V. David Raja vs J.P. Devaraj and Others

T. Ramaprasada Rao, J.—The 37th defendant in O.S. No. 118 of 1965 on the file of the Court of the District Munsif, Madurai Taluk, is the

petitioner in this Civil Revision Petition. He filed an application, I. A. No. 1261 of 1964, under Order 26, Rule 14 (3) read with Section 151 of the

Code of Civil Procedure, for certain directions to supercede the report of the commissioner appointed in I. A. No. 108 of 1962 at the instance of

the plaintiffs in the suit, and for appointing a fresh commissioner to divide the suit properties by metes and bounds into 8 shares and for allotment of

such each share to the sharers entitled thereto. Being unsuccessful before the lower Court, he has come up to this Court in revision.

Relevant facts have to be noticed before the contentions of Counsel can be dealt with and appreciated. The properties belonged originally to

one Joseph. He died leaving behind his sons and daughters, who were admittedly entitled to a one eighth share in the properties, which were

situate at Pasumalai. The plaintiffs'' father was one such sharer and the 37th defendant-petitioner is also a sharer as an heir of the 6th defendant.

Many defendants died during the pendency of the proceedings before the lower Courts and it is not necessary to set out their kinship and their

entitlement as sharers in the estate of Joseph, as they have been fully set out by the trial Judge as well as the appellate Court. Most of the sharers

were living outside Pasumalai and the properties were therefore managed and dealt with by defendants 2, 6 and 7. The plaintiffs alleged that such

possession and management of the suit properties by defendants 2, 6 and 7 ought to be deemed to be joint possession of all the co-sharers and the

management was in a representative capacity. The plaintiffs questioned the alienations made prior to the suit filed on 28th June, 1954, by some of

the defendants and made the following specific allegations in the plant.

From and after the death of the late Mr. P. Joseph his heirs namely plaintiffs and defendants 1 to 15 and the deceased sons and daughter of the

late Mr. P. Joseph had all been in joint possession and enjoyment of the property left by the late Mr. P. Joseph and described in Schedule A

hereunder. There has been no division of the said property among the heirs so far and the plaintiffs and defendants 1 to 15 are entitled to an l/8th

share, defendants 1 and 2 to another l/8th share, defendants 3 to 5 to another l/8th share, defendants 6, 7, 14 and 15 each to l/8th share and

defendants 8 to 13 to the remaining l/8th share in the undermentioned property described in Schedule A.

6...The possession of defendants 2, 6 and 7 was only in their capacity as co-sharers or co-owners along with the other heirs of the late Mr. P.

Joseph and their possession was not only for themselves but also on behalf of the heirs of late Mr. Joseph....The plaintiffs and defendants 1 to 15

had been and are thus in joint possession and enjoyment of the property described in Schedule A hereunder.

7...Any alienation by the 7th defendant without the consent of the other co-sharers is not binding on the latter.... On account of the conduct of the

7th defendant, it became no longer possible to continue jointly and it had become necessary to have the share of the plaintiff separated.

The plaintiffs do not admit he truth, validity and binding nature of the abovesaid alienations made by the defendants 2 and 7 and the said

alienations said alienations are true and valid, the same can 1 to 15. Even if the alienors and not the other sharers... only the shares of the alienors

and not the other shares....

The plaintiffs have therefore filed this suit for partition by metes and bounds and separate possession of their 1/8th shares in the

undermentioned property, taking into consideration the buildings, well and garden and vacant site in the suit property, for future mesne profits at the

rate of Rs. 20 a month and for other reliefs.

It is not disputed that in the written statement filed by the other co-sharers, they have claimed partition and separate possession by the other co-

sharers. It is unfortunate however that neither the trial Court has framed an issue on this nor has the appellate Court while reversing the decision of

the trial Court, adverted to this important aspect in the pleadings. The trial Court dismissed the suit and on appeal, the learned Subordinate Judge

held that at no time here was exclusion of possession of the properties to the detriment of the sharers as contended by the alienees and that the

shares to which the defendants and plaintiff were respectively entitled were not in dispute. The lower appellate Court found that on the death of

Joseph his sons and daughters were entitled to the properties as co-heirs and also accepted in principle the proposition that the possession of one

or more heirs of joint properties on the death of the common ancestor must be deemed as possession of all the shares. He ultimately held:

Point 4--The question of the monies spent by the 16th defendant for repairs to the houses need not be considered just now. The equities to

which the parties are entitled also can be considered later on a full review of the circumstances existing at the time of the division of the property....

The plaintiffs will be entitled to a preliminary decree for partition of their 1/8th share. The appeal is allowed with costs.

On the strength of he above decree, which is admitted by the parties to have become final, the plaintiffs filed I.A. No. 108 of 1962 for

appointment of a Commissioner and for passing a final decree by dividing the properties for appointment of a Com- On the Commissioner

reporting the petitioner filed and alloting of 1964 to supersede the report and for a proper reporting the petitioner filed I.A. No. 1261 decree

passed by the appellate Court. His prayer is that under implementation of the preliminary the properties have to be divided into eight equal shares,

and under the said decree one thereto and the alienees'' equities be adjusted equitably. The 16th defendant an alienee, opposed the application as

not maintainable. The learned District Munsif was of the view that only relief claimed by the plaintiffs in the suit was for possession of their separate

share and that being the main relief , the prayer for partition in the plaint is only ancillary. On that ground , he dismissed the application.

Learned Counsel for the petitioner took me through the pleadings and argued that the nature of the rlief asked for by the plaintiffs has to be

understood in the light of what was stated in the written statement of the defendants and that the suit is effectively one for a comprehensive partition

and is not in the nature of a suit in ejectment against any alience. Learned Counsel for the respondent relied on the Adhikari Vishnumurthiayya Vs.

Authaiya and Others, , and Koraprolu Veerabhadrayya Vs. Jajala Seethamma and Others, , and urged that the impugned order has been correctly

made.

Ex vi termini all joint properties are liable to be partitioned in an action for partition, whomsoever may be in possession of the same, unless they

are alieness, who purchased the same or in possession of the same as bona fide alienees without notice of the character of the property.

Vignaneswara defines the word '' Vibhaga '' the English equivalent of partition, as "" the adjustment of diverse rights regarding the whole by

distributing them in particular portions of the aggregate."" This principle is applicable even in a suit for partition among non-Hindus, provided they

are co-owners. Right to obtain partition is an invariable appendage to the incidence of ownership of property and in a partition suit, once the right

of the co-sharers is upheld as co-owners thereto, their right to partition cannot be opposed : see Chhote Khan, deceased, Represented by his Son,

Harmat and Others Vs. Mal Khan and Others, . In that case the parties were Muslims. In AIR 1938 169 (Privy Council) , the Judicial Committee

was again concerned with the estate of a Muslim. There the question arose as to what was the nature of a suit against the estate of a deceased

person, for a share to which he was entitled to.

Their Lordships were of the view that

in the case of a Muslim who had left property the right of an heir as a beneficiary would be to have the right that the deceased''s estate should be

duly administered, that it. should be cleared of debts and valid legacies and thereafter he should be given possession of his share therein.

Their Lordships further observed that such a suit might be denominated an administration suit or a suit for partition but the basis of his claim would

be the same, viz., the right to have due administration of the deceased''s estate.

Relying on the above ratio, a Full Beach of the Andhra Pradesh High Court held in Mir Mohiuddin Alikhan Vs. Sayeedunnissa Begum and

Others, .

These observations of the Privy Council would make it clear abundantly that a suit for a share in a deceased person''s assets is in the nature of a

suit for a share in partition or an administration suit and if that is the suit, the provisions of Order 20, Rule 13, CPC or Order 20, Rule 18 would

apply and if these rules apply then there has necessarily to be a preliminary decree wherein the shares of the various heirs are determined and later

on a final decree.

In Periaswami Pillai and Others Vs. Dhanalakshmi Ammal and Others, ,a. suit was filed by one of the sharers for partition and mesne profits.

The Subordinate Judge decreed the suit for the plaintiff''s share alone and gave certain other ancillary reliefs, in the presence of almost all the other

sharers. Disagreeing with this view, the Division Bench of our Court held:

It is found that the learned Subordinate Judge in this partition suit has given a decree only for the plaintiff. But as a matter of fact, he should have

considered the shares of all the heirs on whom the properties devolved on the death of Chinnammal and given a preliminary decree to that effect.

In a suit for partition it is not the array of parties that is relevant but the fact that all the members entitled to shares are on record and found entitled

to reliefs....This will obviate their being driven to a futile fresh suit.

In the instant case all the parties were before Court and indeed they were seeking their right for separate possession of their respective shares.

This important pleading was ignored and the scope of the suit was apparently misconstrued at the time of passing the so called preliminary decree

for partition by the appellate Court. The mere fact that all the defendants or the contesting defendants failed to oblige themselves at that time to pay

the Court-fee, is not the sine qua non for negativing their right to secure a partition of their share in the totality of the estate, the moment the

plaintiffs'' right to claim partition has been upheld; see Mahbul Ahmed v. Afzaluniza 160 I.C. 206. The other sharers having been arrayed as such

defendants does not matter, so long as they desired a partition as well.

If in the light of the ratio of the above decisions the facts of the case are analysed it is clear that the primary intention of the plaintiffs and the

defendants was to obtain a general partition of the estate and for the possession of their respective determinable shares. The mere superficial

reference to the language of the plaint in certain paragraphs thereto, would be to ignore the primary content and substance of it as set out and

found in the entire plaint. The plaintiffs alleged that they and defendants 1 to 15 (as originally the parties were) had all been in joint possession and

enjoyment of the properties. The shares of each group has been reckoned and set out. It was also stated that inter alia the 7th defendant was in

possession and management of the property in a representative capacity. The plaintiffs allege that they demanded a partition from defendants 1 to

18, thus to came up with the suit for partition. In the conspectus of such a narration of events, it would be too technical to characterise the relief

asked as one in ejectment or one to obtain possession of the plaintiffs'' share alone. The allegations in the plaint do not justify the opinion that the

relief for partition is ancillary. In fact, the defendants asked for a. partition and separate possession of their shares as well. Such a co-ordinated

request for a general relief for partition appears to be the essence of the pleadings in this suit. In such a case the duty of Courts may be indicated

thus. If the trial Court has failed to frame an issue on such pleadings and the appellate Court ignored the purport of the same, it is but fair and just

to hold that the parties ought to be given their legitimate reliefs. An act of Court ought not to prejudice a litigant. The bye-passing of the essential

aspects of a pleading, when ordinarily it is the duty of Courts to frame issues, without focussing its attention to the points to be determined in the

action, ought not to be the basis for negativing the normal reliefs to which the parties to a suit was entitled to. By granting such a relief, the Court

would have acted, justly, equitably, conscientiously and obviate the necessity of an unnecessary suit, with all its attendant risks.

In the original suit the appellate Court found that no question of ouster arose as it should be deemed that the possession of the alienors-sharers

should be attributed to an understanding or arrangement between all the sharers. Once the necessary parties are found to be sharers, their right to

partition flows from such ownership and it would be so, even if one sharer comes to Court and asks for a partition and separate possession of his

share. For a greater reason the suit ought to be construed as a suit for a comprehensive partition because the defendants also join in the securing of

the relief and are entitled to a defined and definite share in the estate of late Joseph.

In this Court also learned Counsel for the Contesting respondent relies upon Adhikari Vishnumurthiayya Vs. Authaiya and Others, , and

Koraprolu Veerabhadrayya Vs. Jajala Seethamma and Others, . The first case related to two reversioners of a Hindu widow one of whom, as

plaintiff, was challenging an alienation made by the widow in favour of the 1st defendant and the other figured as the 2nd defendant. The Court was

of the view that the scope of the suit was different from that of a suit for partition. They considered a reversioner as a tenant-in-common and the

plaintiff in that suit as one who sued for his share alone and not as representing co-owners and therefore, nothing regarding the others can

legitimately be decided. I am of the view that in the instant case, a comprehensive partition was envisaged by all the concerned parties and in which

the plaintiffs desired to obtain a relief by which all interested in the property can benefit. Even so in Koraprolu Veerabhadrayya Vs. Jajala

Seethamma and Others, , Venkataramana Rao, J., held that that was a case where a tenant-in-common sued only to recover possession of his

share and partition was only an ancillary relief. I have held that it is not the case here.

Further, it is now well established that the Court has the power to pass more than one preliminary decree in a partition suit if the circumstances

of the case need it. There is no interdict for this course in the CPC Code; see Kasi alias Alagappa Chettiar and Others Vs. Rm.A.RM.V.

Ramanathan Chettiar alias Srinivasan Chettiar through his next Friend, AV.Pl.Ct. Ramanathan Chettiar and Another, . One or more of such

preliminary decree or every direction given by Court after the passing of a preliminary decree would be in the nature of a further step towards the

passing of the final decree and in any case the effect of such preliminary decree if there are more than one, and directions given In the interim ought

to be reflected in the final decree. Such being the correct position, Courts are not injuncted from granting the normal and usual reliefs in a partition

action even if at any earlier point of time, it had missed to do so. Exercise of such jurisdiction is not taken away by the passing of a preliminary

decree, as the suit is still deemed to be pending notwithstanding such an embryo decree. If therefore by oversight, mistake or inadvertence the

relief to which the defendants were entitled to, was not granted and a preliminary decree for a comprehensive partition was not made, though it

was obligatory, the mistake can be corrected and on enquiry the necessary relief may be granted to the defendant who comes forward with the

request for division and allotment of his share, subject to adjustment of equities. This is what the 37th defendant (the petitioner in this C.R.P.)

wanted. This was refused on the ground that the preliminary decree did not authorise the Court to do so. As pointed out by a Division Bench of

this Court in A.S. No. 322 of 1919:

In all adjudications which are not intended to be final but only to be the determination of some of the questions involved in a suit, there is and ought

always to be implied the reservation of leave to all parties to apply for further directions and adjudications necessary for the complete trial and

complete disposal of the litigation

In In Re: Bandi Butchaiah, , the question arose whether in a partition action, if the preliminary decree is silent on a provision for mesne profit it

could be provided later. The learned Judges of the Full Bench after an elaborate discussion of law made the following observations, the usefulness

of which can only be appreciated if reproduced:

We may now summarise our conclusions. A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the

parties have to be adjusted as on the date of the final decree; Jadunath v. Parameswar ILR (1940) Cal. 255. In such a suit the Court has not only

to divide the common properties but has also to adjust the equities arising between the parties a out of their relation to the common property the

property to be divided. The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the

division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided

before an equitable final partition can be effected. Among them are the realisation of common outstandings, the discharge of common liabilities, the

distribution of the profits of the properties realised pending the suit, either in cash or by allotment of property of the requisite value, the grant of

owelty, the provision of maintenance to parties entitled thereto, the allotment of lands on which improvements have been effected to the sharer who

has improved them, the allotment of alienated lands to the share of the alien or and other similar matters. Even after the passing of the preliminary

decree it is open to the Court to gave appropriate directions regarding all or any of these matters suo motu or on the application of the parties.

Order 20, Rule 18, CPC does not prohibit the Court from issuing such directions after the stage of a preliminary decree. It is open to the Court in

order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties among the

parties, to direct an enquiry into the profits received or realised by one or some of them during the pendency of the suit and to award the others

their proper share of such profits under its final decree. This enquiry can be ordered either as part of the preliminary decree itself or subsequently

as a step towards the passing of the final decree, and in either case the result of the enquiry has to be incorporated in the final decree.

The Full Bench was of the view that even after the passing of the preliminary decree, the Court has power to give appropriate directions

regarding all or any of the matters arising in a partition action either suo motu or on the application of a party. Here the 37th defendant applied for

such directions. The lower Court had the jurisdiction to grant the relief. Such direction would ultimately be another step towards the passing of the

final decree. The lower Court refused to do so on a misconstruction of the facts and law. Thus it erred to exercise its jurisdiction. The order is

therefore erroneous and has to be set aside. Accordingly it is set aside, and this Civil Revision Petition is allowed. I. A. No. 1261 of 1964 will be

restored to file and dealt with in accordance with the observations in this judgment and in accordance with law. There will be no order as to costs.