Stephen and Holmwood, JJ.
1. The only question which we are now called upon to decide in this appeal is whether in the event of the plaintiff obtaining a partition of the small putni share which she desires to have this Would cause such inconvenience to the other co-sharers, and in this case more particularly to the contesting defendants who are Nos. 9 to 12 only, as to render it inequitable that any partition should be ordered. It is unnecessary for us to go into the previous stages of the case. The learned Judge in the Court below has now decided that the inconvenience would he such that the plaintiff cannot, apply for a partition. We think that that decision cannot he maintained. It is now settled law that a putnidar of a fractional share can partition any property held jointly by himself and some of the defendants although the defendants may he jointly interested with or without other persons in the remaining portion of the estate: see Radha Kanta Shaha v. Bipro Das Roy (1904) 1 C.L.J. 40. It was also held in the case of Barahi Debi v. Debsamini Debi (1892) I.L.R. 20 Calc. 682 that there was no objection to a decree being made for the separation of a share purchased by a stranger from the other joint owners without partitioning the whole joint estate. The plaintiff was said to be the benamidar of the defendant No. 1, who was a landlord co-sharer in the whole estate, and had this been found to be so as a fact no doubt the landlords could have been made to bring the whole estate into the hotch-pot; but it has been held that this lady, although she is the mother of defendant No. 1, is riot a benamidar; in other words, that she is just as much a stranger as the purchaser in the case of Barahi Debi v. Debkamini Debi (1892) I.L.R. 20 Calc. 682. She, therefore, is entitled to ask for partition of her putni share, and she is not entitled to ask for anything else. It is idle, therefore, for the defendant-respondents to urge that in this suit we should order the partition of at least four villages with three of which the plaintiff has nothing whatever to do.
2. The only question is whether the peculiar position of the defendants Nos. 9 to 12 places them in such a position of inconvenience that they would be injuriously affected by this partition. It appears that in addition to their own small share of 2 annas 6 gundas they have by adverse possession obtained a number of brahmattar, debattar and lakheraj holdings, and there are buildings occupied by homestead and other village tenures; and they fear that if the various co-sharers were to adopt the same policy as the present plaintiff has done, they would in time be deprived of their extraordinary interest in the village of Groalpara. We do not think that there need be any apprehension on this score. If the defendants have this special interest in this village and if any further partition would jeopardize their interest, it is open to them as parties interested to compel their co-sharers to divide the whole estate or the four villages which they referred to, and to give them on their allotment the actual tenements they hold in the village of Groalpara.
3. It is also objected that certain lands had been excluded from the plaintiff's putni lease. It is obvious that the Commissioner in making the allotment will not touch those lands, nor will it be necessary, as it seems to us, for him in giving the plaintiff her share of culturable lands in the village with due proportion of cultivating ryot's houses, in any way to infringe on the rights of the defendants, or to take away any of these special holdings which they claim. This is a matter for equitable adjustment at the partition. We have no reason to suppose that the Commissioner in this case will go out of his way to cause inconvenience to any body.
4. Finding as we do that this small share of 2 annas and odd can be partitioned without interfering necessarily with the rights of any body else, we direct that the partition of the plaintiff's putni share be made and that she do obtain separate possession of that share without partitioning any other portion of the estate.
5. As the defendants Nos. 9 to 12 are alone in their opposition to the plaintiffs' claim we direct that the costs of this litigation up to this date be borne by them.