Beaman, J - (1.)This is one of those troublesome cases in which a piece of land appears to have been held for many years by various tenants-in-common one of whom now seeks to recover from the lessee of the others his own share of the tenancy by partition together with arrears of rent. It is not as plain as it might be whether from the commencement the plaintiff was seeking partition or whether he intended his suit to be regarded as one in ejectment against the tenant wrongfully holding over. The defendants Nos. 1 and 2. are the lessees of 11/12ths of the entire tenancy-in-common. The plaintiff and the defendants Nos. 3 and 4 are joint tenants of the remaining 1/12th of the tenancy-in-common. In 1901, it is admitted that the defendants Nos. 1 and 2 had attorned to the plaintiff as representing the joint owners of the 1/12th share for a term of one year. Since then we are not informed whether the defendants actually paid rent to the plaintiff and his co- sharers, for this relatively small part of the entire property. But the defendants Nos. 1 and 2 as permanent tenants of the 11/12ths share set to work to improve it by erecting a large band around it and no doubt bad thereby effected considerable improvements.
(2.)The first Court found in favour of the plaintiff and decreed, partition as well as arrears of rent, but these arrears of rent he apportioned equally between the plaintiff and his co-sharers, the defendants Nos. 3 and 4. The lower appellate Court held that the plaintiff could not sue for partition without making all the other joint tenants parties to the suit and satisfying the Court that there was no other property held by them together as joint tenants. He farther held that the defendants Nos. 3 and 4 were not entitled to any rent which they had not claimed and he decreed the plaintiff one-third of the rent decreed to him by the Court below.
(3.)We have felt very great difficulty over the principal point discussed, viz., whether the plaintiff can ask for a partition at the hands of mere lessees from the other tenants-in-common. The doctrine that a vendee and then a mortgagee of the unascertained and undivided share of one of several Hindu coparceners acquires thereby a right to enforce partition of the joint estate has been logically extended to the case of permanent lessees. Were the matter res Integra and supposing that the first case coming up for judicial decision had been the case of an out-and-out sale by one coparcener, of an undivided share in the coparcenery and the question had been whether such a sale conferred any coparcenery rights upon the vendee, I should have thought that the case of a lease might very well have f been used almost as a reductio ad absurdum of the page contended for by the alienee. For if a permanent lessee from one of several Hindu coparceners may insist upon a partition of the whole family estate in order to p discover the property of which he has become a tenant on the ground that the permanent lease is pro tanto an alienation, the same principle must be extended to the case of a lease for a term, and when that term is sufficiently short, I think it really will be seen to be a reductio ad absurdum. Here, however, we are not really dealing with the case of a joint Hindu family but of a tenancy-in-common with the origin and development of which we are not acquainted. No difficulties therefore of the kind suggested by the learned District Judge on account of other joint family property riot being made at the same time the subject of the partition appear to me to arise. I certainly cannot say so confidently that the non-joinder of the other tenants-in-common from whom the defendants Nos. 1 and 2 have their permanent leases does not create a difficulty. If, however, a permanent lessee from one of several members of a joint Hindu family can by reason of the rights he acquires under such a lease be enabled to enforce a partition, it follows, I suppose, that any member of the family might, on the principle of mutuality, assuming he had taken possession of more than he was entitled to, bring a suit for partition against him. I hope I may not be understood as implying my own assent to any such doctrine. But I think the argument has been fairly enough used here in favour of the appellant, so that in the present case where the lessee admittedly has taken permanent leases from joint tenants to whom 11/12ths of the entire property belonged and is in de facto possession of that as well as the remaining 1/12th, it is difficult to see what more useful and practical remedy could be given to the plaintiff who is admittedly entitled to relief of some sort than by an immediate severance of the tenancy-in-common and restitution to the plaintiff of so much of it as he is admittedly entitled to. Difficulties as I have suggested may arise between him and the other tenants-in-common who cannot, as far as I can see, be completely represented by their lessees, but these difficulties may prove rather theoretical than actual.