Sundara Aiyar vs Krishnamurthi Aiyar (Minor by his guardian Natesa Aiyar) and Another

John Wallia, CJ.

In this case one of four coparceners mortgaged his share of the joint family properties in 1895. The assignee of the mortgagee obtained a decree

in O.S. No. 93 of 1901 on the file of the Court of the District Munsif of Shiyali for sale of his interest which was purchased by one Rama Ayyar

through whom the plaintiff claims. The plaintiff instituted a suit, O.S. No. 200 of 1911 on the file of the Court of the District Munsif of Shiyali for

partition against the surviving members of the joint family and was allotted the suit properties among others by the decree. When however he

attempted to execute the decree for possession he was resisted by the first defendant who claims under a decree obtained by his predecessor in

title in O.S. No. 36 of 1904, on the file of the Court of the Subordinate Judge of Kumbakonum against the surviving members of the joint family

for specific performance of an agreement to sell and to give possession, which was executed in 1905 by delivery of suit properties. In these

circumstances the plaintiff''s application for delivery of these specific Immovable properties was dismissed as they were in the possession of third

parties claiming under an independent title and he was left to bring the present suit to establish such right to present possession under O. XXI Rule

100 of the Code of Civil Procedure. In this suit he seeks to recover the one-fourth share of the coparcener under whom he claims in the items of

joint family property now in the possession of the defendants, intending apparently to bring other suits against the person in the possession of other

items to recover the coparcener''s share in them also. The difficulty has arisen from the fact that the defendants in possession of these items were

not made parties to the present plaintiff''s partition suit O.S. No. 200 of 1911. If that had been done, the court following its ordinary practice

would have allotted other items to the plaintiff in respect of the share of the coparcener under whom he claims. According to the finding of the

Subordinate Judge it is not shown that the plaintiff''s next friend knew of the defendants'' rights when he filed O.S. No. 200 of 1911 but he might

easily have found out about them. In this state of things the defendants have raised the objection that the plaintiff is not entitled to bring a suit for

partial partition. This objection was allowed by the District Munsif, but overruled by the Subordinate Judge purporting to act on the authority of

certain decisions which, as was admitted at the bar, do not really conclude the case. As observed by Bakewell J. in Nanjayya Mudali v. Shunmuga

Mudali (1918) 26 M.L.J. 576, the rule against partition is a mere processual law. It is dictated by considerations of convenience and had not been

adhered to in certain classes of cases in which apparently it was considered to lead to inconvenience. In Venkatarama v. Meera Labai ILR (1889)

MAD. 275, this Court applying the rule againt partial partition refuse to allow the alienee from one coparcener of a specifie item of joint family

property to sue the remaining coparceners for his alienor''s share in that item and left him to enforce his rights in a general suit for partition. On the

other hand in Chinna Sanyasi v. Surayya ILR (1882) MAD. 196, the court had held in the like circumstances the remaining coparceners were

entitled to sue the alienee from one coparcener for partition of their shares in the specific item which was in effect to allow others to sue for partial

partition ; and Ibrumsa Rowthen v. Tiruvengadaswami Naich ILR (1910) M. 269 : 20 M.L.J. 743 a Full Bench of this Court extended this right to

the alienees of the remaining co-parceners. Fresh exceptions to the rule against partial partitions should however be made as sparingly and only on

grounds of manifest convenience. I fail to see any ground in the present case. On the contrary, it seems to me that the rights of the plaintiff himself in

the share to which he is entitled and the rights of the other parties interested can best be established once for all in a suit for general partition and I

would therefore set aside the decree of the Subordinate Judge, restore that of the District Munsif and dismiss the suit with costs throughout.

Coutts Trotter, J.

I agree.