Balakrishna Udayar and 3 others vs Chellammal and 9 others

S.S. Subramani, J.—Defendants 2 to 4 (Appellants 1 to 3 ) and one Periasami Udayar are the appellants. Suit O.S.1552 of 1978, on the

file of District Munsif''s Court, Ariyalur, was for partition and possession, and also for mesne profits. Chellamuthu Udayar and Ramasami Udayar

were brothers. Both of them are no more. Plaintiff is the daughter of Chellamuthu Udayar, and 11th defendant is his widow. Ramasami Udayar''s

widow is the 10th defendant.

Plaintiff filed the suit for partition of plaint schedule properties claiming half share over the plaint items. Other defendants are alienees from

Ramasami Udayar. It has come out in evidence that apart from the schedule properties, the brothers had properties in the villages Anandavadi,

Sendurai, Udayan-Kudikadu and Nakkambadi. The plaint schedule properties are situated in Udayankudikadu. The properties situated in the

other villages have not been included in the plaint schedule. The widows of the two brothers are not contesting the suit, and they have no objection

for partitioning the property. Even though the appellants contended that over the plaint property, plaintiff was not entitled to any right since

Ramasami Udayar became the absolute owner due to survivorship, both the Courts below found that contention against them It is said that

Sellamuthu Udayar died after Hindu Succession Act came into force and naturally the widow and daughter will be entitled to a share under Sec. 6

of the Hindu Succession Act.

The alienees have taken documents from Ramasami Udayar as if the property belongs to him. It is under these circumstances, plaintiff filed the

suit for partition claiming half share over the plaint items.

The trial Court dismissed the suit on the ground that the plaintiff ought to have scheduled the properties in the other villages also and should have

claimed a general partition. Since only some of the items belonging to the brothers have been included, the suit is not maintainable due to partial

partition.

When the matter was taken in Appeal in A.S. No. 42 of 1982, the lower Appellate Court set aside the reasoning of the trial Court, and passed

a preliminary decree. The lower Appellate Court held that the suit is really between a co-owner against the alienees and is not really between the

members of the family. Therefore, a co-owner is entitled to recover his share of the property in the scheduled items. The alienee cannot contend

that the suit is bad for partial partition. That is a right given to the members of the family. It is further found that the plaintiff and defendants 10 and

11 are only female members and, therefore, they are not coparceners. The question of partial partition will arise only in a coparcenary property

where they are taken as joint tenants. Such a question cannot arise in a case of co-ownership. It was further found that the claim for partial

partition was also taken at a belated stage. A preliminary decree was granted by the lower Appellate Court.

The decision of the lower appellate Court is assailed in this Second Appeal on the following substantial question of law:-

Whether it is open to the plaintiff to challenge the validity of an alienation made by another coparcener in a suit for partial partition.

The only question to be decided is, whether the suit is bad for partial partition.

In the decision reported in (1969) 2 SCWR 414 (Mst. Hateshar Kuer & others v. Sakaldeo Singh & others), Their Lordships held that,

The rule requiring inclusion of the entire joint estate in a suit for partition is not a rigid and inelastic rule which can admit of no exception. This rule

aims at preventing multiplicity of legal proceedings which must result if separate suit were to be instituted in respect of fragments of joint estates.

Normally speaking, it is more convenient to institute one suit for partition of all the joint properties and implead all the interested co-sharers so that

all questions relating to the share of the various co-owners and the equitable distribution and adjustment of accounts can be finally determined. But

this being a rule dictated by consideration of practical convenience and equity may justifiably be ignored when, in a given case there are cogent

grounds for departing from it. When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by

some of them that it belongs to an outsider, then a suit for partition of joint property excluding such items does not become legally incompetent

because of any rule against partial partition...

(Emphasis supplied)

The above decision was followed by V.R.Krishna Iyer, J.. as he then was, in 1970 Kerala Law Times 1031 (Parameswara Menon v.

Sachidananda Menon). In para 5, the learned Judge has reiterated the decision rendered by Mukherjea, J. In AIR 1923 Calcutta 501 (Rajendra

Kumar v. Brojendra Kumar). The observation of the learned Judge (of the Calcutta High Court) reads thus:-

The established rule may accordingly be taken to be that a suit for partition should include all the lands of the co-tenancy, and if it does not, any

party interested may insist that the omitted land or lands be included in the suit. ....

.... .... .... ....

Exceptions to the rule that a suit cannot lie for partition of a portion of the family property have been recognised when different portions of the

family property are situated in different jurisdictions, and separate suits for separate portions have sometimes been allowed, where different rules of

substantive or adjective law prevail in the different courts.

V.R.Krishna Iyer, J.; in the aforesaid decision, has taken into consideration another decision of the Rajasthan High Court reported in AIR 1954

Rajasthan 269 (Sambhudutt v. Srinarain), wherein, Wanchoo,C.J., as he then was, had considered a similar question, and held thus:-

The general rule of Hindu Law is 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 exceptions, e.g., where a portion of the property is not available for actual partition, or where

it is held jointly by the family with a stranger, or where part of the joint property consists of land situated outside the jurisdiction of the court in

which the suit for partition is brought. This principle, however, has not been applied with full force to the case of partition between co-tenants.

The learned Judge (Wanchoo, C.J.) explained the rationale of the rule in regard to joint family partitions and its inapplicability to cases of co-

tenancy 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 ever 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 be for one item of property at one time and for another item at another time.

(Emphasis supplied)

In the Rajasthan case, the learned Judges summed up thus:-

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 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 mature 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 course in case it is immovable property. But the suit, in our opinion,

cannot be thrown out on the mere ground the all the property which is capable of partition was not included.

Their Lordships IV.R.Krishna Iyer, J.) also, referred to a decision of the Patna High Court reported in AIR 1963 Patna 375 (S.M.A.Samad v.

Shahid Hussain), wherein a Bench of that court also dealt with a similar question and held that,

the ordinary rule that a suit for partial partition is not maintainable does not apply to the case of co-owners who hold land as tenants-in-common

as distinguished from co-sharers holding land as joint tenants. ... ...

In that decision, the Bench of the Patna High Court summarised the principle thus:-

From the foregoing discussions, it appears to be well settled that -

(1) The rule that the suit for partition must cover the entire property held jointly by the parties is merely a rule of equity and convenience;

(2) A suit for partition must embrace only the property to which the parties have community of interest and unity of possession;

(3) there is substantially no difference in respect of the subject-matter of a suit for partition amongst Muslim co-owners or Hindu co-owners where

they hold property as tenants-in-common; and

(4) A suit for partition of even one item of such property is maintainable, provided that the partition can be effected without much inconvenience to

the other co-owners, In other words, in the case of tenants-in-common, whether such tenants are Mohammedans or Hindus, one of them is not

obliged to sue for the partition of all the items of the property in which they are interested, inasmuch as each of them is entitled to his definite share

in every item of the property, unless the partition sought for results inconvenience to the other tenants-in-common.

On the above principle of law, let us consider whether the judgment of the lower appellate Court is liable to be interfered with.

In the additional written statement filed by the appellants, they have contended that 11 cents in S.F. No. 58 C/17, 3 cents in S.F. No. /58

C/16, 2 cents in S.F. No. 58 C/17 and vacant site in 1-71 in S.R. No. 56/4 have not been included in the schedule properties It is not disputed by

learned counsel that these properties are situated in another village. D.W.1, when he was examined, has also stated that since he performed

obsequies of Ramasami Udayar, he was given these properties. Therefore, there is a dispute regarding those items, whether they are partible or

not. That is one of the recognised exceptions as held by the Supreme Court. Consequently, it has been held by the Lower Appellate Court that in

respect of properties situated in Anandavadi Village, there was a partition between Ramasami Udayar and plaintiff. Even though the partition suit is

only in respect of properties in one village, the parties as on that date must be deemed to have attained a status of division. Thereafter, they

became tenants-in-common for all the properties. The female members, i.e., widow and daughter of Chellamuthu Udayar cannot be treated as

coparceners with Remasami Udayar since they have inherited properties as Class-heirs of Chellamuthu Udayar. They became tenants-in-common

with Ramasami Udayar. That means, all of them are co-owners. The suit for partition was perfectly maintainable and it should not have been

thrown out as was done by the trial Court. Again, as found by the lower appellate Court, contention of partial partition is put forward only by the

alienees. They cannot put forward such a contention against non-alienating co-owner. The judgment of the lower appellate Court is, therefore,

confirmed, and consequently the Second Appeal is dismissed. No costs.