Richard Harington, J.
1. This is an appeal on behalf of the defendant No. 1 who objects to the preliminary decree made in favour of the plaintiff in a partition suit. Three points have been taken by the learned Vakil who appears for the appellant. The first is that the action is not maintainable because, on the face of the plaint, the plaintiff is asking for a partial partition, that is to say, a partition of only a portion of the joint property and professes to intend to bring another suit for the partition of the rest. The second point taken is that the Court below had no jurisdiction to deal with the matter because some of the lands sought to be partitioned lay within the territorial jurisdiction of another Court and the third point taken is that the order for partition contravenes Section 54, Civil Procedure Code, and is, therefore, bad.
2. With regard to the first point, the authorities are in favour of the appellant. The question came up for decision in the case of Hari Das Sanyal v. Pran Nath Sanyal 12 C. 566 and in that case it was held that the suit was not maintainable. The particular authorities were not cited in the judgment, but reference was made to Mayne's Hindu Law. Then the question again arose in the case of Jogendra Nath Mukerji v. Jugobundhu Mukerji 14 C. 122. In that case, the then Chief Justice in considering the question spoke of it as being concluded by authority and he felt bound to hold that the suit must be dismissed because it was for a partial partition: and that case was a case which was stronger in favour of the plaintiff than the present case because, in that case, the lands of which partition was not asked were alleged to be no part of the joint estate whereas, in this case, it is admitted, on the face of the pleadings, that the lands of which the plaintiff does not seek partition are, in fact, a part of the joint estate. The last case in which the cases referred to above were considered was the case of Satya Kumar Banerjee v. Satya Kirpal Banerjee 3 Ind. Cas. 247; 10 C.L.J. 503. There, these cases are mentioned and it is regarded as settled law that there cannot be, by a suit, a partial partition and that, if a suit for partition is brought, it must embrace the whole of the family property. We are concluded by these decisions and, on that ground, I think that the appellant has made good the point which he has first stated. The answer of the respondent is that we are not entitled to go into this matter because it was not discussed in the Court below nor was it taken in the grounds of appeal to this Court. Speaking for myself, I felt at one time some hesitation as to whether we ought to go into this point at all; but in view of the fact as appears on the face of the plaint and that the course which the plaintiff professes to take is a very inconvenient one, I think that we are entitled to consider the question, notwithstanding the fact that it was not taken in the grounds of appeal or argued in the Court below.
3. In taking the view that the suit must, on the authorities by which we are bound, be dismissed, it becomes quite unnecessary to consider the other points which are raised by the appellant. The result is that, in my view, the suit must be dismissed but the plaintiff must be given liberty to bring a fresh suit for partition of the estate which he claims. He will then be able to put his tackle into propounder and claim partition of the entire estate. With regard to the question of costs, inasmuch as the point discussed here was not raised when it ought to have been raised but sprung by the appellant at the last moment, I do not think it right to give him any costs. The result is that, though the appeal is allowed and the judgment of the lower Court is set aside and the suit dismissed, no order is made as to costs and liberty is reserved to the plaintiff to bring a fresh suit for partition of the entire estate.
4. I agree.