N.R. Chatterjea, Ag. C.J.
1. The question referred to the Full Bench is:
Whether a person to whom a parcel of land has been allotted by a decree for partition of a Civil Court takes it subject to a permanent lease granted by his former co-owners without his concurrence when the land was the joint property of all the co-sharers.2. The plaintiffs predecessor-in-title had 1/5th share in the land in dispute along with other properties. His co-sharers who owned the remaining 4/5ths share granted a permanent lease in respect of their shares to the defendant's predecessor-in-title. The plaintiff brought a suit for partition in the Civil Court, and the disputed land was allotted to him in his share on partition. He then brought a suit for ejecting the defendant after service of notice to quit. The defence was that the Plaintiff's predecessor-in-title also had granted the lease, but the finding is against the defendant. It is not disputed that the plaintiff is entitled to joint possession in respect of l/5th share, and the question for consideration as stated above is, whether the land is subject to the permanent lease granted by the co-sharers owning the 4/5ths share before the partition.
3. The general principle is that a cosharer in joint property cannot by dealing with such property affect the interest of the other shares therein. In the case of Byjnath Lal v. Ramoodeen  1 I.A. 106, there was a mortgage of an undivided moiety in some villages forming a joint and undivided estate. Their Lordships observed:
It is, therefore, clear that the mortgagor had power to pledge his own undivided share in these villages; but it is also clear that he could not by so doing affect the interest of the other sharers in them, and that the person who took the security took it subject to the right of those sharers to enforce a partition and thereby to convert what was an undivided share of the whole into a defined portion held in severalty.4. It is true that in that case it was the mortgagee who was seeking to enforce his remedy not against the property mortgaged to him, but against property which had been allotted to the mortgagor on partition in substitution of the mortgaged property. But their Lordships held not only
that he has a right to do so, but that in the circumstances of the case it was his sole right, and that he could not successfully have sought to charge any other parcel of the estate in the hands of the former co-sharers.5. The principle of Byjnath v. Ramoodeen  1 I.A. 106 has been applied to a number of cases relating to mortgage. The partition in Byjnath v. Ramoodeen  1 I.A. 106 was under Reg. XIX of 1814, but the equitable principle enunciated has been applied to a case in which the partition was made by a civil Court. See Hem Chandra Ghose v. Thako Mani  20 Cal. 533. The learned Judges in that case observed:
In the absence, therefore, of any fraud in effecting the partition the plaintiff has no right to proceed against that portion of the undivided mortgaged property Which on partition was allotted to the appellants, but he can proceed against that portion of the undivided property which was allotted to the mortgagor defendants in substitution of their undivided share in the portion mortgaged.6. A similar view was taken by Mookerjee and Holmwood, JJ., in Hakim Lal v. Ram Lal  6 Cri.L.J. 46. The partition in that case was under the Estates Partition Act, but the learned Judges observed:
It is well-settled, as was laid down by their Lordships of the Judicial Committee in Byjnath v. Ramoodeen  1 I.A. 106, that the mortgagee of an undivided share in joint property is entitled only to property allotted on partition to the mortgagor if the partition was fair and equal and it is not vitiated by fraud.7. In Bhup Singh v. Chedda Singh  42 All. 596 the learned Judges referring to Byjnath v. Ramoodeen  1 I.A. 106 observed:
It is immaterial whether the partition was made by the revenue authorities, or by the civil Court, or by arbitration, or by private arrangement, and it is not necessary that the mortgagee should have been a party to the partition. It is one of the incidents of a mortgage of an undivided share that the mortgagee cannot follow his security into the hands of a co-sharer of the mortgagor who has obtained the mortgaged share upon partition. Of course, if the partition is tainted with fraud or if in making the partition the encumbrance was taken into account and the partition was made subject to the encumbrance, the result will be different; but in the absence of fraud or the circumstance mentioned above the mortgagee's remedy is against the share of property which the mortgagor has obtained under the partition.8. It is unnecessary to consider the effect of a private partition, but it appears to be well settled that the principle of Byjnath v. Ramoodeen  1 I.A. 106 applies to cases of mortgages whether the partition is under the Partition Act, or by a decree of the civil Court. There is, however, a divergence of opinion as to whether the principle applies to a case of lease.
9. In Sharet Chunder Burmon v. Hargovind Burmon  4 Cal. 510, the Court had to consider the case of a lease (mokurari lease) granted by a co-sharer before partition. The partition was under the Partition Act, but the learned Judges (Mitter and Maclean, JJ.) observed that the principle in Byjnath v. Ramoodeen  1 I.A. 106 'is applicable to all assignees of any interest whatever.' In Joy Sankari v. Bharat Chandra  26 Cal. 434 the partition was effected under the Estates Partition Act but Maclean, C.J., and Banerji, J., said (at page 439 of 26 Cal.):
But even if Section 128 of Bengal Act of 1876 be not applicable to the case, still we think that; according to the general principles of equity, the miras tenure in question, if it was created by Defendant No. 7 alone, could not affect the lands allotted to the share of any other co-sharer upon a partition by the Collector, but could hold good only in respect of lands allotted to the lessor's share.10. See also Tarini Kanto v. Iswar Chandra  21 Cri.L.J. 603.
11. A contrary view, however, was taken in the case of Shaikh Khan Ali v. Pestonji Edulji 1 C.W.N. 62. There, a lease was granted in respect of one-third share of certain property pending a suit for partition. Petheram, C.J. and Rampini, J., observed:
At the time when this lease was granted by undivided co-sharers, they had a perfect right to grant the lease which would cover their undivided shares, and these shares were their shares in the piece of land included in the lease. I quite fail to see how any subsequent dealing with the property by partition, subsequent to the creation of the estate by a lease and by a person who had a perfect right to create it could have affected the right of the lessee.12. With great respect for the opinion of the learned Judges I think that a co-sharer has not a 'perfect right' in dealing with joint property in so far as it affects the rights of the other co-sharers. The opinion of the learned Judges is opposed to the principle laid down by the Judicial Committee in Byjnath v. Ramoodeen  1 I.A. 106, viz., that a co-sharer cannot by pledging his share affect the interest of the other sharers in them.
13. The case of Shaikh Khan Ali v. Pestonji Edulji  1 C.W.N. 62 was followed in Bainaddi v. Kailash  35 Cri.L.J. 166, where the learned Judges (Richardson and Cuming, JJ.) observed that
the difference between the lease and the mortgage is this that in the case of a lease followed by possession of the property demised the title of the lessee is complete, while in the case of a mortgage, the land is merely hypothecated and no title thereto is perfected until the security is enforced: see Byjnath Lal v. Ramoodeen  1 I.A. 106.14. There is no doubt a difference between the interest of a mortgagee and a lessee as pointed out by the learned Judges, but we are unable to hold that there is any difference between a mortgage and a lease so far as rights of the co-sharers are concerned.
15. In Freeman on Co-tenancy and Partition, 2nd Edition, Section 199, the principle is stated as follows:
A lease or deed by one tenant in common to a stranger of a portion of the joint estate, although voidable by the co-tenants who do not join therein, is valid between the parties and against all persons unless so avoided. If the title of the co-tenant entitled to disaffirm the conveyance becomes vested in the one by whom it was executed, the newly acquired title of this lessor or grantor will enure by estoppel to the benefit of the lessee or grantee. Such a conveyance is undoubtedly void so far as it undertakes to impair any of the rights of the other co-tenants. It will not justify the grantee in taking exclusive possession of the part described in his deed. It will not deprive the other co-tenants of the right to enjoy every part and parcel of the real estate; nor can it, to any extent, prejudice or vary their right to a partition of the common property. The grantee is liable to lose all his interest in the parcel conveyed to him, by its being set off to some other of the co-tenants upon partition. But although the deed does not impair the rights of the other co-tenants, it by no means follows that they may treat it as void, or entirely disregard it. While falling short of what it professes to be, it nevertheless operates on the interest of the grantor, by transferring it to the grantee.16. The principle laid down by the author is similar to that enunciated by Byjnath v. Ramoodeen  1 I.A. 106.
17. I may refer to the decision 'of Fletcher and Smither, JJ., in the unreported case S.A. No. 384 of 1913, decided on 30th March 1917. That case arose out of the very same partition with which we are dealing in the present case, and the question to be considered was to what extent, if at all, the plaintiff was bound by the lease granted by the other four co-sharers. The learned Judges following Byjnath v. Raomodeen  1 I.A. 106 held that:
a person taking an interest from persons who have an undivided interest in the property takes subject to the rights of the other co-sharers who are not bound by the transaction, namely, that if the property comes to be partitioned, the rights of the other co-sharers not bound by the lease, as it is in the present case, would not be affected by the grant of the lease.18. It is contended on behalf of the respondents that it was for the plaintiff (appellant) to show that his interest had been affected, in other words, that the lease had not been taken into account in making the allotments on partition. But the plaintiff was allotted the disputed land on partition; he had not granted any lease. It was therefore for the defendant to show any equitable circumstances which would render the lease binding upon the plaintiff.
19. I would accordingly answer the question referred to the Full Bench in the negative.
20. I agree.
21. I also agree.
22. I have had the advantage of reading the judgment of the learned Acting Chief Justice, and I agree that a negative answer should be given to the question referred to the Full Bench.
23. The question referred to the Full Bench runs as follows:
Whether a person to whom a parcel of land has been allotted by a decree for partition of a civil Court takes it subject to a permanent lease granted by his former co-owners without his concurrence when the land was the joint property of all the co-sharers.24. The principle that the interest of a co-sharer in a joint property is not affected by a mortgage created by another co-sharer and the charge so created on partition falls upon the land exclusively allotted to the share of the co-sharer who created such charge has been laid down by the Judicial Committee in the case of Byjnath v. Ramoodeen  1 I.A. 106 and the question here is: Does the same principle apply to other encumbrances created by a co-sharer, namely, a grant of a permanent tenure by him. On principle there seems to be no distinction. The principle laid down in the case above cited has been recognised by the Legislature in Section 99 of the Estates Partition Act, so far as under-tenures are concerned. The incumbrance so created is transferred to the lands which fall on a partition to the grantor of such tenures.
25. In my opinion, whether the partition is effected by the Collector or the civil Court, the same equitable principles are applicable.
26. The co-sharer who granted no permanent tenure parts with his unencumbered rights in the lands which fall into the exclusive allotment of his co-sharer who granted the lease, and it is only just that the lands which fall to him in entirety should be lands unencumbered as was his share when the lands were joint. The grantee of such a tenure cannot justly complain of such transfer because he took the tenure subject to the right of the other co-sharer to a just and equitable partition. I have no hesitation, therefore, in following the case of Joy Sankari v. Bharat  26 Cal. 434 and I, therefore, answer the question referred to the Full Bench in the negative.
Chatterjea, Ag. C.J.
27. The result is that the appeal is allowed and the decree of the Court of first instance restored.