G.N. Das, J.
1. This is an appeal by the plaintiff and is directed against a judgment and. decree passed by Janab N. Ahmed, Subordinate Judge, 1st Court, Howrah, dated 12-5-1947.
2. The property in dispute belonged to three sisters Hedatan Bibi, Latifan Bibi and Kanij Fatema Bibi, It is not disputed at this stage that the interest of Hedatan Bibi has devolved ultimately on defendant 1 Mohabir Roy. Latifan Bibi is defendant 2. Kanij Fatema Bibi's interest was purchased by the plaintiff by a kobala on 17-6-1942. The position, therefore, was that the plaintiff had a one-third share in the disputed property. Defendant 1 had another third share and defendant 2 had the remaining one-third share. It is not disputed further that the entire property is in the occupation of defendant l Mohabir Roy as a monthly tenant. The plaintiff instituted the present suit for partition of his one-third share by metes and bounds. Defendant l Mohabir Roy raised several defences but it is necessary to state only two of them for the purposes of the present appeal. It was pleaded that the present suit being a suit for partition of the property in the possession of a tenant, no decree for partition should be made because the plaintiff has no actual possession of the premises. It was also pleaded thatad valorem court-fees had to be paid on the plaint. The learned Subordinate Judge dismissed the plaintiff's suit on these two grounds.
3. It may be pointed out that the learned Subordinate Judge repelled the plaintiff's allegations that the defendant Mohabir Roy had surrendered the disputed tenancy or that there was a merger of the tenancy held by defendant 1 in the superior interest held by the plaintiff and defendants l and 2. Mr. Bakshi appearing for the plaintiff-appellant has not contested the propriety of these two findings of the learned Subordinate Judge. He has contested the propriety of the two findings reached by the learned Subordinate Judge, namely, that ad valorem court-fees were payable on the plaint and that the suit for partition was not maintainable, the property being in the possession of a tenant.
4. As regards the first contention, although the property in dispute is in the possession of a tenant from month to month, the plaintiff along with his co-sharers has juridical possession in the same. As such, the plaintiff must be deemed to be in possession of his interest in the joint property and no ad valorem court-fee is payable. The suit should be regarded as a suit for partition pure and simple. The first ground on which the learned Subordinate Judge dismissed the plaintiff's suit must, therefore, be set aside.
5. As regards the second contention, namely, whether a suit for partition is maintainable as the sole item of property which is the subject-matter of partition is in the possession of a tenant who, in the present case, happens to be a co-sharer in the disputed property, the learned Subordinate Judge has answered the same in the negative.
6. As I have already indicated, the shares of the plaintiff, defendant 1 (who is also the tenant) and defendant 2 in the disputed property are equal and this fact is not disputed. It cannot be disputed that the nature of the property is such as does not preclude a partition of the same. The only contention is that as the property is in the occupation of a tenant, actual partition by metes and bounds and delivery of actual physical possession being impossible, a suit for partition cannot be made. If an item of property is joint and is held by co-sharers each of the co-sharers has a right to get his share partitioned and to convert his joint tenancy into a tenancy held in severalty by each one of the co-sharers. The fact that there may be inconvenience in partitioning the property or that a partition may prejudice the rights of one or the other of the parties is perse no ground for disallowing the right of a co-sharer to claim partition of his undivided interest. It is quite true that in a case like the present it may not be possible for the Court to put the plaintiff into physical possession of the property after a final decree for partition has been made, and the plaintiff may have to content himself with a decree entitling him to symbolical possession of his un-divided share in the property. That such possession can be delivered is apparent from the provisions of Order 21, RULE 36, Civil P. C. which lays down the procedure for delivery of possession of property in the possession of a tenant. In my opinion, the mere fact that the subject-matter of partition is tenanted does not preclude the Court from passing a preliminary decree for partition.
7. The view taken by me' is supported by two decisions of the Madras High Court, (l) in the case of Suryanarayanamurti v. Tammanna, 25 Mad. 504 and (2) in the case of Uppala Baghava Charlu v. Uppala Ramanuja Charlu, 26 Mad. 78. In both these cases the Madras High Court took the view that the mere fact that the property which is the subject-matter of partition is in the occupation of a tenant does not disentitle a co-sharer in an undivided property from claiming partition. The second contention raised by Mr. Baksbi must therefore be given effect to.
8. The result is that the decision of the learned Subordinate Judge must be set aside and a preliminary decree for partition must now be made. The plaintiff appellant will have a decree for costs of the trial Court to the extent of one-third. He will also have his costs of this appeal--hearing fee being assessed at five gold mohurs.
Guha Ray, J.
9. I agree.