passed by III Addl. District Judge, Mysuru, in R.A.no.170/2010,
2. Brief facts as stated are, appellants were plaintiffs
defendants. It was stated, defendant no.1 was divided brother
of Shive Gowda of Yelawala village. Defendant no.1 was
daughters. It was further stated, plaintiffs no.1 and 2 were
children of defendant no.3 and plaintiff no.3 was his wife. It
of joint family. Extent of 01 Acre 32 guntas out of total extent
name of defendant no.1, being eldest in family. Though,
ignoring rights of plaintiffs no.1 and 2, who were then minors.
defendants no.5 attempted to enter suit property. Immediately,
they obtained copy of sale deed. As sale in favour of defendant
plaintiffs and it continued in joint possession. It was stated,
pretext. Hence suit was filed.
3. Defendants no.1 to 4 though appeared, did not file
written statement. Defendant no.5 only filed written statement
denying plaint averments in toto. It was stated after purchase,
suit property and sought for dismissal of suit.
4. Based on pleadings, trial Court framed following
5. In support of her case, plaintiff no.3 examined
herself as PW.1 and got marked Exs.P1 to P8. In rebuttal,
6. On consideration, trial Court answered issues no.1
to 5 in affirmative and issue no.6 by decreeing suit. Aggrieved,
defendant no.5 filed R.A.no.170/2010 on several grounds.
3. Whether the plaintiffs are entitled for the decree
claimed in the suit?
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4. Whether the judgment and decree of the trial
Court needs to be set aside or modified?
7. On consideration, first appellate Court answered
points no.1 to 3 in negative and point no.4 by allowing appeal,
setting aside trial Court decree and dismissing suit. Aggrieved,
this appeal was by plaintiffs.
8. Sri Dilip Kumar, learned counsel for plaintiffs
submitted, appeal was against divergent findings in suit for
partition and separate possession. It was submitted relationship
of parties was not disputed. Even nature of suit properties as
joint family property was admitted. Admittedly, alienation by
defendants no.1 to 4 was without consent of plaintiffs and trial
Court on appreciation of same had rightly decreed suit. Merely
on ground of failure to include all joint family properties, first
appellate Court erroneously reversed decree and dismissed
suit. It failed to appreciate, as on date of suit except suit
property, there were no other joint family properties available
for partition. It failed to appreciate that land bearing
Sy.no.36/1 was alienated earlier to suit property in three
portions to three purchasers, which was noted even by first
appellate Court. Moreover, defendants no.1 to 4 had not filed
written statement or entered witness box to contend about
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failure to include any other joint family properties. Even
defendant no.5 had also not taken any such contention.
9. It was submitted, even other ground that during
lifetime of defendant no.3, plaintiffs no.1 and 2 (children) and
plaintiff no.3 (wife) could not seek partition in suit property, did
not hold good in view of ratio in Vineeta Sharma v. Rakesh
Sharma, reported in (2020) 9 SCC 1.
10. Thus, there was no proper basis for interference by
first appellate Court and sought for allowing appeal by
answering following proposed substantial question of law in
favour of plaintiffs:
i) Without specific pleading about non-inclusion of all
suit properties, whether first appellate Court was
justified in setting aside well considered judgment
and decree of trial Court?
ii) Whether reason assigned for interference by first
appellate Court was justified?
11. On other hand, Sri Yeshwanth Netaji N.T., Advocate
appearing for Sri K.V.Narasimhan, learned counsel for
defendant no.5, opposed appeal. It was submitted, no
substantial question of law was involved and appeal was
without merit. It was submitted, suit property was purchased
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by defendant no.5 as per Ex.D1 on 01.09.2003, since then he
was in possession and enjoyment of suit property. It was
submitted, suit for partial partition of joint family properties
would not be maintainable. Trial Court had framed specific
issue (issue no.4) about non-inclusion of all joint family
properties in suit schedule. In cross-examination, PW.1
admitted about land bearing Sy.no.36/1 also being joint family
properties of plaintiffs and defendants. Since non-inclusion of
all joint family properties was fatal to suit for partition, first
appellate Court had rightly dismissed suit. It was further
contended, filing of suit only insofar as property sold in favour
of defendant no.5 was collusive, since defendants no.1 to 4 did
not contest suit and as such, not bonafide. On above grounds
sought for dismissing suit.
12. Heard learned counsel, perused impugned
judgment and decree passed by both Courts.
13. From above, it is seen that appeal is against
divergent findings in suit for partition, wherein trial Court
decreed suit and granted share to plaintiffs, first appellate
Court set-aside trial Court decree and dismissed suit.
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14. There is no dispute about relationship between
parties as well as about nature of suit property as ancestral
joint family property of defendant no.1. Admittedly, defendant
no.5 is purchaser of portion of joint family property from
defendants no.1 to 4, during age of minority of plaintiffs no.1
and 2. Plaintiffs no.1 and 2 are children of defendant no.3 and
plaintiff no.3. They are claiming their share in share of
defendant no.3 in joint family property. Likewise, during
lifetime of defendant no.1, plaintiffs no.4 and 5 had filed suit
for partition. First appellate Court has held that plaintiffs could
not maintain suit for partition during lifetime of defendants no.3
and 1 respectively. Same would be fully covered by
observation of Hon'ble Supreme Court in para 74 of Vineeta
Sharma (supra).
15. At same time, however, plaintiffs assailed alienation
on ground that it was not for legal necessity and issue no.2 was
specifically framed. But, while passing impugned judgment and
decree, reason assigned by trial Court was that defendants
no.1 to 4 did not have exclusive right in respect of suit property
and therefore alienation was not for legal necessity. Admittedly,
defendant no.1 was karta of joint family. Alienation was by
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defendants no.1 to 4. Except, perhaps pleading that alienation
was not for legal necessity, there was no evidence presented to
establish that defendant no.1 was either given to vices and
alienation was to feed his vices. Hon'ble Supreme Court has in
case of N.S. Balaji v. Debt Recovery Tribunal, reported in
2023 SCC OnLine SC 1266 upheld power of karta for
alienation as part of management of joint family.
16. It is further seen trial Court framed a specific issue
i.e. issue no.4 - 'Whether plaintiff proves that all the properties
of joint family are brought on record?'. While answering said
issue, trial Court specifically observed that PW.1 admitted some
other properties being left out in present suit. It also notes her
explanation that said properties were also sold by defendants
no.1 to 4. Main reason assigned for answering it in affirmative,
however, is its assumption that suit for partial partition was
valid in eye of law. Admittedly, conclusion was without specific
pleading and contrary to material on record.
17. In fact, Division Bench of this Court in case of G.M.
Mahendra v. G.M. Mohan & Anr., reported in 2010 SCC
OnLine Kar. 5291, held:
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"39. In view of the categorical admission of the
plaintiff that the joint family is having other properties
and that he had filed a suit in O.S. No. 2/ 83 claiming
half share in respect of two estates sold by his father,
is it open for the plaintiff to file one more suit for
partition without including all the joint family properties
and whether such suit will not be hit by provisions of
Order-2 Rule-2 of CPC. In this background, it if for us
to refer to provisions of Order-2 Rule-2 of CPC which
reads as hereunder:
"2. Suit to include the whole claim.--(1) Every
suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of
action; but a plaintiff may relinquish any portion of his
claim in order to bring the suit within the jurisdiction of
any Court.
(2) Relinquishment of part of claim.--Where a plaintiff
omits to sue in respect of, or intentionally relinquishes
any portion of his claim, he shall not afterwards sue in
respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.--A person
entitled to more than one relief in respect of the same
cause of action may sue for all or any of such relief's;
but if he omits, except with the leave of the Court, to
sue for all such reliefs, he shall not afterwards sue for
any relief so omitted.
Explanation.-For the purposes of this rule an
obligation and a collateral security for its performance
and successive claims arising under the same
obligation shall be deemed respectively to constitute
but one cause of action."
40. From the reading of the above provision, it is
clear that plaintiff in a suit for partition is required to
include whole of the claim which he is entitled to make
in respect of the cause of action. But it is also open for
the plaintiff to relinquish any portion of his claim in
order to bring the suit within the jurisdiction of any
Court. If the plaintiff omits to sue in respect of or
intentionally relinquishes any portion of his claim later
on he cannot sue in respect of the portion so omitted
or relinquished and similarly sub-rule (3) of Order-2
also provides for the plaintiff to seek permission of the
Court to institute a suit in respect of any one of the
cause of action at a future date. In the present case,
plaintiff has filed the suit in O.S. No. 2/83 for partition
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and separate possession, on the ground that under the
partition deed dated 1.11.1968 he had become
absolute owner of half of the portion of the property
allotted to him. When he contends that he has become
the absolute owner of 50% of the joint family property,
and if he has filed a suit for partition he has to file a
suit for partition in respect of all the properties
wherever they are situated. For the reasons best
known to the plaintiff in O.S. No. 2/83, he did no
include the present suit property. Similarly he also did
not include other joint family properties. Similarly, he
also did not crave leave the Court to institute a suit in
respect of the property not included in the said suit to
treat the said suit as a suit for partial partition only.
There is no proper explanation by the plaintiff in this
regard. When he has omitted to include plaint schedule
property as the cause of action in the present suit was
also there as on the date of institution of the suit in
view of the law laid down by is Court in Sri
Tukaram v. Sri Sambhaji, ILR 1998 KAR 681 which is
as hereunder:
"19. It has been contended by the learned
Counsel for the appellants that the finding of
the I Appellate Court to the effect that the
suit by one of the co-parceners for partition
with respect to one of the items of the Joint
Hindu Family property is maintainable in the
special circumstances is not proper. During
the course of the order, the appellate Court
has observed that Sec. 261 of Mulla Hindu
Law 15th Edn. At pages 351 and 352 makes
it clear that non-alienating co-parceners are
entitled in Bombay, Madras and Allahabad to
sue the purchaser for partition of the
alienated property without bringing a suit for
a general partition. In the present case on
hand all the non-alienating coparceners have
not filed the suit. The mare fact, that the
other non-alienating co-parceners viz.,
Defendants 7 to 9 did not join the plaintiff in
filing the suit is not material. The right of
non-alienating co-parcener in Bombay area
does depend upon the whims and fancies of
remaining non-alienating co-parceners who
for reasons best known to them, may not join
the plaintiff in filing the suit. Patna and
Andhra Pradesh High Courts held that one or
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the several non-alienating co-parceners
cannot sue the purchaser for his own share of
the alienated property. It has been observed
by the I Appellate Court the law applicable in
Bombay area does not prohibit the suit by
one of the several non-alienating co-
parceners. The I Appellate Court considered
the ruling in AIR 1983 SC 124 wherein it has
been held that a purchaser can be imp leaded
even when decrees for partition of
agricultural lands is pending before the
collector for effecting partition. But it is not
the case in the present it. In ILR 1989 KAR
1895 it is held that a partition suit should
comprise of all the available properties, as far
as possible. That decision has been
distinguished by the I Appellate Court as that
was not a case of non-alienating co-parcener
filing a suit for partition of alienated property.
The view that has been taken by the I
Appellate Court cannot be stated to be a
correct one in the circumstances of the case.
It is to be seen that the plaintiff, defendant
No. 1 and defendants 7 to 15 are the
members of the Joint Hindu Family. There is
no partition by metes and bounds of the
family properties. The present suit is filed in
respect of the suit land only. There are other
lands in other villages and also other house
properties which have not been included in
the suit which are admittedly the joint family
properties. It has been observed in Mulla
Hindu Law -13th Edn. Regarding the rights of
purchaser of co-parceners interest. It has
been stated that the non-alienating co-
parceners are entitled in Bombay, madras
and Allahabad to sue the purchaser for
partition of the alienated property without
bringing a suit for general partition. It is to
be noted that in AIR 1984 AP 84 it has been
held that normally a suit instituted for
partition should be one for partition of the
entire joint family properties and all the
interested co-sharers should be impleaded.
The suit of partition of specified items can
only he an exception. In the present case on
hand, the 1st defendant has alienated the suit
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land in favour of defendants 2 to 6. The
1st defendant is the member of the Joint
Hindu Family. As already stated that the
family has got other several lands and house
properties which are the joint family
properties. It has been contended by the
learned Counsel for the alienees while
allotting the share to defendant-1 in the
family properties equitable rights of
purchasers on partition has to be considered
and those rights can be considered only when
all the joint family properties are included in
the suit for partition. Otherwise, it would be
difficult to apply principles of equitable
partition The inclusion of all the joint family
properties in the instant suit for partition was
necessary and without bringing all the joint
family properties into the hotchpot, the suit
for partition of the share of the members of
the joint family in one property which
amounts to partial partition is not
maintainable. This contention in the
circumstances of the case, has force and the
same has to be upheld. The reason being,
the present suit has been filed by one of the
non-alienating coparceners of the joint family
property. The suit has been filed by the non-
alienation co-parcener with respect to the
only property which has been alienated. This
is not a suit for general partition. The
contention of the alienees is to the effect that
if the share of the plaintiff to be worked out if
all the joint family properties had been
included in the schedule then, at a partition,
the share of the dist defendant would have
been worked out in order to give equitable
relief to the alienates also as they have
purchased the property by the 1st defendant.
In that view of the matter, the present suit
filed by the plaintiff without including all the
joint family properties and which prejudices
the rights of the alienees who have also been
imp leaded as parties to the suit, in the
circumstances of the case, has to be held
that the suit filed by the plaintiff for partial
partition without including all the joint family
properties is bad in law. The finding given by
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the Trial Court with respect to the sixth issue
has to be maintained and the finding given
by the I Appellate Court that the suit is
maintainable without including all the joint
family properties cannot be held to be proper
in the circumstances of the case. Hence, the
finding of the I Appellate Court holding that
the suit of the plaintiff for partial partition is
maintainable should be set aside and the
finding of the Trial Court with respect to the
sixth issue that the suit is bad for non-joinder
of necessary properties to be included in the
suit has to be upheld."
41. Taking into consideration this citation, the Court
has to hold that the suit filed by the plaintiff was not
maintainable as the suit for partial partition cannot be
maintained without seeking leave of the Court as
contemplated under the provisions of Order 2, Rule 2
of CPC. Therefore, we are of the view that suit of the
plaintiff was also not maintainable on this ground."
18. Even Hon'ble Supreme Court in case of
Kenchegowda v. Siddegowda reported in (1994) 4 SCC
294, held:
"16. Therefore, what has been held is that the
property had not been allotted in favour of the first
defendant in the partition. That is very different from
holding that the case of partition had not been
accepted by the first appellate court. This being so, a
decree for partition could not have been passed on a
mere application for amendment. In fact, as rightly
urged by the learned counsel for the appellant that the
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causes of action are different and the reliefs are also
different. To hold that the relief of declaration and
injunction are larger reliefs and smaller relief for
partition could be granted is incorrect. Even
otherwise, a suit for partial partition in the
absence of the inclusion of other joint family
properties and the impleadment of the other co-
sharers was not warranted in law. Thus, we find no
difficulty in allowing these appeals which are
accordingly allowed. The judgment and decree of the
trial court as affirmed by the first appellate court are
restored. However, there shall be no order as to costs."
(emphasis supplied)
19. Though, first appellate Court upset judgment and
decree passed by trial Court solely on this ground, no effort is
made by plaintiffs to include other joint family properties.
Explanation, though strenuous and vehement by learned
counsel for plaintiffs that said properties were already sold and
not in existence would not suffice, as even present suit
property has suffered alienation and suit was filed after such
sale.
20. For aforesaid reasons, though, reason assigned by
first appellate Court about right of plaintiffs to seek partition
during lifetime of defendant no.3 and 1 respectively would not
sustain, judgment and decree by first appellate Court would not
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call for interference on ground that plaintiffs had failed to
include all joint family properties in a suit for partition, which
would be fatal to their suit. Hence, no substantial question of
law arises for consideration.
21. Appeal is dismissed.
Pending applications, if any, are disposed of accordingly.
Sd/-
(RAVI V HOSMANI)
JUDGE
PSG
