Whether suit for partition is barred if previous suit for partial partition was dismissed?

 I have heard learned counsel for the parties, appraised the paper book and of the view that there is no force and merit in the submissions of Mr. Gill, for, in the previous round of litigation, the property amongst both co-sharers was not denied to be joint. The suit was dismissed for partial partition. The dismissal of the suit for partial partition would not bar the party to seek separate possession by way of partition. The relationship of the parties as stated by the plaintiffs had not been rebutted by the defendants by bringing on record the evidence. The previous suit was only dismissed for want of partition and therefore, the subsequent suit could not be barred by principle akin to res judicata or under Order 2, Rule 2, CPC. The status of the co-sharers remained intact even after dismissal of the suit for want of complete partition i.e. by partial partition.

IN THE HIGH COURT OF PUNJAB AND HARYANA

RSA No. 4199 of 2011

Decided On: 03.05.2018

 Gurdev Singh  Vs. Ajmer Singh 

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Whether partition of joint family property can be inferred if its members are residing separate?

 Living separately without recording any family settlement in the revenue record would not lead to conclusion that the property had been partitioned by metes and bounds.

IN THE HIGH COURT OF PUNJAB AND HARYANA

RSA No. 4199 of 2011

Decided On: 03.05.2018

 Gurdev Singh  Vs. Ajmer Singh 

Hon'ble Judges/Coram:

Amit Rawal, J.

Citation: AIR 2018 P&H 197

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Whether court should allow amendment of plaint in partition suit for inclusion of all joint family property?

It is undisputed that the petitioner has preferred application Exhibit 89 before the trial Court on 27.4.2015. The matter was in the midst of final arguments before the trial Court. The petitioner has indicated through the application such immovable properties which are situated at Jaunpur and which have been inadvertently left out from the suit. It was, therefore, prayed before the trial Court that the suit would suffer an irreparable damage for not including these properties, especially when the suit has been filed for partition and separate possession. It was, therefore, submitted that the amendment be permitted.

It is not in dispute that a suit for partition and separate possession, with regard to ancestral property involves all such blood relations, who could have a legal share in the property. It is also not in dispute that such a suit could be dismissed on account of non-inclusion of all the properties since the suit cannot be entertained for partial partition. Issue as to whether some of the properties included in the suit are self acquired properties of any of the defendants or plaintiffs can be gone into by the trial Court.
In the light of the same, I find that the ends of justice would be met by permitting the petitioner to amend the plaint so as to include all the properties which have been left out and which are situated in Uttar Pradesh. The second respondent is at liberty to file an Additional Written Statement, if felt necessary.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 7029 of 2015

Decided On: 29.07.2015

 Rajbahaddur Jiyaram Yadav Vs.Prakash and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2016(1) ALLMR 550

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When partial partition of joint family property is permissible?

Even as a rule of Hindu Law, if the property is not joint family property and the parties are not coparceners but only co-owners or tenants-in-common the rule is not so rigid and partial partition may be allowed if there is not much inconvenience to the other sharers.

19. In addition to that, the partial partition is prohibited for a good reason as the partition has the effect of breaking up a joint Hindu family. If such a family is disrupted, it stands to reason that the family should break up completely and the whole family property should be divided.

20. However, even suits praying for partial partition have also been recognized under some of the following circumstances, namely:

(i) where different portions of family property are situated in different districts, separate suits for partition for lands of each district may be brought;

(ii) it may be allowed when portion of joint property at the time of the suit for partition is incapable of partition;

(iii) where the property left out from its very nature impartible;

(iv) where the property is held jointly with strangers who cannot be joined as parties to a general suit for partition the same may be left out; or

(v) where the co-owners by mutual agreement decide to make partition of the joint family property leaving some portion in common.(Refer: Harey Harey Singha Chowdhury vs. Hari Chaitanya Singha Chowdhury MANU/WB/0413/1936 : 40 CWN 1237; Mansharam vs. Ganesh MANU/WB/0404/1912 : 17 CWN 521; Panchanan Mallick vs. Shiv ChandraILR 14 Cal 805; Balaram vs. Ramchandra ILR 22 Bom 922; Abdul Karim vs. Badruddin ILR 28 Mad 216).

Therefore, it is not in all events that partial partition is impermissible.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

R.S.A. No. 565 of 2012

Decided On: 01.04.2017

 Pradeep Chand Sharma Vs.  Budhi Devi and Ors.

Hon'ble Judges/Coram:

Tarlok Singh Chauhan, J.

Citation: AIR 2017 HP73

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Partial partition of joint Hindu family property can be permitted in exceptional circumstances

In Rajendra Kumar Bose AIR 1923 Calcutta 5017, cited supra it has been laid down by the Division Bench of the Calcutta High Court that -- 'The rule that a partition suit should embrace all the joint property is neither arbitrary nor technical; it is founded on sound and weighty reasons. If the rule were not recognized and firmly applied, multiplicity of litigation would be the inevitable result. If suit for partition were allowed to be instituted in fragments, the jurisdiction of the trial Court and the forum of appeal might be altered; it might be of paramount importance to a party litigant whether he should have a first appeal or a second appeal to the High Court, and whether he should at all be permitted to seek the judgment of the judicial committee with regard to the matters in controversy. The rule further ensures a just partition; parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts. It need not be disputed that there may be a very special cases where the application of the rule may be justly relaxed."

14. In Kenchegowda v. Siddegowda, , the Hon'ble

Supreme Court held that "when all the joint family properties are not made the subject-matter of the suit, nor the co-sharers have been impleaded, the suit for partial partition is not maintainable,"

15. On resume of the aforesaid authorities it would reveal that the general rule is that all the joint family properties should be brought into common hotchpotch and then seek partition of the same. A member of a joint property suing his coparceners for partition of family property is bound to bring into common hotchpotch the entire joint property in order that there may be complete and final partition of family properties that may be in his possession. The general rule is that initially suit for partition is brought by a corparcener against other coparceners, it should embrace the whole family property but this rule is subject to certain qualifications and exceptions.

Bombay High Court

Govindrao S/O Gangaramji Ajmire vs Dadarao @ Shrawan S/O Gangaramji ... on 6 April, 2004

Equivalent citations: 2004 (4) MhLj 653

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