Whether court can direct parties to include more properties in suit for partition?

 Party to the suit cannot be forced or compelled to include the properties which are found in Exhibits before the Court as is done in the present case. The Trial Court has misdirected itself while passing the impugned judgment in the present suit. The preliminary issue with regard to whether the suit is bad for non-joinder of necessary parties and whether the suit of the plaintiffs is for partial partition as such the suit is not maintainable, are the issues which are to be answered along with other issues in the suit. The Trial Court fell into error in not answering all the issues. The Trial Court has committed an error in directing the parties to include the properties mentioned in Ex. D4 to Ex. D7. It is for the parties, either the plaintiffs or defendants to include the properties to the suit schedule for partition. 

IN THE HIGH COURT OF KARNATAKA

Writ Petition No. 44513 of 2014 (GM-CPC)

Decided On: 06.08.2018

C.S. Sundaresha  Vs. C.S. Ananthalakshmi and Ors.

Hon'ble Judges/Coram:

Shankar Ganapathi Pandit, J.

Citation: AIR 2019 Karnat 5

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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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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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Whether partial partition of joint family property is permissible without bringing all properties in hotchpotch?

 It may be pertinent to note that the rule that a partition suit should embrace of the joint family property is recognized and firmly applied in order to bring the equitable partition by metes and bounds. If the rules were not recognized and firmly applied, the multiplicity of litigation would be the inevitable result. If the suit for partial partition is 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 it 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. Therefore, in the present case, it is not possible to accept the contention of the learned counsel for the plaintiff that the suit for partial partition of the properties owned by the joint family is maintainable, without bringing into the common hotchpotch the entire joint house property of the parties. Therefore, it is quite obvious that authorities on which reliance placed by the learned counsel for the plaintiffs is totally misconceived and cannot be accepted.

18. The trial Court on consideration of the facts and circumstances rightly observed that under Section 333 of the Hindu Law, Sub-clause (3) it is laid down that in a suit for partition the general rule that where a suit for partition is brought by a coparcener against the other coparceners, it should embrace the whole family property. This rule is subject to certain qualifications which are mentioned in the Sub-rule. The instant suit filed by the plaintiff does not fall in any of the exception and it is, therefore, apparent that the plaintiff ought to have brought the entire family property in common hotchpotch so as to bring about the complete and final partition of all the joint family house property and thus the instant suit, singling out a house for partition is not maintainable.

 The appellate Court also considered this aspect of the matter and rightly held that the suit is not maintainable without bringing entire joint family house property into common hotchpotch. Consequently, the appellate Court dismissed the appeal. It would be quite clear that the suit house is not the only property owned by the joint family and having regard to the joint family house property situated at Pimpalkhuta and Amravati, it is apparent that the suit for partition of the suit house only would not be maintainable and even if it is held that the plaintiff has half share in the suit house, the partition of the same would not be equitable and just. Since all the properties were not included in the suit and the two brothers i.e. Plaintiff and defendant are claiming their rights and shares in the house properties left by Gangaram, ends of justice would be met if the case is remanded to the trial Court. The joint house property owned by the two brothers will also be included in the suit and will be dealt with in such a manner as the Court may consider, consistent with justice equity and good conscience. If the plaintiff declines to have partition of entire joint house properties, the suit will stand dismissed with costs throughout. 

Bombay High Court

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

Equivalent citations: 2004 (4) MhLj 653

Bench: S Kharche

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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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Whether second suit for partition is tenable if there is decree in first suit for partition?

In the present case, undisputedly there were two earlier partition suits and therefore, legal presumption would be that the entire joint family assets were included in the earlier suits. Since the plaintiffs claim is that Schedule C properties though a part of joint family assets had been left out the burden clearly lies on him to establish that it was joint family property and had been wrongly left out. The evidence on record, as indicated above- clearly shows that the plaintiff has failed to discharge this burden. Hence both from the legal as well as factual aspect the plaintiff's case in respect of Schedule C properties has no substance at all.
In other words, if the person who seeks subsequent partition is found to be responsible for obstructing the finalisation of the actual division of the joint properties by metes and bounds and delivery thereof, he has no locus standi to come forward with a subsequent suit for partition on the ground that the earlier partition decree has not yet been enforced. The plaintiff deposing as P.W. 7 has admitted that the Commissioner had several times gone to effect Takhata-Bandi in respect of the decree of partition suit of 3 of 1948. His plea however, is that since Commissioner has tried to effect Takhatbandi only in respect of the properties of Chaibasa hence he (plaintiff) and his father and brother have been preventing Commissioner from effecting the division and Takhtabandi. Thus there is admission on the part of the plaintiff that he and his father and brother have obstructed the Pleader Commissioner from effecting Takhtabandi. His plea for such obstruct ion is obviously not tenable. The Schedule C properties were not the subject-matter of title suit No. 3 of 1948 and hence whatever may be claimed of the plaintiff in respect of the same, this could be no ground for the plaintiff or his father or brother to obstruct the Pleader Commissioner from effecting division of the properties which were the subject-matter of title suit No. 3 of 1948. Obviously therefore the plaintiff and his father and brother are the persons who put obstruction in bringing to finality the partition decree passed in title suit 3 of 1948 and if they are allowed to prosecute the present partition suit in respect of the Schedules B and D property it will only mean that they are being encourage to take advantage of their own wrongful Conduct. 

Patna High Court

Ram Lakhan Missir vs Pandit Raghunandan Missir And ... on 5 October, 1988

Equivalent citations: AIR 1989 Pat 145

Bench: R N Prasad

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