1. This is the pltfs'. appeal & arises under the following circumstances:- The pltfs. sued the defts. Earn Sahai, Chiranjilal, Damodar & Gopal on the ground that the parties had descended from a common ancestor Chaturbhuj Das who left certain property at Dausa. Out of this property a certain portion was demolished under the Town Improvement Scheme of Dausa town, for which the State of Jaipur settled Rs. 196 as compensation. Out of this sum of Rs. 196 one-fourth i.e. 49 was realized by the defts. 1 & 3, i.e. Ram Sahai & Damodar, who are brothers of the defts. 2 & 4 respectively, on 22-2-1916 from Nizamat Dausa. The pltfs. claimed that they were entitled to half share out of this sum, for which they made a demand on the defts. 1 & 3, but they did not comply.
2. The defts. pleaded, inter alia, that the property acquired for the town Improvement Scheme was their sole property & the pltfs. had nothing to do with it. They also pleaded that the pltfs. had no right to file the suit in its present form & they ought to have brought the suit for declaration or partition of the property. The learned Munsif Dausa held that the pltfs. had one-half share in the amount in suit & consequently gave them a decree for the recovery of Rs. 24/8/-. The defts, went in appeal & the learned Judge of Small Causes, Jaipur dismissed the suit on the ground that the parties belonged to a joint Hindu family & the property was joint. No suit could, therefore, lie for division of a portion of the joint Hindu family property. The pltfs. have come in second appeal to this Ct.
3. It was argued on behalf of the pltfs. that it was never the pltfs'. case that they were members of a Joint Hindu family with the defts. & that the property acquired under the Town Improvement Scheme was a joint family property. Their case merely was that the parties were co-owners in the property about the proceeds of which the suit has been brought. It was, therefore, wrong for the appellate Ct. to hold that the family was a joint family property & no suit lay for a division of a portion of it. Reliance was placed upon the rulings in Hemant Kumar v. Satish Chandra, A.I.R. (28) 1941 Cal. 635 : (198 I. C. 348) Sitaram Vinayak v. Narayan Shankar, A. I. R. (30) 1943 Bom. 216 : (208 I. c. 340), Hiralal v. Pyarelal, A. I. B. (26) 1939 ALL. 681 : (I. L. R. (1939) ALL. 897) and Rambilas v. Sheo Shankar, 1948 J. L. B. 283. No doubt all these rulings support the contention of the learned counsel for the applts. that there is no inflexible rule that a suit for partial partition of a property held in common is in every case a bar. in Hemant Kumar v. Satish Chandra, A. I. R. (28) 1941 Cal. 635 : (198 I. C. 348), a portion of the property held in common was acquired under the Land Acquisition Act, & compensation money was paid to some of the co-sharers. On a suit brought by other co-sharers for their share of compensation money, it was held that the suit was maintainable. The main reason given was that it could not be regarded as a partition suit. Even assuming that it was a partition suit, it could not fail on the ground that it did not embrace all the properties of the parties inasmuch as the rule that there can be no partial partition of a joint estate is not in-elastic, but admits of exceptions. In Sitaram Vinayak v. Narayan Shankar, A.I.R. (30) 1948 Bom. 216 : (208 I. C. 340), it was held that the ordinary rule applicable to the suit for coparcenary property is that when a suit for partition is between coparceners, it should embrace the whole family property & a member of a joint family suing his coparceners for. partition of joint family property is bound to bring into hotchpotch all the property that may be in his possession In order that there may be a complete & final partition. The rule is subject to exceptions arising out of convenience & from other causes, but there is no such basis for the application of the rule to property which is held in common. Although special circumstances do some time exist which make it necessary or desirable to apply the rule to suits relating to land held in common. In that case the suit was for partition & separate possession of share in some property & also for a declaration of their right to receive a similar share in half the revenue of a village. An account of certain recoveries made by one of the defts. was also prayed for. In their written statements the defts, mentioned certain properties in the possession of the pltfs. & stated that it was necessary to bring those properties into the hotchpotch before the pltfs. could be given any relief. The suit was, however, decreed & it was held that the omission to include some of the property under the circumstances of the case, was not fatal to the suit. In Rambilas v. Sheo Sankar, 1948 J. L. R. 283, the suit was for the recovery of the pltfs share out of the income realized by the defts. on account of certain shares. It was held, relying on Hemant Kumar v. Satishchandra, A. I. R. (28) 1941 oal. 635: (198 I. c 348) that there was no hard & fast rule that in the case where the cosharers pltfs. seek to get a share of the income, they cannot get relief without bringing a suit for partition. In Hiralal v. Pyarelal, A.I.R. (26) 1939 ALL. 681: (I. L. R. (1939) ALL 897), the suit was for partition of the property & for accounts for a certain period before the suit. The defts. contested that no suit could be brought for accounts in a joint family but it was held that as a general rule no coparcener is entitled to call upon the Manager to account for his part dealings with the joint family property, unless he establishes fraud, misappropriation & improper conversion, but a coparcener, who is entirely excluded in the enjoyment of the family property, is entitled to an account of income derived from the family property & to have his share of the income ascertained & paid to him.
4. On behalf of the reaps, it was argued that none of the rulings relied upon by the learned counsel for the applts. applies to the facts of the present case. In the Allahabad ruling the suit was brought for partition & there was no question whether the suit lay for the partition of a portion of the joint Hindu family property. In the Jaipur ruling, it was argued that the only thing that was held was that a co-sharer pltf. could seek to get a share of the income by way of a suit without bringing a suit for partition. In the present case, it is not the share of the income, but the share of corpus itself for which the suit has been brought. About the Bombay ruling it was argued that in that case, too the property was the property in common & not a coparcenary, property. Similar arguments were advanced with respect to the property involved in the Calcutta case.
5. There can be no doubt that in the plaint the pltfs. stated that they were co-sharers of half share in the property which had been acquired for the Town Improvement Schema & that the defts were co-sharets of other half. The pltfs. case was, therefore, clear that the parties wars tenants-in-common in the properly in question. Although they have stated that the property originally belonged to Chaturbhuj Das & the parties ware his descendants, they have nowhere stated that the property remained the joint family property even till the date of the suit Bather the allegations about the co-sharers & the shares of the parties clearly show that the pltfs. case was that the parties held the property as tenants-in-common & not as coparceners. It wag quite upto the defts. to say that the parties were coparceners in the property in question. They, however, do not say so. On the other hand, they averred that there had been a separation between the parties & the property, which was in possession of the dufts. including the property in question was their sole property. It was, therefore, not permissible for the learned appellate Judge to make out a case for coparcenary. He ought to have decided the case on the basis that although the property was joint, yet the parties were only co-sharers in it & ware holding it as tenants in-common.
6. Holding as I do that the parties ware, tenants-in-common in the property in question, I am of the opinion that the suit for their share of the compensation money by the pltfs. could not be defeated on the ground that the suit for partial partition of the joint property did not lie. The ruling of the Division Bench of the. Calcutta H. C. in the case of Hemant Kumar v. Satish Chandra, A. I. R. (28) 1941 cal. 635 : (198 I. C. 348), hereinbefore mentioned, supports my view. The facts of that ruling were very much similar to the facts of the present case. The Bombay, ruling reported in Sitaram v. Narayan, A. I. R. (30) 1943 Bom. 216 : (208 I. C. 340) also supports my view to a certain extent. Under these circumstances, I am of the opinion that the learned appellate Judge was not justified in throwing off the case on the ground of the suit being for partial partition when he held that the pltfs. had interest in the property which was acquired for the Town Improvement Scheme & whose compensation to the extent of 1/4th had been realized by the defts.
7. The appeal is allowed, the decree of the lower appellate Ct. is set aside & the decree of the first Ct. is restored & the suit is decreed with costs in all the Cts.