1. A question of law of first impression has been raised in this appeal, which has been preferred by the plaintiff in a suit for partition of joint immoveable property. On the 30th April 1906 the plaintiff took a conveyance in respect of a share of the disputed land from her brother. On the 28th September 1909 the plaintiff instituted this suit for partition and joined her vendor as proforma defendant. The contesting defendants resisted the claim on the ground, amongst others, that the sale was a fictitious transaction and that the plaintiff as the nominal owner was not entitled to maintain the suit. The Courts below have concurrently found upon the facts in favour of the defendants and have dismissed the suit. The question thus arises whether a benamidar can maintain a suit for partition of joint immoveable property.
2. On behalf of the appellant reference has been made to the cases of East Poddar v. Ram Krishna Poddar 1 C.W.N. 135 and Baburam Mandar v. Ram Sahai Sahoo 8 C.L.J. 305 where the right of a benamidar to apply for reversal of an execution sale of land under Section 310A of the Code of 1882 was sustained, as also to the decision in Sreenath Nag v. Chundernath Ghose 17 W.R. 192 Bhoobunessur Roy v. Juggesuree 22 W.R. 413 Sachitananda Mohapatra v. Bahrain Gorain 24 C. 644. Hara Gobinda Saha v. Purna Chandra Saha 1 Ind. Cas. 522 : 11 C.L.J. 47, Alikjan Bibi v. Rambaran Shah 7 Ind. Cas. 166 : 12 C.L.J. and Kirtibash Das v. Gopal Jeo 20 Ind. Cas. 499 : 19 C.L.J. 193, where the right of a nominal mortgagee to enforce the security was recognised. On behalf of the respondents, on the other hand, reliance has been placed upon the doctrine now well settled in this Court, that a benamidar is not competent to maintain a suit for possession of immoveable property: Meheroonissa Bibi v. Hur Churn Bose 10 W.R. 220, Fuzeelun Beebee v. Omdah Beebee 11 B.L.R. 220, Kalee Prosunno v. Dinonath 11 B.L.R. 56 at p. 64 : 19 W.R. 434, Tamaoonnissa v. Woojjulmonee Dossee 20 W.R. 72, Ram Gobind Adhikari v. Akhoy Kumar Muzumdar 16 C. 265 : 7 C.W.N. 229, Issur Chandra Dutt v. Gopal Chandra Das 25 C. 98 : 3 C.W.N. 20, Thiroda Sundari Ghose v. Dino Bandhu Khan 25 C. 874 : 3 C.W.N. 12, Mohendra Nath v. Kali Proshad 30 C. 265 : 7 C.W.N. 229. This doctrine is in accord with the pronouncement of the Madras High Court in Kuthaperumal Rajali v. Secretary of State 30 M. 245 : 17 M.L.J. 174, though possibly a discordant note is sounded in the still later case of Venkatachala Asari v. Subramania Chetty 8 Ind. Cas. 264 : 8 M.L.T. 377 : (1910) M.W.N. 633; while a contrary view has been adopted in Bombay: Dagdu v. Balwant Ramchandra Natu 22 B. 820, Ravji Appaji Kulkarni v. Mahadev Bapuji Kulkarni 22 B. 672 and in Allahabad Nand Kishore Lal v. Ahmad Ata 18 A. 69 : A.W.N. (1895) 160, Yad Ram v. Umrao Singh 21 A. 380 : A.W.N. (1899) 130. These cases indicate that a distinction has been recognised in this Court between suits for land and suits for money claims, in the determination of the question of the competence of a benamidar to maintain a suit: in the former class of cases the right has been denied in the latter class of cases the right has been sustained. The substantial question in controversy is, within which of these classes does a suit for partition of land fall. In our opinion a suit for partition of immoveable property should, for our present purpose, be included in the same category as a suit for possession of land. The object of a suit for partition is to alter the form of enjoyment of joint property by the co-owners; or, as has sometimes been said, partition signifies the surrender of a portion of a joint right in exchange for a similar right from the co-sharer. Partition is thus the division made between several persons of joint lands, which belong to them as co-proprietors, so that each becomes the sole owner of the part which is allotted to him; the essence of partition is that the property is transformed into estates in severalty and one of such estates is assigned to each of the former occupants for his sole use and as his sole property. No intelligible principle has been suggested whereby an analogy can be established between the process thus described and the enforcement of a money claim, even when such claim is associated with land, as in the case of a benami mortgage or of a benami lease, though it may be observed that even as regards leases, Donzelle v. Kedarnath Chuckerbutty 7 B.L.R. 720 : 16 W.R. 186, Kedarnath Chuckerbutty v. Donzelle 20 W.R. 352, Inderbuttee v. Muhboob Ali 24 W.R. 44, Jainarayan Bose v. Kadumbini Dasi 7 B.L.R. 723 n. Purnia v. Torab (1865) Wyman 14, Bogar v. Karam Singh 13 P.W.R. 1907 : 141 P.R. 1906 : P.L.R. 1907 as also as regards mortgages, Alikjan Bibi v. Rambaran Shah 7 Ind. Cas. 166 : 12 C.L.J. 357, Munshi Basiruddin v. Mahomed Jalish 12 C.W.N. 409, there is apparently some divergence of judical opinion. We accordingly hold that the plaintiff as benamidar is not entitled to maintain a suit for partition of the joint property in dispute.
3. It has finally been argued on the authority of the decision in Ram Bhurosee Singh v. Bissesser Narain Mahata 18 W.R. 454, that the defendants should not have been allowed to object that the plaintiff was not the real owner. There is no foundation for this contention. The defendants allege that the vendor of the plaintiff was a party to a prior partition suit instituted in 1907 and that the present suit had been instituted at his instance and en his behalf by his benamidar with a view to enable him to escape from the effects of the decree in the earlier litigation. This, if established, is a complete answer to the suit as framed, and the defendants were undoubtedly competent to urge this defence, as they have successfully done. This also meets another objection taken by the defendants, namely, that the proper procedure was not to dismiss the suit but to direct that the beneficial owner be made a joint plaintiff--a course commended in Sita Nath Saha v. Nobin Chunder Roy 5 C.L.R. 102 Gopi Nath Chobey v. Bhugwat Pershad 10 C. 697 Kallee Prosonno v. Dinonath 11 B.L.R. 56 at p. 64 : 19 W.R. 434 Bhola Pershad v. Ram Lal 24 C. 34. In the present case the procedure now suggested cannot possibly be adopted. In the first place the vendor of the plaintiff cannot be joined as a co-plaintiff without his consent. In the second place if he was so joined, it would be of no avail as the relief claimed must be refused on the ground that the suit is barred by the decree in the prior partition suit.