1. This appeal arises out of a suit for partition and the appeal is against a preliminary decree passed in the suit. The subject-matter of partition is a small piece of land comprised in a revenue-paying estate. Plaintiff obtained a putni in respect of this land from the proprietors owning a 13-annas, 15-gandas share. Defendant No. 1 also was a putnidar under the 1-anna, 5-ganda proprietors. The remaining 1 anna belonged to the other defendants, Defendants Nos. 2, 3 and 4 claim a right to the land as usufructnary mortgagees from the old tenant and they further claim that they have been recognized by the proprietors other than those who are the lessors of the plaintiff and the defendant No 1. The Courts below have given a decree for partition overruling the objections raised by the defendants. Defendants Nos. 1 to 4 have appealed to this Court.
2. It is contended that the subject-matter of the partition being a very small portion of an estate there ought not to have been a decree for partition. But this is the only property which is jointly owned by the plaintiff and the defendants, and they have no other property in common between them Defendants are not interested in any other portion of the estate and there, is, therefore, no risk of their being subjected to other partition suits as was suggested in the case of Parbati Churn Debi v Ain-ud-deen 7 C. 577 : 4 Shome L.R. 46 : 9 C. L.R. 170 : 3 Ind. Dec. (N.S.) 920. Defendants obtained a putni ease only in respect of their lessors' interest in the land and, that being so, we do not see any reason why the land should not be partitioned.
3. It is contended on behalf of defendants Nos. 2 to 4 that they are usufructuary mortgagees from the tenants but the finding is that the old tenant abandoned the land.
4. The last contention is that the land was transferable according to law. But the tenancy was created before the passing of the Transfer of Property Act : and upon the authority tenancies from year to year of homestead lands were not transferable except by custom previous to the passing of the Transfer of Property Act. See Madhu Sudan Sen v. Kamini Kanta 32 C. 1023: 9 C.W.N. 895., Ambica Prasad Singh v. Baldeo Lal 36 Ind. Cas. 126 : 20 C.W.N. 1118 : 1 P. L.J. 253. Ananda Mohan Saha v. Gobinda Chandra Roy Choudhury 33 Ind. Cas. 565 : 20 C.W.N. 322. and the oases referred to therein.
5. The appeal, therefore, fails and is accordingly dismissed with costs. We assess the hearing fee at Rs. 48.
6. Let the record be sent down without delay.