Parakkandiyil Kutti and Another vs Kakkat Kunhammad and Others

This is a second appeal which has been preferred against the decree and judgment of the learned District Judge of North Malabar in A.S. No.

516 of 1948, confirming the decree and judgment of the learned District Munsiff of Badagara in O.S. No. 463 of 1947.

The facts of this case lie in a brief compass and are undisputed. The plaint property and other properties belonged to one Moosa. The plaintiffs

and the 1st defendant are the heirs of that Moosa. The plaint property has been demised on Kanom by one of the heirs of Moosa to the 1st

defendant the mother of the plaintiff. This family has admittedly other properties besides this plaint property. It is in these circumstances that this suit

has been filed by the plaintiffs for partition and allotment of 371/1728 share to each of the plaintiffs together with proportionate mesne profits.

The point taken by the appellants before us in both the Courts was that the suit was barred by being one for partial partition on the accepted

facts set out above.

Both the Courts came to the conclusion that in the circumstances of the case the suit was not barred as bad for partial partition.

The rule that suits should not be filed for partial partition is a rule as pointed out by Ramesam, J., in Kandaswami Goundan (deceased) and

Others Vs. Venkatarama Goundan and Others, for the protection of the joint family against being harassed by multiplicity of suits at the instance of

alienees from recalcitrant members. They can waive the benefit of it and they can bring a suit to separate themselves from the undesirable stranger.

The general rule is that in a suit for partition between coparceners, all joint family properties should be included. Rajendra Kumar Bose Vs.

Brojendra Kumar Bose, Hemanta Kumar Banerjee and Others Vs. Satish Chandra Banerjee and Others, Sitaram Vinayak Hasabnis Vs. Narayan

Shankarrao Hasabnis, Moti Meghaji Marwadi Vs. Amarchand Rajaram Marwadi, Latchmi Narain v. Jankidas ILR (1901) All. 216 Puru-shottam

v. Atmaram ILR (1899) Bom. 598. This rule however has not been erected into a set rule as the second appellant before us wants namely that

whatever may be the circumstances suits for partial partition are bad. On the other hand, there are a large number of decisions which lay down that

circumstances may justify such a suit for partial. partition in Haridas v. Pran Math ILR (1886) Cal. 566 Ganpat v. Annaji ILR (1898) Bom. 144

Perla Kristiah and Another Vs. Boddu Narasimham and Others, Rangappa v. jvarasimha Sastri 3 Mys. 44 Potru Subbiah Vs. Palaparthi

Venkteswarlu and Others, Subbarayudu v. Ramaniah (1948) 2 M.L.J. 18 Delo Singh Vs. Jagdip Singh and Others, . I may add that the entire

case-law regarding partial partition has been reviewed in Rajendra Kumar Bose Vs. Brojendra Kumar Bose, and for a lucid discussion of this

thorny topic see Sri N.R. Raghavachariar''s '' Hindu Law,'' page 411.

To descend from the general to the particular in Iburamsa Rowthan and Others Vs. Thiruvenkatasami Naick (died) and Others, a Full Bench of

this High Court held that when certain items of family properties are conveyed by one of two coparceners of a Hindu family to a stranger for

purposes not binding on the family, the alienee from the other coparcener of his share in the said properties may, without instituting a general suit

for partition of the entire family property, maintain an action for the partition of his share in the said items. This decision has been cited with

approval in Kandaswami Goundan (deceased) and Others Vs. Venkatarama Goundan and Others, referred to above. In Korumbakkat Parkum

Vengaalasheri Moidin Kutti Vs. Thuniyilandiyil Mariamumma and Others, a Bench of this Court has held that in the case of Mahomedans, the co-

heirs are only tenants-in-common there being no joint family in the Hindu Law sense of the term and that. in the case of co-owners or tenants-in-

common, the rule against partial partition is. not so rigid as in the case of coparceners, and partial partition may be allowed if there is not much

inconvenience to the other sharers, and if the plaintiffs will otherwise be left without a remedy. The learned Judges have referred to a number of

decisions of other High Courts and have finally pointed out that it is then merely a rule of processual law. Similarly in Pakkiri Kanni Vs. Haji

Mohammad Manjoor Saheb by Agent Habibulla Saheb, it was held that a suit for partition of common properties, and not joint properties is not

liable to be dismissed on the ground that the suit did not include all the common properties available for partition. The learned Judges further

pointed out:

It is true that in Mohamed Fuzlu Rahman Chowdhury v. Mohamed Fayzur Rahman Chowdhury 15 C.W.N. 677 Mnideensa Rowthen v.

Mohammad Kasim Rowthen 28 IND.CAS. 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.

Thus to sum up : the rule that a partition suit should embrace all the joint family property is neither arbitrary nor technical and is founded on

sound and weighty reasons. But for its being recognised and firmly applied, multiplicity of litigation would be the inevitable result, with suits for

partition instituted in fragments and the jurisdiction of the trial Court and the forum of appeal materially altered. The rule further ensures a just

partition, as otherwise parties might be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvenientsand

adjustment of accounts. But this is the general rule and there are several exceptions which are equally well recognised. Therefore we cannot erect a

rigid rule demanding the dismissal of every type of suits for partition which do not embrace all the joint family properties. The instant case

constitutes one such well-recognised exception.

In the circumstances of this case, both the Courts were justified in holding that there should be this departure from this general rule against

maintainability of the suit for partial partition. Both the Courts have found that the appellants will not be put to any inconvenience and certainly will

not be deprived of any right to institute a suit of their own. Therefore, I am bound by this finding of fact that no inconvenience will be Caused to the

defendants and it will be open to the defendants to institute a suit of their own wherein all the reliefs they may have can be worked out.

There arc no grounds to interfere and this second appeal is dismissed with costs.