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1908 DIGILAW 90 (CAL)

Syed Habibur Rasul Abul Faiz v. Ashita Mohan Ghosh

1908-03-27

body1908
JUDGMENT 1. This is an appeal against the judgment of the District Judge of Birbhum, dated the 4th August 1906, and his order remanding the case that the partition sought for may be carried out. The parties are co-owners of an estate. The Plaintiff seeks for the partition of the chowkidari chakran lands of one village of the estate. Three of the Defendants do not object. The Defendant No. 1, the Appellant before UP, does. It is said that the partition is sought for, as the lands in suit are near the residence of the Defendant No. 1 and it is feared that he may disturb the possession of the Plaintiff in these lands. The defence is that there can be no partial partition of some of the chowkidari chakran lands of the estate. 2. The District Judge has said that, as the partition sought for is partition between co-owners of an estate, and not partition between members of a joint Hindu family of joint family property, the partition may take place. 3. The Defendant No. 1 appeals. We consider that the District Judge is right. Most of the decisions which prohibit partial partition are passed in oases in which partition of joint family property was desired. There is a good reason for refusing partial partition in such cases, for partition has the effect of breaking up a joint Hindu family. If such a family is disrupted, it stands to reason that the family should break up completely and the whole family property should be divided. But there is no such reason, why the property of co-owners should not be partially divided, as is done in the case of a revenue-paying estate. For the reasons assigned in the case of Bam Mohan Lal v. Mulchand ILR 28 All. 39 (1905) we think the property in this case may be divided. The only case against this view is that of Parbati Charan v. Ainuddeen ILR 7 Cal. 577 (1881). But, as pointed out in Radhakanta Saha v. Biprodas Roy 1 C.L.J. 40 (1904), " there the Plaintiff was the owner of a fractional share of a small piece of land, namely, 2 drones in an estate which consisted of 100 drones. One of the questions raised was whether the Plaintiff was entitled to a partition of 2 drones. But, as pointed out in Radhakanta Saha v. Biprodas Roy 1 C.L.J. 40 (1904), " there the Plaintiff was the owner of a fractional share of a small piece of land, namely, 2 drones in an estate which consisted of 100 drones. One of the questions raised was whether the Plaintiff was entitled to a partition of 2 drones. The suit was dismissed, namely, on the ground that the zemindars were not made parties..... So far, however, as we understand the judgment, the question was one of convenience and inconvenience; and it was not laid down as a matter of law that a partition of a portion of a revenue-paying estate, when that portion is capable of partition without much inconvenience to other sharers, is absolutely barred by law." The case of Radhakanta Soha v. Biprodas 1 C.L.J. 40 (1904) is also an authority for the view taken by the District Judge. We accordingly affirm the decision of the lower Appellate Court and dismiss the appeal with costs, hearing fee 3 gold mohurs.