Ryves and Daniels, JJ.
1. This appeal raises an interesting and difficult question. Chhabbu Lal, the plaintiff, sued his cousin, Ram Chandar, and the two sons of Ram Chandar for partition of the joint family property. The parties are descended from a common ancestor, Ganga Prasad, who was a pragwal. The family property consisted of land, houses and birt jajmani. The defendants admitted that the family had been joint and that the plaintiff was entitled to partition but pleaded that a partition had, in fact, already taken place and that a suit would not lie for a second partition. With regard to the birt jajmani the defendants pleaded that, it had already been partitioned in the only way in which partition was possible, that is to say, it had been agreed to divide the income. In this appeal we are only concerned with two items: (1) a certain house built on land bounded by the letters B.C.H.E. on the map on the record and (2) the birt jajmani. Dealing with the second item first, the trial court held that it was impossible to give a decree for partition of this birt jajmani and gave a declaration to the effect that the parties were entitled to enjoy the income of it half and half.
2. The plaintiff appealed, and the learned District Judge held that the birt jajmani was property which had been held to be heritable, and, therefore, should be capable of division. He said:
There may be a little difficulty in arriving at a fair division, but that is after all a matter of procedure and the difficulty cannot be said to amount to an impossibility. When steps are taken consequent on the preliminary decree, care will be taken to make the division as far as possible either by distribution of clients or of localities.
3. And he modified the decree of the court below by ordering that partition should be made of the birt jajmani as well as of the other property.
4. From this decree the defendants have appealed and it is urged on their behalf that it is impossible to divide once and for all this birt jajmani, and they urged that the decree of the first court merely declaring the parties entitled to a moiety of the birt jajmani be restored. There is no doubt that in Bern Mad ho Praijwal v. Hira Lal (1920) I.L.R. 43 All. 20 and in Lokya v. Sulli (1920) I.L.R. 43 All. 35 it has been held by a Divisional Bench of this Court that this class of property, namely, birt jajmani, has been the subject-matter of decisions by the various courts in India, that the rights of owners of birt jajmani have repeatedly been upheld, and that such rights are heritable and sometimes transferable. The latter case is really very similar to this, the only distinction being that there the plaintiffs only asked for a declaration of-their right to a given share in the birt jajmani and did not ask for partition of it. The case which seems to us most in point is Narayan Lal Gupta v. Chulhan Lal Gupta (1911) 15 C.L.J. 376 where the whole question is considered in an elaborate judgment by Mr. Justice Mookerjee. The birt jajmani in this case consists of the offerings given to the descendants of Ganga Prasad by pilgrims when they come to bathe in the Ganges at Allahabad, for the ministrations of pragwals. It is obvious that it would be impossible to partition the future income from this source or to allot certain clients either by locality or family to one or other of the parties, for the simple reason that no pilgrim can be forced to accept the services of any particular pragwal and, obviously, not being parties to this litigation, pilgrims, either as a body or individually, could not be bound by it. We find, however, in the schedule attached to the plaint various paraphernalia belonging to this particular birt jajmani described, namely, the pothis or books in which pilgrims enter their names, the ghat, the chauki, the platform, the shed and the distinctive flag which indicates to the pilgrims on their arrival, where this particular pragwal owning the birt can be found. We see no reason why these articles should not be divided, and the result of this will be, in practice, a division of the birt. In the Calcutta case Mr. Justice Mookerjee suggested that a possible partition could be arrived at by allocating to the parties their proportionate share of the names entered in these books. He suggested that the three claimants in that case should each get a third of the original entries and certified copies of two-thirds of the rest of the entries. Whether it will be necessary in this case to give certified copies is a matter which will be in the consideration of the officer who makes the actual partition. We do not suggest that the method we have indicated is the only method that can be employed It is to be hoped that the parties will come to some agreement between themselves, because, unless they do come to some agreement amongst themselves, it seems impossible to indicate any plan which will ensure peace.
5. Turning now to the first point which is raised in a cross-objection by the plaintiff, it has been found by both courts that the house in question was built on land which is joint family property, but it was built some 11 years ago at a time when the members of the family had ceased to live jointly, although there had been no actual separation by metes and bounds. The house was built by a son of the defendant Ram Chandar, since deceased, out of funds of his own. Both courts, there-Core, held that this house could, not be partitioned at the suit of the plaintiff, and have refused to have it partitioned. The cross-objection refers more to the wording of the decree than anything else. It is pointed out that as the decree stands, there is nothing to indicate that, at the actual partition, the joint land i.e., the site on which this house is built, is not now capable of partition, and, therefore, when the rest of the land is being partitioned it must be borne in mind that the defendants have already received in their share the site on which this house has been built and account must be taken o that fact in partitioning the remainder of the joint land. In making the final partition the officer will take care to give to the plaintiff land or compensation equivalent to that occupied by the site of the house.
6. We modify the lower court's decree to this extent that we declare that the division of the birt jajmani cannot be carried out by allotting clients to one party or the other but only by the division of books-and other accessories referred to in the schedule to the plaint. In the case of accessories such as flag, etc., which are not capable of division, it will be open to the officer making the partition to allow each party to use a similar flag. In other respects the appeal is dismissed.
7. We allow the cross-objection to this extent that we declare that the site of the, house in question shall be taken into consideration at the time of making the final partition and the plaintiff will be given an equivalent in land or compensation for the site of the house. Under the circumstances we direct the parties to bear their own costs.