Ameer Ali, J.
1. For convenience I propose to divide my judgment as follows : (A) Preliminary observations ; (B) Bhaduri v. Bhaduri No. 174 of 1931, Mr. S.K. Basu's partition, specimen accounts and final return; (C) Costs and payments on account; (D) Preliminary decree.
(A) Preliminary observations : On 20th July 1939 there were in the list three cases of partition of the aggregate age of 66 years. One of these cases, Mt. Mahmuda Bibi v. Mt. Nainoo Bibi and Ors., Suit No. 1221 of 1916, afforded an interesting study. The original Commissioner Mr. Mitter who died pending the partition was one of the ablest officers of this Court and an expert in partition. Yet such was the condition of this partition in 1939, mainly by reason of orders obtained from the Court and advances made to parties and to their attorneys on account of costs that it was found absolutely impossible to bring it to an end in a regular manner. The eight or ten attorneys acting fully realised the impossibility to which I have referred and it was only with their assistance and consent to a rough and ready division of what remained that the matter could at all be concluded. Our senior partition suit pending, Bannerjee v. Mukherjee, Suit No. 145 of 1900, is forty-one years old. The plaintiff is himself an attorney of this Court and the main defendant another attorney is 73 of age. Two Commissioners have been buried. The status and respectability of the parties precludes in this case the possibility of wilful obstruction, and indicates for this chronie paralysis some cause other than the rapacity of lawyers or perversity of parties. Such other cause exists. As I hope to explain our system is so designed that even with the best of Commissioners, the most disinterested attorneys and the most reasonable of parties, no partition can ever be closed. I refer especially to the ridiculous dilemma of Commissioner, precluded from making up and filing his final return because the costs have not been taxed, and the attorneys precluded or inhibited from taxing their bills because of the general rule 'no taxation without completion.' A failure to realise such anomalies has exaggerated their effects, and prevented the application of remedies.
2. Moreover, apart from such anomalies, there has been, I suggest, a very general failure to appreciate the peculiarities of our system such as it is, and consequently on the part of Commissioners and others concerned, a failure to work the machinery in the only way in which it can be worked. I hope to explain and justify the above criticism. Partitions may remain at a stand still. Not so, Nature. In most of the old partitions now pending we have lost two, often three, Commissioners. Or should the Commissioner survive, the parties die, and procreate so that the suit is never fully or properly constituted. Living Commissioners seek escape from the situation by one of two devices, (a) they either partition and retain some balance in hand which involves a series of ever diminishing partitions, on the La Fontaine principle or (b) like Mr. S.K. Basu in Bhaduri v. Bhaduri, Suit No. 174 of 1931, estimate the amount of costs, extract undertakings, put in a return on that basis and then leave it to Providence, the parties and the attorneys' accounts clerks thereafter to make an adjustment, which in my experience never takes place.
3. Before I deal with Bhaduri v. Bhaduri, I mention in advance the main features of our existing system, and for convenience give a name to the two distinct species of partition in vogue, (i) Apart from the Registrar and partitions under a certain figure, private Commissioners, (ii) Theoretical control of Court. (iii) 'Gross' and 'net' partitions. By 'gross' partition I mean a partition in which the costs of partition are not dealt with in the partition by the Commissioner but left to be adjusted after the partition between the parties and the attorneys. By 'net' partition I mean one in which costs are dealt with by the Commissioner and taken out of the estate before the partition is concluded, the net shares only being divided and allotted to the parties. 'Net' partitions are and have been for a considerable number of years the general rule.
(B) Bhaduri v. Bhaduri Suit No. 174 of 1931, only ten years old. This is a simple case of one house sold in June 1934 but the partition not yet completed. I propose to discover why not ; and to discuss how it could and should have been completed. The facts are as follows : One house ; three parties or sets of parties, shares 1/2, 7/16 and 1/16 ; property sold on 30th June 1934 to the 7/16 party for Rs. 13,250. The Commissioner from time to time in accordance with the usual practice made advances to the parties. On 24th September 1934, he estimated the total costs at Rs. 2800, took undertakings, paid the three attorneys three quarters of the estimated amount and retained Rs. 698-15-0. In the absence of taxation, it was the only thing he could do. On this basis he submitted a return in July 1938. It is not and could not be a final return. The parties and their attorneys did nothing. This petition was filed in May 1941 by the solicitors for the plaintiffs asking for an order on the Commissioner to divide the balance in his hands and confirmation of the return. In para. (15) with sweet simplicity the petition states that 'the solicitors for the parties have not got their bills taxed up till now.' So oblivious are attorneys to the obvious ; that a system of net partition cannot be carried out unless the costs are ascertained prior to the final return.
4. The affidavit in opposition by the attorney for the second party is an excellent example of the art of obstruction. It refers to all the deaths that have taken place and the necessity of substitution. It then contends that the matter cannot be proceeded with. It then contends that 'a large sum of money is payable to Mr. Raj Kumar Basu for costs,' and that 'the amount should not be distributed by the Commissioner of partition unless his costs have been taxed and paid.' This is not client's affidavit and the costs of this affidavit must in no event be borne by the client: nor will they be received by the attorney out of the estate. I propose now to indicate the course which should have been adopted. There should have been and must now be an ascertainment of costs. I will direct my officer to check the bills and if he thinks right to assess the costs at the figure estimated by Mr. S. K. Basu, namely Rs. 2800. Proceeding on the basis of aggregate costs Rs. 2800 my own officer, Mr. S. Banerjee and the Special Officer Rai Sahib U.N. Maitra have worked out a specimen set of accounts on the actual figures in this partition showing the manner in which a net partition should be managed. It is a simple case and, therefore, all .the more useful for the purpose of demonstration. Five accounts have been prepared--(I) Property account, (II) Cash account, (III) Parties' ledger account, (IV) Costs adjustment account, (V) Costs pool accounts.
I. Property account: On the credit side should be the receipts and on the debit side the amounts credited to the parties in respect of their shares.
II. Cash account : All receipts and disbursements should find' place in such account with the respective references to the other accounts, for instance, payment to the pool account,
III. The ledger account should show on the credit side the share of the sale proceeds with which each party is credited, on the debit side the amounts paid to the parties or on their account, as for instance, in this case the amounts paid to the mortgagee of the plaintiff. On the debit side also, should be debited the share of the pooled costs payable by each party. The matter will be plain from the specimen account.
IV. Costs adjustment account : On one side, the costs of the partition which have to be dealt with by the Commissioner. First, costs of the Commissioner. Then the ascertained party and party costs of each party. On the other side of the account the liability of the parties for the aggregate of the said costs. It must be remembered that according to our system, good or bad, to be continued or not to be continued, there is a pool. The costs are thrown into a pool, ('lumped' is the expression used by attorneys) and then the liability for those cost is readjusted. That is the purpose of the costs adjustment account. For instance, in this simple case the pool is 2800 including Commissioner's costs 400. The first 8/16 party's bill of costs is 1100, he is to pay 1400. The second 7/16 party's own bill of costs is 800, he is to pay 1225. The third 1/16 party's bill of costs is 500 but he only pays 175.
V. The costs pool account is designed mainly to meet the difficulties of advances to the parties and to the parties' solicitors. On one side should appear the amounts payable by the parties in respect of pooled costs. On the other side must be brought in all advances to the solicitors in respect of such costs. Theoretically the attorneys are bringing back all such advances before they can be paid out the total amount of their bills. Also on this side must appear the actual amounts payable and paid to the solicitors before the final return is filed. If such accounts are kept, it should be a simple matter to draw up the final return. This, instead of reciting the matter in a narrative form can be of a formal nature attaching the five accounts mentioned, or in the case of lengthy accounts, abstracts.
5. Before I leave the matter of accounts, let me refer to partitions with both receiver and Commissioner especially the case when the receiver and the Commissioner are different persons. The pending suit: Musst. Abdulla Md. v. Kassim A. Md. Suit No. 1543 of 1933, is an admirable example. Grand confusion, and immobility is achieved by failure to realise that the partition is one and indivisible, and that without bringing in, and sorting out the receiver's account no final return can be made. In the case referred to, the receiver's accounts are already of 8 or 9 years. They are voluminous, and assorted. On the expenditure side are large advances to the parties and still larger advances to the attorneys. From what I have seen, it. seems likely that in some cases the net shares have already been overdrawn. The point is that in partition, at any rate, receiver's accounts must be kept in a manner which enables the Commissioner to make up his return, and this without superhuman effort. At present only running or 'didimas' accounts are kept. Indeed, the necessity of any other system is ignored. In the case of Musst. Abdulla Md. v. Kassim in which the Special Officer is assisting the Commissioner and the parties it will take days of careful work to ledgerise the receiver's accounts; and the same difficulty arises in Addy v. Addy Suit Nos. 2024 and 2029 of 1935 (where in point of fact the Commissioners and receivers are the same). A ledger account is essential. A property ledger, with the income and expenditure in respect of each premises, desirable, Receivers in partition suits will in future and so far as I am concerned, be required to produce a classified statement of account from which the Commissioner can at once enter up his accounts, I. Property Account, II. Cash account, III. Parties' ledger account, IV. Costs adjustment account and V. Pool account.
6. A further impediment to conclusion must be appreciated, before it can be removed. Where the receiver and the Commissioner are different and even when the persons are the same, separate 'receiver's costs' are incurred. There are often separate attorneys. Before the Commissioner can incorporate the results of the receivership in his return, such costs have to be ascertained. In future, therefore, receiver's costs must be taxed or assessed, and included in the receiver's classified statement of account above referred to.
(C) Costs and Advances: I now proceed to discuss the system generally. It will be observed that I have begun with the accounts and final return. I shall work backwards to preliminary decree. The matter of costs and advances is of much greater importance than might be imagined. The costs of partition sometimes exceed the shares of the parties (known as 'minus partitions'). In some cases the advances for costs made from time to time represent a very large proportion of the shares. In the pending partition, Mustapha Abdulla v. Kassim A. Md., the advances for costs already amount to Rs. 40,000 on an estate of about one and a half lack.
7. Apart from costs, in a partition lasting 10, 20 or 30 years it should be obvious that the parties may demand something. One of the commonest of demands is for a purpose which cannot in India be ignored--the marriage of daughters. Moreover unless such advances are made by the Commissioner or receiver it means that mortgagees of the parties come in, and the state of that partition will be so much the worse. (See Mahmuda Bibi's case, where some parties mortgaged their shares to make advances to their attorneys. Out of one party's share on a mortgage for Rs. 16,000, some Rs. 80,000 was paid. In the case of two cosharers, the amount payable to the mortgagees exceeded the amount of their shares, which were considerable. I mention this to show the importance of this question of advances.)
8. Costs. -- Various kinds of arrangement are made in partition suits with regard to costs. Those arrangements are found sometimes in the decree itself, sometimes in the writ, sometimes in the order appointing the receiver, e. g., Addy v. Addy Suit No. 2024 of 1935. Sometimes they are not mentioned, but are implied as in Mookerjee v. Bannerjee. Generally speaking, the system adopted is as follows : Costs prior to preliminary decree are usually left a matter between client and attorney, and are not for the Commissioner to deal with. But there are exceptions. See Addy v. Addy and other cases where by special order, or in the decree, payment of costs prior to the preliminary decree is made part of the duties of the Commissioner or receiver. This being the case any advances made, as they often are, by the receiver or Commissioner for costs incurred prior to the preliminary decree must be treated in the accounts as advances to the parties themselves. The same with payments on account of attorney and client costs of parties throughout the partition, because these do not come into pool. This shows the necessity of distinctly stating in the account in what respect and for what purposes each advance is being made. Without that final accounts can never be made up. For instance
9. Mahmuda Bibi's case where the advances were made indiscriminately by consent, or for 'settled costs' it was impossible for the Commissioner to make up his final accounts.
10. Costs after preliminary decree. -- (1) Costs of the Commissioner and of executing the commission are taken out of the assets before distribution and are debited to the parties in proportion to the value of their shares. This is clearly in accordance with Chap. 16, Rule 18 (4) of our rules. (2) Parties' costs : Less clearly in accordance with Chap. 16, Rule 18 (4) but certainly in accordance with immemorial user, these are also paid by the parties in proportion to the value of their respective shares. (3) Where the partition is a 'net' partition, these parties' costs are taken out of the estate before it is divided.
11. Net partition. -- This system is, I understand, preferred by the attorneys and is, as I have said, the general rule. It has, if successfully carried through to a final, return within a reasonable time, advantages. It leaves the parties free of anxiety. If unsuccessfully worked, taking 20 to 40 years, it leaves the parties free of property. So far, the failures exceed the successes. My own view, however, for what it is worth is that the system should not be abandoned without attempt at improvement. It cannot work without (a) an understanding of the 'pool system,' (b) rapid ascertainment of costs prior to final return, (e) a thorough appreciation of the nature of advances, (d) a regular set of accounts, (e)' vertebrate Commissioners, (f) co-operation between Court and Commissioner.
12. (e) and (f). The invertebracy of Commissioners is not congenital, but due largely to the degraded position to which they are reduced. Initiative and efficiency are resented, as tending to bring a good partition to a premature end. Nor have Commissioners been able to rely on the Court for encouragement and protection. In this respect the new rule Chap. 38, Rule 71, introduced at the instance of the Registrar, Original Side will help, by preventing 'the parties,' i.e., their solicitors slipping off to one Judge or another behind the back of the Commissioners and getting any kind of order regardless of the partition (as in Mahmuda Bibi's case). But more is required. It is not in my opinion possible for any Judge, however able, in a few minutes to pick up the thread of a complicated partition, and do justice to any particular application. I offer the suggestion that so far as practicable partitions and administrations should be dealt with in one Court. Further, that there should be for such matters an Officer, Assistant Registrar or Master, to serve as a, connexion between Court and Commissioner, who will among other things see that matters come before the Judge at the proper time, in the proper form, and with the proper materials. Also to see that when an order is made it is properly drawn up and made effective. At present this essential work has been undertaken unofficially by the Special Officer in addition to his accounts duties.
13. Gross partition again has its advantages and disadvantages. It should be quicker. Its disadvantages are (1) delayed taxation. Taxation in certain cases is not completed for 20 years or more after the division. It means that the parties are still under a cloud of uncertainty as to the ultimate result. They get a house or a bit of a house. They never know when it is going to dissolve into costs (party and party, pure attorney or purer attorney). (2) A charge for costs on the divided shares will certainly be sought and probably be granted. Where the costs in accordance with the usual practice are payable by the parties in proportion to their shares (i. e., re-adjustable) two results follow, (a) The charge on each share will be general, i.e., in favour of the attorneys for all the parties. (b) There being no Commissioner or 'pool,' the adjustment and payment of costs involves a complicated process of cross-payment which for want of a better name I have called the cats-cradle system. This is illustrated by the following table based on the figures in Bhaduri's case without taking into account advance:
Attorney's Bills Plff. 1/2 Deft. 1. Deft. 2.
(Party & Party sharer pays. 7/16 sharer 1/16 sharer
Plff. 1100 550 481 1100 550 481 .4 68.12
Deft. 1. 800 400 350 50
Deft. 2. 500 250 218.12 31.4
2400 1200 1050 150
14. This is a simple case. In a big partition with numerous shares, and many advances the adjustment becomes inconceivably complicated, and for this reason is seldom, if ever made. As regards (a), the general charge may operate most oppressively. The parties obtain no free title to their shares until completion of the whole process which may be indefinitely postponed by the obstruction or indifference of one party. For my part therefore I consider that in the case of 'gross' partition, the usual practice should be abandoned, each party should pay his own costs, and the charge, if any, be by each party in favour only of his own attorney. In a gross partition the Commissioner is not concerned with paying costs. He is not in control of any pool. He has almost certainly made advances for costs. In gross partition all such advances must be treated and entered as advances to the parties.
(D) Preliminary decree : This is of first importance, both as to contents and as to form. There is no form in the Civil Procedure Code and the printed form available in the office of this Court is, in my opinion, inadequate. The result is that these partition decrees are largely a work of imagination. When applications are made, to discover the relevant portion and ascertain its effect requires time and labour which it is impossible to afford. The decree in Mookerjee v. Banerjee Suit No. 145 of 1900, may be taken as an example. It is not surprising that the suit has lasted 41 years. The same applies to the writs of commission issued. Speaking for myself, if the decree is complete, I do not appreciate the necessity of a writ; and the decree should be complete.
15. As to the form and contents of decree my proposals are as follows : I suggest first of all that the parties should be set out and numbered as in the mofussil, rather than in the High Court manner. It is not essential. It would be more convenient.
16. Clause (1) Properties : Declaration that the properties belonging to the estate are as set out in Schedule A. I deprecate reference to the plaint or other document. Alternatively, where the properties are not ascertained, then a declaration that the estate consists of properties found to belong to the estate as the result of the enquiry ordered in Clause (6).
17. Clause (2) Shares : Declaration of shares as in Schedule B. Where the shares are many, I prefer a (schedule to the body of the decree. I suggest that that schedule should be in the form of a genealogical table numbering the parties according to cause title and showing the shares against each.
18. Clause (3) Order for Partition, Division and Allotment.
19. Clause (4) Appointment of Commissioner for the purpose of partition, upon the conditions and with the powers and duties set out in Schedule C. Schedule C, Part 1 to contain the Commissioners remuneration, security and so forth. Schedule C, Part 2 to contain a complete list of his general powers and duties. Schedule C, Part III to contain any special powers, or duties peculiar to the ease.
20. Clause (5) Receiver: Where a receiver is appointed, or has been appointed let this also be in the decree.
21. Clause (6) Special Referee : Where the Commissioner or another is Special Referee to take accounts, I suggest that these accounts directed should not be muddied up in the body of the decree, with the duties of the Commissioner. See the decree in Pal v. Pal. 'It is ordered and directed that Mr. X as Special Referee will hold the enquiries and take accounts set out in Schedule D.'
22. Clause (7) Costs : (1) Costs prior to preliminary decree; (2) Costs subsequent to preliminary decree: these to be paid by the Commissioner in accordance with the parties' share. They should be confined to the costs of the partition and to filing and confirming the return (i. e., excluding the parties costs of appearance on confirmation) so that the costs may be ascertained before the final return. (3) A provision for the ascertainment of costs before the filing of the return at the instance of the Commissioner.
23. Clause (8) Conveyances and Documents : The usual provisions relating to conveyances and documents of title, etc.
24. Clause (9) Liberty to apply including liberty to. bring on the matter for further directions in the partition list at the instance of the Commissioner, or at the instance of any party with the Commissioner's consent or with the sanction of the Special Officer.
25. I will not dictate Schedule C, (powers and duties of the Commissioner) because that requires consideration. It should however include the following matters : power to equalize, power to examine persons and to call for documents, power to execute conveyances on behalf of the parties, power to appoint surveyors, and also as at present advised other matters such as powers to sell under the Partition Act or outside the Partition Act making it clear what procedure the Commissioner should follow. (That being a common source of trouble).
26. The order on the application in Bhaduri v. Bhaduri is as follows : (1) The aggregate costs incurred since the preliminary decree including the costs of the Commissioner, the costs of the filing of the return and obtaining information shall be assessed by my officer. (2) On such assessment the Commissioner will be good enough to make up his final return in the form suggested, i.e., formal return with the accounts annexed closing the partition. (3) He may place this before this Court without stamps. (4) The matter will be in the list on Friday 4 weeks hence for confirmation. (5) Should the costs fall short of Rs. 2800 the Commissioner will work out his final return on the basis indicated but with the necessary adjustment. (6) Direction upon the attorneys or the heirs of those who have not survived the partition to submit their bills to Mr. S. Banerjee within a week from now. (7) The Commissioner will also be good enough to supply a minute of the order for substitution required, upon which the necessary amendments will be made without any order being drawn up.