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Parbath Chund Deb Vs. Ain-ud-deen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal577
AppellantParbath Chund Deb
RespondentAin-ud-deen and ors.
Excerpt:
co-sharers - partition--portion of an estate--parties. - .....sued for a partition, and the facts are these: monwar ali is the owner of an undivided twelve annas share in a mouza, and ali kasim and others are entitled to the remaining four annas. the defendants have obtained a patni of the four annas share, and the plaintiff has obtained from monwar ali a mokurari of a small portion of the twelve annas share. under this mokurari, he has an undivided twelve annas share in a small area of a mouza. the entire mouza held in joint possession consists of upwards of 100 droues of land; and the portion in which the plaintiff has a twelve-anna share is less than two drones. under there circumstances, the plaintiff sues the defendants for a partition,-that is to say, he prays to have the small area in which he has a twelve-anna share divided as between.....
Judgment:

Richard Garth, C.J.

1. The plaintiff sued for a partition, and the facts are these: Monwar Ali is the owner of an undivided twelve annas share in a mouza, and Ali Kasim and others are entitled to the remaining four annas. The defendants have obtained a patni of the four annas share, and the plaintiff has obtained from Monwar Ali a mokurari of a small portion of the twelve annas share. Under this mokurari, he has an undivided twelve annas share in a small area of a mouza. The entire mouza held in joint possession consists of upwards of 100 droues of land; and the portion in which the plaintiff has a twelve-anna share is less than two drones. Under there circumstances, the plaintiff sues the defendants for a partition,-that is to say, he prays to have the small area in which he has a twelve-anna share divided as between him and the four annas patnidar, Neither of the zemindars is made a party to the suit; and the defendants object that, in point of law, the plaintiff is not entitled to the partition.

2. Both the lower Courts have dismissed the plaintiff's suit. The Munsif has dismissed it upon the ground, that the lessee of twelve annas of part of the joint estate has no right to a partition against a lessee of four annas of the entire estate; and also, that if such a partial partition wore allowed between tenure-holders of portions of entire properties, it would lead to great expense and inconvenience. The Subordinate Judge gives several reasons for his decision. He says,-first, that the plaintiff and defendants are not sharers in the same tenures under the same proprietors. They have separate tenures under different proprietors; and that, as the plaintiff is not a sharer in the defendants' patni, nor the defendants sharers in the plaintiff's mokurari, neither party has a right to enforce a partition against the other; secondly, he says, that such a partition would be an unlawful interference with the rights of the zemindars, that they are not made parties to the suit, and that such a partition cannot be made without their concurrence; and thirdly, he considers, that to allow the four annas share to be thus subdivided, would be injurious to the four annas patnidar.

3. It has been argued here on special appeal, that a partition may legally be enforced as between tenure-holders of the same zemindari, as long as between them they are entitled to the whole sixteen annas in the particular area sought to be partitioned ; and that it is no objection to such a partition that the parties hold separate tenures under separate owners of the zemindari. It is said that partition would not affect the rights of the zemindars, either inter se or as against their respective lessees; and it would only be in force during the lessees interests. If either the defendants' patni or the plaintiff's mokurari were to determine, the partition would be at an end.

4. We think that the judgment of the lower Courts should be confirmed, for the following reasons:

5. First, that a partition of this Kind cannot legally be enforced without the zemindars being made parties to the suit; and secondly, that a partition cannot be enforced of a part of the estate held by the defendants. The defendants are entitled, by right of their patni, to an undivided four annas share in a large estate of 100 drones; and if the plaintiff was entitled to compel a partition as against the defendants of an area of two drones only, the defendants might, in respect of the same estate, be subjected to forty or fifty claims for partition at the suit of forty or fifty different persons, each of whom is in the plaintiff's position, and might be put to great expense in consequence of his estate being divided into forty or fifty separate areas


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