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Judgment
Objection has first been taken to the lower appellate Court''s findings that two items of common property are available for partition but are not
referred to in the plaint. Those findings are findings of fact; and we have not been shown any ground on which we can interfere with them in second
appeal.
The second appeal is then argued against the lower appellate Court''s order remanding the suit with a direction to the District Munsif to give the
plaintiff an opportunity to amend his plaint by including a prayer for relief in respect of the properties just referred to and other properties if any left
by the deceased, and in case he does not so amend to dismiss the suit. We have not been shown any direct authority that a suit for partition of
common property, not joint property, is liable to dismissal on the ground that all the joint property, in respect of which it might have been brought,
has not been included. Shortly we have not been shown that the objection founded on what is usually described as the plea of partial partition is
available when a suit for division of common property not joint property is in question.
It is true that in Mahomed Fuzlur Rahman v. Mahomed Fazzur Rahman Chowdhury (1911) 15 C.W.N. 677, Moideensa Rowther v. Mahomed
Kasim Rowthen (1915) 289 C. 895 and Korumbakkat Parkum Vengaalasheri Moidin Kutti Vs. Thuniyilandiyil Mariamumma and Others, , an
opinion was expressed against the expediency of suits for partition of common property, in which the whole of the property available for partition
was not included. But we have not been shown any decision that such suits are actually unsustainable and we are not prepared to hold that they are
so. It is, we may point out, always open to the defendant in such a case as the present, if he thinks himself prejudiced by the exclusion of any
property, himself to bring a suit in respect of it and have it tried with the suit already pending. Taking this view we must allow the appeal to the
extent that we set aside the lower appellate Court''s order and direct it to dispose of the appeal in the light of the foregoing and with reference to
the District Munsif''s findings on the issues. Costs in this Court will be costs in the cause and will be provided for by the lower appellate Court in
the decree to be passed.
This case coming on for hearing again on the nth April 1923, on being posted to be spoken to, the Court delivered the following
ORDER
It is pointed out to us that the additional Sub-Court of Tanjore, from which this appeal came has been abolished in consequence of the
bifurcation of the district into Tanjore East and Tanjore West for judicial purposes and that therefore our order of remand to the lower appellate
Court requires explanation. So far as we can ascertain, the District Court of Tanjore East now exercises appellate jurisdiction over Tiruthuraipundi
District Munsif''s Court to which this case belongs. The remand must therefore be to the District Court of Tanjore East, and our orders must be
read accordingly.