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Muhammad Ali Khan Vs. Mulchand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All235
AppellantMuhammad Ali Khan
RespondentMulchand and ors.;jaddu Bibi and ors.
Excerpt:
civil procedure code, section 396 - partition--commission to make partition--issue of commission to one person only. - .....question arising out of the section of the code of civil procedure dealing with commissions to make partition. the appellants contended in the courts below that the allotment of shares by one commissioner is contrary to the provisions of section 396 and is illegal. this section, it is said, contemplates the appointment of more than one commissioner and renders it compulsory on the court to appoint more than one. chapter xxv of the code deals with four classes of commissions, namely:(a) commissions to examine witnesses;(b) commissions for local investigations; (c) commissions to examine accounts and(d) commissions to make partitions.2. in the case of commissions to examine witnesses, section 385 expressly provides that the commission may be issued to any person whom the court thinks.....
Judgment:

John Stanley, C.J.

1. This appeal has been referred to a Full Bench. It involves an important question arising out of the section of the Code of Civil Procedure dealing with commissions to make partition. The appellants contended in the Courts below that the allotment of shares by one commissioner is contrary to the provisions of Section 396 and is illegal. This section, it is said, contemplates the appointment of more than one commissioner and renders it compulsory on the Court to appoint more than one. Chapter XXV of the Code deals with four classes of commissions, namely:

(a) Commissions to examine witnesses;

(b) Commissions for local investigations;

(c) Commissions to examine accounts and

(d) Commissions to make partitions.

2. In the case of commissions to examine witnesses, Section 385 expressly provides that the commission may be issued to any person whom the Court thinks fit to execute the same. In the case of commissions for local investigations likewise the Court may issue a commission to such person as it thinks fit. In the case of commissions to examine accounts, the language is the same. But when we come to commissions to make partitions, instead of the singular number we find the plural is used. In the first portion of the Section (a. 396) the Court is empowered to issue a commission to such persons as it thinks fit. The second paragraph of the section provides that 'the commissioners shall ascertain and inspect the property, etc., and the third paragraph directs the commissioners to 'prepare and sign a report, or (if they cannot agree) separate reports appointing the share of each party.' In this case the use of the plural 'persons,' and 'commissioners' is noticeable. But it is argued that in view of Section 13 of the General Clauses Act of 1897, the use of the plural is by no means decisive of the question before us. It is provided by that section that words in the singular shall include the plural and vice versa, unless there is anything repugnant to this construction in the subject or the context. We have therefore to see whether there is anything in Section 396 to make it repugnant to treat the plural nouns 'persons' and 'commissioners,' as used in the section, as applicable to a single individual. In my opinion the direction in the third clause of the section shows beyond doubt that the Legislature intended that more than one commissioner should be appointed. That clause directs that the commissioners shall prepare and sign a report, or, if they cannot agree, separate reports. This shows that the appointment of two or more commissioners was in the contemplation of the Legislature. If it had been intended that one or more commissioners might be appointed, we should have expected to find before the words 'if they cannot agree 'words such as 'in case there be two or more commissioners.' It appears to me that the Legislature advisedly used the plural number in the case of commissions to make partition, and therefore that the Court cannot legally issue a commission to one commissioner only.

3. I would therefore allow the appeal on the ground that the allotment of shares carried out by one commissioner is contrary to law.

George Knox, J.

4. I fully agree and have nothing further to add.

John Stanley, C.J.

5. I also agree, but it appears to me that there is nothing to prevent the parties to the partition proceedings agreeing that one commissioner only should be appointed, and I do not think it follows that all the partitions that have been made are invalid by reason of the fact that only one commissioner has been appointed.

6. The order of the Court is that the appeal being allowed the decree of both the lower Courts are set aside, and the case is remanded to the Court of first instance, through the lower appellate Court, with directions that it proceed with the partition of the property in dispute according to law, appointing, unless the parties otherwise agree, at least two commissioners to make the partition. Under the circumstances we make no order as to the cost of this appeal. All other costs will abide the result.


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