Judgement Appeal from a decree of the High Court (May 5, 1905) reversing a decree of the Subordinate Judge of Gaya (February 4, 1904). The question decided was as to the right of the appellants to a partition of certain villages, namely, Kalapahar, Nimjodh, and Muruli Khurd. The zamindari interest. therein vested to the extent of an 8 anna share in Rai Pasupati Nath Bose, respondent No. 4, while the remaining 8 anna share belonged to the three Mitter respondents. On September 16, 1865, Rai Sham Lal Mitter and Rai Mohan Lal Mitter, the predecessors in title of the three Mitter respondents, granted a mukarrari lease (descendible to children in perpetuity, generation after generation, both in the male and female lines) of a 7 anna 6 pie share in the said villages to Karori Lal, Lila Singh, Banwari Lal, and Jugmohan Singh. The lease provided for forfeiture in the event of failure to pay three consecutive instalments of the rent, or in the event of a transfer by "dar mokarari, sale, conditional sale, gift, mortgage, or in any other way." The lease was made jointly to the said four persons subject to a liability to pay a joint rent, but at the bottom of the lease the respective shares of the lessees inter se were set out as follows— Karori Lal ... ... ... ... 1 anna 8 pie. Lila Singh ... ... ... ... 1 anna 8 pie. Banwari Lal ... ... ... ... 1 anna 8 pie. Jugmohan Singh ... ... ... 2 anna 6 pie. On January 21, 1869, Banwari Lal sold his 1 anna 8 pie share in the lease to Lila Singh, and on March 10, 1878, the lessees agreed among themselves that instead of the above shares in the said three villages their interests should be as follows The sons of Karori Lal should have 7 anna 6 pie share in Nimjodh, Jugmohan Singh should have 3 anna 9 pie share in Kalapahar, and Lila Singh should have 3 anna 9 pie share in Kalapahar, and 7 anna 6 pie share in Muruli Khurd. This arrangement was confined to the lessees, and was not binding in any way on the lessors so as to affect the rights and liabilities under the original lease. This arrangement was confined to the lessees, and was not binding in any way on the lessors so as to affect the rights and liabilities under the original lease. The appellants purchased by two deeds dated April 13, 1891, and September 12, 1893, from the sons of Karori Lal a 10 pie share in the three mouzahs, and they purchased on May 27, 1894, a 2 anna 6 pie share in the three mouzahs from Jugmohan Singh. Thus they became entitled to 3 anna 4 pie share in Ali the three mouzahs. Or if the shares were to be reckoned, having regard to the private partition of March 10, 1878, the purchase was of 3 anna 9 pie of mouzah Nimjodh and the same share in Kalapahar. The Mitter respondents thereupon sued to cancel the mukarrari lease of 1865 on account of breach of covenant. The purchasers compromised by paying to the lessors a sum of money to waive the forfeiture and to recognize the transfers. On April 6, 1896, an agreement was executed by which the Mitter respondents accepted the purchasers as substituted lessees, but no recognition was granted of the private partition or arrangement of March 10, 1878. On August 13, 1903, the appellants sued, claiming partition of either a 3 anna 9 pie share in the two villages Nimjodh and Kalapahar on the basis of the transaction of March 10, 1878, or of a 3 anna 4 pie share in the said three villages on the basis of the shares specified in the original lease. The defendant No. 1, Rai Pasupati Nath Bose, proprietor of a half-share of the zamindari interest in the villages, in his written statement desired a partition. The defendants Nos. 5, 6, and 7, who had a mukarrari interest like the appellants in the 7J anna share of the Mitter respondents, did not resist the claim. The contesting defendants were the Mitter respondents whose proprietary interest in the villages had been by the above transactions reduced to a 6 pie share. The Subordinate Judge decreed the partition on the basis of the shares specified in the original lease. The contesting defendants were the Mitter respondents whose proprietary interest in the villages had been by the above transactions reduced to a 6 pie share. The Subordinate Judge decreed the partition on the basis of the shares specified in the original lease. He referred to the suit to cancel the mukarrari lease, the compromise which followed, the payment of the bonus by the appellants, and remarked that they got their names registered in the sherishta of the Mitter respondents as owners of a 3 anna 4 pie share in the disputed and other mouzahs constituting the mukarrari lease. He considered that for these reasons the Mitter respondents were bound to recognize the rights of the appellants in the shares in the disputed mouzahs and their right to partition as regards those shares. But they were not bound by any private partition among the original mukarraridars. The learned judge observed that those respondents had " accepted rent from the plaintiffs separately or in respect of the said share. They have therefore admitted division of the tenancy or of the original mukarrari lease," and he held that they cannot object to the partition claimed. The High Court in appeal decided that the suit was not maintainable, as tenure holders cannot sue their landlords for partition. They construed the mukarrari lease as of a temporary and defeasible character (1.) because it is to become null and void on default of payment of three instalments of the rent reserved, (2.) because alienation is subject to the same penalty. They added, " alienation of part of the mukarrari interest has no doubt taken place and been condoned, but on the defendants Nos. 2 to 4 instituting a suit to cancel the mukarrari on the ground of this alienation, the present plaintiffs Nos. 1 to 3 at once compromised the matter with them by paying a bonus of Rs.500 and costs and obtaining a distribution of rent. But the defendants Nos. 2 to 4 do not appear to be bound to overlook and condone any future alienation of any other portion of the mukarrari interest. 1 to 3 at once compromised the matter with them by paying a bonus of Rs.500 and costs and obtaining a distribution of rent. But the defendants Nos. 2 to 4 do not appear to be bound to overlook and condone any future alienation of any other portion of the mukarrari interest. In these circumstances, it seems to us, that the interests of the plaintiffs in this case are not of such a permanent and transferable nature as to ensure that any division that may now be effected will be of enduring effect." The material portion of the judgment of the High Court (Rampini and Caspersz JJ.) is as follows — " There are no precedents for such a suit as this. No case has been cited to us which is exactly in point. Our attention has been called to the cases of Parbati Churn Deb v. Ainuddeen (( 1881) I. L. R. 7 Calc. 577.),Mukunda Lal Pal v. Lehuraux (2), and the Full Bench case of Hemadri Nath Khan v. Ramani Kanta Roy. (3) The first of these has no application. In the second, the principle that to entitle a person to partition there must not only be joint possession, but the possession must be founded on the same title, was Laid down. On this principle, the plaintiffs have no right to partition. But the ratio decidendi of Mukunda Lal Pal v. Lehuraux (( 1892) I. L. R. 20 Calc. 379.) was disapproved of in the third case cited to us, namely, the Full Bench case of Hemadri Nath Khan v. Ramani Kanta Roy. (( 1897) I. L. R. 24 Calc. 575.) This case was one brought by a zamindar, a 10 annas co-sharer, for partition against a putnidar of a 6 annas share. It was held that the plaintiff was entitled to partition in the circumstances of the case.But the learned judges of the Full Bench Laid down no general rule. On the contrary Mr. 575.) This case was one brought by a zamindar, a 10 annas co-sharer, for partition against a putnidar of a 6 annas share. It was held that the plaintiff was entitled to partition in the circumstances of the case.But the learned judges of the Full Bench Laid down no general rule. On the contrary Mr. Justice Banerji, who delivered the judgment of the Court, said I think the Court must in each case determine whether having regard to the nature of the interest owned by the parties and to Ali other circumstances, necessary to be taken into consideration, the balance of convenience is in favour of allowing partition ; and if it determines that question in the affirmative, the mere fact of the parties owning interests which are not co-ordinate in degree, ought not to be a bar to partition. Hence it is clear that the fact that the plaintiffs are mukarraridars, and the defendants or some of them are proprietors, will not bar the partition sought for in this case. But the learned judge in the body of his judgment observed as to the second ground the only reason that might be urged in its support is that if partition can be enforced as between co-owners whose interests are not co-ordinate in degree, parties having permanent interest may be put to frequent and needless expense and trouble by having to watch partition proceedings instituted at the instance of co-owners with temporary interest, such proceedings not leading to any division of the property which can have a lasting effect. But in the present case, no such reason can hold good in the first place, because the party who is asking for partition is the holder of the higher of the two kinds of interest respectively owned by the parties to the suit, his interest being that of a zamindar, so that there can be no apprehension of the division effected not having an enduring effect; and, in the second place, because the interest owned by the party against whom partition is sought, though subordinate to that of the plaintiff, is certainly not of a temporary and qualified character such as would make it undesirable to have a partition against him and to subject him to the trouble and expense of a partition proceeding. Again Mr. Again Mr. Justice Beverley in his judgment in the case has said, The right to a partition can only, in my opinion, exist as between co-parceners holding similar interests in the property. How similar interests should be defined it may not be easy to say. They should probably be permanent, transferable interests. A temporary leaseholder of an undivided portion of an estate ought not, in my opinion, to be allowed to put his lessor to the trouble and expense of a partition. " The rule to be deduced from these passages would seem to be that partition should not be allowed when the interest of one or more of the persons owning interests in the property to be partitioned is of a temporary and qualified character—is not a permanent and transferable interest—and when there may be apprehension that the division effected may not have an enduring effect." Kenworthy Brown, for the appellants, contended that the High Court had put an erroneous construction on their mukarrari lease in holding that the title created by it was not of a permanent and transferable nature. That title was none the less permanent and transferable because it was liable to forfeiture in events which had not happened and could not happen independently of the lessees conduct and proceedings. Hemadri Nath Khan v. Ramani Kanta Hoy (I. L. R. 24 Calc. 575.) is direct authority for the doctrine that partition may be had although the titles of the parties are not co-ordinate in degree. Under the agreement of April 6, 1896, the Mitter respondents were bound to recognize the appellants as their mukarrari lessees, and a decree for partition should have been made. Reference was made to Shamasundari Debi v. Jar dine Skinner (( 1869) 3 B. L. R. Ap. 120.); Sundar v. Parbati (( 1889) L. R. 16 Ind. Ap. 186, 193, 194); Padmamani Dasi v. Jagadamba Dasi (( 1871) 6 B. L. R. 134, 138); Umasundari Debi v. Benode Lal Pakrashi (( 1907) I. L. R. 34 Calc. 1026.) ; Mayfair Property Co. v. Johnston ([ 1894] 1 Ch. 508.) ; Gaskell v. Gaskell(( 1836) 6 Sim. 643.) ; Heaton v. Dearden (( 1852) 16 Beav. 147.) ; Hobson v. Sherwood. (( 1841) 4 Beav. 1026.) ; Mayfair Property Co. v. Johnston ([ 1894] 1 Ch. 508.) ; Gaskell v. Gaskell(( 1836) 6 Sim. 643.) ; Heaton v. Dearden (( 1852) 16 Beav. 147.) ; Hobson v. Sherwood. (( 1841) 4 Beav. 184.) De Gruyther, K.C., and Kyffin, for the Mitter respondents, contended that the interest in the villages which vested in the appellants under their mukarrari lease was insufficient to entitle them to the partition sought. As lessees the appellants could not compel a partition with those who held a zamindari title and were their lessors. The appellants were recognized by the agreement of April 6, 1896, as substituted lessees, but their private arrangement of March 10, 1878, was not approved. The respondents were not bound to recognize a transfer of the mukarrari interest not authorized by the conditions of the lease, but on the contrary were entitled to cancel the lease for breach of covenant. Reference was made to the Bengal Tenancy Act (VIII. of 1885), s. 88; Bengal Act V. of 1897 (Partition Act), ss. 3, 6, 7, 8, 23, 99; and Bengal Regulation XIX. of 1814, s. 4. A limited and defeasible title like that of the appellants did not entitle them to a partition with the respondents who were zamindars. The English cases cited on the other side were decided under English statutes which were inapplicable to India. Reference was made to Kally Doss Ahiri v. Monmohini Dassee(( 1897) I. L. R. 24 Calc. 440, 446.) and Abhiram Goswami v. Shyama Char an Nandi(( 1909) L. R. 36 Ind. Ap. 148, 167); Ridainath Sandyal v. Iswar Chandra Saha (( 1865) 4 B. L. R. Ap. 57, n.); Parbati Churn Deb v. Ainuddeen (I. L. R. 7 Calc. 577.); Ruttonmonee Dnttv. Brojomohnn Dutt (( 1874) 22 S. W. R. 333.) ; Lalljeet Singh v. Raj Coomar Singh (( 1876) 25 S. W. R. 353.) ; Shamasundari Debi v. Jardine Skinner (3 B. L. R. Ap. 120.); Mukunda Lal Pal v. Lehuraux (I. L. R. 20 Calc. 379.); Umasundari Debi v. Benode Lal Pakrashi (I. L. R. 34 Calc. 1026.); Sundar v. Parbati (L. R. 16 Ind. Ap. 186.); and Hemadri Nath Khan v. Ramani Kanta Roy. (I. L. R. 24 Calc. 575, 583.) v. Janki Bibi (( 1870) 4 B. L. R. Ap. 55.); Barahi Debi v. Drekvamimi Debi (( 1892) I. L. R. 20 Calc. 379.); Umasundari Debi v. Benode Lal Pakrashi (I. L. R. 34 Calc. 1026.); Sundar v. Parbati (L. R. 16 Ind. Ap. 186.); and Hemadri Nath Khan v. Ramani Kanta Roy. (I. L. R. 24 Calc. 575, 583.) v. Janki Bibi (( 1870) 4 B. L. R. Ap. 55.); Barahi Debi v. Drekvamimi Debi (( 1892) I. L. R. 20 Calc. Kenworthy Brown replied, citing Storys Equity Jurisprudence, s. 648 ; Sriram Chakravarti v. Hari Narain Singh Deo (( 1905) I. L. R. 33 Calc. 54.) ; Bengal Tenancy Act, ss. 3 and 5 ; Fatteh Bahadur 682.); Rammohan Lal v. Mulchand (( 1905) I. L. R. 28 Allah. 39.); Ramcharan v. Ajudhia Prasad (( 1905) I. L. R. 28 Allah. 50.); and Sabbarazu v. Venkatazatnam. (( 1891) I. L. R. 15 Madr. 234.) [De Gruyther, K.C., referred to Bengal Tenancy Act, ss. 3 and 188, as to the nature of the mukarraridars possession.] The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal from the judgment and decree of the High Court of Calcutta, dated May 5, 1905, which reversed those of the Subordinate Judge of Gaya, dated February 4, 1904. The sole question for decision on appeal is whether the appellants are entitled to partition of certain properties, as against the opposing respondents. In order to dispose of this question, it is sufficient to deal very broadly with the facts. It is enough to say that the appellants are proprietors of a mukarrari interest in the properties in question, the opposing respondents being owners of a fractional share in the zamindari interest in the same properties. In the judgment appealed against it was held, in accordance with an earlier decision of a Full Bench of the same Court, that the fact of the party on one side of the dispute being in a lower grade of title than those on the other side was not necessarily a bar to petition. Their Lordships agree with the opinion of the Full Bench in the case referred to that the right of partition exists when two parties are in joint possession of land under permanent titles, although those titles may not be identical. It is unnecessary for their Lordships to consider whether a right to partition exists in any other case, and they are desirous to avoid indicating any view upon any such subject. It is unnecessary for their Lordships to consider whether a right to partition exists in any other case, and they are desirous to avoid indicating any view upon any such subject. In the present case Ali parties concerned in the appeal have joint shares in the land, of course under different titles, and this has been recognized by the learned judges whose decision is under appeal. But those learned judges held that the right of partition, which would otherwise have belonged to the appellants, the mukarraridars, was lost by reason of the fact that their mukarrari is liable to forfeiture in certain contingencies, and therefore is lacking in the permanence of interest necessary to support a claim for partition. Their Lordships are of opinion that the distinction thus introduced cannot be supported. The title of the appellants is a permanent title, though liable to forfeiture in events which have not occurred, and the rights incidental to that title must, in their Lordships opinion, be those which attach to it as it exists, without reference to what might be lost in future under changed circumstances. Their Lordships will humbly advise His Majesty that this appeal should be allowed, and that the judgment and decree of the High Court should be set aside and that of the Subordinate Judge restored with costs in the Court below. The opposing respondents will pay the costs of the present appeal.