Partition
Partition—co-sharers
A person is not entitled to oust his
co-sharer from a plot of land in exclusive possession of the latter on the plea
that he has got title to every inch of the joint property. If he feels that his
co-sharer is in possession of some lands in excess of his share his remedy lies
in a suit for partition.
Sefatulla
Sheik Vs Abjannessa Bibi (1953) 5 DLR 39.
The right of
a co-sharer to have a partition of his share is incidental to his right of
ownership.
A co-owner whose title to an undivided share
of joint property is admitted or is clear is entitled to partition as a matter
of right. Difficulty in making a division of the subject matter or a resulting
prejudice to some of the co-owners, is not a sufficient ground for refusing a
partition and it has sometimes been maintained that partition may he claimed,
even though it be impossible to divide the property without materially
impairing its value, or even totally destroying it.
The fact that the suing co-owners will not be
able to get possession of their shares but will have to possess them through
their tenants as their tenancy is subsisting is no reason why they should be
denied their right to have a partition.
Jagneswar
Pal Vs Jgadish Ch. Pal.(1954) 6 DLR 379; (1951) 3 DLR 266 (278).
The general rule is that a suit for partition
should embrace the whole tract held by the co-tenancy and if it does not, any
party interested may insist that the omitted land or lands be included in the
suit.
Mir
Shariatulla Vs. Abdur Rahman Bepari (1956) 8 DLR 645.
—In allotment of shares, a co-sharer should
get the portion on which he has raised a construction (1959) 11 DLR 530.
—In respect of a portion of the joint estate
a suit for partition is maintainable when the portion is jointly held by the
plaintiff and defendants even though it leaves out portion of the estate which
is held jointly by defendants and some others. (1956) 8 DLR 645.
Whether suit
can be instituted leaving out some joint property
It cannot be said that in all circumstances
there is an absolute prohibition in law from instituting a partition suit after
leaving Out some of the properties alleged to be joint properties.
Muhammad
Latif Vs. Muhammad Hafiz (1954) DLR (FC)
III
The general rule which governs a suit for
partition is that it should include the entire joint property of the
co-sharers. This general rules can be relaxed and a partial partition allowed,
where it is not proved that the parties will be prejudiced or inconvenienced by
such partition.
Moniruddin
Biswas ys Sohrab Ali Mir (1953) 5 DLR 544.
A partition suit between members of the same
family does not preclude a subsequent partition between the same parties as
also against strangers in respect of other properties.
Nazir Ahmed
Serang Vs. Benoybhusan Saha. (1956) 8 DLR 159.
The Lower Appellate Court excluded certain
plot of land from a partition suit on the finding that there is no community of
interest inasmuch as all the parties have no right, title and interest in that
plot.
Held: This was wrong. Partition in a suit is an
equitable relief and it should be seen, while decreeing a partition suit, how
much equity can be done to the parties without asking them to go to another
suit.
In this case it has been found by the Court
of appeal below that some of the parties have no rights and title in one
particular plot but all the persons having interest have been impleaded in the
suit. This finding of the Court below will not exclude the plot from partition.
The land will be partitioned among the co-sharers and may be allotted to one or
more of the co-sharers while taking into consideration their shares in other
properties.
Md. Madgu
Bhuiya Vs. Jabban Haq (1959) 11 DLR 355.
In a suit for partition the defendant
contended that the suit was not maintainable for defect of parties and for not
bringing all the lands of the tenancy into hotchpotch.
Held— Tue Suit
for partition without bringing the rest of the land of the tenancy into
hotchpotch and without impleading the other parties interested in die land is
not maintainable. 10 PLR (Dac.) 27.
Tenancy
created by a co-sharer, without partition.
Unless a co-sharer is in exclusive possession
of some of the joint land either by amicable arrangement or on partition by
metes and bounds he is not entitled to induct permanent tenants or let it out
permanently to tenants to the detriment of the other co sharers and the tenancy
thus created is not valid and binding against the non-consenting co-sharers.
Harendra M.
Majumdar vs. Sudhir Ch. Das. (1955) 7 DLR 519.
Purchaser of
specific portion of land in joint possession is entitled to get possession
thereof till partition.
The vendee of a co-sharer who owns an
undivided land in common with another is clothed with the same rights as the
vendor has in the property, no more and no less. If the vendor was in exclusive
possession of a certain portion of the joint land and transfers its possession
to his vendee, so long as there is no partition between the co-sharers, the
vendee must be regarded as stepping into the shoes of his transferor ‘qua’ his
ownership rights in the joint property, to the extent of the area purchased by
him; provided that the area in question does not exceed the share which the
transferor owns in the whole property. Alienation of specific plots transferred
to the vendee would only entitle the latter to retain possession of them till
such time an actual partition by metes and bounds takes place between the
co-sharers.
Md. Muzaffar
Khan Vs. Md. Yusuf Khan. (1959) 11 DLR (SC) 78.
Tenants
inducted by co-sharer in joint land if can maintain a suit for partition
The principle that if one co-sharer is in
possession of the joint land, the remedy of the other co sharer out of
possession is to bring a suit for partition and specific possession of his
specific share, is not applicable in case of tenants inducted by them in the
joint land and they are not entitled to maintain a suit for partition and
recovery of possession against the non—consenting co-sharer and co-sharers.
Harendra M.
Mazumdar Vs. Sudhir Ch. Das. (1955) 7 DLR 519 (521—22)
It is well known that a co-sharer in
possession may introduce a tenant within his land, and he may realize rent from
him separately, but that fact by itself does not prove an out and out partition
amongst the different coparceners. The defendants in order to succeed must
prove that there were circumstances which could not be reasonably explained
except on the hypothesis that there was a previous partition amongst the
co-sharers.
Abdur Razzak
vs Abdul Malek Chowdhury (1955) 7 DLR 242.
The defendant claimed the land on the basis
of a lease granted to them by a fractional co-sharer of the plaintiff. In a
partition suit the land was allowed to the share of the plaintiff. The latter
thereupon instituted a suit for recovery of khas possession.
Held—
The plaintiff is entitled to get a decree for khas possession, he being no
party to the lease it is not binding on him. As soon as by the partition decree
the land is allotted to the plaintiffs share, he is J entitled to it free from
the tenancy and the defendant’s tenancy under the lease will shift to the share
of the land allotted to the co-sharer who granted the lease.
Rahmatullah
vs Jambar (1955) 7 DLR 124.
Co-sharer
transferee
No inflexible rule can be laid down either
that a transferee of a portion of joint property from a co-sharer cannot
maintain a suit for partition in any case, or that he can maintain such a suit
in every case.
Moniruddin
Biswas vs. Sohrab Ali Mir (1953) 5 DLR 544.
Where the plaintiff brought a suit for
partition omitting their landlords from whom they got the property as lessees,
the suit is not maintainable in the absence of the lessor zamindars. Ibid.
A suit for partition is incompetent if all
the cc— owners are not parties to the suit as no effective decree can be passed
in the absence of every one of them.
This rule applies also to an appeal, and if
an appeal arising out of suit for partition abates in part the whole appeal
abates. 7 PLR (Dac.) 619.
Transfer of land during the pendency of
Partition Suit is hit by lis pendens.
(1968) 20 DLR 513.
Partition
suit—whether shares declared by preliminary decree can be amended
There is nothing illegal in a preliminary
decree in a partition suit being amended and varied by the court passing the
decree consequent upon the death of one of the parties and the amendment of the
shares have been affected even after the dismissal of an appeal from the
preliminary decree. A partition Suit in which only a preliminary decree has
been passed is still a pending suit and the rights of the parties have to be
adjusted at the time of the final decree.
Md Latif Vs.
Md. Hafiz. (1954) 6 DLR (FC) 111.
Muhammedan
heirs take defined shares but not exclusive portion till partition.
It is true that Muslim heirs take defined and
ascertained shares but that does not necessarily mean that they also take these
shares in separate portions in the properties inherited by them, The share is
ascertained but not the extent of the lands held by the heirs. For this
purpose, if an heir intends to carve out his definite ascertained share in the
properties, he has inevitably to file a partition suit and until the partition
is effected, he possesses his ascertained share jointly with his co-heirs.
Syed Sujat
Ali vs Sm. Lachman Bibi. (1957) 9 DLR 581—8 PLR (Dac) 525.
Co-sharer in
exclusive possession of specific land—entitled to retain the same until
partition.
The fact that there was no partition by metes
and bounds amongst the co-sharers do not justify that one co-sharer in
exclusive possession of specific plot of land should be dispossessed by another
co sharer. If any such co-sharer is dispossessed from his specific land he has
got the right to recover possession of the land from which he has been
dispossessed. If anybody is aggrieved by such exclusive possession of a portion
of joint land let him go to the partition suit for his remedy but so long that
is not done the possession of a co-sharer of the specific land must be
respected.
Ahmed Miaji
vs Hakub All Munshi (1960) 12 DLR 708.
When by private arrangement amongst co
sharers, one of them is in exclusive possession of a certain portion of the
ijmali land a purchaser of the right, title and interest of the latter is
entitled to be placed in the same portion as his vendor.
Sefarulla
Sheik vs Abjannessa Bibi (1953) 5 DLR 39.
Valuation of
jurisdiction in partition suit—Payment of Court Fees.
Plaintiff claiming joint possession in Suit
property and asking for a separate share of his—fixed court— fee is payable but
value of plaintiff’s share shall determine the forum both of the suit and
appeal — If the object of the suit is partition of the entire property, value
of the entire property will determine the forum of the suit and appeal.
Khayratulla
Vs. Kamala Kanta Saha. (1960)12 DLR 329.
Where plaintiff in joint possession claims a
share for himself, court’s jurisdiction will not be affected even if defendant
gets a share of the value exceeding Court’s pecuniary jurisdiction—The forum of
appeal will be according to the value of the defendant’s share. Ibid.
Partition suit—Where the plaintiff is out of
possession—Court fee is to be payable on the plaintiffs share and jurisdiction
of the court determinable on the value of the plaintiffs share. Ibid.
Valuation, for jurisdiction, in partition
suit—Where plaintiff is out of possession, valuation for the purpose of
jurisdiction is the same as that for the purpose of court fees.
Patak Ch.
Halder Vs. Sademan Howlader (1957) 9 DLR 190.
Valuation in the partition suit for
jurisdiction, where plaintiff is in joint possession — to be calculated at the
value of the share claimed by the plaintiff. Ibid.
Hindu
Law—Mitakshara School
Partition of the family property by the
father— Sons born thereafter cannot reopen it.
Rai Mohan
Chowdhury Vs Tejindra Lal Chodhury (1956) 8 DLR 577.
In a partition suit a defendant can ask for
the separation of his share too.
A suit for partition remains pending till the
passing of the final decree. 1953 PLR (Lah.) 545
Partition,
instrument of—Unstamped
‘Unstamped memoranda of a partition which
require to be stamped as constituting an instrument of partition cannot be
admitted in evidence even for any purpose.
Aminullah
Bhuiyan & ors. Vs. Abdul Hafiz & ors. (1981) 33 DLR (AD) 282.