1. This is an appeal by the fourth defendant in a suit for partition of joint family properties. Girish Chandra, Banerjee, the founder of the family, is alleged to have made a testamentary, disposition on the 24th November 1899, shortly before his death. He left, as his survivors, his widow, Golapmani, and three sons, Haripada, Tarapada and Ham Chandra. He directed that his properties should be taken in four equal shares by his widow and his three sons, subject to the, reservation that his widow would not be, competent to sell or make a gift of her one-fourth share. The eldest son, Haripada, died on the 19th June 1916, leaving a widow, Annapurna, and three daughters. The second son, Tarapada, has a son Amiya. On the 2nd August 19(sic)9, Golapmani, Lie widow of the testator, instituted the present suit for partition of the estate left by her, husband, She alleged that her daughter-in-law, Annapurna, had taken in adoption her grandson, Amiya, with the consequence that the share in the family estate which had devolved on Annapurna as the widow of Haripada had become vested in Amiya. Consequently, on this hypothesis, the persona interested in the joint estate, besides herself, were her sons Tarapada and Hem Chandra and her grandson Amiya; these three were accordingly joined as defendants. The relationship of the members of the family will be dear from the following pedigree:
GBISH CHANDRA BANERJEE (died 1899)
Widow Golapmani, Plaintiff,
Haripada (died Tarapada Hem Chandra
19th June 1916) defendant No. 2. defendant No, 3,
W. Annapurna defendant No. 4, Amiya
defendant No. 1.
2. The plaintiff proposed that her daughter in law, Annapurna, might be appointed guardian ad litem of the alleged adopted son, Amiya, and the usual notices were served accordingly. Annapnrna then appeared and intimated to the Court on the 27th December 1919 that she herself was a co-owner in the joint estate as the widow of her husband, Haripada, who had become entitled to a fourth share under the testamentary disposition of his father. The Court thereupon directed on the '28th January 1920, that Annapurna be made a defendant. This was followed by an order on the 8th March, 1920, that Tarapada, the father of Amiya, be appointed guardian ad litem of the infant. Written statements were filed in due course and issuses were framed. As Annapurna repudiated the alleged adoption of Amiya, an issue was framed, whether the first defendant, Amiya Nath Banerjee, was the validly adopted son of Haripada Banerjee, On the 1st September 1920, the Subordinate Judge held that the question of the validity of the adoption need not be determined in this suit, and that the partition might be effected, if the first and fourth defendants, namely, Amiya and his alleged adoptive mother Annapurna, both represented the share of Haripada either jointly or separately as they liked. On the 18th December, 1920', the Subordinate Judge made a preliminary decree whereby it was declared that the plaintiff had a fourth share, the second and third defendants a fourth share each, and the heir or representative of Haripada the remaining fourth share. He further directed that, for the present and for the purpose of this suit, the first and fourth defendants might represent this last mentioned share without prejudice to their respective claims. The fourth defendant, Annapurna, has appealed against this decree and has argued that the question of the alleged adoption, raised in the first issue, should be decided before the preliminary decree for partition is made. We are of opinion that this contention must prevail.
3. In a suit for partition, it is incumbent upon the Court, before the preliminary decree is made, to determine whether the properties included in the suit are the joint properties, as alleged, of the parties to the litigation, In the case before us, by virtue of the testamentary disposition of the admitted owner, the estate vested in his widow and his three boos, in equal shares, Upon the death of the eldest son, the share vested in him devolved on his widow. The plaintiff came into Court on the allegation that the share which-had so devolved on the widow of the eldest son of the testator, had been divested as the result of a valid adoption made by her and had passed on to a grandson of the testator. It was en this assertion that the plaintiff did not originally bring before the Court the widow of the eldest son, who would, prima facie and bat for the alleged adoption by her, be a co-owner in the joint estate. She intervened at the earliest possible opportunity and was rightly joined as a defendant claiming a share in the joint estate. In these circumstances, it is plain that before the partition is effected, the question of the present title to the share successively vested in the eldest son and his widow should be investigated and determined. The argument on behalf of the respondents, who objected to this enquiry, proceeded on the erroneous assumption that a question cannot be raised and tried in a partition suit unless its solution interests each of the parties to the litigation. Neither authority nor principle has been invoked by the respondents in support of this narrow and restricted view of the scope of a partition suit put forward on their behalf. In suits for partition, questions may and do frequently arise which interest only soma of the parties. To take one illustration. There may be no dispute as to the extent of the share claimed by the plaintiff, while there may be a serious controversy as to the respective shares of the defendants inter se. One of the defendants may allege, for instance, that he had acquired a particular share as the preferential heir to a deceased member of the family; this may raise an obscure question of fact or a difficult question of law. Or, again, a defendant may allege that he has acquired title to a share either of the entire estate or of one or more of the properties comprised therein, under a dead executed by another member; this may conceivably involve an enquiry into questions of fact aid law not easy to solve. To take another illustration. It frequently happens that, in joint families properties stand in the name of female members. In a suit for partition of the family estate, the plaintiff may include such properties and join the Iadies as defendants so that they may be bound by the result of the litigation; if they contend that the properties belong to them personally, the matter must be investigated and decided. To take a third illustration. Soma of the properties in such a suit may be claimed as self-acquisitions by one or other of the members and all the members may not be agreed as to their true character; this may render necessary the determination of questions of title involving protracted enquiry. The substance of the matter is that a suit for partition may and does often involve the investigation of disputed questions of title and an attempt to avoid them can only lead to needless multiplicity of litigation. We do not feel pressed by the contention that if this view be adopted, grave inconvenience may be caused to some of the parties, as they will have to be present during the discussion of questions which specially affect others alone. Bat, as pointed out in Umabai Mangethrao v. Vithal Vasudeo Shetti 1 Ind. Cas. 120 : 33 B. 293 : 11 Bom. L. Rule 31 : 5 M. L. T. 2 Order and Ramendra Nath Ray v. Erojendra Nath Dass 41 Ind. Cas. 944 : 45 C. Ill : 21 C. W. N. 794 : 27 C. L. J. 158, the Court has ample authority to direst the succ(sic)eosive trial of the issues separately affecting different defendants and even to record interlocutory judgments thereon to be made the basis of the final judgment at the conclusion of the trial of the whole case. The case now before us is, however, free from such difficulty, for, so far as we can gather from what has happened before us, the trial of the question of the alleged adoption is not likely to embarra(sic)s even parties other than the first and fourth defendants. The first second and third defendants have plainly indicated their preference for the plaintiff rather than far the fourth defendant; and there can be little doubt that they are all keenly intarested in the determination of the question, whether the fourth defendant has been effectively divested of the one-fourth share which originally belonged to her husband.
4. If the matter is examined as one of principle, we cannot discover any substantial reason, why disputed questions of title should not be decided in the course Of a suit for partition of joint properties, when we have not two sets of Courts with distinct jurisdictions like those exercised by Courts of Law and Courts of Equity, No doubt, Courts of Equity, in assuming jurisdiction of the subject of partition, disclaimed the authority to determine doubtful questions in regard to the legal title. A refined distinction was sometimes made between a doubtful and a disputed title, and the question was raised whether the mere fact that the defendant disputed the title of the complainant was sufficient to oust the Court of Chancery of its jurisdiction. There are cases in the books where the broad proposition is asserted that whenever the title of the complainant is disputed or suspicious, equity will not proceed with the partition, until the dispute' has bean settled at law: Slade v. Barlow (1969) 7 Eq. 296 : 38 L. J. Ch. 369 : 20 L. T. 10 : 17 W. B. 366, Bolton v. Balton (1868) 7 Eq. 298: 19 L. T. 298, Potter v. Waller (1848) 2 De G. & Sm. 410 : 64 E. Rule 183 : 79 Rule R. 267, Rochester (Corporation of) v. Lee (1819) 1 Mac. & G. 467. 15 L. J. Ch. 97 : 41 E. Rule 1346, Moore v. Kempston (1870) 18 W. Rule 803, Burt v. Hellyar (1872) 14 Eq. 160 : 41 L. J. Ch. 430 : 26 L, T. 833, This view has not, however, always commended itself to the Courts, which have sometimes drawn a distinction between a disputed and a suspicions title and have maintained that bare denial dies not necessitate a reference to the legal tribunals, in other words, equity has jurisdition to determine whether the title is free from suspicion and to proceed whenever in its judgment the title is clear, Lucas v. King (1854) 10 N. J. Eq. 280, Ocerton v. Woolfolk CO : (1838) 6 Dana. 374, In the case last mentioned, it was emphasised that if a bare denial of the title authorises the dismissal of the Bill, the equitable jurisdiction is plated at the mercy of every profligate or unconsacentious defendant and renders the Court the mere ministerial agent to carry into effect the wishes of parties in cases where there were no matters of controversy between them' Apart from this, whenever a Court of Equity determines that there are serious disputes in regard to the legal title, it will not proceed until those doubts have been judicially determined and removed, and, for this purpose, will stay the suit for a reasonable time with liberty, to the plaintiff to bring such action, as he might be advised, to establish his title; Giffard v. Williams (1870) 5 Ch. App. 546 : 39 L. J. Ch. 735 : 21 L. T. 575 : 18 W. Rule 776, The same principle has been adopted where the defendants set up conflicting titles between themselves, while the title of the complainant was clear; Phelps v. Green 3 John. (Ch) 806, But where the Courts which exercise jurisdiction over partition matters are entrusted with more ample powers than a Court of Equity, no necessity exists for referring questions of title for trial by some other tribunal. This was pointed out by the Supreme Court of the 'United States in Parker v. Kane (1859) 22 Howard 1916 Law. Ed. 286, Campbell, J., observed that it was not necessary to take the opinion of a Court of Law or to stay proceedings in the partition suit until an action of law had been tried to determine the legal tide where the powers of the Courts of Law and of Equity were exercised by the same persons; if between the parties to the action for partition, disputes exist as to their rights or interests in any respect, such disputes be litigated and determined in such action. This view has been elaborated in later decisions, one of which, Baca v. Anaya (1908) 14 N. M. 382 : 94 Pac. 1017 : 20 Ann. Cas. 77, reviews the history of the law on the subject; see also Street v. Benner (1884) 20 Fla. 714; Weston v. Stoddard (1893) 137 N. Y 125 : 20 L. Rule A. 624 at p. 629 : 38 Am. St. Rep. 697 at p. 700, and Griffith v. Griffith (1910) 59 Fla. 512 : 21 Ann. Cas, 246 : 15 Enc. PI. & Pr. 777 at p. 780 : 138 : 52 South. 609, Freeman on Co-tenancy, Chapter XXTV : Knapo on Partition, Page 137. There is obvionsly much force in the observation of Pope, J. in Baca v. Anaya (1908) 14 N. M. 382 : 94 Pac. 1017 : 20 Ann. Cas. 77, 'We are unable to see the hardship of a system which necessitates the settlement of all questions affecting a given piece of land in one suit, instead of remanding them to be settled by a series of suits. On the contrary, we deem it tending to that despatch and economy in the settlement of legal differences which is the desideratum of jurisprudence. It is a modern response to the ancient appeal; interest republics) ut sit finis litium.' The essence of the matter is that the Court, which is one of general jurisdiction administering both legal and equitable remedies may determine issues of title, investigate disputes between different parties claiming the same share, and then proceed with the partition so as to dispose of the whole controversy between them. In truth, the limitations attending proceedings in partition are constantly weakening, and the tendency to do full and complete justice to the parties in one action, is becoming irresistible; see Judicature Act, 1873. Section 24(sic)7. Gledhill v. Hunter (1880) 14 Ch. D, 492 : 49 L. J. Ch. 333 : 42 L. T. 392 : 28 W. Rule 530; Write v. bingley (1882) 21 Ch. D. 674 : 51 L. J, Ch. 651 : 30 W. Rule 698; Moyfair Property Co. v. Johnston (1894) 1 Ch. 508 : 63 L. J. Ch. 399 : 8 Rule 781 : 70 L. T. 485, Some of the Courts of general jurisdiction in the United States have, indeed, gone so far as to bold that a person claiming to be interested in the entire premises by title paramount may intervene in a suit for partition. It is not necessary for our present purpose to maintain this position, for, apart from the question whether all persons having an interest in the land are proper parties, it is sufficient to hold that all persons who have an interest in the partition are proper parties, and matters in controversy amongst persons so interested in the partition mutt be decided in the suit. We need not discuss whether an adverse claimant, who has no community of interest with the parties to the suit, is in no view a co-tenant with them but stands out on his own independent right and denies all right in his adversaries can be drawn into a partition Bait; for decision of the question of title Paramount. But, in any view the principle appears to us to be undoubtedly sound that where there is conflicting claim to share in the land under the same right under which partition is sought the determination of the conflict is incidental to the partition and cannot be avoided before partition is directed. Such a case does not fall within the category of claims utterly hostile where cash demands not share but the whole.
5. Our conclusion is that the preliminary decree made by the Subordina'e Judge without decision of the controverted title to a fourth share cannot be supported, The appeal must consequently be allowed, the preliminary decree set aside, and the case remanded to the Subordinate Judge to be re tried in accordance with law, after determination of the question the validity of the alleged adoption, The respondents must pay the appellant her costs in the Court. We assess the bearing fee at fifteen gold mohurs. The costs in the Court below will be costs inn the cause.
6. Under Section 13 of the Court Fees Act we direct that the Court-fees paid on the memorandum of appeal be returned to the appellant.