1. This is an appeal by the defendant in a suit for partition. The plaintiff and the defendant are two brothers, governed by the Dayabhaga school of Hindu Law. Under a testamentary disposition of their father, now deceased, they are entitled in equal shares to the properties in suit and any other properties. In this suit, the plaintiff seeks partition of an ancestral house at Srinagar two horses at Dacca and a large number of moveables. The defendant contends that all the joint properties should be included in the suit and divided, by the decree therein. The Subordinate Judge has overruled this objection, and has made a preliminary decree. On the present appeal, the defendant has urged that the plaintiff should not be allowed to sue for partial partition.
2. The principles applicable to cases of this character are well settled. The general rule is that all property held in co-tenancy and nothing but property held in co-tenancy should be included in a partition suit. A cotenant, whose title to ail undivided share of joint property is admitted of is clear, is entitled to partition as a matter of right a difficulty in making a division of the subject-matter or a resulting prejudice to some of the co-tenants, is not a sufficient ground for refusing a partition; and it has sometimes been maintained that partition may be claimed, even though it be impossible to divide the property without materially impairi, gets value, or even totally destroying it: Norris v. Le Neve (1744) 3 Atk. 83 : 62 E.R. 850; Parker v. Gerard (1754) Am 1. 236, 27 E.R. 157, Baring v. Nash (1813) 1 V. & B. 551 at p. 554 : 35 E.R. Calmady v. Calmady (1795) 2 Ves. Jur. 568 : 30 B.R. 780, Turner v. Morgan (1803) 8 Ves. 143 : 32 E.R. 307 : 149 R.R. 667; Agar v. Fairfax 1808) 17 Ves. 533 at p. 543 : 1 Wh & T.L.C. (7th Ed.) 181 : 34 E.R. 533; Clarendon v. Hornby (1718) 1 P. Wms. 446 : 24 E.R. 465 Since artition can be claimed as a matter of right, a co-tenant is hot required to make a demand or to agree upon terms prior to institution of suit. But although, as a general rule, all joint property of the co-tenants must be included in a partition suit, it is within the power of co-tenants, by mutual agreement, to make partition of a part only of the joint property, retaining the rest in common: Darvill v. Roper (1855) 3 Drewry. 294 : 3 Eq. R. 104 : 24 L.J. Ch. 779 : 3 W.R. 467 : 61 E.R. 915 : 106 R.R. 355. The principle that a partition suit should include all the property of the co-tenancy is widely recognised, and it has been pointed out that if the rule were not enforced, a co-tenant might institute as may suits to partition the property as his caprice dictated. Consequently a partial partition cannot, as a general rule, be compelled against co-tenants who do not consent thereto. But if some of the co-tenants desire to continue holding their moieties together and undivided, the Court may permit them to do so, and instead of making separate allotment to each set apart, to all who so desire, an allotment to be Hid' by them jointly. If it appears, however, that all the defendants have already received all that is equitably due to them, the remainder may be awarded to the plaintiff; this is not partial but complete partition: Hobson v. Sherwood (1841) 4 Beav. 184 : 49 E.R. 309 : 55 R.R. 40 Clarendon v. Hornby (1718) 1 P. Wms. 446 : 24 E.R. 465. The rule is enunciated in these or similar terms by text-writers of recognised authority. Thus, Breeman (Co-tenancy and Partition, Section 508) states that a tract held in common cannot be partitioned, by fragments, and a suit for partition should always embrace the whole tract held by the co-tenancy. But while it is indispensable that the whole tract should be embraced in the suit for partition it does not follow that those who are mutually desirous of Continuing the relation of co-tenancy among one, another, are obliged to have their several portions allotted to them to hold in severalty. It is true that there are cases where a partial partition bas been treated, as improper and unauthorised under all circumstances: Robertson v. Robertson (1852) 2 Swan (Tenn) 199. But the weight of the authorities is in favour of the view that the plaintiff in partition is entitled to have his share set off, if the premises are capable of being divided, far that is his object in instituting the proceedings; if the situation of the defendants is such as to render it for their interest to retain their portion together and undivided, there can be no possible objection in principle in performing it to be done. To the same effect is fate statement by Knapp (Partition p. 192) that common property cannot be partitioned in fragments; it is not the practice of the Court to cause of decree a partial partition. The established rule may accordingly be taken to be that a suit for partition should include all the lands of the co-tenancy and, if it does not, any party interested may insist that the omitted land or lands be included in tie suit.
3. There is little doubt that the general principle enunciated above was recognised by Hindu jurists; see Mitakshara, Chap. II, Section 10; Vishnu, XV, 33; Narada XIII, 32, Radha Churn Pass v. Kripa Sindhu Dass 5 C. 474 : 4 C.L.R. 428 : 2 Ind. Dec. (N.s.) 911; Manjanatha Shanabhaga v. Narayana Shanabhaga 5 M. 362 : 6 Ind. Jur. 518 : 2 Ind. Dec. (N.s.) 252; Sudarsanam Maistri v. Narastmhulu Maistri 25 M. 149 : 11 M.L.J. 353. Jolly, Tagore Lectures on Partition, p. 135.
4. The principle that a suit for a division of a portion of the family property cannot lie and must comprise the entire family property has been affirmed in numerous cases: Nanabhai Vallabdas v. Nathabhai Haribhai 7 B.H.C.R.A.C.J. 46; Trimbak Dixit v. Narayan Dixit 11 B.H.C.R. 69; Venkatesh v. Ganpaya (1876) Bom. P.J. 110; Gopal v. Narnapa (1883) Bom. P.J. 3; Parbatt Churn Deb v. Ain-ud-deen 7 C. 577 : 4 Shome. R. 46 : 9 C.L.R. 170 : 3 ind. Dec. (N.S.) 920; Upendra Narain Myti v. Gopee Nath Bera 9 C. 817 : 12 C.L.R. 356 : 4 Ind. Dec. (N.S.) 1193; Haridas Sanyal v. Pran Nath Sanyal 12 C. 566 : 6 Ind. Dec. (N.S.) 385; Ramjoy Ghose v. Ram Ranjan Chukerbutty 8 C.L.R. 367; Kalka Pershad v. Budree Sah 3 N.W.R.H.C.R. 267; Hoolas Khan v. Munsub Ali 3 N.W.R.H.C.R. 37; Venkivya v. Lahshmayya 16 M. 98 : 5 Ind. Dec. (N.S.) 775; Jugoo Lall Oopadhya v. Manohar Lal Oopadhya 19 W.R. 43; Shivmurteppa v. Virappa 24 B. 128 : 1 Bom. L.R. 620 : 12 Ind. Dec. (N.S.) 623; Kristayya v. Narasimham 23 M. 608 : 10 M.L.J. 141 : 8 Ind. Dec. (N.S.) 827; Cheyt Narain Singh v. Bunwarree Singh 23 W.R. 395; Jogendra Nath Mukerji v. Jugobundhu Mukerji 14 C. 122 : 7 Ind. Dec. (N.S.) 81; Ram Lochun Pattuck v. Rughoobur Uyal 15 W.R. 111; Venkata Narasimha v. Bhashyakarlu 25 M. 367 : 4 Bom. L.R. 543 : 6 C.W.N. 641 : 29 I.A. 76 : 8 Sar. P.C.J. 258 (P.C); Srimohan Thakur v. Maogregor 28 C. 769
5. Exceptions to the rule that a suit cannot lie for partition of a portion of the family property have been recognised when different portions of the family property are situated in different jurisdictions, aid separate suits for separate portions have sometimes been allowed, where different rules of substantive or adjective law prevail in the differed Courts; Hari Narayan Brahme v. Ganpatrav Daji 7 B. 272 : 4 Ind. Dec. (N.S.) 183; Ramacharya v. Anantacharya 18 B. 389 : 9 Ind. Dec. (N.S.) 768; Moti Ram v. Kanhiyalal 77 Ind. Cas. 780 : (sic) L.I.J. 514, Punchanun Mullick v. Shib Chunder Mullick 14 C. 835 : 7 Ind. Dec. (N.S.) 552; Balaram Bhaskarji v. Ran chandra Bhaskaiji 22 B. 922 : 11 Ind. Dec. (N.S.) 1198; Abdul Karim Sahib v. Badrudeen Sahib 28 M. 216; Srimati Padamani Dasi v. Srimati Jagadamba Dasi 6 B.L.R. 134; Ram Mohan Lal v. Mtti Chand 28 A. 39 : 2. A.L.J. 700 : A.W.N. (1905) 169; Lachmana v. Terimul 4 Mad. Jur. 241; Suba Rau v. Rama Rau 3 M.H.C.R. 376; Jairam Narayan Raje v. Atmaram Narayan Raje 4 B. 482 : 2 Ind. Dec. (N.S.) 830; Again, a suit for part al partition has been allowed when the portion excluded is not in the possession of co-parceners and nay consequently be deemed not to be ready available for partition; Balkrishna Vithal v. Hari Shankar 8 B.H.C.R.A.C.J. 64; Narayan Baboji v. Pandurang Ramchandra 12 B.H.C.R. 148; Shivmuteppa v. Virappa 1 Bom. L.R. 620; Kristayya v. Narsimham 23 M. 608 : 10 M.L.J. 141 : 8 Ind. Dec. (N.S.) 827; Pattaravy Mudali v. Asidimula Mudali 5 M.H.C.R. 419; Gora Chand Haldar v. Basanta Kumar Haldar 12 Ind. Cas. 684 : 15 C.L.J. 258. A suit for partial partition has also been allowed when the portion excepted is impartible property: Malikarjuna Prasad v. Durga Prasad 27 I.A. 151 : 24 M. 147 : 2 Bom. L.R. 945 : 5 C.W.N. 74 : 10 M. 14 J. 294 : 7 Sar. P.C.J. 761 (P.C.); Parvathi v. Thirumalal 10 M. 334 : 3 Ind. Dec. (N.S.) 986. In another class of cases the rule has been relaxed, namely, where the port on excluded is held jointly with strangers who have no interest in the family partition: Purshottam v. Atmaram Janaradan 23 B. 597 : I Bom. L.R. 76 : 12 Ind. Dec. (N.S.) 399; Venkatachela Pillay v. Chinnaiya Mudaliar 5 M.H.C.R. 166; Sripati Chinna Sanyasi Razu v. Sripati Suriya Razu 5 M. 196 : 6 Ind. Jur. 410 : 2 Ind. Dec. (N.S.) 137; Manjanatha Shanabhaga v. Narayana Shanabhaga 5 m. 362 : 6 Ind. Jur. 518 : 2 Ind. Dec. (N.S.) 252; Venkayya v. Lakshmayya 16 M. 98 : 5 Ind Dec. (N.S.) 775; Subramanya Chettyar v. Padmanabha Chettyar 19 M. 267 : 6 Ind. Dec. (N.S.) 891; Lachmi Narain v. Janki Das 23 A. 216 : A.W.N. (1901) 50. Ram Mohan Lal v. Mul Chand 28 A. 39 : 2 A.L.J. 700 : A.W.N. (1905) 169; Ram Charan v. Ajudhia Prasad 28 A. 50 : A.W.N. (1905) 174; Banwari Lal v. Sheo Sankar Misser 1 Ind. Cas 670 : 13 C.W.N. 815; Gajadhar v. Balvant (1883) Bom. P.J. 250; Subbarazu v. Venkataratnam 15 M. 234 : 5 Ind. Dec. (N.S.) 514; Ibramsa Rowthan v. Thirumalai 7 Ind. Cas. 559 : 34 M. 269 : (1910) M.W.N. 380 : 8 M.L.T. 269 : 20 M.L.J. 743, Hari Krislna v. Venkatalakshmi 5 Ind Cas. 491 : 34 M. 402 : 7 M.L.T. 155 : 20 M.L.J. 323 : (1910) M.W.N. 555; Kadegan v. Periya Munusami 13 M.L.J. 477; Ajodhya Pershad v. Mahadeo Pershad 3 Ind. Cas. 9 : 14 C.W.N. 221; Kailash Chandra Das v. Nityananda Das 3 Ind. Cas. 21 : 11 C.L.J. 384. We are not concerned here with the question whether an alienee from a co-sharer is entitled to institute a suit for partition of the property he is interested in; upon that point there has been so re divergence of judicial opinion as is clear from the decisions reviewed in Subba Row v. Ananthanarayana Iyer 14 Ind. Cas. 524 : 23 M.L.J. 64 : 11 M.L.T. 393. In such a contingency, two conflicting opinions have been maintained; on the one Land, it is urged that the purchaser is in precisely the s me position as his transfer r; on the other hand, it is said that the transfer really effects a severance, and the only joint property held in common by the transferee and the co-sharers of his transferor is what forms the subject-matter of the conveyance. The first alternative is supported by the decisions in Ibramsa Rowthan v. Thirumalai 10 M. 334 : 3 Ind. Dec. (N.S.) 986 Parbati Churn Deb v. Ain-ud-deen 7 C. 577 : 4 Shome L.R. 46 : 9 C.L.R. 170 : 3 Ind. Dec. (N.S.) 920; Shivmurteppa v. Virappa 24 B. 128 : 1 Bom. L.R. 620 : 12 Ind. Dec. (N.S.) 623; Maharaja of Bobbili v. Venkatamarjulu Naidu 25 Ind. Cas. 585 : 39 M. 265 : 27 M.L.T. 409 : 16 M.L.T. 181; Padala Chekkaya v. Vethagirivarudu Guru 12 Ind. Cas. 408 : (1911) 2 M.W.N. 382 The second (sic) have is (sic) in Chundernath Nandi v. Hur Narain Deb 7 C. 153 : 4 Shome L.R. 44 : 3 Ind. Dec. (N.S.) 648; Mukunda Lal Pal Chowdhury v. Lehuraux 20 C. 379 : 10 Ind. Dec. (N.S.) 256; Barahi Debi v. Debkamini Debi 20 C. 682 : 10 Ind. Dec. (N.S.) 460; Hemadri Nath Khan v. Ramani Kanta Roy 24 C. 575 : 1 C.W.N. 406 : 12 Ind. Dec. (N.S.) 1052 (F.B.); Uma Sundari v. Benode Lal 34 C. 1026; Subba Row v. Ananthanarayana Iyer 14 Ind. Cas. 524 : 23 M.L.J. 64 : 11 M.L.T. 393; Hanmandas Ramdayal v. Valabhdas Shankardas 46 Ind. Cas. 133 : 43 B. 171 20 Bom. L.R. 472; Kailash Chandra Das v. Nityananda Das 3 Ind. Cas. 21 : 11 C.L.J. 384; Hari Kristna v. Venkalalakshmi 5 Ind Cas. 491 : 34 M. 402 : 7 M.L.T. 155 : 20 M.L.J. 323 : (1910) M.W.N. 555; Chinnu Pillai v. Kalimuthu Chetti 9 Ind. Cas. 596 : 35 M. 47 : 21 M.L.J. 246 : (1911) 1 M.W.N. 238 : 9 M.L.T. 389 (F.B.) Hem Chandra v. Hemanta Kumari Debi 23 Ind. Cas. 442 : 10 C.W.N. 356; Ram Taran v. Hari Charan 22 Ind. Cas. 30 : 18 C.L.J. 556; Sris Charndra Datta v. Mahima Chandra 33 Ind. Cas. 17 : 23 C.L.J. 231; Dhulabhas Dabhai v. Lala Dhulu Charan 64 Ind. Cas. 115 : 23 Bom. L.R. 777 : 46 B. 28 : (1922) A.I.R. (B.) 137; But although partial partition by suit is allowed where different portions of the property lie in different jurisdictions or some portion of the property is at the time incapable of partition or is from its nature impartible or is held jointly with strangers who cannot be joined as parties to a general suit for partition, these exceptions must not be taken to hive frittered away the fundamental rule that a partition suit should embrace all the joint property. That rule is recognised in a long series of decisions Baboo Lalljeet Singh v. Babo Raj Coomar Singh 25 W.R. 333; Ram Lochun Pattuck v. Rughoobur Dayal 15 W.R. 111; Hari Narayan Brahme v. Ganpatrav Daji 7 B. 272 : 4 Ind. Dec. (N.S.) 183 : Jogendra Nath Mukerji v. Jugobundhu Mukerji 14 C. 122 : 7 Ind. Dec. (N.S.); Satya Kumar Banerjee v. Satya Kirpal Banerjee 3 Ind. Cas. 247 : 10 C.L.J. 503; Radha Kanta v. Bipro Das 1 C.L.J. 4; Syed Bavuddeen Saheb v. Syed Esaff Sahib 3 Ind. Cas. 20 : 6 M.L.T. 156 (?); Kailash Chandra Das v. Nityananda Das 3 Ind. Cas. 21 : 11 C.L.J. 384, Koer Hasmat Rai v. Sunder Das 11 C. 396 : 10 Ind. Jur. 26 : 5 Ind. Dec. (N.S.) 1023; Haridas Sanyal v. Pran Nath Sanyal 12 C. 566 : 6 Ind. Dec. (N.S.) 385; Jogendra Nath Rai v. Baldeo Das 35 C. 961 : 12 C.W.N. 1271 6 C.L.J. 735; Syed Habibur Rasul v. Ashita Mohan Ghose 12 C.W.N. 640; Mahomed Fazlur Rahman Chowdhury v. Mahomed Fayzur Rahman Chowdhury 10 Ind. Cas. 354 : 15 C.W.N. 677; Upendra Nath Banerjee v. Umesh Chandra Banerjee 6 Ind. Cas. 346 : 15 C.W.N. 375 : 12 C.L.J. 25; Mansaram Chakravati v. Ganesh Chakravarti 16 Ind. Cas. 383 : 17 C.W.N. 521; Mukunda Lal Chakrabarty v. Jogesh Chandra 35 Ind. Cas. 370 : 20 C.W.N. 1276 : 1 P.L.J 393; Beni Madhab v. Gobinda Chandra 46 Ind. Cas. 165 : 22 C.W.N. 669; Shivamurteppa v. Virappa 24 B. 128 : 1 Bom. L.R 620 : 12 Ind. Dec. (N.S.) 623; Doman Lal v. Prokash Lal 18 Ind. Cas. 866; Ranku v. Hukmi 35 Ind. Cas. 545 : 2 P.L.R. 1917 : 156 P.W.R. 1916; Burugapalli Sriramulu v. Nandigam Subbarayadu 10 Ind. Cas. 57 : 10 M.L.T. 313. The decisions mentioned on behalf of the respondent cannot be deemed to have abrogated this rule: Hem Chandra v. Hemanta Kumari Deb 23 Ind. Cas. 442 : 10 C.W.N. 356; Kali Charan Singh v. Kiranbala Debi 51 Ind. Cas. 948 : 39 C.L.J. 494; Ram Mohan Lal v. Mul Chand 28 A. 39 : 2 A.L.J. 700 : A.W.N. (1905) 169; Durga Charan Acharjee v. Enamol Huq 60 Ind. Cas. 762. The rule that a partition suit should embrace all the joint property is neither arbitrary nor technical; it is founded on sound and weighty reasons. If the rule were not recognised and firmly applied, multiplicity of litigation world be the inevitable result. If suits for partition were allowed to be instituted in fragments the jurisdiction of the Trial Court and the forum of appeal might be altered; it might be of paramount importance to a party litigant whether he should have a first appeal or a second appeal to the. High Court, and whether he should at all be permitted to seek the judgment of the Judicial Committee with regard to the matters in controversy. The rule further ensures a just partition; parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts. It reed not be disputed that there may be very special cases where the application of the rule may be justly relaxed. The case before us, however, is not of an exceptional description. The plaintiff asserts that if all the joint properties were included in the suit, it would take along time to complete the partition. There is no substance in this contention. The two brothers have fallen out and the Subordinate Judge has found that there is great bitterness of feeling between them. There can be no room for doubt that the sooner they cease to be joint owners, the better for them. The partition may be expedited if suitable arrangements are made; for instance, there is no reason why different surveyors and valuers should sot be employed to deal with the various properties; and whoever may be appointed commissioner, may have such assistance placed at his disposal that the work of partition may be speedily completed.
6. The result is that this appeal is allowed and the preliminary decree made by the Subordinate Judge set aside. Tie case will be remanded to him for re-trial. The joint properties owned by the two brothers will all be included in the suit and will be dealt with in such manner as the Court may consider consistent with justice, equity and good conscience. In the plaintiff declines to have a partition of tie entire joint estate, the suit will stand dismissed with costs in both Courts. The appellant is entitled to his costs of this appeal. The hearing fee will be assessed at 15 gold mohurs. Tie costs in the Trial Court, before and after remand, will be in the discretion of that Court.