Authored By : Richard Harington, Herbert Carnduff

Richard Harington, J.

1. This is an appeal on behalf of the defendant No. 1 whoobjects to the preliminary decree made in favour of the plaintiff in apartition suit. Three points have been taken by the learned Vakil who appearsfor the appellant. The first is that the action is not maintainable because, onthe face of the plaint, the plaintiff is asking for a partial partition, thatis to say, a partition of only a portion of the joint property and professes tointend to bring another suit for the partition of the rest. The second pointtaken is that the Court below had no jurisdiction to deal with the matterbecause some of the lands sought to be partitioned lay within the territorialjurisdiction of another Court and the third point taken is that the order forpartition contravenes Section 54, Civil Procedure Code, and is, therefore, bad.

2. With regard to the first point, the authorities are infavour of the appellant. The question came up for decision in the case of HariDas Sanyal v. Pran Nath Sanyal 12 C. 566 and in that case it was held that thesuit was not maintainable. The particular authorities were not cited in the judgment,but reference was made to Maynes Hindu Law. Then the question again arose inthe case of Jogendra Nath Mukerji v. Jugobundhu Mukerji 14 C. 122. In thatcase, the then Chief Justice in considering the question spoke of it as beingconcluded by authority and he felt bound to hold that the suit must bedismissed because it was for a partial partition: and that case was a casewhich was stronger in favour of the plaintiff than the present case because, inthat case, the lands of which partition was not asked were alleged to be nopart of the joint estate whereas, in this case, it is admitted, on the face ofthe pleadings, that the lands of which the plaintiff does not seek partitionare, in fact, a part of the joint estate. The last case in which the casesreferred to above were considered was the case of Satya Kumar Banerjee v. SatyaKirpal Banerjee3 Ind. Cas. 247 [LQ/CalHC/1909/374] :10 C.L.J. 503. There, these cases are mentionedand it is regarded as settled law that there cannot be, by a suit, a partialpartition and that, if a suit for partition is brought, it must embrace thewhole of the family property. We are concluded by these decisions and, on thatground, I think that the appellant has made good the point which he has firststated. The answer of the respondent is that we are not entitled to go intothis matter because it was not discussed in the Court below nor was it taken inthe grounds of appeal to this Court. Speaking for myself, I felt at one timesome hesitation as to whether we ought to go into this point at all; but inview of the fact as appears on the face of the plaint and that the course whichthe plaintiff professes to take is a very inconvenient one, I think that we areentitled to consider the question, notwithstanding the fact that it was not takenin the grounds of appeal or argued in the Court below.

3. In taking the view that the suit must, on the authoritiesby which we are bound, be dismissed, it becomes quite unnecessary to considerthe other points which are raised by the appellant. The result is that, in myview, the suit must be dismissed but the plaintiff must be given liberty tobring a fresh suit for partition of the estate which he claims. He will then beable to put his tackle into propounder and claim partition of the entireestate. With regard to the question of costs, inasmuch as the point discussedhere was not raised when it ought to have been raised but sprung by theappellant 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 lowerCourt is set aside and the suit dismissed, no order is made as to costs andliberty is reserved to the plaintiff to bring a fresh suit for partition of theentire estate.

Herbert Carnduff, J.

4. I agree.

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Doman Lal and Ors.vs. Babu Prokash Lal (20.02.1913- CALHC)