1. The plaintiff brought this suit to obtain by partition his 1/84th share in the Khoti village of Savdav. Some of the defendants also prayed for a partition of their shares. The plaintiff and the defendants I to 78 belong to one family whose surname is Varang. The defendants 79 to 97 are members of another family named Desai. With the other defendants we are not now concerned. The present appellants were defendants 11 to 26, and are some of the Varang family. Of the various contentions raised by the present appellants in the Court below, the learned pleader Mr. Desai has selected a single contention as the basis of this appeal. That contention is that the Desai-defendants were not entitled in this suit to ask for a partition of any share in the village as belonging to them, because they had filed a previous suit for partition in 1854 and in that suit had been awarded a one-half share in the village. This position was taken by the appellant-defendants in both the Courts below, and both the Courts have disallowed it; and the only question before us is whether the Courts were wrong in the view which they took in this matter.
2. Mr. Desai has urged that the defendant-Desais although occupying the position of defendants on the record ought to be considered as plaintiffs in so far as they assert a claim on their own behalf. But, argues the learned pleader, by the operation of Section 13 and Section 244 of the old Civil Procedure Code the Desais would be barred from bringing the present suit to obtain 'their share in the village, inasmuch as they had obtained a decree in the 1854 suit and that decree had remained unexecuted. If, then, they would be unable to urge their present claim in a suit of their own, it is argued that they are equally unable to assert their claim while occupying the position of defendants on the record. It appears to us, however, that the point is really decided by the character of the decree of 1854. As we read that decree it is merely a declaratory decree pronouncing that the then Desai-plaintiffs were entitled to one-half of the village on a general partition being made. Such a decree as that takes this case out of the scope of the authority of this Court's judgment in Soni Maganlal v. Munshi Himatbhai (1900) 3 Bom. L.R. 94, where Mr. Justice Ranade in distinguishing Nasratullah v. Mujibullah ILR (1891) All. 309, is careful to point out that in the case before him there was a decree not merely declaring the parties' rights to partition, but awarding the Northern half of the property in suit to one party and the Southern half to the other. In the learned Judge's own words that was a decree 'actually making the partition,' by metes and bounds. Here since we have nothing more than a declaratory decree the case resembles Nasratullah v. Mujibullah ILR (1891) All. 809, where the learned Judges in considering the effect of such a decree observe: ' It appears to us that when a decree declaring a right to partition has not been given effect to by the parties proceeding to partition in accordance with it, it is competent for the parties or any of them, if they still continue to be interested in the joint pro party, to bring another suit for a declaration of a right to a partition in case their right to partition is called in question at a time when, by reason of limitation or otherwise, they cannot put into effect the decree first obtained. In this respect suits for declaration of right to partition differ from most other suits. So long as the property is jointly held, so long does a right to partition continue.' Reference may also be made to Babaji Parshram v. Kashibai ILR (1879) 4 Bom. 157 where this Court held that such a decree amounted to nothing more than an inchoate partition insufficient to change the character of the property, which continues a joint estate until there has been an actual partition by metes and bounds, or a division of title. In our opinion this is a correct statement of the law applicable to such a case as this. Not only was the decree merely a declaratory decree but it was never executed, and the lower Court has found that after the decree the old arrangement concerning the holding of the lands by various members of the family continued as before, and was unaffected by the passing of the decree. We are, therefore, of opinion that the argument upon this point for the appellants fails and we must dismiss the appeal with costs.
3. The cross-objections which are not pressed are dismissed with costs.