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K.V. Srinivasathathachar Vs. Naravalur Srinivasathathachar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1933Mad259; (1933)64MLJ63
AppellantK.V. Srinivasathathachar
RespondentNaravalur Srinivasathathachar
Cases ReferredMoulvi Abdul Razak v. Sreenath Ghose I.L.R.
Excerpt:
.....of the statute seems to be, that where the duty is cast upon the collector of executing the decree, the partition he has to effect is to be both complete and perfect, that is, not only is the land to be divided, but the revenue also is to be allocated, the object being that the interests of the government are safeguarded and there is also a final adjudication of the rights and liabilities of the parties in the sense, that one sharer shall no longer be at the mercy of the other co-owners; 5. it appears in this case that the agraharamdars of this village in 1876 by an arrangement among themselves allotted certain plots of land in, the village to each other to be enjoyed separately in accordance with their vrithis, reserving, we are told, certain other plots still to be enjoyed in..........is, in my opinion, clearly well founded. he argues that what the section contemplates is an entire undivided estate and not merely a part of it. in the present case, the plaintiff and the defendant were entitled to a portion of the undivided estate and the decree directed that that portion should be divided into two equal halves. such a decree does not fall within the terms of the section. is this decree one for the partition of an undivided estate or again, is it for the separate possession of a share of such an estate the answer is in the negative. a share of an estate is not equivalent to a share of a portion of an estate ; when the decree relates to the separate possession of a share of a portion, that decree does not fall within the terms of the section. trevelyan, j., expresses.....
Judgment:

Venkatasubba Rao, J.

1. The question raised relates to the construction of Section 54, Civil Procedure Code. The Lower Court has made an order directing the decree to be forwarded to the Collector for partition being effected. Mr. Venkatachari for the appellant contends that the order is wrong. It is first urged that the section does not apply unless the partition is not only of the land but also of the revenue assessed on it ; in other words, unless the division of the land is to be followed by the apportionment of the revenue. This construction is opposed to the plain provisions of the section. What the section refers to is, the partition of the estate assessed to the payment of revenue and not the partition of the estate as well as the revenue. Why in construing the section, which is plain and unambiguous, words not to be found there should be imported into it, I fail to see. I agree with the observations of Rankin, C. J., on this point in the two cases cited at the bar, namely, Moulvi Abdul Razak v. Sreenath Ghose I.L.R. (1930) 58 Cal. 122 : 34 C.W.N. 892 and Rai Kiran Chandra Roy Bahadur v. Rama Nath Dutta Chowdhury (1930) 34 C.W.N. 895. But it is unnecessary to pursue this point, as the second contention of Mr. Venkatachari is, in my opinion, clearly well founded. He argues that what the section contemplates is an entire undivided estate and not merely a part of it. In the present case, the plaintiff and the defendant were entitled to a portion of the undivided estate and the decree directed that that portion should be divided into two equal halves. Such a decree does not fall within the terms of the section. Is this decree one for the partition of an undivided estate Or again, is it for the separate possession of a share of such an estate The answer is in the negative. A share of an estate is not equivalent to a share of a portion of an estate ; when the decree relates to the separate possession of a share of a portion, that decree does not fall within the terms of the section. Trevelyan, J., expresses this tersely in Jogodishury Debea v. Kailash Chundra Lahiry I.L.R. (1897) 24 Cal. 725, in a passage extracted by Rankin, C. J., in the first of the two cases already cited. Says Mr. Justice Trevelyan:

The section applies only to a case where the decree comprehends the partition of the whole of the estate paying revenue to Government. A decree for possession of a share of a portion of an undivided estate is not a decree for ' possession of a share of an undivided estate' in any sense.

2. The intention of the statute seems to be, that where the duty is cast upon the Collector of executing the decree, the partition he has to effect is to be both complete and perfect, that is, not only is the land to be divided, but the revenue also is to be allocated, the object being that the interests of the Government are safeguarded and there is also a final adjudication of the rights and liabilities of the parties in the sense, that one sharer shall no longer be at the mercy of the other co-owners; and such a course the Collector can appropriately adopt only when the decree relates to the whole, and not merely a part of, the undivided estate and all the parties interested and to be affected by the proposed division, are before him.

3. I agree with the view taken of the section by the learned Judges of the Calcutta High Court in Moulvi Abdul Razak v. Sreenath Ghose I.L.R. (1930) 58 Cal. 122 : 34 C.W.N. 892 and Rai Kiran Chandra Roy Bahadur v. Rama Nath Dutta Chowdhury (1930) 34 C.W.N. 895 referred to by me. The result is, the Subordinate Judge's order is set aside and the appeal is allowed with costs.

4. I must point out that there was some difficulty in the Lower Court as regards getting a proper officer appointed for effecting the partition. The Commissioner selected reported that without the aid of an expert Surveyor he was unable to make a partition. We direct the Court to appoint a fresh Commissioner and would suggest that, if possible, a trained Surveyor should be appointed.

Reilly, J.

5. It appears in this case that the agraharamdars of this village in 1876 by an arrangement among themselves allotted certain plots of land in, the village to each other to be enjoyed separately in accordance with their vrithis, reserving, we are told, certain other plots still to be enjoyed in common. In course of time plots of land representing about 7/9ths of the whole village, we are told, came into the possession of the Plaintiff and the Defendant in this suit. The suit is for the partition of those plots between the Plaintiff and the Defendant. It appeal's to me quite clear that such a suit does not come within the meaning of Section 54 of the Code. It is certainly not a suit for the partition of an undivided estate within the words of the section. It is not a suit for the partition of the whole agraharam village. Nor is it a suit for the separate possession of a share of that village. If it were a suit for the separate possession of a share of that village, not only would the Plaintiff and the Defendant be parties, but all the agraharamdars would have to be parties to the suit. Here we are quite outside the provisions of Section 54 of the Code, as I understand them. Perhaps I may also say with respect that I entirely agree with the interpretation of Section 54 of the Code given by Rankin, C.J. in Moulvi Abdul Razak v. Sreenath Ghose I.L.R. (1930) 58 Cal. 122.

6. I agree that this appeal should be allowed with costs and that the Revision Petition should be dismissed but without costs.


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