partial partition of joint undivided property.

 partial partition of joint undivided property.

The suit property is claimed to be the joint family property of the plaintiffs and defendants 1 to 3. In 1948, the defendant No. 1 executed a will with the ill motive of bequeathing all the properties to defendants 2 and 3. The plaintiff instituted T.S.2/49 for partition of the ancestral lands located at Angapada. That suit was decreed and the decree was affirmed even by this Court. On the plea that the properties now in the suit which are located . at village Turada are also the joint family properties and have been left out of partition on the earlier occasion, the present suit has been filed. It is claimed that on 27-9-1958 the defendant No. 1 executed the sale deed for the suit land in favour of defendants 4 and 5 which is a void transaction. The plaintiffs claim that they have their 1/4th interest in the suit lands.

The defence of defendants 1, 2 and 3 jointly is that the suit is barred both under Section 11 and under Order 2, Rule 2, Civil Procedure Code. The suit property is not the joint family property, but it is the self-acquired property of defendant No. 1. The plaintiff is not in possession of this property for more than 12 years and as such his present suit is barred by limitation.

 The learned trial Judge came to hold that the suit lands were ancestral joint family property; the suit was not barred under Sec-tion 11 nor under Order 2, Rule 2, Civil Procedure Code; the suit was also not bad on the theory of partial partition. He further found that the sale deed dated 27-9-1958 in favour of defendants 4 and 5 was not binding on the plaintiffs and he accordingly decreed the suit.

----------------------------------------------------------------------------------------------Orissa High Court

Debarchan Pradhan And Ors. vs Bhagirathi Pradhan And Ors. on 16 December, 1969

Equivalent citations: AIR 1970 Ori 231

Author: R Misra

Bench: R Misra

JUDGMENT

R.N. Misra, J.

1. This is an appeal by the plaintiffs (the original plaintiff having died, his legal representatives) in a suit for declaration that the sale deed dated 27-9-1958 executed by defendant No. 1 in favour of defendants 4 and 5 is fraudulent and does not confer title on the transferees. Their claim was accepted by the trial Court, but has been negatived by the lower appellate court. Hence the plaintiffs are in second appeal against the reversing judgment.

2. A short genealogy would be useful to indicate the mutual relationship of the parties.

BHAGIRATHI

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Ananta Achuta Adwaita

D.2 (Plaintiff) (D 3)

-Jasoda -Duhita

(D 4) (. 5)

The suit property is claimed to be the joint family property of the plaintiffs and defendants 1 to 3. In 1948, the defendant No. 1 executed a will with the ill motive of bequeathing all the properties to defendants 2 and 3. The plaintiff instituted T.S.2/49 for partition of the ancestral lands located at Angapada. That suit was decreed and the decree was affirmed even by this Court. On the plea that the properties now in the suit which are located . at village Turada are also the joint family properties and have been left out of partition on the earlier occasion, the present suit has been filed. It is claimed that on 27-9-1958 the defendant No. 1 executed the sale deed for the suit land in favour of defendants 4 and 5 which is a void transaction. The plaintiffs claim that they have their 1/4th interest in the suit lands.

3. The defence of defendants 1, 2 and 3 jointly is that the suit is barred both under Section 11 and under Order 2, Rule 2, Civil Procedure Code. The suit property is not the joint family property, but it is the self-acquired property of defendant No. 1. The plaintiff is not in possession of this property for more than 12 years and as such his present suit is barred by limitation.

4. The learned trial Judge came to hold that the suit lands were ancestral joint family property; the suit was not barred under Sec-tion 11 nor under Order 2, Rule 2, Civil Procedure Code; the suit was also not bad on the theory of partial partition. He further found that the sale deed dated 27-9-1958 in favour of defendants 4 and 5 was not binding on the plaintiffs and he accordingly decreed the suit.

5. On appeal by the defendants, the learned appellate Judge affirmed the findings of the trial Court that the suit land was the joint family property. He further found that the property under Ext. 8 was the self-acquisition of Achuta and was not liable for partition. He, however, came to find that the suit was barred under Order 2, Rule 2, Civil Procedure Code and was also barred by limitation.

6. In view of the concurrent finding in the courts below that the property is the joint property and in view of the admitted status of the plaintiff as a co-sharer, normally relief of partition could be granted.

7. The only stumbling block in the way in the opinion of the lower appellate Court is that the present claim is barred under Order 2, Rule 2, Civil Procedure Code. The single point for determination in the second appeal, therefore, is as to whether the present claim for partition is barred under Order 2, Rule 2, Civil Procedure Code. Order 2, Rule 2, Civil Procedure Code reads thus :

(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) 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 omitted or relinquished.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, 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 : ....."

8. In a suit for partition in respect of a co-sharer and in respect of a coparcener a distinction in law has always been maintained. For a coparcener who seeks to separate himself from the hitherto joint corpus the cause of action arises in respect of the entire joint property at a single point of time while in respect of a co-sharer joint tenant it may arise at different points or time in respect of different items of property. Their Lordships of the Judicial Committee examined the scope of Order 2, Rule 2, Civil Procedure Code at considerable length in the case of Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78. Sir Madhavan Nair, J., speaking on behalf of the Board summarised the principle thus :

"The principles laid down in the cases thus far discussed may be thus summarised :

(1) The correct test in cases falling under Order 2, Rule 2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit."

(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.

(3) If the evidence to support the two claims is different, then the causes of action are also different.

(4) The causes of action in the two suits may be considered to be the same if in sub-Stance they are identical.

(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers ..... to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour."

9. Their Lordships of the Supreme Court examined the. scope of Sub-rule (3) of Order 2, Civil Procedure Code in the case of Shankar Sitaram v. Balkrishna Sitaram, AIR 1954 SC 352. They dismissed the action in the said case holding that it was barred under the said sub-rule as the plaintiff had omitted to sue for a relief which was available to him when the suit in respect of the other items of claim had been filed on an earlier occasion. My Lord, the present Chief Justice had also occasion to consider the applicability of Order 2, Rule 2, C. P. C, in the case of Union of India represented by the General Manager, South Eastern Rly v. Iswar Sahu Hadibandhu Sahu, (1966) 8 O J D 26 and referring to the position indicated in the aforesaid decision of the Privy Council, held on the facts of that case that the subsequent claim was barred under Order 2, Rule 2, C. P. C.

10. A claim in respect of certain joint family property for partition directly came up for decision in some cases. Examining the applicability of Order 2, Rule 2, C. P. C. as a bar for a subsequent claim for partition, in respect of certain property left out in the earlier suit, Chief Justice Wanchoo in a Division Bench case reported in A. I. R. 1954 Raj 269 indicated the law to be thus :--

"The reason why in the case of partition between coparceners all the property must be thrown in the hotchpot except for certain well-recognised exceptions is that where a member of a joint Hindu family who broke up the joint status, wants the joint family property to be divided, the cause of action arises at one time, and he must therefore include every item of property in the suit. But in the case of tenants-in-common, it is not necessary that the cause of action for partition of every item of the property which is held in common must arise at the same time. Therefore, it may be possible in cases of co-tenants that a suit may lie for one item of property at one time and for another item at another time.

xxxxx

It is clear, therefore, that in the case of tenants-in-common it is not essential that all the property held in common should be brought into hotchpot though it is desirable that as far as possible, in order to avoid multiplicity of suits, all the property should be included in one suit. It is, however, for the Court in each case to decide whether the case is of such a nature that the plaintiff should be ordered to include the remaining property also in the suit for division, provided of course the property is within the jurisdiction of the Court in case it is immovable property. But the suit, in our opinion, cannot be thrown out on the mere ground that all the property which is capable of partition was not included".

11. Admittedly in the present case the question of partial partition was not raised in the earlier litigation, Title Suit No. 2/49 and that suit was entertained for disposal on merit. If it had been contended that some other properties were left out, it was quite possible that action would have been taken by the present plaintiff who was also plaintiff in the said suit to have the disputed property included in the hotchpot.

12. A similar question in a suit for partition arose for determination in a Patna case. Raj Kishore Prasad, J., in the case of Sm. Jasoda Kumari Sewani v. Sm. Satyabhama Sewani, AIR 1960 Pat 76, after examining the law applicable to a case of this type held :

"..... it is manifest that, after a decree has been passed in a suit for partition of the joint family property, a subsequent suit for partition may be brought in respect of any portion of that property which, by mistake, or inadvertence, or due to ignorance or to oversight, or by consent of the co-owners, was omitted in the former suit, and if no objection is taken by the party concerned to a partial partition, the subsequent suit for partition of the portion of the property so left out and still held in joint possession, would be maintainable. If by mistake, or the like, acting innocently and fairly, a partition of a portion only of their estate has been made, whether by order of the Court or otherwise there is no reason why the Court should not grant a division of the remainder at the instance of one or more of the co-owners. In such a case, there could be no omission to sue within the meaning of Rule 2 of Order 2 of the Code."

13. In a more recent case dealing with this aspect of the matter, in the case of Venkatasubbamma v. Venkata Subbamma, AIR 1964 Andh Pra 124, Jaganmohan Reddy, J., (as he then was) considered many authorities and ultimately held that a suit would lie in almost similar circumstances as in the present case. Keeping in view the legal position as indicated above I would hold that the present claim was not hit by Order 2, Rule 2, Civil Procedure Code. The learned appellate Judge has indicated no material to sup-port his finding that the plaintiff intentionally did not include the suit land in his previous partition suit. On the other hand, the learned appellate Judge has stated :

"It shall be deemed that the plaintiff intentionally did not include."

There could be no scope to arrive at a finding by speculation or by drawing an inference from mere fact that on the earlier occasion, this item had been left out in the hotchpot in the partition. The learned appellate Judge came to his conclusions on a wrong basis of the legal position and as such his conclusions were also vitiated. I would hold in view of the concurrent finding that the property had been acquired from the Joint family funds, and the plaintiffs' present claim is entitled to succeed. The fact that the defendant on the earlier occasion had not raised the plea that the present suit property had been left out from the hotchpot, the assertion of the plaintiffs in the present case that the existence of this property as a joint family asset was not known to him and the legal position that such a suit in certain circumstances is maintainable lead me to accept the claim of the plaintiffs in this case. Mere failure of existence of this property would not bring the case within the bar provided under Order 2, Rule 2, Civil Procedure Code. It is quite possible that the plaintiff on the earlier occasion did not have materials to find that this was a property which had been acquired out of joint family nucleus. Subsequently he came to find that this was acquired out of joint family nucleus and was, therefore, partible. More or less that is his case now. I would therefore vacate the judgment of the lower appellate Court and restore that of the trial Court and hold that the plaintiffs are entitled to their claim of 1/4th share in the suit property.

14. The appeal succeeds and is allowed. Since this is a suit for partition, I would direct both the parties to bear their own costs up to this stage.