R.P. Mookerjee, J.
1. The present appeal arises out of a suit brought by a member of a joint Hindu family for partition.
2. One Sitanath Basu died leaving a widow Tarangini and six sons, Bireswar, Kasiswar, Triguneswar, Nakuleswar, Kesabeswar and Sureswar. The eldest son Bireswar died leaving a will under which he gave his share in the properties to his two brothers Kasiswar and Nakuleswar. The youngest son Sureswar died intestate without any issue. His share in the property devolved on his mother Tarangini. On 15-9- 1944, Kesabeswar transferred his interest in the residential house which is the subject-matter of. the present suit in favour of Nakuleswar. Nakuleswar brought the present suit for partition of the residential house as between himself, his two brothers Kasiswar and Triguneswar and his mother Tarangini,
3. Admittedly, the joint family had several properties and in those properties all the brothers including Kesabeswar and the widow Tarangini have some interest. The plaintiff's case is that in the property in suit, viz., the residential house, Kesabeswar is not interested, and this is the only-property held jointly by him along with bis two brothers and his mother which is required, to,be partitioned.
4. Various defences were raised, but it is not necessary to refer to them at this stage owing tot the limited question which has been raised before us.
5. The plaintiff's claim was resisted by the two brothers, Kasiswar and Triguneswar. The objection was that the suit as framed was not maintainable; the plaintiff ought to have brought into the hotchpot all the properties which belong ed to the family jointly irrespective of the question whether such properties, belonged to three of the brothers jointly or to four of them. It was further contended that Kesabeswar who was interested in the joint family properties other than the property in suit should have been impleaded.
6. The objections were overruled and a preliminary decree has been passed by the learned Subordinate Judge directing a commissioner to be appointed to partition the residential house amongst the parties who are interested in that property and according to the shares which are also admitted.
7. It is undisputed that in a suit for partition-of the properties which are held in co-tenaney amongst the persons who are impleaded nothing but the property held in co-tenancy should be included in a partition suit. The other accepted principle is that no partition should be allowed in respect of a portion of the joint properties held by such co-tenants except in certain specific exceptional circumstances. As observed by Freeman, on 'Co-tenancy and Partition' in Section 506:
'The equities which may be adjusted and enforced in. a suit for partition are such only as arise out of the relation of the parties to the common property.'
and in Section 508 :
'A tract held in common cannot be partitioned by fragments.'
8. As observed by this Court in Bajendrm Kumar Bose v. Brojendra Kumar Bose, 37 Cal. L. J. 191, there are exceptions to the rules abave mentioned. Where a partial partition is allowed. some of the more important of the exceptions, which have been noticed in the cases or by other authorities are :
(1) when different portions of the property belonging to the joint family are situated in different districts, separate suits for these separate portions may be brought : Punchanun v. Shib Chander, 14 Cal. 835 ;
(2) where there are different rules of substantive or adjective law prevailing in the different Courts in the jurisdiction of which different parcels of property are situated : Padmamani Dasi v. Jagadamba Dasi, 6 Beng. L. R. 134;
(3) when the portions excluded from the partition suit are not in the possession of coparceners; Kristayya v. Narasimham, 23 Mad. 608;
and (4) where the portion excepted is an impartible property and not capable of partition: Mallikarjuna v. Durga Prasad, 27 Ind App 151 (PC).
9. When the property not included is held jointly by the persons impleaded in the partition suit along with strangers who have no interest in the subject-matter of the property it is not' partitioned Lachmi Narain v. Janki Das, 23 ALL. 216: Bunwari Lal v. Daya Sunker, 13 Cal. W. N. 815, and Kailash Chandra v. Nityananda Das, 11 Cal. L. J. 384.
10. In the present case now before us, the subject-matter of the suit is one in which the parties who are impleaded are interested. Reference, however, was made to two decisions of the Madras High Court, Aiyyagari Venkataramayya v. Aiyyagari Ramayya, 25 Mad. 690 (Fb) and Manjaya Mudali v. Shanmuga Mudali, 38 Mad. 684. Reference was particularly made to the following observation at p. 717 in the case reported in 25 Mad. 690 :
'An undivided member of a family, though he may alienate either the whole (Gurulingappa v. Nandappa, 21 Bom. 797) or any part of his undivided share will continue to be an undivided member of the family with rights of survivorship between himself and the remaining members in respect of all the family property other than what he has transferred. No doubt such a member acts unfairly towards the rest of the family and if they are dissatisfied with his so doing, their only remedy is to become divided from him. When a partition is effected subsequent to such alienation, either amicably or by suit the property alienated will be included in such partition and debited to the share of the alienor. The transferee however does not step into the shoes of the transferor as a member of the family and there will be no community of property between him and all or any of the members of the family in respect either of the property transferred to him or the rest of the family property.
The only uncertainty or speculative character of his purchase, which may exist in certain cases, is not as to the extent of the share and interest transferred but the impossibility of predicting what particular properties would be allocated to his vendor's share if a partition were effected immediately before the transfer, A coparcener may profess to alienate either his undivided share in the whole of the family property or his undivided share in some specified portion of the family property-as in the present case-or the whole of a specified portion of the family property as in the case in Venkatachlela Pillai v. Chinnaiya Mudaliar, 5 Mad. H. C. R. 166.'
11. It is quite apparent that the facts with which the Court was concerned arose in a suit governed by the Mitakshara, School of Hindu Law. If a suit for partition is to be brought by members of a family governed by the Mitakshara School of Hindu Law, all the members of the coparcenary including the alienor and the alienee of some interest or, other in the coparcenary property must be included. Any member of a coparcenary can have a definite share in the coparcenary property, but is not entitled to any definite share in that entire estate or in any particular property until and unless there is a partition effected.
12. The position, however, is altogether different in the case of a Dayabhaga family. The members of a joint family governed by the Dayabhaga School of Hindu Law can always ascertain and know what his share in the joint family property is. Alienation by a member of a Hindu joint family governed by the Dayabhaga School of Hindu Law of undivided interest either of the entire estate or of any particular property included within that estate is allowable. The transferee gets an interest in the property which he can enforce according to law. If the alienation be in favour of a stranger and in respect of a residential house, there are specific provisions under the Partition Act under which the rights of the alienee may be ascertained and enforced and that also in a particular way. If the property alienated is in respect of properties other than the residential house, the alienee is entitled to arrogate to himself and ask the Court to enforce the rights which the alienee had. The position, therefore, as referred to in the case reported in Aiyyagari Venkataramayya v. Aiyyagari Bamayya, 25 Mad. 690 (P. B.), is not all appropriate to or relevant for a decision in a suit in which the parties are governed by the Dayabhaga School of Hindu Law.
13. If this difference between the effect of the two schools of Hindu Law be borne in mind, the observations of the Madras High Court in the case reported in Manjaya Mudali v. Shanmuga Madali, 38 Mad. 684 will become clear. When a coparcener under the Mitakshara School of Hindu Law alienates his share of certain specific family property, the alienee does not acquire any interest in the property, but only the equity to enforce his right in a suit for partition for the alienee's share, if possible. Such alienee has no right to possession and no status as a tenant in common although he may have obtained possession of the property in execution of a decree against one of the coparceners. The purchaser of the interest of a coparcener governed by the Mitakshara School of Hindu Law must, therefore, sue for a general partition of the entire family property.
14. As has been pointed out repeatedly by this Court that the rule that a partition suit should embrace all the joint properties is neither arbitrary nor technical. It is founded on sound and weighty reasons, but in applying this rule the general principle that all the property held in cotenancy and nothing but the property held in cotenancy should be included in a partition suit can be overriden.
15. The learned Advocate for the appellant attempted to strike a difference when a stranger to the family is a purchaser of the interest of one of the members of a Hindu joint family and when one of such members transfers his interest either in the entire joint property or in any particular property in favour of another member of the same family. 'We could not find any principle in support of such a distinction being made between the two classes of cases.
16. Reference may in this connection be made to Lachmi Narain v. Janki Das, 23 ALL. 216. The members of the family were governed by the Mitakshara School of Hindu Law. The plaintiff, a member of the joint family, sued the defendant, another member of the same family for partition of certain property which had once been the property of the joint family as a whole, but which at the relevant time when the suit was filed had become joint property of the plaintiff and the defendant only. It was held that it was not necessary that the plaintiff should include in that suit other properties which belonged jointly to the plaintiff, the defendant and other members of the joint family.
17. Reference was also made to Purushottam v. Atmaram, 23 Bom. 597, and the following observations of Parsons J.:
'It cannot be said that the claim of the plaintiffs to obtain their share of property owned jointly by them and B is founded on the game cause of action as their claim to obtain the share of property owned jointly by them and B and G. If the cause of action is founded on a refusal on the part of the defendants to divide, then the refusal in each case is that of different persons owning different rights. If it is founded on the right to claim a partition of what is joint, then the subject-matter is different, for the joint property of A and B is not the joint property of A, B and C.'
Ranade J. concurred with the view stated above.
18. In our view, the present suit as framed by .excluding properties in which the three brothers land the mother were interested with another brother was not bad in law. Kesabeswar is not a necessary party in the present suit as the property now under partition does not1 belong to him. The accordingly fails.
19. The learned Subordinate Judge did not allow any costs to the plaintiff for certain reasons assigned by him. The plaintiff has filed a cross-objection claiming costs in the usual scale. We do not think that the Court below was not justified in disallowing costs for reasons assigned by him. There is no question of principle involved in the cross-objection, and this cross-objection must be dismissed without any order as to costs.
20. It has been represented to us on behalf of each one of the defendants 1 to 3 praying for separate allotments although such separate allotments had not been prayed for in the trial Court. In view of the facts and circumstances of the present case, we think that it is in the interest of all the parties that there should be separate allotments in favour of the plaintiff and each one of the three defendants according to the shares declared. The plaintiff will have five-twelfths share in the property, defendant 1 will have one-fourth share, defendant 2 will have one-sixth share; defendant 3 will have one-sixth share with a declaration that she has got only a life interest in the allotment which will be made in her favour. Subject to this variation, this appeal is dismissed with costs,- hearing fee being assessed at three gold mohurs, - to the plaintiff, respondent 1.