Asutosh Mookerjee, J.

1. This is an appeal by the first three defendants in a suitfor partition of joint property. The substantial question now in controversybetween the parties is, whether the suit as framed is maintainable.

2. The disputed property, the subject-matter of thepartition claimed by the plaintiffs, is included in an estate Azimpur which hasbeen divided and formed into five separate estates. One of these divisions iscalled Choi Hissya, wherein the sixth defendant has a share. The plaintiffshave acquired the position of permanent tenure-holders under the sixthdefendant in a taluq Ananda Bose and a howla Chandraprabha; they claim anone-anna nineteen-and-a-half-gandas and one til share in the howla and taluqmentioned. Their allegation is that the lands now in suit, which are comprisedin Mauza Icholi, are included in the Choi Hissya estate and have been separatedby metes and bounds so as to be capable of partition without reference to otherlands of the estate. The defendants, who are some of the proprietors of theestate and the lessors under them, contend that the plaintiffs are not entitledto maintain this suit for partition in respect of these lands alone, but arebound to claim partition of all the lands in the Choi Hissya estate, althoughthe plaintiffs have no interest in any lands other than those now in dispute. TheCourt of first instance gave effect to this contention and dismissed the suit.Upon appeal the Subordinate Judge has reversed that decision and made apreliminary decree for partition. In our opinion the decree of the SubordinateJudge is manifestly correct.

3. It cannot be disputed, in view of the decision of theFull Bench in Hemadri Nath Khan v. Ramani Kanti Roy 24 C. 575 : 1 C.W.N. 406and of the Judicial Committee in Bhagwat Sahai v. Bipin Behary Mitter 7 Ind.Cas. 549 : 37 C. 918 : 12 C.L.J. 240 : 14 C.W.N. 964: 8 M.L.T. 228 : 7 A L.J.1137 : 12 Bom. L.R. 997 : 20 M.L.J. 907 : (1910) M.W.N. 691 : 37 I.A. 198 thatthe fact that the plaintiffs are permanent tenure-holders and seek partition asagainst the co-sharers of their lessors in the estate, is no objection to thegrant of relief to them. But it has been argued on behalf of thedefendants-appellants that as, by private arrangement amongst theco-proprietors, separate parcels of the lands of the Choi Hissya estate havebeen in occupation of different proprietors, the plaintiffs as lessees undersome of them should not be allowed to maintain a suit for partition of thelands included in the one mauza wherein alone they are interested and therebyto disturb the arrangement made by the superior landlords. The contention insubstance is that the plaintiffs are in no better position than their grantorand as their grantor would not in ordinary circumstances have been allowed tomaintain a suit for partition as against his co-sharers in respect of a portiononly of joint property, the plaintiffs are under a similar disability. Thisargument has been controverted as unsound on behalf of the respondents and theprinciple has been challenged as too comprehensive that a suit for partitionmust in all circumstances include all the joint properties owned by the partiesto the suit. In support of this view reliance has been placed upon thedecisions in Padmamani Vast v. Jagadamba Dasi 6 B.L.R. 134; Punchanun v. ShibChunder Mullick 14 C. 835; Ram Mohan Lal v. MulChand 28 A. 39 : A.W.N. (1905)169 : 2 A.L.J. 700; Syed Habibur Rasul v. Ashita Mohan Ghosh : 12 C.W.N. 640 and Hem Chandra Chowdhary v. Hemanta Kumari Debi 23 Ind. Cas.442 : 19 C.W.N. 356. We may state at once that it is not necessary for thepurposes of the present case to maintain the view that a suit for partitionneed not embrace all the joint properties owned by the parties thereto. Weshall accordingly assume that, as an, ordinary rule, a suit for partition mustinclude all the properties jointly held by the parties: Jogendra Nath Mukerjiv. Jagobundhu Mukerji 14 C. 122; Jogendra Nath Rai v. Baldeo Das 6 C.L.J. 735 :35 C. 961 : 12 C.W.N. 127; Mahomed Fazlur Rahman v. Mahomed Fayzur Rahman 10Ind. Cas. 354 : 15 C.W.N. 677; Satya Kumar v. Satya Kripal 3 Ind. Cas. 247 [LQ/CalHC/1909/374] : 10C.L.J. 503; Mansaram v. Ganesh 16 Ind. Cas. 383 [LQ/CalHC/1912/248] : : 17 C.W.N.521. But as a necessary corollary to this rule, we have the complementaryprinciple that a partition suit can include no property wherein each of theparties to the suit does not claim an interest: Ham Taran Nag Mozumdar v. HariCharan Nag Mozumdar 22 Ind. Cas. 30 : 18 C.L.J. 556; Radha Kanta Shaha v. BiproDas Roy 1 C.L.J. 40; Raw Lochhi Koer v. Collingridge 5 C.L.J. 307 :: 11 C.W.N. 397; Kailash Chandra Das v. Nityananda Das 3 Ind.Cas. 21 : 11 C.L.J. 384; Uma Sundari Debi v. Benode Lal Pakrashi 34 C. 1026;Ram Mohan Lal v. Mul Chand 28 A. 39 : (950) A.W.N. 69 : 2 A.L.J. 700 and SubbaRow v. Ananthanarayana Iyer 14 Ind. Cas. 524 [LQ/MadHC/1912/127] : 23 M.L.J. 64 : 11 M.L. T 395.But on behalf of the appellants this principle has been assailed asinequitable; we are unable, however, to give effect to this criticism.

4. Take one concrete illustration. Suppose two properties Aand B are jointly owned by X and Y. By mutual arrangement X holds possession ofA, while Y holds possession of B, but no final and definitive partition iseffected between the parties. Y, though in possession of B, transfers to Z hisone-half share in A. Is Z entitled to claim partition as against X There is noroom for controversy that Z is entitled to maintain a suit for this, purpose,though the result may be that X will thereby be driven to sue Y for partitionof B. But this does not involve any hardship upon X; when he consented to takeexclusive possession of A and allowed his co-owner Y to occupy B, he did sowith full knowledge that the arrangement might be disturbed by partition,whether that partition was effected at the instance of Y or of a transfereefrom Y. If this view were not maintained, it would be necessary to hold thatwhen by mutual arrangement, co-owners are in possession of different parcels ofland included in their joint property, their fight of alienation is restricted,thereby. In the case mentioned, as soon as Y. transfers his interest in A to Z,A ceases to be part of the joint property held by X and Y and acquires thecharacter of joint property held by Y and Z; at the same time, B retains itscharacter of joint property owned by X and Y. Consequently in respect of Aeither X or Z is entitled to claim partition against the other; and a similarposition must be maintained with regard to Y. In the case before us, it hasbeen urged that the plaintiffs should not be granted relief till they institutea suit for partition, not merely of the lands comprised in Mauza Icholi whereinalone they are interested as permanent tenure-holders, but also in ninety-nineother mauzas which are comprised in the Choi Hissya Zemindary, and wherein theyhave no interest at all. To give effect to this contention would be to affirmthe principle that the plaintiffs can institute a suit for partition in respectof property in which they possess no interest whatsoever; no conceivable theoryhas been suggested to support such a view, while Section 44 of the Transfer ofProperty Act clearly points to the contrary conclusion. We may add thatreference was made in the course of argument to the case of Shivmurteppa v.Virappa 24 B. 128 : 1 Bom. L.R. 620 which is plainly distinguishable on theground that there the subject-matter of the litigation was co-parcenaryproperty held by members of a joint Mitakshara family. The result is that thedecree of the Subordinate. Judge is affirmed and this appeal dismissed withcosts.

5. We may mention that an objection has been raised beforeus in respect of parcel No. 75. The parties are agreed that the questionwhether parcel No. 75 is liable to be partitioned as included in Mauza Icholiin the Choi Hissya Zemindary should remain open for determination by the Courtbelow before the final decree for partition is made; a declaration to thiseffect will accordingly be inserted in the decree.

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Sris Chandra Datta Chaudhuri and Ors. vs. Mahima ChandraDatta Chaudhuri and Ors. (11.05.1915 - CALHC)