1. The plaintiff brought a suit for partition and possession of 72 cents in R.S. No. 57/8, which is plot D in the plan in the case. The suit was dismissed as being one for partial partition which would prevent the working out of the equities and the appeal to the lower Court has been dismissed on the same ground.
2. The admitted facts may be briefly summarised. The family of one Mascarenhas originally owned two contiguous plots of land described as plots D and B in the plan. These at that time formed a single holding, though plot B, measuring 74 cents, is now the northern portion of R.S. No. 57/1. Under a decree of Court this holding comprising the two plots was assigned for life to one Catherine Robelle with a remainder in four shares to other members of the family. Catherine 'Robe We gave to Mr. Lobo, owner of adjacent property, a lease of the whole of the land. During the currency of this lease Mr. Lobo purchased half of the land from the persons entitled to the remainder therein. In 1920 the plaintiff acquired the rights of Mr. Lobo and she was in possession as lessee and part-owner when Catherine Robelle died in 1921. After her death the other sharers appear to have got possession of plot D, which is roughly half of the land. A one-fourth share in the holding had devolved upon one Martha who left a will. Her executor brought a suit for partition of the testatrix's share. The schedule to the plaint described only plot D, namely, R.S. No. 57/8 as if this were the whole land in which the share was to be worked out. The present plaintiff was impleaded as a party in that suit and it was conceded that she was entitled to a half share in the land. A preliminary decree was passed on that footing. After the preliminary decree was passed, the executor seems to have discovered that the schedule to the plaint did not include all the land in which the testatrix was entitled to a share and therefore no partition was effected and there was no final decree. It would seem, however, that the parties continued to enjoy the land on the footing that the plaintiff retained the whole of the plot B and the other sharers retained the whole of the present suit land, plot D.
3. By a series of sale deeds the defendant purchased the rights of the other sharers. These sale deeds purport to convey not a half share in plots B and D, but the whole of plot D, that is to say, the sale deeds proceeded on the footing that the actual enjoyment represented a legal partition. In accordance with this informal division both the parties have built houses of considerable value, the plaintiff having built in plot B and the defendant in plot D. They are closely related and, as not infrequently happens, they have quarrelled. As a result of this quarrel the defendant was asserting rights in plot B and the plaintiff has filed the present suit in which she claims a partition and possession of a half share in plot D, without bringing plot B into the suit and without impleading the assignors of the defendant.
4. In appeal the claim of the plaintiff has been rested on the decision in Iburamsa Rowthan v. Thiruvenkatasami Maick : (1910)20MLJ743 . That was a case in which certain items of coparcenary property had been conveyed in their entirety by different coparceners to two alienees and it was held that as between alienees the rights in these items could be worked out in a suit for partition which did not embrace unalienated family properties in which neither party claimed any interest. It seems to me that the decision of the Full Bench has very little bearing on the present facts. What the plaintiff is in fact seeking here is to retain possession of a localised half share in the original holding to which she is entitled only on the basis of an informal division between the parties, while separately working out her legal right to the division of the other localised half share which has come into the possession of another alienee. If there were a general suit for partition of the entire holding the defendant would be entitled to claim an equity whereby the property which has been sold to her should be allotted in partition to her vendors, so that she would get that which she has purchased, and the plaintiff would similarly be entitled to claim that the property of which she is in enjoyment and on which she has built a house at considerable expense should be allotted to her. The framing of the present suit is designed to defeat the equity of the defendant while putting the plaintiff in a position of retaining possession of the whole of one localised half share until disturbed by the defendant's alienors, who presumably are no longer interested in the property. It seems to me that this is emphatically a case in which the rule against partial partition should be enforced. In this view I dismiss the appeal with costs.
5. Leave to appeal is refused.