1. The facts of this case, as set (sic) Government. In 1854 his father gave a putni (sic) share of the estate to the defendants' preder(sic) alleges that the land being held ijmali, although separately from the tenants their respective shares of the rent, difficulty and inconvenience has arisen in the management of the property, and he brings this suit to have his 10 annas share of the land divided by metes and bounds from the 6 annas of the putnidars, the land of the entire estate remaining liable as before for the entire amount of the Government revenue Payable in respect of it.
2. The Court below having made a decree for partition, one of the defendants has appealed against it on the ground that there can be no decree for partition in a suit by a zemindar against his putnidars, and the question we are asked to determine is 'whether on the facts stated there can be a decree for partition.'
3. I am of opinion that the question ought to be answered in the affirmative. As a general rule, every joint owner of property should be held entitled to obtain partition, or in other words 'to be placed in a position to enjoy his own right separately and without interruption or interference' by his co-sharer---see Shama Sundari Debi v. Jardine, Skinner & Co. 3 B. L. R. Ap. 120: 12 W. R. 160 and Story's Equity Jurisprudence, Section 648. It is against good sense, if not also against good morals, as the Roman law viewed it, to compel joint owners to hold a thing in common, 'since it could not fail to occasion strife and disagreement among them.' But if partition has the advantage of placing each co-sharer in a position to enjoy his own property without interference by others, it has the disadvantage of subjecting him to expense, and of impairing more or less the value of the joint property by dividing it into comparatively small parts; and where partition is sought by a co-owner whose interest in the property is limited in point of time, the question may arise, whether the temporary advantage to be secured to him is sufficient to outweigh the disadvantage of subjecting the other co-owners to expense and trouble which may in the end lead to no permanent division, the successors of the applicant not being bound by anything done at his instance. The general rule must, therefore, be taken subject to many exceptions and qualifications, depending upon the nature of the thing owned jointly, the nature of the interest the party claiming partition, the nature of the terms and conditions on which the different joint owners hold their respective interests, and various other matters. But I do not see any good and sufficient reason for thinking that the present case should form any exception to the rule. It is not suggested that the property sought to be divided in this case is either impartible, or is from its nature such that the partition asked for will impair the value of any of the shares into which it is to be divided. Nor is it suggested that the applicant for partition has only a limited interest, and that a partition at his instance will not be of any permanent effect. The only grounds upon which the learned Vakil for the appellants rests his contention that there ought not to be any partition in this case are two, namely, first, that the plaintiff is precluded from demanding any such partition against the defendants by reason of his predecessor in title having granted a putni of an undivided share of 6 annas to the predecessors of the defendants; and second, that there can be no partition between parties who do not own co-ordinate interests, but one of whom owns an interest subordinate to the other.
4. In support of the first ground, it is urged that the plaintiff's predecessor in title having granted a putni of an undivided share of 6 annas in the entire zemindari, to allow the plaintiff to enforce partition and limit the putni to a specific portion of the zemindari proportionate to the 6 annas share, would be to allow him to alter the terms of the putni lease, against the will of the lessees. A contention somewhat similar to this was raised in Heaton v. Dearden 16 Beav. 147 on behalf of the defendant whose predecessor in title had agreed to grant a lease of an undivided moiety of certain mines, in a suit for specific performance of the agreement to lease and for partition, and the contention was disallowed. And there is no reason why a different principle should be followed in this case. The putni lease contains no covenant against partition, and even if it did, it is doubtful whether it would have been binding for all time.
5. The contention on behalf of the appellants proceeds on the assumption that there cannot be any fair and just division of the lands of the zemindari into two portions proportionate to the shares of the parties, and that partition must result in disadvantages to the putnidars; but no reason has been given go justify such an assumption, and the Court cannot accept it as prima facie well founded.
6. Moreover it was admitted by both sides in the course of the argument that the plaintiff's father, the grantor of the putni, owned only a 6 annas share, and the remaining 10 annas belonged to the plaintiff's grandmother; and that the plaintiff has inherited the 6 annas share from his father, and the 10 annas from his grandmother. That being so, the plaintiff as owner of the 10 annas share is not bound by the terms of the putni lease, and that lease can in no way be a bar to his right to obtain a separation of his 10 annas share.
7. As to the second ground, the only reason that might be urged in its support is, that if partition can be enforced as between co-owners whose interests are not co-ordinate in degree, parties having permanent interests may be put to frequent and needless expense and trouble by having to watch partition proceedings instituted at the instance of co-owners with temporary interest, such proceedings not leading to any division of the property which can have a lasting effect. But in the present case, no such reason can hold goods: in the first place, because the party who asking for partition is the holder of the higher of the two kinds of interest respectively owned by the parties to apprehension of the division effected not having an enduring effect; and, in partition is sought, through subordinate to that of the plaintiff, is certainly not of a temporary and qualified character such as would make it undesirable to have a partition against him and to subject him to the trouble and expense of a partition proceeding. He owns a putni which by the Law (Regulation VIII of 1819, preamble and Section 3) is a permanent tenure at a fixed rent, heritable and transferable; and which is one of those interests which to use the language of Pontifex, J., in Kasumunnissa v. Nil Ratan Bose I.L.R. 8 Cal. 79 'are in fact substantial proprietorial interests, in the grant of which, as in this case, considerable premiums are paid.' Of the Indian case cited the only on that has any direct bearing upon this point is Mukunda Lal Pal Chowdhary are not aware of any Indian case in which a person holding a subordinated interest in land has been held to have a right of partition as against the superior holder,' and they assign as one of the reasons for holding that the suit for partition had been rightly dismissed, the fact that the interest owned by the plaintiffs was subordinated to that of the defendants. But there were other grounds on which the decision in that case was based; and for the reasons given above I am unable to assent to the view, that as a general proposition of law, there can be no partition as between parties, the interest of one of whom is subordinated to that of the others. I think the Court must in each case determine whether, having regard to the nature of the interest of one of whom is subordinate to that of the others. I think the Court must in each case determine whether, having regard to the nature of the interests owned by the parties and to all other circumstances necessary to be taken into consideration, the balance of convenience is in favour of allowing partition, and if it determines that question in the affirmative, the mere fact of the parties owning interest which are not co-ordinate in decree, ought not to be a bar to partition. This view is in accordance, not only with English cases cited in the argument, namely Baring v. Nash 1 V. and B. 551 and Heaton v. Dearden 16 Beav. 147 which may bb referred to so far as they deal with general principles, but also with the rules of justice, equity and good conscience, which our Courts are directed to follow in cases not provided for by any definite rule of law (see Act XII of 1887, Section 37).
8. For the foregoing reasons, I think that upon the facts stated in the referring order, a decree for partition can properly be made.
9. Maclean, C.J.
10. I have had the advantage of reading the judgment of Mr. Justice Banerjee, and I concur in his conclusion. I desire to add that my decision must be taken to apply only to the particular facts of this particular case.
11. I agree with Mr. Justice Banerjee.
12. I concur with Mr. Justice Banerjee.
13. The language used in the case of Mukunda Lal Pal Chowdry v. Lehuraux I.L.R. 20 Cal. 379 may not be strictly accurate or very precise, but what was intended to be decided in that case was that mere unity of possession, or as I should prefer to term it mere joint possession, is not enough to entitle the persons so in possession to have the land partitioned by metes and bounds. The right to a partition can only, in my opinion, exist as between co-parcenors holding similar interests in the property. How 'similar interests' should be defined it may not be easy to say. They should probably be permanent transferable interests. A temporary lease-holder of an undivided portion of an estate ought not, in my opinion, to be allowed to put his lessor to the trouble and expense of a partition. But, however that may be, the question does not really arise in this ease. Here it is practically the zemindar of a 10 annas share of the estate seeking partition as against himself as the 6 annas zemindar and the putnidars who hold that 6 annas share under him. I can see no objection to a partition in this case, and I would answer the question put to us accordingly.