In a partition suit, the court has the discretion to award costs to one party when the other party vexatiously raises a contention and fails in it, but the question of awarding costs depends on the particular facts and circumstances of each case.

Raj Kishore Prasad, J.

1. This appeal by the plaintiff-arises out of a suit for partition between two brothers which has been decreed in part only in respect of immovable properties.

2. Only two points have been raised by Mr. Sarwar AH. for the appellant in this court, namely, (1) that the appellant should have been allowed half of the cost incurred On repairs and electric installations of the house in Mahalla Kashmiri Khthi, and, (2) that the trial Court has acted illegally in not awarding costs of the suit to the appellant.

3. As the findings of the court below on other points have not been challenged and the appeal in respect of the moveable properties has been given up, it is not necessary to refer to any other fact.

4. On the first question the argument put forward by Mr. AH was that as admittedly the house in Mahalla Kashmiri Kothi belonged to both the brothers and the appellant effected improvement on this common property at his own expense, he should be given half the cost of the repairs and improvements effected on this house, which is also sought "to be partitioned. He relied, in support of his contention, on two Bench decisions of the Calcutta High Court in Jagannath Marwari.v. Mt. Chandni Bibi, 26 Cal WN 65 : (AIR 1921 Cal 647), in which also the rule recognised in Leigh V/s. Dickeson, (1884) 15 QBD 60, and Brickwood V/s. Young, (1905) 2 CLR 387, was applied, and in Narayan La1 Gupta V/s. Chulhan Lal Gupta, 14 Ind Cas 677 (Cal).

5. The above argumment, however was met by Mr. R. S. Sinha, appearing for the defendant respondent, in reply by contending, in the first place, that no improvement has been, made, and that there is no reliable evidence to show if any repairs or electric installations have been effected, and, if so how much was spent over them, and, in the second place, that as, admittedly, the plaintiff made the alleged repays and electric installations in the house which was in his occupation, on the occasion of his own marriage, without the consort of the respondent the latter could not be made to pay any portion of the cost, even if incurred by the appellant for the above purposes. Reliance was placed, in support of this contention, on another Bench decision of the Calcutta High Court in Solaiman Moosaji V/s. Jatindra Nath, ILR 57 Cal 538 : (MR 1929 Cal 553) in which the judgments delivered by Mr; Justice Asutosh Mookerjee in 26 Cal WN 65: (AIR 1921 Cal 647) (supra), and earlier in Upendra Nath V/s. Umesh Chandra, 15 Cal WN 375 were considered and Sir George Rankin, C. J., who delivered the judgment of the Court in this case, said that "though the language is undoubtedly wide in certain of the expressions, there is no reason for saying that Mr. Justice Mookerjee intended to lay down a proposition beyond which he (Rankin, C. J.) had endeavoured to state. I express my respectful agreement with the principles laid down by the learned and distinguished Chief Justice Sir George Rankin in the just mentioned case.

6. The principles, which can be extracted from the above authorities, and the covering rule, which emerges therefrom may be summarised thus;

Where the Parties to a partition suit had long ago made their bargain with their eyes open, that is an important circumstance when the Court comes to consider the equity of the case. Where a person has expanded money upon a joint property and a time comes to partition it, it is reasonable and right to endeavour to give him such an allotment as may enable him to reap the advantage of what he hag expended upon improvements. It is not the prima facie right of such a co-owner expending money to improve the whole or a greater portion of the joint laud to have in one way or another recouped to him by his co-owners the value of the improvements which they get in the shares which are allotted to them. In a case where the improvements have been made by a co-owner at his own will--though not improperty--the court will not endeavour to make sure that the owner, who