Loftus Richard Tottenham, J.

1. This was a suit for the partition of a khanabaribelonging to the parties in this suit. The defendants objected that, if thisparticular khanabari only were partitioned, the result would be serious tothem; that there are two other khanabaris adjoining the one in question, andthat the partition ought to be applied to them also as well as to otherjoint-family property. The lower Appellate Court has decided that this suit forpartition of this single khanabari could not be maintained, and has dismissedit.

2. We think that the weight of authority is in favour of thelower Appellate Courts decision. The cases are quoted by Mr. Mayne in his bookon Hindu Law (See Maynes Hindu Law, Section 417, 3rd Ed., p. 469). In thepresent instance we think that the decision of the Court below is reasonable aswell as in accordance with law. The appeal is dismissed with costs.

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Haridas Senyal and Ors.vs. Pran Nath Sanyal and Ors.(02.01.1886 - CALHC)



IN THE HIGH COURT OF CALCUTTA

FULL BENCH

Decided On: 23.03.1886

Appellants: Mangniram Marwari

Vs.

Respondent: Dhowtal Roy and Ors.

Honble Judges/Coram:

Richard Garth, C.J., Henry Stewart Cunningham, Arthur Wilson,Henry Thoby Princep and Trevelyan, JJ.

Subject: Civil

Catch Words

Mentioned IN

Case Note:

Interest--Interest after filing of plaint--Interest at ratestated in bond--Discretion of the Court--Civil Procedure Code (Act XIV of1882), Section 209.

JUDGMENT

Richard Garth, C.J.

1. The question, as I consider, which we have to decide inthis reference, is, whether under the circumstances stated the Judge in thefirst Court was bound to give interest at the rate agreed upon between theparties; or, whether the rate of interest after plaint and before decree isalways under such circumstances in the discretion of the Court

2. I think that, having regard to Section 209 of theProcedure Code, the rate of interest after plaint is in the discretion of theCourt.

3. It was, however, suggested during the argument that thiscase from the first should have been tried in accordance with the law laid downin the Transfer of Property Act (Sections 86 to 88); and that this being a suitfor sale of the mortgaged property, the Court, under Section 86, was bound tomake a decree ordering that an account be taken of what would be due to theplaintiff for principal and interest on the mortgage, and for his costs of suiton a day within six months from the date of declaring in Court the amount sodue; and also ordering that in default of the defendant paying as thereinmentioned, the mortgaged property, or a sufficient part of it, should be sold,and that the proceeds of sale should be paid into Court, and be applied inpayment of what should be found due to the plaintiff; the balance being paid tothe defendant or any other person entitled to receive the same.

4. It seems to me, however, that as the plaintiff hasbrought the present suit in accordance with the old procedure before theTransfer of Property Act passed, without any objection being taken to thatcourse by the other side; and as the Court below has dealt with the case uponthat footing, and has given the plaintiff a decree for the immediate payment ofthe amount of the debt and interest; and as moreover both parties are stillcontent with the case being dealt with on that footing, (subject of course tothe question of the rate of interest) we ought not now to change the wholenature of the suit, and send the case back to the first Court to be tried upona different principle.

5. Indeed this being a reference to a Full Bench on RegularAppeal, our duty, I consider, is simply confined to answering the question putto us, and when our answer has been given, the Court of Appeal will have togive the final decree.

6. I think, therefore, it is sufficient to say that thelower Court was not bound to give interest at the rate agreed upon in themortgage-deed, but was at liberty to give any lower rate of interest it thoughtproper.

.

Mangniram Marwari vs.Dhowtal Roy and Ors. (23.03.1886 -CALHC)