Calcutta High Court
Shiba Prasad Mukherjee vs Pradip Kumar Mukherjee And Another on 28 August, 1990
Equivalent citations: AIR1991CAL149, AIR 1991 CALCUTTA 149
ORDER S.S. Ganguly, J.
1. This is a defendant's appeal from the judgment and decree passed by the learned Judge, 3rd Bench, City Civil Court, Calcutta in Title Suit No. 2112 of 1984.
2. Admittedly six branches of co-sharers including the parties to the present appeal who jointly owned premises No. 2, Jhamapukur Lane, Calcutta (disputed premises henceforward) amicably partitioned the same by a registered deed dated 6-4-84, in terms of which the lot 'E' went to the plaintiff-respondents and the lot 'B' to the defendant-appellant. The respondents filed the suit mentioned above for amongst others recovery of possession of a room (disputed room henceforward) appertaining their lot 'E' alleging that the appellant who had been possessing the said room since after the partition as their licenses refused to vacate the same on demand. The defence was that the partition had never been acted upon and that the appellant had been possessing the disputed room as a co-sharer of the disputed premises since long before the partition.
3. On a consideration of the material on record the learned Trial Court decreed the suit holding in favour of the respondents case in toto. Hence, this appeal.
4. The appellant's case in this appeal is that the learned Trial Court made a mistake by holding that the partition was acted upon and that the appellant was a mere licencee of the disputed room with his licence revoked. In the circumstances the following points may be framed:--
1. Was the partition of the disputed premises to which the appellant and respondents were parties acted upon?
2. Was the appellant a licencee of the disputed room?
3. To what relief, if any, is the appellant entitled?
Decision on Points Nos. 1 to 3.
5. Admittedly there was an amicable partition of the disputed premises under the terms of which the parties to the present proceedings and their co-sharers got separate portions out of the disputed premises allotted to them. The appellant contends that this partition was never acted upon. Does that make any differencce? Do the terms of a partition cease to have any effect if the erestwhile co-sharers fail to act upon it? In other words, if the erstwhile co-sharers fail to act in accordance with the terms of a partition, does that nullify the partition and do the co-sharers continue to remain co-sharers of the partible estate as before? What are the effects of partition amicable or otherwise?
6. So long as a property remains joint, it belongs to all the co-sharers who have their undivided and undemarcated shares in it and no particular co-sharer can lay claim to any particular portion of the same. On a mutual understanding a co-sharer may be in possession of a particular portion of the joint property. That, however, does not put to an end the joint character of the property, though it restrains the other co-sharers from disturbing with his possession except without partition and enables the co-sharer in such possession to lay a claim over that portion during partition. Partition may be amicable or through Court. Where there are disputes amongst the co-sharers over shares, the Court resolves those disputes and passes a preliminary decree declaring the shares of each co-sharer, the Court also directs the parties to have the partible estate partitioned amicably or through a pleader Commissioner according to shares declared by it. When the shares of the co-sharers are demarcated and worked out and parties are allotted demarcated separate shares out of the partible estate, whether amicably or through Pleader Commissioner, the Court makes the preliminary decree final in terms of the separate allotments made whether amicably or by the Pleader Commissioner. Where partition is effected amicably by a deed of partition such a partition stands at a par with a final decree of partition. Such a deed declares the respective shares of the parties and also makes allotments to ail the co-sharers in accordance with those declared shares.
7. What will be the effect of such a partition effected through a suit or through a deed of partition ? The following passages quoted from Chapter XIII of S. D. Mitra's Co-ownership and Partition, 6th Edition, pages 496-497 will clear up the position in this regard:--
"1. As between co-owners, partition involves the transformation of joint possession of the co-owners into separate and exclusive possession by each in respect of the portion allotted to him, so that on partition each co-owner is entitled to possess and enjoy the portion assigned to him as his exclusive property and to exclude all other, persons from the possession and enjoyment thereof. This right of a sole and exclusive possession follows from partition, by which the state of co-ownership of the whole by the entire body of co-owners is abolished and in its place each of them is assigned a specific portion thereof of which he is made the sole owner. This transformation of ownership is effected either by a decree of a Court or by the order of a competent authority or by mutual release amongst the co-owners."
"True on partition each of the erstwhile co-owners becomes the sole and exclusive owner of the portion assigned to him and he is deprived of his title as to the other portions which have been allotted to the other parties. This sole ownership entitles him to exclusive possession......"
"1(a) Deprivation of title and possession. An amicable arrangement as to possession amongst the co-owners deprives a co-owner of his right to possession of the portion allotted to the other co-owner. But such an arrangement does not take away the title to the property, so that when a co-owner in exclusive possession of a portion under an arrangement transfers it to any person, the other co-owners can get a declaration that their title to it remains unaffected. Any co-owner who is dissatisfied with such an arrangement may, however, seek a partition."
"But a regular partition, either amicably made or through court effected, stands on a different footing. On such a partition each of the former co-owners becomes the sole and exclusive owner of the plot allotted to him and is deprived of his title to the other portions, which are allotted to the other parties, the right to possession also follows from title. so that each of them is entitled to possess the portion allotted to him to the exclusion of the others. Nor can a party to a partition, in the absence of the reservation of right to him in that behalf, interfere with the other party's possession of the property allotted to him or restrict the enjoyment thereof by him. Upon partition the parcels of land allotted to different co-sharers are absolutely distinct in the eye of law and one has nothing whatsoever to do with the other. But as to properties, which are left unpartitioned, the joint title and possession of the parties remain unaffected."
8. Partition, therefore, means separation of title of the erstwhile co-sharers in accordance with their shares in the joint property who may or may not be in possession of the shares allotted to them at the time of or immediately after the partition. That makes, however, little difference since lack of possession at the time of partition does not defeat their right of getting exclusive possession of the shares allotted to them subsequent to the partition, the partition does not fail or become ineffective simply because the erstwhile co-sharers have not acted upon the terms of the partition and have not taken possession of the shares allotted to each of them. It is no argument, therefore, to say that a partition ceases to have any effect simply because it has not been acted upon by the erstwhile co-sharers who have been parties to it.
9. In the case at hand there was an amicable partition of the jointly held house and different portions of the same were allotted to six branches of co-sharers. With the partition thus effected the said co-sharers became exclusive owners of the portions of the jointly held house allotted to them. It is not at all material that on the date of the partition or even after that they or some of them were not in possession of the allotments made in their favour. That very certainly could not destroy the effectiveness of the partition. Nor will it be true to say that the partition would have been effective only if all the co-sharers had taken possession of their respective shares as allotted to them under the partition and that it was of none effect since the co-sharers or some of them were not in possession of their allotted shares. Since the co-sharers have become absolute owners of the portions of the disputed premises allotted to them they may take possession of the same even by evicting the other erstwhile co-sharers therefrom who since after the partition ceased to have any right, title or interest therein.
10. It also does not appear to be true that the partition in this case was not acted upon. As the ld. Trial Court points out there is enough indication in this regard in the evidence adduced by both the parties. Thus, Pradip Kumar Mukherjee, P.W. 1, says that the allottees of lot Nos. 'A' & 'C' got possession of their shares. He is fully corroborated by Sachindra Nath Banerjee, P.W. 2, who says that he and his brother were allottees in respect of the lot No. 'C' and that he is in possession of the same at present. P.W. 1 also says that P.W. 2 vacated the portion of the house possessed by him in his favour after the partition. It also appears that Sm. Saraswati Banerjee one of the sisters of the appellant gifted her 1 / 6th undivided share in lot No. 'B' to the appellant. The appellant admitted this All these very clearly show that all the parties accepted the partition and they also tried to act upon its terms.
11. It is urged from the side of the appellant that in terms of the deed of partition owelty money was not paid to him. From the partition deed it appears that it was specifically agreed that the deed would be executed only after payment of the owelty money. In that view of the matter it is difficult to believe that the appellant executed the deed of partition without receiving the owelty money.
12. It is urged next that the water connection, sewerage, electric connection all continued to remain joint in spite of the so-called partition. It is also urged that the appellant's attempt to have his portion mutated separately was defeated by the Calcutta Corporation since his alleged separated portion was not walled up.
13. We are of the view that even though some of the amenities of the house continued to remain joint that cannot defeat the partition. The parties knowingly kept these amenities joint. If possible and permissible under the law they may have these amenities separated later. But simple because of the fact that some of the amenities were kept joint, the partition cannot be considered as had or ineffective. The same also applies to the appellant's abortive attempt to have his partitioned portion walled up.
14. Considering all the circumstances we are of the view that the appellant's plea in resisting the partition cannot be accepted. The ld. Court below, so we hold, held quite correctly that the partition was quite a valid one and that it was acted upon by the parties. In that view of the matter we also agree with the ld. Court below that the position of the appellant since after the partition was that of a licensee and that since his licence had been revoked he was under an obligation to hand over the possession of the disputed room to the respondent. The points are decided accordingly. In view of what has been stated above the present appeal must fail. Hence, ordered that the appeal is hereby dismissed on contest. The judgment and decree passed by the ld. Court below are hereby confirmed. The parties do bear that respective costs.
Manabendra Nath Roy, J.
15. I agree.
16. Appeal dismissed.