for, by mortgagee—Suit for partition by a usufructuary mortgagee of an
In the present case the question for
consideration is whether it is necessary to have a partition to give effect to
the transfer i.e. the mortgage in favor of the plaintiff.
The mortgage in the present case is a
usufructuary one and so the plaintiff is entitled to possession of the
mortgaged property. Partition is, therefore, necessary for giving possession to
the plaintiff— mortgagee.
Suit for partition is maintainable at the
instance of the usufructuary mortgagee whether he is in actual possession or
out of possession of the mortgaged land, provided the mortgagor is a party to
the Suit and the suit is necessary for giving effect to the mortgage.
In case the mortgagee be not in actual
possession of the mortgaged land it would be necessary to pray not only for
partition but also for khas possession of the share allotted to him on ejectmcnt
of other co-sharers from that portion.
vs. Afzal Ahmed (1960) 13 DLR 115.
defendant also asks for partition of his share—procedure to follow—Effect on
the jurisdiction of the Court when defendant joins in asking a share.
If a defendant wants to get his share by
partition the ordinary rule should be that he files a suit for it. He may
however be allowed to make such claim even in a written statement provided he
pays court fee on this claim.
In such a case, truly speaking, the written
statement is only a plaint, and proceedings in the two suits, that is one filed
by the plaintiff and the other by the defendant, arc deemed to be consolidated
and the answer to the question as to what is henceforth the jurisdictional
value of the suit would depend upon whether the Court regard the two suits as
one or regard it an ordinary case of consolidation. If it is a simple
consolidation of two suits, i.e., there is no effect on jurisdictional value.
If the view is taken that the defendant who has prayed for a partition of his
share should also be regarded as plaintiff in the suit then the jurisdictional
value would be the total of the values of the shares of the plaintiff and of
those defendants who claim to have their shares separated.
Mondal vs. Rahman Fakir (1961) 13 DLR (SC) 191.
out of possession—Claim amounts to asking for two reliefs.
When the plaintiff is out of possession of
joint property the grant to him of separate possession of his partitioned share
amounts really to two reliefs. (1) Joint possession of his share, and (2) the
transformation of that joint possession into separate possession of his
partitioned share, for a plaintiff out of possession is not entitled to
partition unless he first gels joint possession. Ibid
suits and suit for mesne profits, drawing up of the final decree.
In partition suits and in suits for mesne
profits, the drawing up of the final decree may depend upon the filing of the
necessary stamp paper or court fees.
Prasanna vs. Kobbad Mia (1961) 13 DLR 765.
A surplus of
two decimals of land with nobody to claim it—No other co-sharer being in
existence, the suit for partition maintainable.
The trial court has discovered that a
residium of 2 decimals of land would ensue on a computation of he figures that
have been given by the parties to the suit. True, but it does not follow that,
of necessity, there must be another co-sharer in existence with regard to the
aforesaid 2 decimals of land which appears to be a surplus on actual measurement
of land as claimed by the parties.
In this view of the matter there is no
substance in the argument that the prayer for partition is incompetent without
impleading a co-sharer whose existence has not been proved and who may not
exist at all.
vs. Mahmudur Rahman Bhuiyan (1967)19 DLR 344.
suit remained pending till the passing of the final decree.
The judgment does not clearly lay down the
shares of the respective parties and also about the allotment of saham. We do
not consider that there is any bar in the learned Subordinate Judge’s doing so,
for a partition suit remains pending till the passing of the final decree.
Kabiruddin, (1969) 21 DLR 97.
Partition suit—where plaintiff (co-sharer) out
of possession of his share of property— Remedy lies in a partition suit.
Plaintiff having right and title in respect
of his share to the property in suit but being out of possession, his remedy
for separate possession lies in a partition suit.
Ali Vs. Huson Ali (1969) 21 DLR 423.
of title in a partition suit when not necessary.
The main question is whether the Suit IS
maintainable without declaration of title of the plaintiffs. On the death of
Sachindra his title passed on to the plaintiffs, his minor sons, and his widow,
defendant No. I, but the plaintiffs for some reason or other was thrown out of
possession, according to the defendant No.2 since their father’s death. But
their dispossession will not disentitle them to recover possession on payment
of ad—valorem court—fee. The suit is not barred by limitation as the suit has
been filed within one year of attainment of majority by plaintiff no.1. He is
entitled to file the suit within three years from attainment of his majority as
laid down in section 6 of the Limitation Act. During the period of their
minority plaintiffs’ title was not extinguished and as such there is no
necessity for getting a declaration of their title. The view taken by j the
High Court Division that the suit is not maintainable without declaration of
title is clearly erroneous.
Bose & another, Vs. Syed Shamsuddin Ahmed. (1981) 33 DLR (AD) 347.
suit— General rule that all joint
properties be included is a rule of equity and can be relaxed when necessary on
this ground of equity and convenience.
Alam Khan Vs. Md. Gulzar Alam (1984) 36 DLR 290.