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Judgment
Adami, J.—These appeals are against preliminary decree in a partition suit. The only point attacked in that decree is the awarding of costs to the plaintiff.
The learned Subordinate Judge after finding that the plaintiff had demanded a partition and no steps had been taken by the defendants to agree to his proposal, held that therefore the plaintiff was entitled to costs. It may be mentioned that the plaintiff claimed an eight annas share in the properties and the defendants did not oppose or in any way contest his claim before the Subordinate Judge.
Now in this Court as in the Calcutta. High Court it has always been the general rule that up to the passing of the preliminary decree in a partition suit each party will bear his own costs. There is plentiful authority for this, and we need only refer to the cases of Dildar Ali khan v. Bhawany Sahay Singh [1887] 34 Cal. 878, Ambika Prasad Singh v. Perdip Singh [1914] 42 Cal. 451 as well as the case of Motilal Ghose v. Giris Chandra Ghose [1909] 12 Cri.L.J. 346 which make it quite plain that unless there are exceptional circumstances,, that is to say, unless the defendants have put up a frivolous contest, the parties will pay their own costs up to the preliminary decree.
It is argued by the learned Counsel for the respondents that this Court should not interfere with the discretion exercised by the lower Court, and it is pointed out that the lower Court did give reasons for awarding costs in favour of the plaintiff. But it is clear to me that the reasons he gives are not good reasons and that he acted on a wrong principle.
In every partition case, before a suit can be instituted, there must be a demand and a final refusal. In the present case there was a demand and refusal, but the defendants took no further steps to contest the plaintiff''s case.
So much of the decree of the lower Court as deals with the question of costs must be modified and the parties will each bear their own costs up to the preliminary decree in the suit. The appeals are allowed to this extent. Bach party will bear his own costs in this Court.
Kulwant Sahay, J.
I agree.