Authored By : Francis Maclean, Trevelyan, O Kinealy,Macpherson, Banerjee

Francis Maclean, C.J.

1. The question for our decision is: "Whether, havingregard to the provisions of Section 265 of the Civil Procedure Code, the CivilCourt can make a partition of land of a revenue-paying estate when no separateallotment of the Government revenue is asked for."

2. A preliminary objection has been raised that no appeallies in this case. It becomes necessary, therefore, to ascertain what theproceedings in the suit have been. The appealing defendant raised the objectionin his written statement that the suit ought to have been brought in the Collectorateand not in the Civil Court. This point was decided against him both by theSubordinate Judge and by the District Judge. On the 8th December 1888 theSubordinate Judge made an interlocutory decree for partition, which wasaffirmed by the District Judge on the 6th June 1889. This decree, in myopinion, was a decree within the meaning of Section 2 of the Code of CivilProcedure, and was appealable.

3. This decree apparently did not indicate by whom thepartition was to be effected, whether by the-Collector or by an Amin.

4. It was assumed on the hearing of the appeal that theCivil Court Amin was appointed by an order of the Munsif, dated the 30thNovember 1889, and the argument on both sides proceeded on that footing. I,however, have sent for the file of the proceedings, and find as a fact that theAmin was not appointed by that order, and that it is not very clear upon theproceedings when or by whom he was appointed. The partition, however, waseffected by the Amin, and he made his final report on the 15th February 1892.The defendant never objected until this appeal to such appointment. On thecontrary, he treated the appointment as good, and from time to time challengedthe conclusions and findings of the Amin. There has been much litigation overthe Amins report, but on the 30th January 1894 the Subordinate Judge made afinal decree, which was substantially affirmed by the District Judge on the22nd September 1894. For five or six years, therefore, the partitionproceedings have been going on by the Amin, much time has been expended andmuch expense incurred. It is now urged for the first time on this appeal, whichwas filed on the 2nd February 1895, that all those proceedings are irregular,and that the Collector and not a Civil Court Amin ought to have made thepartition. Inasmuch as it is not clear, when or by whom the Amin was appointed,or by whose order, I am not disposed to say finally whether any such order isor is not appealable; nor is it of any moment that I should do so, having regardto the view I take of the merits of the case; nor is it necessary to decidewhether or not it is too late now for the defendant to raise the point. I maypoint out, however, that there is nothing to show that he ever objected to theappointment of the Amin; on the contrary, he appears to have completelyacquiesced in the proceedings, and if it were necessary to decide the point, itmight be difficult to distinguish the present from the case of Gyan Chunder Senv. Durga Churn Sen I.L.R. 7 Cal. 318 a case which appears to me to be basedupon a sound equitable principle and to be consonant with common sense. I needscarcely point out the grave inconvenience and probable injustice which wouldresult from any other conclusion. It would mean that partition proceedingsunder an interlocutory decree might go on without any objection for years by anAmin, and then when concluded, after much time and money has been expended, thewhole of the proceedings might be set aside as irregular, on the ground thatthe partition ought to have been made by the Collector and not by an Amin,although the appointment of the latter had never been objected to. I think aCourt of Justice should struggle against so impotent a conclusion. To obviatein future the possibility of so unfortunate a result, I think the Judges makinginterlocutory decrees in partition suits should indicate clearly upon the faceof them whether the partition is to be made by the Collector or by a CivilCourt Amin. From the case I have already cited this apparently is what theyshould do. But as I have said before, in my view of the construction of Section265 of the Civil Procedure Code, the above considerations, quoad the presentcase, become quite academical.

5. Upon the merits of the appeal, in my opinion, the presentsuit is not "for the partition or for the separate possession of a shareof an undivided estate paying revenue to Government" within the meaning ofSection 265 of the Code; in other words, it is not for what is called a"perfect" partition. The suit is one for the partition, not of theparent, or whole estate, but of a part only of the estate, and it does not seekto affect or question any division or payment of the revenue. In my opinion,the words of the section do not apply, and were not intended to apply, to sucha case as the present, and I approve of and follow the decision in the case ofDebi Singh v. Sheo Lal Singh I.L.R. 16 Cal. 203 [LQ/CalHC/1889/9] . I do not think that sectionintended to make it compulsory that the Collector should make the partition,save in cases where as the result of partition the revenue would or might beaffected.

6. The partition in the present case cannot affect thequestion of revenue. I answer the question submitted by the reference in theaffirmative. The appeal must be dismissed with costs.

Trevelyan, J.

7. The two questions which we have to decide in this caseare: First, whether an appeal lies; and, second, whether the provisions ofSection 265 of the Civil Procedure Code apply. I am satisfied that an appeallies in this case. The matter of complaint is the appointment of a Civil CourtAmin to partition the property. This appointment was not made in the decreewhich ordered partition, but was made by a subsequent order. That order was, inmy opinion, an interlocutory order pending the suit which had not been finallydecided. It was not an order in execution, and therefore not appealable asbeing an order under Section 244. I am unable to see how there can be anyexecution except of a final order or decree which is capable of being enforcedagainst the person or property of a party bound by it. The subsequentproceedings, after an interlocutory decree, are the natural consequence of thatdecree, but are not, as far as I can see, within the ordinary acceptation ofthe term, in execution of it. I think there is a clear distinction between actsdone in pursuance or in consequence of a decree or order, and acts done inexecution of it.

8. With regard to the second question I am of opinion thatSection 265 has no application to the present case. That section applies onlyto a case where the decree comprehends the partition of the whole of an estatepaying revenue to Government. A decree for possession of a share of a portionof an undivided estate is not a decree for " possession of a share of anundivided estate" in any sense; and, having special regard to the ordinarymeaning of an "estate A paying revenue to Government" as includingonly an estate with a separate(sic)in towji number in the Collectors register,I think that there is the more re(sic)could be for supposing that the sectiononly applies to a decree for possession whole estate. It has been argued thatthe section only applies in a case the plaintiff asks, and the decree provides,for the partition of the revenue. It is in my opinion unnecessary to decidethat point upon this reference, as this suit only refers to a share of anestate, but were it necessary to decide it, I would say that there is nothingin the section which so limits its operation. A suitor cannot ask a Civil Courtto divide the revenue, and the Civil Court has no power in any way to order ordeal with the division of revenue. (See Section 29 of Bengal Act VIII of 1876.)

9. I cannot suppose that the section should have beenintended to apply only to a case where a suitor has asked a Civil Court to givehim what the Court cannot give him, i.e., a division of the revenue and wherethe Court has complied with that request. It is for the Collector, when anorder has been made under Section 265, to partition the revenue, not inpursuance of the Civil Courts decree, but in pursuance of the powers given tohim by the revenue law.

O Kinealy, J.

10. I concur in the judgment delivered by Mr. JusticeTrevelyan.

Macpherson, J.

11. I am disposed to think that in this case the appellantcan, on the appeal against the final decree, raise the question that thepartition should have been made by the Collector and not by the Civil Court. Hecan do so without questioning the legality or propriety of the preliminary decreefor partition, as that decree did not direct how the partition was to be made.

12. Assuming that an appeal lies, the objection that thepartition should have been made by the Collector in my opinion fails.

13. The decree referred to in Section 265 of the CivilProcedure Code is, I think, a decree either for the partition of an undividedrevenue-paying estate into several separate revenue-paying estates, or forseparate possession of a share of an undivided revenue-paying estate to be heldas a separate estate---a decree, that is to say, which directs a distributionof the revenue as well as a division of the land wholly or in part. If thewords "the separate possession of a share" stood alone, there mightbe some doubt as to their meaning, but taken with the context they clearly, Ithink, bear the meaning which I have put upon them.

14. When no distribution of the revenue is asked for, I amunable to see any distinction between the case in which the plaintiff, being afractional co-sharer of the whole estate, wants a partition of the land of thewhole estate, and a case in which, his interest being limited to someparticular portion of the estate, he wants a partition of the land of thatportion only. If the section prohibits the Civil Court from making thepartition in the one case, it does so, I consider, equally in the other. Solong as the revenue remains undistributed there is no partition of the estate,and a person owns a share of an undivided revenue-paying estate, whether hisshare consists of a fractional part of the whole estate or of a fractional partof the land in some specific part of the estate. If the Civil Court isprohibited from making a partition of the land of the entire estate, althoughthe estate itself is not partitioned, the prohibition must be referable to thewords "the separate possession of a share of an undivided estate;"but these words would apply as much to a division of the land of a specificpart of the estate as to the land of the whole estate.

15. I am unable, therefore, to see the force of thedistinction drawn in the case of Meherban Bawoot v. Behari Lall Batik I.L.R. 23Cal. 679 between that case and the case of Debi Singh v. Sheo Lall Singh I.L.R.16 Cal. 203 [LQ/CalHC/1889/9] . The two cases seem to me to conflict on principle, and the lattercase was, I think, rightly decided.

16. Unless it is contained in Section 265, there is no lawin force in the Lower Provinces of Bengal which prevents the Civil Court frommaking a partition in whole or in part of the land of an undivided revenue-payingestate so long as there is no distribution of the revenue, and the land of theentire estate remains liable as before for the revenue payable on account ofthe entire estate. Section 265, in my opinion, contains no such prohibition.

Banerjee, J.

17. The suit, out of which this reference has arisen, wasbrought by the plaintiff-respondent for the partition of certain mouzahs heldjointly by him and the defendants and forming a portion of an estate payingrevenue to Government, the plaint distinctly stating that all that is asked foris a division of the land without any division of the revenue. The defendantsurged that the suit was not cognizable by the Civil Court, and raised variousother objections; but the first Court found for the plaintiff upon all theissues raised, and made what it called an interlocutory decree in his favour onthe 8th of December 1888, directing that the property in suit be partitionedbetween the plaintiff and the defendants, according to the shares mentioned inthe plaint. The decree contains no direction as to whether the partition is tobe made by the Collector or the Civil Court Amin; but there was an order passedon the same day directing that the partition should be made by an Amin. Some ofthe defendants preferred an appeal against that decree; but the appeal wasdismissed by the District Judge on the 6th of June 1889.

18. A Commissioner was then appointed to make the partition.The Commissioner made certain allotments of the land. And a decree was made bythe first Court on the basis thereof on the 10th of May 1892. This decree wasset aside on appeal, and the case remanded to the first Court; and the decreemade by that Court after the remand was affirmed with some modification by thedecree of the District Judge, dated the 21st of September 1894.

19. Against this decree the defendant No. 1 has preferredthe second appeal now before us, and the only ground urged on her behalf isthat the land in suit, being part of an estate paying revenue to Government,the decree for partition could be carried into effect only by the Collector asprovided by Section 265 of the Code of Civil Procedure, and the partitioneffected by the Commissioner appointed by the Civil Court must be set aside asillegal.

20. A preliminary objection is raised on behalf of theplaintiff-respondent that it is not open to the appellant to urge the aboveground, firstly, because she did not prefer any appeal against the order of thefirst Court directing a Commissioner to make the partition, though that orderwas appealable; and, secondly, because, even if the order was not appealable,she acquiesced in that order, and without taking any exception to it allowedthe partition to be made by an Amin.

21. I am of opinion that the first branch of the preliminaryobjection must fail. The order of the first Court directing a Commissioner tomake the partition was not an appealable order, no appeal being given againstany such ordering by Section 588 of the Code of Civil Procedure; and if it wasnot an appeal divided order, the mere fact of the defendant No. 1 not havingappealed aga(sic)ve not, cannot stand in the way of her urging the ground nowraised. (sic)

22. It was argued by the learned Counsel for the respondentsthat the But where, question being one relating to the execution of a decreefor partitistate paying order under Section 244, and was therefore a decree asdefined in scan estate, the that consequently it was appealable.

23. To this argument there are two answers. In the firstionshould be view I take of Section 265 of the Code, as will be presently sta(sic)the decree for partition made on the 8th of December 1888, though it determinedcertain rights of the parties and was appealable as a decree see Dulhin GolabKoer v Badha Dulari Koer I.L.R. 19 Cal. 463 [LQ/CalHC/1892/8] was not a decree made under thatsection, nor the final decree in the suit, but was, as the Court that made itproperly describes it, an interlocutory decree, and that the order made in theproceedings subsequently taken to effect the partition before the final decreewas passed should be treated as an order made in further proceedings in thesuit, and not as an order made in execution of decree within the meaning ofSection 244. [See Dwarka, Nath Misser v. Barinda Nath Misser I.L.R. 22 Cal.425. In the second place, even if the order directing the partition to be madeby a Civil Court Amin or Commissioner can be properly viewed as an order madein the execution of a decree, still it cannot, in my opinion, be regarded as anorder coming within the scope of Section 244, and therefore within the meaningof the term "decree." It is not every order made in execution of adecree that comes within Section 244. If that were so, every interlocutoryorder in an execution proceeding, such as an order granting or refusing processfor the examination of witnesses, would be appealable; and far greater latitudewould be given of appealing against orders in such proceedings than is allowedas against orders made in suits before decree---a thing which could hardly havebeen intended. [See Sree Nath Roy v. Badha Nath Mookerjee I.L.R. 9 Cal. 773 andBehari Lal Pundit v. Kader Nath Mullick I.L.R. 18 Cal. 469 [LQ/CalHC/1891/36] . An order inexecution proceedings can come under Section 244 only when it determines somequestion relating to the rights and liabilities of parties with reference tothe relief granted by the decree; not when, as in this case, it determinesmerely an incidental question as to whether the proceedings are to be conductedin a certain way. I may add that the language of Section 244 which enacts thatcertain. "questions shall be determined by an order of the Court executingthe decree and not by separate suit," clearly indicates that the questionscontemplated by the section must be of a nature such that it is possible tosuppose that but for the section they could have formed the subject ofdetermination by a separate suit. But a question of an incidental character cannever come under that description, and an order determining such a questioncannot, therefore, be a decree as defined in Section 2.

24. The order under consideration not being in my opinionappealable, it becomes unnecessary to determine the further question raised asto the effect of a party not appealing within time against a decree or an orderwhich is appealable---a question regarding which there is some conflict ofauthority. See the cases of Boloram Dey v. Ram Chandra Dey I.L.R. 23 Cal. 279 [LQ/CalHC/1895/111] and Biswa Nath Chaki v. Bani Kanto Dutta I.L.R. 23 Cal. 406 which relate to theeffect of not appealing from an order which is a decree within the meaning ofSection 2 of the Code, and the cases of Cheda Lal v. Badulla I.L.R. 11 All. 35Savitri v. Ramji I.L.R. 14 Bom. 232 and Kanta Pershad Hazari v. Jagat ChandraDutta I.L.R. 23 Cal. 335 [LQ/CalHC/1895/97] which relate to the es(sic)tect of not appealing fromappealable orders.

25. It remains now to consider the question raised in thesecond branch of the must binary objection (which, strictly speaking, is not inthe nature of a pre-estate objection) namely, whether the defendant No. 1, byhaving acquiesced a specific directing the partition to be made by an Amin, andhaving allowed a I am unn to be so made without protest, has precluded herselffrom urging mase of Mehertw pressed before us. If the point raised for the appellantthat Sent case and thought to have been made by the Collector and not by anAmin be baswo cases slure only and not of jurisdiction, then the appellant,having sense, sightly decree procedure adopted by the Court of First Instance,cannot injustice now take exception to it. The case of Gyan Chunder Sen v.Durga Churn Sen I.L.R. 7 Cal. 318 is clear authority on the point. Theappellants contention would also be met by Section 578 of the Code of CivilProcedure. But it is argued for the appellant that if the case comes underSection 265, the question raised on her behalf would be one of jurisdiction andnot of procedure merely. As this last-mentioned point is not altogether freefrom doubt, and as, in the view I take of Section 265, the appeal fails on themerits, I do not think it necessary to consider whether the objection raised onbehalf of the appellant is one of jurisdiction or of procedure only.

26. Turning now to the question raised on behalf of theappellant, namely, whether, having regard to the provisions of Section 265 ofthe Civil Procedure Code, the Civil Court can make a partition of land of arevenue-paying estate when no separate allotment of the Government revenue isasked for, I am of opinion that the question should be answered in theaffirmative.

23. Section 265 runs as follows: "If the decree be forthe partition, or for the separate possession of a share, of an undividedestate paying revenue to Government, the partition of the estate or theseparation of the share shall be made by the Collector according to the law, ifany, for the time being in force for the partition or the separate possessionof shares of such estates."

24. In construing this section, bearing in mind theobservations of their Lordships of the Privy Council in Norendra Nath Sircar v.Kamal Basini Dasi I.L.R. 23 Cal. 563: L. R. 23 I. A. 18 we must in the firstinstance examine the language of the enactment. The section evidentlycontemplates two classes of cases, namely, one for the partition of anundivided estate paying revenue to Government, and the other for the separatepossession of a share of such an estate; and the question is, what is meant by"the partition of an undivided estate paying revenue to Government"and what by "the separate possession of a share" of such an estateAs I understand these expressions, which are not explained in the Code, theformer means the division of an undivided estate paying revenue to Governmentinto a number of smaller estates corresponding to the shares or interests of theseveral joint proprietors, each being liable only for a portion of the revenueassessed on the original or parent estate; and the latter, the separatepossession of his share by a co-proprietor of the undivided estate, theseparate share forming a distinct estate liable only for its legitimate portionof the revenue, the remainder of the parent estate continuing joint and beingburdened with the remainder of the revenue. I may add that the words"separate possession of a share," which occur also in Section 225 ofAct VIII of 1859, the former law on the subject, appear to have been taken fromSection 4, Clause 2, of Regulation XIX of 1814, the law relating to partitionof estates in force when the Code of 1859 was passed. The words"partition" and "separate possession of a share," in theabsence of any conflicting context, must imply complete partition and completeseparation, and the presence of the phrase" paying revenue toGovernment" in the context as qualifying the term "undivided estate"evidently suggests that the partition or separation must involve, notonly a division or separation of the land of the estate, but also a division orseparation of the revenue payable to Government in respect thereof. But where,as in this case, the suit is for the partition, not of an undivided estatepaying revenue to Government, but of the lands of a portion of such an estate,the revenue payable to Government still remaining undivided, the case does notin my opinion come within the scope of Section 265, and the partition should bemade, not by the Collector, but by the Civil Court.

25. This is the conclusion I deduce from the grammaticalconstruction of the section; and an examination of the law in force for thepartition or the separate possession of shares of an estate paying revenue toGovernment, which is referred to in the section itself, will confirm thatconclusion, and show the reason why a decree for complete partition orseparation of a share of such an estate, that is, one for the division of theland and the revenue, is required to be made by the Collector, while apartition or separation of the land alone without any division of the revenueis left to be effected by the Civil Court. That law, so far as the districtfrom which this case comes is concerned, is to be found in Bengal Act VIII of1876. Section 5 of the Act provides that " all partition of estates whichshall be ordered to be made after the commencement of this Act shall be madeunder the provisions of this Act, and no such partition made otherwise thanunder this Act shall relieve any lands from liability to Government for thetotal demand of the land revenue assessed upon the estate of which they form apart." Section 6 lays down the principle on which the revenue assessed onthe parent estate is to be distributed over the separate estates. Section 29says: "Subject to the provisions of Section 11 a Civil Court may at anytime direct the Collector to assign to any person lands representing aspecified interest in any estate or in any specified village or tract of landin an estate, to be held by such person as a separate estate, or to divide offfrom any estate any specified village or lands and to assign them to any personto be held as a separate estate, provided that an application for such partitionand separation shall be presented by such person as required by Sections 17, 18and 19; but no Civil Court shall in any case sepecify the amount of revenue forwhich any separate estate, which it may direct to be formed under theprovisions of this section, shall be liable." And Section 30 enacts thatthe Collector shall assess the land revenue on every such separate estate inaccordance with the provisions of this Act, and no Civil Court shall direct theCollector to carry out a partition otherwise than in accordance with theprovisions of this Act."

26. The first of the abovementioned sections (Section 5)shows that a partition, in order that it may result, not only in the divisionof the land, but also in the division of liability for Government revenue, mustbe made according to the provisions of the Act, and that a partition not somade will leave the liability to Government for the total revenue untouched;and the last two sections (29 and 30) show that, though it is competent to theCivil Court (subject to the provisions of Section 11) to direct the Collectorto assign to any person, either lands representing any specified interest orany specific lands, to be held by him as a separate estate no one except theCollector can determine the amount of revenue to be assessed upon suchseparated estate and divide the joint liability for revenue.

27. The object of this provision is evidently to ensure thesafety of the Government revenue by leaving it to a responsible revenue officeralone to distribute the revenue in cases of partition, so that there may be norisk of the separated estates being through error or collusion burdened withdisproportionate liabilities.

28. Where, as in the case before us, the parties do notrequire a division of the revenue, or where, as in cases coming under Sections11, 13 and 14 of Bengal Act VIII of 1876, they cannot, unless they comply withcertain conditions, ask for a division of the revenue, and all that they askfor is a division of the lands, the liability for revenue continuing joint,there is no reason why the Collector should be asked to effect the partition.In fact, the Civil Court cannot direct the Collector to make any partition inthe last-mentioned class of cases, it being prohibited to do so by the latterpart of Section 30 quoted above.

29. It has been said that Section 265 of the Code of CivilProcedure applies to all cases where partition or separate possession of anentire estate is asked for, irrespective of the consideration whether divisionof the revenue is asked for or not, because no division of the revenue can beasked for in such a suit in the Civil Court, the Civil Court having nojurisdiction to make any such division. I am unable to accept this reasoning ascorrect. It is true that Section 29 of Bengal Act VIII of 1876 shows that theCivil Court has no power to specify the amount of revenue for which anyseparate estate shall be liable, but that same section shows that the CivilCourt may direct the Collector to assign lands to any person Co be held by himas a separate estate, that is, having regard to the definition of the terms"estate" and "separate estate" in Section 4, Clauses viiiand xvi, as a distinct quantity of land liable for a separate amount ofrevenue. So that, though the Civil Court cannot divide the revenue, it maydeclare that the revenue should be divided.

30. Section 396 of the Code of Civil Procedure was referredto as lending support to the appellants contention, It was argued that,besides Section 265, this is the only other provision in the Code for thepartition of Immovable property; and as the property in suit cannot be said tobe property not paying revenue to Government, this section cannot apply to it;and if Section 265 is also inapplicable, there is no provision in the Code withreference to the present case.

31. The language of Section 396, no doubt, does create alittle difficulty. It is very likely that this section was intended to coverall cases other than those provided for by Section 265, but the Legislature hasnot said so clearly; and in Section 396 it has departed from the phraseologyadopted in Section 265 to an extent which would make it difficult to say thatit had any such intention.

32. If Section 396 was inapplicable to this case, still the Courtcould issue a commission for local investigation and preparation of a map ofthe lands in suit under Section 392 with a view to make a decree for partition.

33. It remains now to consider the cases cited in theargument on this point. Some of these, such as the cases of Shama SoondureeDebia v. Puresh Narain Roy 20 W. R. 182 Chunder Nath Nundi v. Hur Narain DebI.L.R. 7 Cal. 153 Ramjoy Ghose v. Ram Runjun Chuckerbutty 8 C. L. R. 367 andBadri Roy v. Bhugwant Narain Dobey I.L.R. 8 Cal. 649 are not decisions inpoint, but only contain dicta of the learned Judges which might be construed infavour of the appellant. In two of the cases, Damoodur Misser v. SenabuttyMisrain I.L.R. 8 Cal. 537 and The Secretary of State v. Nundun Lall I.L.R. 10Cal. 435 it appears that division of revenue was either asked for or involvedin the plaintiffs prayer, so that nothing that was said by the learned Judgesthere can be in conflict with the view I take. As against the dicta relied uponfor the appellant there are the dicta of the learned Judges in the case ofZahrun v. Gowri Sunhar I.L.R. 15 Cal. 198 [LQ/CalHC/1887/98] which favour the opposite view. Thetwo cases which are really in point and are in conflict with one another arethose of Debi Singh v. Sheo Lall Singh I.L.R. 16 Cal. 203 [LQ/CalHC/1889/9] and Meherban Rawootv. Behari Lal Barik I.L.R. 23 Cal. 679 [LQ/CalHC/1896/51] . For the reasons stated above I considerthe decision in the former case correct, and I would respectfully dissent fromthat in the latter.

34. In the result I would answer the question stated in thisreference in the affirmative, and dismiss this appeal with costs.

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Kailash Chandra Lahiry and Ors. vs. Jogodishury Debea (12.03.1897 - CALHC)