Sundaresa Aiyar vs Krishnamoorthy Aiyar Minor by his Guardian, Natesa Aiyar and Others

John Wallis, C.J.—In this case one of four co-parceners mortgaged his share of the joint family properties in 1895. The assignee of the

mortgagee obtained a decree in Original Suit No. 93 of 1101 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, Original Suit No. 200 of 19il 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 1st defendant, who claims under

a decree obtained by his predecessor-in title in Original Suit No. 36 of 1901 on the file of the Court of the Subordinate Judge of Kumbakonam

against the surviving members of the joint family for specific performance of an agreement to sell and possession, which was executed in 1905 by

delivery of the 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 Order XXI Rule 100 of the Code of Civil Procedure. In this suit he seeks to recover the one-fourth share of the co-

parcener 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 persons in possession of other items to recover the co-parcener''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, Original Suit 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 co-parcener

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 Original Suit No. 2,00 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 Nanjaya Mudali v. Shanmuga Mudali 22 Ind. Cas. 555 : 26 M.L.J. 576 : (1914) M.W.N.

356 the rule against partial partition is a mere processual law. It is dictated by considerations of convenience and has not been adhered to in certain

classes of cases in which apparently it was considered to lead to inconvenience. In Venkatarama v. Meera Labai 13 M.k 275 this Court, applying

the rule against partial partition, refused to allow the alienee from one co-parcener of a specific item of joint family property to sue the remaining

co-parceners 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 Sripati Chinna

Sanyasi Razu v. Sripati Suriya Razu 5 M.k 196 the Court had held that in the like circumstances the remaining co-parceners were entitled to sue

the alienee from one co-parcener for partition of their shares in the specific item, which was in effect to allow others to sue for partial partition; and

in Iburamsa Rowthan v. Thiruvenkatasami Naick 7 Ind. Cas. 559 : 20 M.L.J. 743 a Full Bench of this Court extended this right to the alienees of

the remaining coparceners. Fresh exceptions to the rule against partial partition should, however, be made sparingly and only on grounds of

manifest convenience. I fail to see any such grounds 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.