | Cited as precedent upholding the comprehensive rule. |
| Cheyt Narain Singh v. Bunwarree Singh 23 W.R. 395 | Same — affirmation. | Cited among cited authorities. |
| Jogendra Nath Mukerji v. Jugobundhu Mukerji 14 C. 122 : 7 Ind. Dec. (N.S.) 81 | Same — affirmation. | Cited as supportive precedent. |
| Ram Lochun Pattuck v. Rughoobur Uyal 15 W.R. 111 | Same — affirmation. | Cited among cases upholding the rule. |
| Venkata Narasimha v. Bhashyakarlu 25 M. 367 : 4 Bom. L.R. 543 : 6 C.W.N. 641 : 29 I.A. 76 : 8 Sar. P.C.J. 258 (P.C) | Same — affirmation. | Cited as authority confirming the rule. |
| Srimohan Thakur v. Maogregor 28 C. 769 | Same — affirmation. | Cited among supporting decisions. |
| Hari Narayan Brahme v. Ganpatrav Daji 7 B. 272 : 4 Ind. Dec. (N.S.) 183 | Example of exception where different portions are in different jurisdictions and separate suits have been allowed. | Cited as supporting the exception allowing separate suits for portions in different jurisdictions. |
| Ramacharya v. Anantacharya 18 B. 389 : 9 Ind. Dec. (N.S.) 768 | Same — exception for different jurisdictions. | Cited as an example of an exception. |
| Moti Ram v. Kanhiyalal 77 Ind. Cas. 780 : (sic) L.I.J. 514 | Appears in the list of exceptions/authorities permitting partial suits under certain circumstances. | Cited as part of authorities recognizing exceptions to the general rule. |
| Punchanun Mullick v. Shib Chunder Mullick 14 C. 835 : 7 Ind. Dec. (N.S.) 552 | Listed among exceptions permitting partial partition. | Cited to illustrate exceptions. |
| Balaram Bhaskarji v. Ranchandra Bhaskaiji 22 B. 922 : 11 Ind. Dec. (N.S.) 1198 | Exception-related authority. | Cited as an example of allowed partial suits in limited circumstances. |
| Abdul Karim Sahib v. Badrudeen Sahib 28 M. 216 | Exception-related authority. | Cited among exceptions. |
| Srimati Padamani Dasi v. Srimati Jagadamba Dasi 6 B.L.R. 134 | Exception-related authority. | Cited as an example of allowed partial partition in particular circumstances. |
| Ram Mohan Lal v. Mtti Chand 28 A. 39 : 2 A.L.J. 700 : A.W.N. (1905) 169 | Listed among authorities relevant to exceptions. | Cited in connection with exceptions to the comprehensive-inclusion rule. |
| Lachmana v. Terimul 4 Mad. Jur. 241 | Exception-related authority. | Cited among cases permitting partial suits in limited circumstances. |
| Suba Rau v. Rama Rau 3 M.H.C.R. 376 | Exception-related authority. | Cited as authority for an exception. |
| Jairam Narayan Raje v. Atmaram Narayan Raje 4 B. 482 : 2 Ind. Dec. (N.S.) 830 | Exception-related authority. | Cited among examples of exceptions. |
| Balkrishna Vithal v. Hari Shankar 8 B.H.C.R.A.C.J. 64 | Exception where the excluded portion was not in possession and thus not readily available for partition. | Cited to support the proposition that suit for partial partition may be allowed when excluded portion is not in possession. |
| Narayan Baboji v. Pandurang Ramchandra 12 B.H.C.R. 148 | Same — excluded portion not in co‑parceners' possession. | Cited as authority for that exception. |
| Pattaravy Mudali v. Asidimula Mudali 5 M.H.C.R. 419 | Same — excluded portion not in possession. | Cited as part of the exception list. |
| Gora Chand Haldar v. Basanta Kumar Haldar 12 Ind. Cas. 684 : 15 C.L.J. 258 | Same — excluded portion not in possession. | Cited among exceptions. |
| Malikarjuna Prasad v. Durga Prasad 27 I.A. 151 : 24 M. 147 | Exception: portion excepted is impartible property — suit for partial partition allowed. | Cited to show that partial partition is permitted where excluded portion is impartible. |
| Parvathi v. Thirumalal 10 M. 334 : 3 Ind. Dec. (N.S.) 986 | Same — impartible property exception. | Cited in support of that exception. |
| Purshottam v. Atmaram Janaradan 23 B. 597 : 1 Bom. L.R. 76 : 12 Ind. Dec. (N.S.) 399 | Exception where excluded portion is held jointly with strangers who cannot be joined — partial partition allowed. | Cited as authority for the exception permitting partial partition when strangers are joint holders of a portion. |
| Venkatachela Pillay v. Chinnaiya Mudaliar 5 M.H.C.R. 166 | Same — joint holding with strangers exception. | Cited among authorities for that class of exceptions. |
| Sripati Chinna Sanyasi Razu v. Sripati Suriya Razu 5 M. 196 : 6 Ind. Jur. 410 : 2 Ind. Dec. (N.S.) 137 | Same — exception for joint holdings with strangers. | Cited as an example of permitted partial suits in that situation. |
| Manjanatha Shanabhaga v. Narayana Shanabhaga 5 M. 362 : 6 Ind. Jur. 518 : 2 Ind. Dec. (N.S.) 252 | Listed again among exceptions and authorities. | Cited both as an Indian authority recognizing principles of partition and as an example in the exceptions discussion. |
| Venkayya v. Lakshmayya 16 M. 98 : 5 Ind Dec. (N.S.) 775 | Exception-related authority (joint with strangers category). | Cited as part of exception examples. |
| Subramanya Chettyar v. Padmanabha Chettyar 19 M. 267 : 6 Ind. Dec. (N.S.) 891 | Exception-related authority. | Cited among authorities for exceptions to the general rule. |
| Lachmi Narain v. Janki Das 23 A. 216 : A.W.N. (1901) 50 | Exception-related authority. | Cited in the exceptions context. |
| Ram Mohan Lal v. Mul Chand 28 A. 39 : 2 A.L.J. 700 : A.W.N. (1905) 169 | Listed among authorities considered (appears both in exceptions list and later references). | Cited by the opinion as part of authorities and noted among cases relied upon by respondent; not taken to have abrogated the general rule. |
| Ram Charan v. Ajudhia Prasad 28 A. 50 : A.W.N. (1905) 174 | Exception-related authority. | Cited among authorities for exceptions. |
| Banwari Lal v. Sheo Sankar Misser 1 Ind. Cas 670 : 13 C.W.N. 815 | Exception-related authority. | Cited in support of exceptions to the general rule. |
| Gajadhar v. Balvant (1883) Bom. P.J. 250 | Exception-related authority. | Cited among exceptions. |
| Subbarazu v. Venkataratnam 15 M. 234 : 5 Ind. Dec. (N.S.) 514 | Exception-related authority. | Cited in the exceptions discussion. |
| Ibramsa Rowthan v. Thirumalai 7 Ind. Cas. 559 : 34 M. 269 | Occurs in contexts both as authority permitting partial suits and in the discussion of alienee's position. | Cited as one of the authorities relevant to exceptions and to the question whether an alienee can institute partition. |
| Hari Krislna v. Venkatalakshmi 5 Ind Cas. 491 : 34 M. 402 | Authority relating to exceptions and alienee issues. | Cited among cases on exceptions and on the alienee question. |
| Kadegan v. Periya Munusami 13 M.L.J. 477 | Exception-related authority. | Cited as part of exception jurisprudence. |
| Ajodhya Pershad v. Mahadeo Pershad 3 Ind. Cas. 9 : 14 C.W.N. 221 | Exception-related authority. | Cited among cited exceptions. |
| Kailash Chandra Das v. Nityananda Das 3 Ind. Cas. 21 : 11 C.L.J. 384 | Frequently cited authority reinforcing the comprehensive rule and appearing in exception/alienee discussions. | Cited multiple times as supporting the fundamental rule and discussed in connection with divergent opinions. |
| Subba Row v. Ananthanarayana Iyer 14 Ind. Cas. 524 : 23 M.L.J. 64 : 11 M.L.T. 393 | Deals with whether an alienee from a co‑sharer is entitled to institute suit for partition; cited as reviewing divergent opinions. | Cited to show conflicting judicial opinions on an alienee's right to sue; the opinion notes divergence and includes this case in the review. |
| Chundernath Nandi v. Hur Narain Deb 7 C. 153 : 4 Shome L.R. 44 : 3 Ind. Dec. (N.S.) 648 | One side of the divergent authorities on alienee's right to sue. | Cited as supporting the view that the transfer effects a severance (i.e., not allowing the alienee to treat the whole as joint with transferor's co‑sharers). |
| Mukunda Lal Pal Chowdhury v. Lehuraux 20 C. 379 : 10 Ind. Dec. (N.S.) 256 | Authority on the alienee question (supports the view that transfer effects severance). | Cited as part of authorities taking the alternative view on the alienee's position. |
| Barahi Debi v. Debkamini Debi 20 C. 682 : 10 Ind. Dec. (N.S.) 460 | Authority on alienee issue (contrasting views). | Cited among cases representing the view that transfer effects severance. |
| Hemadri Nath Khan v. Ramani Kanta Roy 24 C. 575 : 1 C.W.N. 406 : 12 Ind. Dec. (N.S.) 1052 (F.B.) | Authority on alienee question. | Cited as part of the body of conflicting decisions. |
| Uma Sundari v. Benode Lal 34 C. 1026 | Authority on alienee question. | Cited among decisions on the point. |
| Hanmandas Ramdayal v. Valabhdas Shankardas 46 Ind. Cas. 133 : 43 B. 171 20 Bom. L.R. 472 | Authority on alienee question. | Cited among the divergent authorities. |
| Chinnu Pillai v. Kalimuthu Chetti 9 Ind. Cas. 596 : 35 M. 47 : 21 M.L.J. 246 | Authority relevant to alienee and partition issues (Federal Bench noted). | Cited in the review of conflicting authorities. |
| Hem Chandra v. Hemanta Kumari Deb 23 Ind. Cas. 442 : 10 C.W.N. 356 | Decision cited by the respondent and discussed by the Court in relation to whether it abrogates the general rule. | Court noted it among decisions relied on by respondent but held that these decisions cannot be deemed to have abrogated the general rule. |
| Kali Charan Singh v. Kiranbala Debi 51 Ind. Cas. 948 : 39 C.L.J. 494 | Decision cited by respondent in argument. | Cited by respondent; Court held such decisions do not abrogate the fundamental rule. |
| Durga Charan Acharjee v. Enamol Huq 60 Ind. Cas. 762 | Decision relied upon by respondent on related partition points. | Noted by Court; not viewed as abrogating the established rule. |
| Baboo Lalljeet Singh v. Babo Raj Coomar Singh 25 W.R. 333 | Authority recognising the rule that a partition suit should embrace all joint property. | Cited among a long series of decisions reaffirming the fundamental rule. |
| Satya Kumar Banerjee v. Satya Kirpal Banerjee 3 Ind. Cas. 247 : 10 C.L.J. 503 | Authority supporting the comprehensive inclusion rule. | Cited as part of the authorities upholding the rule. |
| Radha Kanta v. Bipro Das 1 C.L.J. 4 | Authority supporting the rule. | Cited among the cases reinforcing the general principle. |
| Syed Bavuddeen Saheb v. Syed Esaff Sahib 3 Ind. Cas. 20 : 6 M.L.T. 156 | Authority supporting the comprehensive rule. | Cited among authorities confirming the rule. |
| Koer Hasmat Rai v. Sunder Das 11 C. 396 : 10 Ind. Jur. 26 : 5 Ind. Dec. (N.S.) 1023 | Authority reinforcing the rule that partition suits should embrace all joint property. | Cited among many decisions affirming the rule. |
| Jogendra Nath Rai v. Baldeo Das 35 C. 961 : 12 C.W.N. 1271 6 C.L.J. 735 | Authority supporting the rule. | Cited as further confirmation. |
| Syed Habibur Rasul v. Ashita Mohan Ghose 12 C.W.N. 640 | Authority supporting the rule. | Cited as part of the body of cases upholding the principle. |
| Mahomed Fazlur Rahman Chowdhury v. Mahomed Fayzur Rahman Chowdhury 10 Ind. Cas. 354 : 15 C.W.N. 677 | Authority supporting the rule. | Cited among authorities affirming the comprehensive inclusion principle. |
| Upendra Nath Banerjee v. Umesh Chandra Banerjee 6 Ind. Cas. 346 : 15 C.W.N. 375 : 12 C.L.J. 25 | Authority supporting the comprehensive rule. | Cited as further supporting precedent. |
| Mansaram Chakravati v. Ganesh Chakravarti 16 Ind. Cas. 383 : 17 C.W.N. 521 | Authority supporting the comprehensive rule. | Cited among supporting decisions. |
| Mukunda Lal Chakrabarty v. Jogesh Chandra 35 Ind. Cas. 370 : 20 C.W.N. 1276 : 1 P.L.J 393 | Authority supporting comprehensive inclusion. | Cited as one of the decisions endorsing the rule. |
| Beni Madhab v. Gobinda Chandra 46 Ind. Cas. 165 : 22 C.W.N. 669 | Authority supporting rule. | Cited among the series of affirming decisions. |
| Doman Lal v. Prokash Lal 18 Ind. Cas. 866 | Authority supporting the comprehensive rule. | Cited as part of the corpus of cases upholding the principle. |
| Ranku v. Hukmi 35 Ind. Cas. 545 : 2 P.L.R. 1917 : 156 P.W.R. 1916 | Authority supporting the comprehensive rule. | Cited among confirming cases. |
| Burugapalli Sriramulu v. Nandigam Subbarayadu 10 Ind. Cas. 57 : 10 M.L.T. 313 | Authority supporting the rule that a partition suit should embrace all joint property. | Cited as reaffirmation of the fundamental rule. |
Court's Reasoning and Analysis
The Court began by stating the settled principles applicable to partition suits. The principal rule established by authority (both equity and many Indian and Hindu law authorities) is that a suit for partition should include all property held in co‑tenancy; a co‑tenant is entitled to partition as of right, and difficulty in making a division or prejudice to some co‑tenants is not ordinarily a ground to refuse partition. The opinion recites English equity authorities and text‑writers to illustrate that partition may be claimed even where division impairs value, but that co‑tenants may, by mutual agreement, partition part only of the common property.
The Court then set out the recognized exceptions to the general rule: where different portions of the family property lie in different jurisdictions (so that different substantive or adjective law would govern), where portions are not in possession and therefore not ready for partition, where property is by its nature impartible, and where the excluded portion is held jointly with strangers who cannot be joined in the general suit. The Court also noted a difficult question in the authorities about whether an alienee from a co‑sharer can sue for partition, and that the authorities are in conflict on that point.
Applying these principles to the facts, the Court found that the present case did not fall within any of the recognised exceptions. The plaintiff's contention that including all joint properties would take a long time to complete the partition was rejected as without substance. The Subordinate Judge had found that the brothers were at sharp loggerheads with great bitterness of feeling; the Court observed that the sooner they cease to be joint owners the better. The Court suggested practical measures to expedite partition (for example, employing different surveyors and valuers for different properties and providing assistance to any appointed commissioner), indicating that logistical difficulty alone did not justify allowing a partial partition.
On that basis the Court concluded the preliminary decree permitting partial partition was incorrect: the general rule must be applied, the exceptions did not obtain, and therefore all joint properties should be included in the suit. The Court allowed the appeal, set aside the preliminary decree and remanded the case to the Subordinate Judge with directions consistent with justice, equity and good conscience.
Holding and Implications
Core Ruling: THE APPEAL IS ALLOWED AND THE PRELIMINARY DECREE MADE BY THE SUBORDINATE JUDGE IS SET ASIDE.
Direct consequences and directions given by the Court:
- The case is remanded to the Subordinate Judge for re‑trial.
- All joint properties owned by the two brothers are to be included in the suit and dealt with by the Trial Court in such manner as is consistent with justice, equity and good conscience.
- If the plaintiff declines to have partition of the entire joint estate, the suit will stand dismissed with costs in both Courts.
- The appellant (defendant) is entitled to the costs of this appeal; the hearing fee is to be assessed at 15 gold mohurs.
- Costs in the Trial Court, before and after remand, are left to the discretion of the Trial Court.
Broader implication: The opinion affirms and applies the established rule that a partition suit should embrace all joint property, recognises limited exceptions (different jurisdictions, non‑possession, impartible property, joint holding with strangers), and emphasizes that mere inconvenience or delay does not justify permitting a partial partition. The Court did not purport to lay down a new legal principle but applied longstanding authorities to the facts and remanded for complete adjudication.
1. This is an appeal by the defendant in a suit for partition. The plaintiff and the defendant are two brothers, governed by the Dayabhaga school of Hindu Law. Under a testamentary disposition of their father, now deceased, they are entitled in equal shares to the properties in suit and any other properties. In this suit, the plaintiff seeks partition of an ancestral house at Srinagar two horses at Dacca and a large number of moveables. The defendant contends that all the joint properties should be included in the suit and divided, by the decree therein. The Subordinate Judge has overruled this objection, and has made a preliminary decree. On the present appeal, the defendant has urged that the plaintiff should not be allowed to sue for partial partition.
2. The principles applicable to cases of this character are well settled. The general rule is that all property held in co-tenancy and nothing but property held in co-tenancy should be included in a partition suit. A cotenant, whose title to ail undivided share of joint property is admitted of is clear, is entitled to partition as a matter of right a difficulty in making a division of the subject-matter or a resulting prejudice to some of the co-tenants, is not a sufficient ground for refusing a partition; and it has sometimes been maintained that partition may be claimed, even though it be impossible to divide the property without materially impairi, gets value, or even totally destroying it: Norris v. Le Neve (1744) 3 Atk. 83 : 62 E.R. 850; Parker v. Gerard (1754) Am 1. 236, 27 E.R. 157, Baring v. Nash (1813) 1 V. & B. 551 at p. 554 : 35 E.R. Calmady v. Calmady (1795) 2 Ves. Jur. 568 : 30 B.R. 780, Turner v. Morgan (1803) 8 Ves. 143 : 32 E.R. 307 : 149 R.R. 667; Agar v. Fairfax 1808) 17 Ves. 533 at p. 543 : 1 Wh & T.L.C. (7th Ed.) 181 : 34 E.R. 533; Clarendon v. Hornby (1718) 1 P. Wms. 446 : 24 E.R. 465 Since artition can be claimed as a matter of right, a co-tenant is hot required to make a demand or to agree upon terms prior to institution of suit. But although, as a general rule, all joint property of the co-tenants must be included in a partition suit, it is within the power of co-tenants, by mutual agreement, to make partition of a part only of the joint property, retaining the rest in common: Darvill v. Roper (1855) 3 Drewry. 294 : 3 Eq. R. 104 : 24 L.J. Ch. 779 : 3 W.R. 467 : 61 E.R. 915 : 106 R.R. 355. The principle that a partition suit should include all the property of the co-tenancy is widely recognised, and it has been pointed out that if the rule were not enforced, a co-tenant might institute as may suits to partition the property as his caprice dictated. Consequently a partial partition cannot, as a general rule, be compelled against co-tenants who do not consent thereto. But if some of the co-tenants desire to continue holding their moieties together and undivided, the Court may permit them to do so, and instead of making separate allotment to each set apart, to all who so desire, an allotment to be Hid' by them jointly. If it appears, however, that all the defendants have already received all that is equitably due to them, the remainder may be awarded to the plaintiff; this is not partial but complete partition: Hobson v. Sherwood (1841) 4 Beav. 184 : 49 E.R. 309 : 55 R.R. 40 Clarendon v. Hornby (1718) 1 P. Wms. 446 : 24 E.R. 465. The rule is enunciated in these or similar terms by text-writers of recognised authority. Thus, Breeman (Co-tenancy and Partition, Section 508) states that a tract held in common cannot be partitioned, by fragments, and a suit for partition should always embrace the whole tract held by the co-tenancy. But while it is indispensable that the whole tract should be embraced in the suit for partition it does not follow that those who are mutually desirous of Continuing the relation of co-tenancy among one, another, are obliged to have their several portions allotted to them to hold in severalty. It is true that there are cases where a partial partition bas been treated, as improper and unauthorised under all circumstances: Robertson v. Robertson (1852) 2 Swan (Tenn) 199. But the weight of the authorities is in favour of the view that the plaintiff in partition is entitled to have his share set off, if the premises are capable of being divided, far that is his object in instituting the proceedings; if the situation of the defendants is such as to render it for their interest to retain their portion together and undivided, there can be no possible objection in principle in performing it to be done. To the same effect is fate statement by Knapp (Partition p. 192) that common property cannot be partitioned in fragments; it is not the practice of the Court to cause of decree a partial partition. The established rule may accordingly be taken to be that a suit for partition should include all the lands of the co-tenancy and, if it does not, any party interested may insist that the omitted land or lands be included in tie suit.
3. There is little doubt that the general principle enunciated above was recognised by Hindu jurists; see Mitakshara, Chap. II, Section 10; Vishnu, XV, 33; Narada XIII, 32, Radha Churn Pass v. Kripa Sindhu Dass 5 C. 474 : 4 C.L.R. 428 : 2 Ind. Dec. (N.s.) 911; Manjanatha Shanabhaga v. Narayana Shanabhaga 5 M. 362 : 6 Ind. Jur. 518 : 2 Ind. Dec. (N.s.) 252; Sudarsanam Maistri v. Narastmhulu Maistri 25 M. 149 : 11 M.L.J. 353. Jolly, Tagore Lectures on Partition, p. 135.
4. The principle that a suit for a division of a portion of the family property cannot lie and must comprise the entire family property has been affirmed in numerous cases: Nanabhai Vallabdas v. Nathabhai Haribhai 7 B.H.C.R.A.C.J. 46; Trimbak Dixit v. Narayan Dixit 11 B.H.C.R. 69; Venkatesh v. Ganpaya (1876) Bom. P.J. 110; Gopal v. Narnapa (1883) Bom. P.J. 3; Parbatt Churn Deb v. Ain-ud-deen 7 C. 577 : 4 Shome. R. 46 : 9 C.L.R. 170 : 3 ind. Dec. (N.S.) 920; Upendra Narain Myti v. Gopee Nath Bera 9 C. 817 : 12 C.L.R. 356 : 4 Ind. Dec. (N.S.) 1193; Haridas Sanyal v. Pran Nath Sanyal 12 C. 566 : 6 Ind. Dec. (N.S.) 385; Ramjoy Ghose v. Ram Ranjan Chukerbutty 8 C.L.R. 367; Kalka Pershad v. Budree Sah 3 N.W.R.H.C.R. 267; Hoolas Khan v. Munsub Ali 3 N.W.R.H.C.R. 37; Venkivya v. Lahshmayya 16 M. 98 : 5 Ind. Dec. (N.S.) 775; Jugoo Lall Oopadhya v. Manohar Lal Oopadhya 19 W.R. 43; Shivmurteppa v. Virappa 24 B. 128 : 1 Bom. L.R. 620 : 12 Ind. Dec. (N.S.) 623; Kristayya v. Narasimham 23 M. 608 : 10 M.L.J. 141 : 8 Ind. Dec. (N.S.) 827; Cheyt Narain Singh v. Bunwarree Singh 23 W.R. 395; Jogendra Nath Mukerji v. Jugobundhu Mukerji 14 C. 122 : 7 Ind. Dec. (N.S.) 81; Ram Lochun Pattuck v. Rughoobur Uyal 15 W.R. 111; Venkata Narasimha v. Bhashyakarlu 25 M. 367 : 4 Bom. L.R. 543 : 6 C.W.N. 641 : 29 I.A. 76 : 8 Sar. P.C.J. 258 (P.C); Srimohan Thakur v. Maogregor 28 C. 769
5. Exceptions to the rule that a suit cannot lie for partition of a portion of the family property have been recognised when different portions of the family property are situated in different jurisdictions, aid separate suits for separate portions have sometimes been allowed, where different rules of substantive or adjective law prevail in the differed Courts; Hari Narayan Brahme v. Ganpatrav Daji 7 B. 272 : 4 Ind. Dec. (N.S.) 183; Ramacharya v. Anantacharya 18 B. 389 : 9 Ind. Dec. (N.S.) 768; Moti Ram v. Kanhiyalal 77 Ind. Cas. 780 : (sic) L.I.J. 514, Punchanun Mullick v. Shib Chunder Mullick 14 C. 835 : 7 Ind. Dec. (N.S.) 552; Balaram Bhaskarji v. Ran chandra Bhaskaiji 22 B. 922 : 11 Ind. Dec. (N.S.) 1198; Abdul Karim Sahib v. Badrudeen Sahib 28 M. 216; Srimati Padamani Dasi v. Srimati Jagadamba Dasi 6 B.L.R. 134; Ram Mohan Lal v. Mtti Chand 28 A. 39 : 2. A.L.J. 700 : A.W.N. (1905) 169; Lachmana v. Terimul 4 Mad. Jur. 241; Suba Rau v. Rama Rau 3 M.H.C.R. 376; Jairam Narayan Raje v. Atmaram Narayan Raje 4 B. 482 : 2 Ind. Dec. (N.S.) 830; Again, a suit for part al partition has been allowed when the portion excluded is not in the possession of co-parceners and nay consequently be deemed not to be ready available for partition; Balkrishna Vithal v. Hari Shankar 8 B.H.C.R.A.C.J. 64; Narayan Baboji v. Pandurang Ramchandra 12 B.H.C.R. 148; Shivmuteppa v. Virappa 1 Bom. L.R. 620; Kristayya v. Narsimham 23 M. 608 : 10 M.L.J. 141 : 8 Ind. Dec. (N.S.) 827; Pattaravy Mudali v. Asidimula Mudali 5 M.H.C.R. 419; Gora Chand Haldar v. Basanta Kumar Haldar 12 Ind. Cas. 684 : 15 C.L.J. 258. A suit for partial partition has also been allowed when the portion excepted is impartible property: Malikarjuna Prasad v. Durga Prasad 27 I.A. 151 : 24 M. 147 : 2 Bom. L.R. 945 : 5 C.W.N. 74 : 10 M. 14 J. 294 : 7 Sar. P.C.J. 761 (P.C.); Parvathi v. Thirumalal 10 M. 334 : 3 Ind. Dec. (N.S.) 986. In another class of cases the rule has been relaxed, namely, where the port on excluded is held jointly with strangers who have no interest in the family partition: Purshottam v. Atmaram Janaradan 23 B. 597 : I Bom. L.R. 76 : 12 Ind. Dec. (N.S.) 399; Venkatachela Pillay v. Chinnaiya Mudaliar 5 M.H.C.R. 166; Sripati Chinna Sanyasi Razu v. Sripati Suriya Razu 5 M. 196 : 6 Ind. Jur. 410 : 2 Ind. Dec. (N.S.) 137; Manjanatha Shanabhaga v. Narayana Shanabhaga 5 m. 362 : 6 Ind. Jur. 518 : 2 Ind. Dec. (N.S.) 252; Venkayya v. Lakshmayya 16 M. 98 : 5 Ind Dec. (N.S.) 775; Subramanya Chettyar v. Padmanabha Chettyar 19 M. 267 : 6 Ind. Dec. (N.S.) 891; Lachmi Narain v. Janki Das 23 A. 216 : A.W.N. (1901) 50. Ram Mohan Lal v. Mul Chand 28 A. 39 : 2 A.L.J. 700 : A.W.N. (1905) 169; Ram Charan v. Ajudhia Prasad 28 A. 50 : A.W.N. (1905) 174; Banwari Lal v. Sheo Sankar Misser 1 Ind. Cas 670 : 13 C.W.N. 815; Gajadhar v. Balvant (1883) Bom. P.J. 250; Subbarazu v. Venkataratnam 15 M. 234 : 5 Ind. Dec. (N.S.) 514; Ibramsa Rowthan v. Thirumalai 7 Ind. Cas. 559 : 34 M. 269 : (1910) M.W.N. 380 : 8 M.L.T. 269 : 20 M.L.J. 743, Hari Krislna v. Venkatalakshmi 5 Ind Cas. 491 : 34 M. 402 : 7 M.L.T. 155 : 20 M.L.J. 323 : (1910) M.W.N. 555; Kadegan v. Periya Munusami 13 M.L.J. 477; Ajodhya Pershad v. Mahadeo Pershad 3 Ind. Cas. 9 : 14 C.W.N. 221; Kailash Chandra Das v. Nityananda Das 3 Ind. Cas. 21 : 11 C.L.J. 384. We are not concerned here with the question whether an alienee from a co-sharer is entitled to institute a suit for partition of the property he is interested in; upon that point there has been so re divergence of judicial opinion as is clear from the decisions reviewed in Subba Row v. Ananthanarayana Iyer 14 Ind. Cas. 524 : 23 M.L.J. 64 : 11 M.L.T. 393. In such a contingency, two conflicting opinions have been maintained; on the one Land, it is urged that the purchaser is in precisely the s me position as his transfer r; on the other hand, it is said that the transfer really effects a severance, and the only joint property held in common by the transferee and the co-sharers of his transferor is what forms the subject-matter of the conveyance. The first alternative is supported by the decisions in Ibramsa Rowthan v. Thirumalai 10 M. 334 : 3 Ind. Dec. (N.S.) 986 Parbati Churn Deb v. Ain-ud-deen 7 C. 577 : 4 Shome L.R. 46 : 9 C.L.R. 170 : 3 Ind. Dec. (N.S.) 920; Shivmurteppa v. Virappa 24 B. 128 : 1 Bom. L.R. 620 : 12 Ind. Dec. (N.S.) 623; Maharaja of Bobbili v. Venkatamarjulu Naidu 25 Ind. Cas. 585 : 39 M. 265 : 27 M.L.T. 409 : 16 M.L.T. 181; Padala Chekkaya v. Vethagirivarudu Guru 12 Ind. Cas. 408 : (1911) 2 M.W.N. 382 The second (sic) have is (sic) in Chundernath Nandi v. Hur Narain Deb 7 C. 153 : 4 Shome L.R. 44 : 3 Ind. Dec. (N.S.) 648; Mukunda Lal Pal Chowdhury v. Lehuraux 20 C. 379 : 10 Ind. Dec. (N.S.) 256; Barahi Debi v. Debkamini Debi 20 C. 682 : 10 Ind. Dec. (N.S.) 460; Hemadri Nath Khan v. Ramani Kanta Roy 24 C. 575 : 1 C.W.N. 406 : 12 Ind. Dec. (N.S.) 1052 (F.B.); Uma Sundari v. Benode Lal 34 C. 1026; Subba Row v. Ananthanarayana Iyer 14 Ind. Cas. 524 : 23 M.L.J. 64 : 11 M.L.T. 393; Hanmandas Ramdayal v. Valabhdas Shankardas 46 Ind. Cas. 133 : 43 B. 171 20 Bom. L.R. 472; Kailash Chandra Das v. Nityananda Das 3 Ind. Cas. 21 : 11 C.L.J. 384; Hari Kristna v. Venkalalakshmi 5 Ind Cas. 491 : 34 M. 402 : 7 M.L.T. 155 : 20 M.L.J. 323 : (1910) M.W.N. 555; Chinnu Pillai v. Kalimuthu Chetti 9 Ind. Cas. 596 : 35 M. 47 : 21 M.L.J. 246 : (1911) 1 M.W.N. 238 : 9 M.L.T. 389 (F.B.) Hem Chandra v. Hemanta Kumari Debi 23 Ind. Cas. 442 : 10 C.W.N. 356; Ram Taran v. Hari Charan 22 Ind. Cas. 30 : 18 C.L.J. 556; Sris Charndra Datta v. Mahima Chandra 33 Ind. Cas. 17 : 23 C.L.J. 231; Dhulabhas Dabhai v. Lala Dhulu Charan 64 Ind. Cas. 115 : 23 Bom. L.R. 777 : 46 B. 28 : (1922) A.I.R. (B.) 137; But although partial partition by suit is allowed where different portions of the property lie in different jurisdictions or some portion of the property is at the time incapable of partition or is from its nature impartible or is held jointly with strangers who cannot be joined as parties to a general suit for partition, these exceptions must not be taken to hive frittered away the fundamental rule that a partition suit should embrace all the joint property. That rule is recognised in a long series of decisions Baboo Lalljeet Singh v. Babo Raj Coomar Singh 25 W.R. 333; Ram Lochun Pattuck v. Rughoobur Dayal 15 W.R. 111; Hari Narayan Brahme v. Ganpatrav Daji 7 B. 272 : 4 Ind. Dec. (N.S.) 183 : Jogendra Nath Mukerji v. Jugobundhu Mukerji 14 C. 122 : 7 Ind. Dec. (N.S.); Satya Kumar Banerjee v. Satya Kirpal Banerjee 3 Ind. Cas. 247 : 10 C.L.J. 503; Radha Kanta v. Bipro Das 1 C.L.J. 4; Syed Bavuddeen Saheb v. Syed Esaff Sahib 3 Ind. Cas. 20 : 6 M.L.T. 156 (?); Kailash Chandra Das v. Nityananda Das 3 Ind. Cas. 21 : 11 C.L.J. 384, Koer Hasmat Rai v. Sunder Das 11 C. 396 : 10 Ind. Jur. 26 : 5 Ind. Dec. (N.S.) 1023; Haridas Sanyal v. Pran Nath Sanyal 12 C. 566 : 6 Ind. Dec. (N.S.) 385; Jogendra Nath Rai v. Baldeo Das 35 C. 961 : 12 C.W.N. 1271 6 C.L.J. 735; Syed Habibur Rasul v. Ashita Mohan Ghose 12 C.W.N. 640; Mahomed Fazlur Rahman Chowdhury v. Mahomed Fayzur Rahman Chowdhury 10 Ind. Cas. 354 : 15 C.W.N. 677; Upendra Nath Banerjee v. Umesh Chandra Banerjee 6 Ind. Cas. 346 : 15 C.W.N. 375 : 12 C.L.J. 25; Mansaram Chakravati v. Ganesh Chakravarti 16 Ind. Cas. 383 : 17 C.W.N. 521; Mukunda Lal Chakrabarty v. Jogesh Chandra 35 Ind. Cas. 370 : 20 C.W.N. 1276 : 1 P.L.J 393; Beni Madhab v. Gobinda Chandra 46 Ind. Cas. 165 : 22 C.W.N. 669; Shivamurteppa v. Virappa 24 B. 128 : 1 Bom. L.R 620 : 12 Ind. Dec. (N.S.) 623; Doman Lal v. Prokash Lal 18 Ind. Cas. 866; Ranku v. Hukmi 35 Ind. Cas. 545 : 2 P.L.R. 1917 : 156 P.W.R. 1916; Burugapalli Sriramulu v. Nandigam Subbarayadu 10 Ind. Cas. 57 : 10 M.L.T. 313. The decisions mentioned on behalf of the respondent cannot be deemed to have abrogated this rule: Hem Chandra v. Hemanta Kumari Deb 23 Ind. Cas. 442 : 10 C.W.N. 356; Kali Charan Singh v. Kiranbala Debi 51 Ind. Cas. 948 : 39 C.L.J. 494; Ram Mohan Lal v. Mul Chand 28 A. 39 : 2 A.L.J. 700 : A.W.N. (1905) 169; Durga Charan Acharjee v. Enamol Huq 60 Ind. Cas. 762. The rule that a partition suit should embrace all the joint property is neither arbitrary nor technical; it is founded on sound and weighty reasons. If the rule were not recognised and firmly applied, multiplicity of litigation world be the inevitable result. If suits for partition were allowed to be instituted in fragments the jurisdiction of the Trial Court and the forum of appeal might be altered; it might be of paramount importance to a party litigant whether he should have a first appeal or a second appeal to the. High Court, and whether he should at all be permitted to seek the judgment of the Judicial Committee with regard to the matters in controversy. The rule further ensures a just partition; parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts. It reed not be disputed that there may be very special cases where the application of the rule may be justly relaxed. The case before us, however, is not of an exceptional description. The plaintiff asserts that if all the joint properties were included in the suit, it would take along time to complete the partition. There is no substance in this contention. The two brothers have fallen out and the Subordinate Judge has found that there is great bitterness of feeling between them. There can be no room for doubt that the sooner they cease to be joint owners, the better for them. The partition may be expedited if suitable arrangements are made; for instance, there is no reason why different surveyors and valuers should sot be employed to deal with the various properties; and whoever may be appointed commissioner, may have such assistance placed at his disposal that the work of partition may be speedily completed.
6. The result is that this appeal is allowed and the preliminary decree made by the Subordinate Judge set aside. Tie case will be remanded to him for re-trial. The joint properties owned by the two brothers will all be included in the suit and will be dealt with in such manner as the Court may consider consistent with justice, equity and good conscience. In the plaintiff declines to have a partition of tie entire joint estate, the suit will stand dismissed with costs in both Courts. The appellant is entitled to his costs of this appeal. The hearing fee will be assessed at 15 gold mohurs. Tie costs in the Trial Court, before and after remand, will be in the discretion of that Court.
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