Mookerjee and Holmwood, JJ.
1. This is an appeal on behalf of the plaintiff in an action for partition of joint property, and the only portion of the decree which is challenged is that which relates to costs. A preliminary objection is taken on behalf of the respondents that the appeal ought not to be entertained, as the question of costs was purely in the discretion of the lower Court. It is well settled, however, that an appeal will lie upon a question of costs when a matter of principle is involved: Bunwari Ball v. Chowdhry Drup Nath Singh (1886) I.L.R. 12 Calc. 179, Mothingan v. Mozari Sajad (1885) I.L.R. 12 Calc. 271; and as an important question of principle is raised before us, the appeal is maintainable. The preliminary objection, therefore, is overruled.
2. The facts, so far as it is necessary to state them, to elucidate the question of principle raised on behalf of the appellant, may be briefly outlined. The plaintiff and the defendants are joint owners of the zemindari which is the subject-matter of partition. Defendants 1 to 9 have a share in the estate as proprietors and they have also taken mokarari of a fraction of the share owned by the plaintiff; these defendants stand, consequently, in a two-fold relation to the property, namely, they are proprietors of a share and are lessees of another share under one of the proprietors. The partition which has been effected by the Court below allots to these defendants two parcels, one corresponding to their share in the proprietary interest, and the other corresponding to their share comprised in their mokarari. The plaintiff, On the Other hand, has been allotted a parcel which represents his share in the proprietary interest reduced by the share of which he has granted a mokarari to defendants 1 to 9. In substance, therefore, the lands which correspond to the entire proprietary share owned by the plaintiff have been sub-divided into two, inasmuch as the lands which represent the share granted in mokarari to defendants 1 to 9 have been carved out and separated. Under these circumstances, the Subordinate Judge directed that each party should pay his own costs up to the stage of the preliminary decree and that the costs of partition should be paid by the parties in proportion to their respective shares in the estate. This order has been assailed on behalf of the plaintiff on two grounds, namely, first, that the costs of the partition in respect of the share held in mokarari by the defendants 1 to 9 should be paid by them, and secondly, that the costs of the suit should not be home by the parties themselves but ought to be rateably distributed.
3. In support of his first contention, reliance was placed by the learned vakil for the appellant upon the case of Khetterpal Sritirutno v. Khelal Kristo Bhuttacharjee (1894) I.L.R. 21 Calc. 904 which is an authority for the proposition that where a mortgagee of a share of joint property takes the benefit of a partition of that property and accepts and approves of it as part of his title, he is liable in respect of a proportionate share of the charge for costs of the partition, even, though, he is not formally a party to the partition suit. In our opinion, the analogy deducible from the case of a mortgagee does not necessarily apply to the case of a lessee; but upon general principles which we shall presently explain, the contention of the appellant appears to us to be partially well founded and must prevail.
4. It is well settled that the ordinary rule of the Court of Chancery before the Partition Act of 1868 was that no costs would be given up to the issuing of the commission, but that the subsequent costs of issuing, executing, and confirming the commission should be borne by the parties in proportion to the value of their interests: Agar v. Fairfax (1811) 17 Ves. 533, Elton v. Elton (1860) 27 Beav. 632, M' Bride v. Malcomson (1840) 2 Dr. & Wal. 700, Balfe v. Redington (1852) 2 Ir. Ch. Rep. 324, Leslie v. Dunganon (1860) 12 Ir. Ch. Rep. 205, Darnell's Chancery Practice vol. II, p. 1119; Seton on Judgments, vol. II, p. 1881. Substantially the same rule was adopted by this Court in Shama Soonduree v. Jardine Skinner & Co. (1869) 12 W.R. 160 in which Mr. Justice Norman stated that as the plaintiff in a partition suit commences it for his own advantage, convenience, and security, and as the defendant as joint owner holds his undivided share always subject to the right of the plaintiff to demand partition, the parties must each bear their own costs of the suit up to the stage of the preliminary decree, and the costs of the partition should be divided between he parties in proportion to their respective shares in the estate. The question now arises whether, when a share is in possession of a lessee from the proprietor, the costs proportionate to that share should be borne by the lessor as the respondents suggest or by the lessee as the appellant contends.
5. The case of Cornish v. Gest (1788) 2 Cox 27 appears to bo an authority for the proposition that when one of several joint owners has made a lease of his undivided share, the lessee is a necessary party to a suit for partition and his costs must be borne by his lessor. The reason, however, which was assigned by Mr. Justice Buller in this case in support of his conclusion, namely, that the lessor is the means of bringing the lessee on the record, has been questioned, and the case itself was dissented from by Baron Pennefather in Herbert v. Eyre (1838) 2 Jones (Ir.) 803, where that learned. Judge pointed out that a lessee who accepts a lease of a share in joint property, does so with full knowledge that the subject-matter is liable to partition, and if he finds himself a defendant in a partition suit, it is by reason of his own voluntary act. The principle applicable to cases of this description,was elaborately-examined in the case of Herbert v. Hedges (1844) 10 Ir. Eq. Rep. 479 which was heard by the Court of Exchequer in Ireland in 1844. In that case, a suit was brought for partition of joint property, and the parties defendants included not only the co-owners in the property, but also lessees under one of the joint owners, one of whom had granted a lease of undivided portions of his undivided share. It was accepted as the settled rule, well-founded in principle and amply supported by authority, that each party must bear his own costs up to the first hearing (which corresponds to the preliminary decree in our system), and that the cost of the partition should be borne by the parties in the proportion of their interests. It was argued on behalf of the lessees upon the authority of Cornish v. Gestt (1788) 2 Cox 27 that they were not only not liable to bear any portion of the cost of the partition, but were actually entitled to get their costs of the suit from their lessor. This extreme contention was overruled and doubts were expressed as to whether Cornish v. Gest (1788) 2 Cox 27 could be defended on principle.
6. As to the liability of the lessees to bear the costs of the partition, it was ruled that if the lessees took no part in the partition proceedings, and neither claimed nor obtained the benefit of a separate allotment, they could not be called upon to contribute to the costs of the partition. Lord Chief Baron Brady pointed out that whether the tenants should be called upon to contribute to the costs of the partition which are to be borne rateably, depends not merely upon the circumstance that they have an interest in the share in the lands, but also upon the consideration whether they are substantial parties to the suit and have taken a benefit under the decree. If they have taken part in the partition, if an allotment of specific shares of the lands has been made to them, they stand in the same position as any other class of persons, interested in the subject-matter of the suit and bound to contribute rateably to the costs, of the partition according to their shares.
7. In the case then before the Court, the tenants took no part in the proceedings and no special allotment was made to suit their convenience, and it was accordingly held that they could not be called upon to bear any proportion of the costs. Baron Pennefather pointed out that a contrary view might result in great hardship to the lessor: for instance, if the lessee has paid a premium and holds under a permanent lease which entitles the lessor to nothing more than a fixed rent, the value of the interest of the lessee may be considerably in excess of that of the landlord, and it is difficult to see why in a case of this description, if the lessee obtains an allotment suited to his convenience, the whole costs should be thrown upon the landlord. The learned Judges further pointed out that a permanent lessee might be regarded as a purchaser and would be entitled to similar privileges and subject to similar liabilities. It cannot be suggested, as appears to have been suggested by Mr. Justice Buller, in Cornish v. Gest (1788) 2 Cox 27, that the lessee has been dragged into the litigation by his lessor. The landlord is seised of an undivided portion, makes a lease and thereby grants to his tenant undivided shares in his undivided portion; the tenant is a party to the instrument, he accepts it and executes a counterpart of it; he is as much a party to the lease as his landlord. The tenant is not brought into the situation of a necessary party by the act of his landlord alone: he has accepted the instrument and his own act concurs with the act of his landlord. He takes the lands and knows what he gets is a portion of an undivided share with all its rights and liabilities and subject to the right of the co-owners of his lessor to institute a suit for partition. If such a suit is instituted, if he is made a defendant as a necessary party, if he takes a part in the proceedings, if an allotment is made for his benefit, the costs must be borne by him rateably with the other parties according to his interest in the premises. These principles appear to us to be consistent with the rule of justice, equity and good conscience and completely cover the present case. Here defendants 1 to 9 have been made parties not only in their character as proprietors but also as lessees, and as we have already explained, the allotments have been so made as to give them separate possession of different parcels representing their proprietary and tenancy interests respectively. Under these circumstances, they cannot justly throw upon their landlord the burden of the costs of the partition proportionate to the share which they hold in mokarari. The question, however, remains whether the whole of the costs proportionate to this share, should be borne by the lessees alone. In our opinion, it ought to be borne by the lessor and the lessees in proportion to their respective interests in the share covered by the mokarari. This proportion is readily determined from the materials on the record. Accepting the valuation made in the plaint, which does not appear to have been challenged in the Court below, the value of the share covered by the mokarari is approximately Rs. 10,000. As Rs.101 is the annual rent payable on the mokarari, the value of the landlord's interest may be roughly taken to be Rs. 2,000 which would represent about 20 years' purchase. The value of the interest of the landlord therefore is one-fourth of that of the tenant; the costs in respect of the share covered by the mokarari ought to be ratably distributed in this proportion. The decree shows that the costs proportionate to this share amount to Rs. 501-9-9; must be paid by defendants 1 to 9. The decree must be varied according.
8. As regards the second contention of the learned vakil for the appellant, there is no sub stance in it. As we have already indicated, the case of Shama Soonduree v. Jardine, Skinner & Co. (1869) 12 W.R. 160 show that the costs of the suit up to the stage of the preliminary decree should ordinarily be borne by the parties themselves and this is what has been done substantially by the Subordinate Judge; of course, if there had been a frivolous contest, the party, by reason of whose opposition unnecessary costs were incurred, might, as pointed out in Porter v. Lopes (1877) 7 Ch. D. 358, 367, be made liable; it is not suggested, however, that any such thing took place in this case.
9. The result, therefore, is that this appeal must be allowed, and the decree of the Subordinate Judge varied in the manner indicated.
10. The appellant is entitled to his costs in this Court.