Dismissed

Shri Dnyanu Dadu Patil v. Shri Smt. Sakhubai W/O Shripati Patil

Bombay HC29 Apr 2008SA/638/1989

Case brief

AI extract

What is this about?

The court held that a second suit for partition of joint family property left out from an earlier decree is not barred if the omission was due to ignorance or mistake. The dismissal of the appeal affirmed that Section 339 of Hindu Law supports such suits without re-opening the original partition.

What did the court decide?

Second Appeal dismissed; no order as to costs.

Shri Dnyanu Dadu Patil Vs Shri Smt. Sakhubai W/O Shripati Patil — Partition | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION

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SECOND APPEAL NO.638 OF 1989
Dnyanu Dadu Patil		Appellant
vs.
1. Shripati Dadu Patil, deceased by heirs
1-1. Smt.Sakhubai w/o.Shripati Patil, 48 yrs.,
1-2. Baban Shripati Patil, 38 years.,
1-3. Bhaskar Shripati Patil, 36 years.,
1-4. Shrikant Shripati Patil, 28 years.,
5. Sou.Nanda Bandu Pawar, 34 years.,
6. Sou.Shashikala Satish Jambhale, 32 years.,
7. Sou.Saraswati Malhari Kitturkar, 30 years.,
8. Govind Dadu Patil, 59 years.,
9. Ananda Dadu Patil, 54 years.,		Respondents
Mr.G.R.Rege for the Appellant.
Mr.M.R.Katikar for the Respondents 1(1) to 1(4) & 6 .
CORAM : ANOOP V. MOHTA,J. DATED : 29th April, 2008
JUDGMENT:
The Appellant-original defendant	being	aggrieved by
the concurrent judgment and order has preferred the present Second Appeal.
2. The following substantial questions of law are involved :

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(1)	Whethe	r the present Suit is barred by Or	der 2
	Rule	2 of Code of Civil Procedure (CPC)	as
	the	respondent-original plaintiff filed	the
	Suit	for partition on the ground that h	e was
	not	aware of the property when	earlier
	Regular decided	Civil Suit No.408/1964 was ?-No.
(2)	Whethe	r the second Suit for partition	is
	maintai earlier knowled	nable for the property left out in suit for partition for want of ge? - Yes.	the
3. The r	elevant facts ar	e as under:
(1) The the Appe	Respondents a llant is origina	re heirs of original plaintiff and l defendant No.1.
(2)	Original	Plaintiff filed a Regular Civil Suit	No.408
of 1964 f property.	or partition an The said suit	d possession of the joint family was decreed.
(3)	The	respondent filed present Suit No.351 of 19	76 in
the	court	of the Civil Judge Junior Division	Kolhapur
for	partition	and possession of only one suit land	being

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R.S.No.368/5-A admeasuring 0-22 gunthas i.e. the left

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out property from the earlier suit.

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(4) The ground for filing second suit was that it was a joint family property and the original plaintiff had no knowledge of the same. (5) The trial Court accepted and held that filing of fresh suit does not amount to reopening of the old partition; The second suit is not barred by Order II Rule 2 of the Civil Procedure Code; the principle of resjudicata does not apply. On 29-3-1985 the trial Court granted decree for 1/4th share as prayed for. (6) The Appellant filed Regular Civil Appeal No.187 of 1985. On 29/9/1989 the Appellate Court upheld the Judgment. . Hence the present Second Appeal. 4. The relevant provision of Civil Procedure Code in this regard is Order II Rule 2 which is reproduced as under:

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"2.	Suit	to	include th	e w	hole	claim.-	(1)
Every	suit	shall	include	the	whole	of	the
claim	which	the	plaintiff	is	entitled	to	make
in	respect	of	the cause	of	action;	but	a
plaintiff	may		relinquish	any	portion	of	his
claim in	order to bring the	suit with	in the
jurisdicti	on of any Court.

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(2) Relinquishment of part of claim. - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, excepts with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation. - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action." 5. The principle with regard to this has been

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re-iterated by the Supreme Court in the case of Shiv

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Kumar Sharma vs. Santosh Kumari, (2007) 8 SCC 600, in

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the following words:

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"21. If the respondent intended to claim
damages and/or mesne profit, in view of Order
2 Rule 2 of the Code itself, he could have
done so, but he chose not to do so. For one
reason or the other, he, therefore, had full
knowledge about his right. Having omitted to
make any claim for damages, in our opinion,
the plaintiff cannot be permitted to get the
same indirectly."

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6.	The	le	arned cou	nsel	appearing	for	the A	ppellant,
however,		strongly	relied	on	Moonsh	ee	Buzloor Reheem	vs.
Shumsoo	nnissa	Begum	[1867)	XI	MOORE	IND.	APP.	551,
This	judgment	was	based	upon	the	old	provision of	C.P.C.

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That was not the case of partition.	It	was a	suit		for
restitution of conjugal rights, based		upon		M	ohemedan
Law. In a way, that was a suit	for	specific		p	erformance
founded on a contract of marriage	under	the		M	ohemedan
Law. Section 7 of Act No.VIII of	1859	provides	,		that if
a plaintiff relinquish or omit to sue	for	any	por	ti	on of
his claim, a suit for the portion	so	relinqui	shed		or
omitted shall not afterwards be ente	rtained.		As		per
this judgment itself, first test is	whether	the	cl	ai	m in
a new suit is in fact founded on	a	cause	of		action
distinct from that which was the	fou	ndation	of		the
former suit; and secondly, that	it	included			accidental
error and involuntary omission of the	subje	ct of	th	e	new
suit. The facts and circumstanc	es	are tota	lly		distinct
and distinguishable. In my view,	this	judgment	in		no
way sufficient to reverse the con	current	finding			given
by the Courts below on facts speci	ally i	n view	of		the

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Supreme Court decisions and observation as reproduced above.

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7.	Admittedl	y, the	second suit	was	filed	by the
respondent-p	laintiff	for	partition,		after	knowledge
about	the	excluded	property	fro	m the	earlier
proceedings.		Both the	courts came	to	a clear	conclusion
that	the	property invo	lved in the	seco	nd suit was	not
part	of	the earlier	partition	suit	and, therefore,	it
was	excluded.	The	second suit	was	filed	immediately

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from the date of knowledge about the said exclusion of

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the property. Therefore, the above questions of law as

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framed by consent are answered as under:

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Answer to Question 1:

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8.	As o	bserved	by	the	Sup	reme	Court	and conside	ring the
scheme	of	Order	II	Rule	2	of	C.P.C.,	it is	necessary
that	parties	must		claim	all	rel	iefs as	available	at the
time	of	filing	of	the		suit	and/or	claim.	Any
intentional		omission		bars	the		second	suit and/or	claim.
There	is	no dis	pute	that	a	suit	for	partition of	joint
family	properties	mus	t	includ	e	the	whole	of the	property
jointly	held	by	the	part	ies.		Therefore	fresh suit	for
non-included		pro	perty	/omitted		items	is	not	permissible.
However,	it	is sub	ject	to	exc	eption	when	the omis	sion in
the	previous	sui	t	was	due	to	inadvertenc	e or	through
ignorance	of	the	omi	tted	items	a	nd/or n	o knowledge	about

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the joint property at the time of the filing of first

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suit.

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9.	The	subm	ission	that	once	it is	omitted	whether	with
knowledge		or	inadve	rtence	that	itself	debars	the	second
suit is	unacc	eptable	spe	cially	in	view of	the	scheme	and

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purpose of Order II Rule 2 itself and as observed by the

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Apex Court in the above referred judgments.

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10.	The		word	"omission"	itself		means that		parties	at
the	relevant	tim	e has	knowl	edge	but	still	not		included
that	the	claim	or	property	in	the	first	suit	.	What
happened	in	the	present	Suit	as	reco	rded and		observed	by
both	the	courts	and	rightly	so.		Therefore	se	cond	suit
after	the	knowl	edge	about	the		said	exc	luded	joint
property,	is	not	barred	under	Order	II,	Rule	2.		There

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is no question of resjudicata applies in the present

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matter.

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11.	Apart		from this Sect	ion 339 of		t	he	Hindu Law	states
that	"Where		a portion	of the joint		pr	o	perty has	been
excluded		fr	om partition	by mistake,	a	c	ci	dent of	fraud,
such	portio	n	continues to	be the j	oint			property of	the
family,	and		it must be	divided amon	gst			the persons	who
took	under t	he	partition.	It is not			ne	cessary in such	a
case	to		reopen the	original part	ition	.	".	Therefore,	it
is	not	fo	reign where a	portion of		t	he	joint property	if
excluded	f	ro	m partition	by mistake,			ac	cident or	fraud
such	portio	n	continued to	be the j	oint			property of	the
family	and		it must	be	div	i	de	d amongst	the
persons/c	o-parceners.		It	is not	ne	c	es	sary to r	e-open
the	origina	l	partition as	rightly obse	rved			and done	in
the	present		case. There	is no dis	pute			and as held	by

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the courts below that the property in question is a

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Hindu joint family property.

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Answer to Question No.2. 12. In view of the above circumstances and observation, the second suit is maintainable for partition of left out property. 13. In the result, the second Appeal is dismissed. There shall be no order as to costs.

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[ANOOP V. MOHTA,J.]

Shri Dnyanu Dadu Patil v. Shri Smt. Sakhubai W/O Shripati Patil

Case brief

What is this about?

What did the court decide?

Shri Dnyanu Dadu Patil v. Shri Smt. Sakhubai W/O Shripati Patil

Case brief

What is this about?

What did the court decide?

What the court decided

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