Y R Yashwanth Vs Chikkegowda

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.1.2011 PASSED IN R.A.NO.170/2010 ON THE FILE OF THE III ADDL. DISTRICT JUDGE, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 9.4.2010 PASSED IN O.S.NO.881/2006 ON THE FILE OF THE IV ADDL. SENIOR CIVIL JUDGE & JMFC., MYSORE.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and decree dated 28.01.2011 passed by III Addl. District Judge, Mysuru, in R.A.no.170/2010, this appeal is filed.

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Brief facts as stated are, appellants were plaintiffs in a suit filed for partition and separate possession against defendants. It was stated, defendant no.1 was divided brother of Shive Gowda of Yelawala village. Defendant no.1 was husband of defendant no.2 and defendants no.3 and 4 were their sons; while plaintiffs no.4 and 5 were their married daughters. It was further stated, plaintiffs no.1 and 2 were children of defendant no.3 and plaintiff no.3 was his wife. It was stated, plaintiffs and defendants no.1 to 4 were members of joint family. Extent of 01 Acre 32 guntas out of total extent of 05 Acres 4 guntas in Sy.no.35/1 of Maidanahally village, Yelawala Hobli, Mysuru Taluk, (hereinafter referred to as ' suit property ') was ancestral joint family property standing in

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name of defendant no.1, being eldest in family. Though, defendants no.1 to 4 were not exclusive owners of suit property, they sold 01 Acre 14 guntas ('A' schedule) to

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defendant no.5 under registered sale deed dated 01.09.2003, ignoring rights of plaintiffs no.1 and 2, who were then minors. Plaintiffs no.1, 2, 4 and 5 came to know of alienation only when defendants no.5 attempted to enter suit property. Immediately, they obtained copy of sale deed. As sale in favour of defendant no.5 was without their consent, it was not binding upon plaintiffs and it continued in joint possession. It was stated, when plaintiffs approached defendants no.1 to 4 along with elders to claim their share, same was denied on one or other pretext. Hence suit was filed.

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Defendants no.1 to 4 though appeared, did not file written statement. Defendant no.5 only filed written statement denying plaint averments in toto . It was stated after purchase, khata was mutated in his name and he was in possession of suit property and sought for dismissal of suit.

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Based on pleadings, trial Court framed following

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issues:

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1. Whether the plaintiffs prove that the suit schedule properties are joint family properties of plaintiffs and defendants no.1 to 4 as pleaded?

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2. Whether plaintiffs prove that sale of suit 'A' property dated 01.09.2003 in favour of defendant no.4 is not for legal necessity and not

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for benefit of Joint family of plaintiffs as pleaded?

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3. Whether plaintiffs prove that all the member of Joint family has brought on record?

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4. Whether plaintiff proves that all the properties of Joint family as brought on record?

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5. Whether plaintiffs prove that they are entitled for the relief as claimed?

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6. What Order or Decree?

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In support of her case, plaintiff no.3 examined herself as PW.1 and got marked Exs.P1 to P8. In rebuttal, defendant no.5 examined himself as DW.1 and got marked Ex.D1.

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On consideration, trial Court answered issues no.1 to 5 in affirmative and issue no.6 by decreeing suit. Aggrieved, defendant no.5 filed R.A.no.170/2010 on several grounds. Based on contentions, first appellate Court framed following points:

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1. Whether the plaintiffs have proved that the sale of suit schedule property by defendants no.1 to 4 in favour of defendant no5 was not for the benefit of the joint family?

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2. Whether the plaintiffs' suit for partial partition without including other properties owned by 1^st defendant is maintainable in law?

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3. Whether the plaintiffs are entitled for the decree claimed in the suit?

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4. Whether the judgment and decree of the trial Court needs to be set aside or modified?

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On consideration, first appellate Court answered

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points no.1 to 3 in negative and point no.4 by allowing appeal, setting aside trial Court decree and dismissing suit. Aggrieved, this appeal was by plaintiffs.

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Sri Dilip Kumar, learned counsel for plaintiffs submitted, appeal was against divergent findings in suit for partition and separate possession. It was submitted relationship of parties was not disputed. Even nature of suit properties as joint family property was admitted. Admittedly, alienation by defendants no.1 to 4 was without consent of plaintiffs and trial Court on appreciation of same had rightly decreed suit. Merely on ground of failure to include all joint family properties, first appellate Court erroneously reversed decree and dismissed suit. It failed to appreciate, as on date of suit except suit property, there were no other joint family properties available for partition. It failed to appreciate that land bearing Sy.no.36/1 was alienated earlier to suit property in three portions to three purchasers, which was noted even by first appellate Court. Moreover, defendants no.1 to 4 had not filed written statement or entered witness box to contend about

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failure to include any other joint family properties. Even defendant no.5 had also not taken any such contention.

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9. It was submitted, even other ground that during lifetime of defendant no.3, plaintiffs no.1 and 2 (children) and plaintiff no.3 (wife) could not seek partition in suit property, did not hold good in view of ratio in Vineeta Sharma v. Rakesh Sharma, reported in (2020) 9 SCC 1.

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Thus, there was no proper basis for interference by first appellate Court and sought for allowing appeal by answering following proposed substantial question of law in favour of plaintiffs:

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i) Without specific pleading about non-inclusion of all suit properties, whether first appellate Court was justified in setting aside well considered judgment and decree of trial Court?

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ii) Whether reason assigned for interference by first appellate Court was justified?

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On other hand, Sri Yeshwanth Netaji N.T., Advocate appearing for Sri K.V.Narasimhan, learned counsel for defendant no.5, opposed appeal. It was submitted, no substantial question of law was involved and appeal was without merit. It was submitted, suit property was purchased

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by defendant no.5 as per Ex.D1 on 01.09.2003, since then he

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was in possession and enjoyment of suit property. It was submitted, suit for partial partition of joint family properties would not be maintainable. Trial Court had framed specific issue (issue no.4) about non-inclusion of all joint family properties in suit schedule. In cross-examination, PW.1 admitted about land bearing Sy.no.36/1 also being joint family properties of plaintiffs and defendants. Since non-inclusion of all joint family properties was fatal to suit for partition, first appellate Court had rightly dismissed suit. It was further contended, filing of suit only insofar as property sold in favour of defendant no.5 was collusive, since defendants no.1 to 4 did not contest suit and as such, not bonafide . On above grounds sought for dismissing suit.

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Heard learned counsel, perused impugned judgment and decree passed by both Courts.

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From above, it is seen that appeal is against divergent findings in suit for partition, wherein trial Court decreed suit and granted share to plaintiffs, first appellate Court set-aside trial Court decree and dismissed suit.

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There is no dispute about relationship between parties as well as about nature of suit property as ancestral joint family property of defendant no.1. Admittedly, defendant no.5 is purchaser of portion of joint family property from defendants no.1 to 4, during age of minority of plaintiffs no.1 and 2. Plaintiffs no.1 and 2 are children of defendant no.3 and plaintiff no.3. They are claiming their share in share of defendant no.3 in joint family property. Likewise, during lifetime of defendant no.1, plaintiffs no.4 and 5 had filed suit for partition. First appellate Court has held that plaintiffs could not maintain suit for partition during lifetime of defendants no.3 and 1 respectively. Same would be fully covered by observation of Hon'ble Supreme Court in para 74 of Vineeta Sharma ( supra ).

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At same time, however, plaintiffs assailed alienation on ground that it was not for legal necessity and issue no.2 was specifically framed. But, while passing impugned judgment and decree, reason assigned by trial Court was that defendants no.1 to 4 did not have exclusive right in respect of suit property and therefore alienation was not for legal necessity. Admittedly, defendant no.1 was karta of joint family. Alienation was by

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defendants no.1 to 4. Except, perhaps pleading that alienation was not for legal necessity, there was no evidence presented to establish that defendant no.1 was either given to vices and alienation was to feed his vices. Hon'ble Supreme Court has in case of N.S. Balaji v. Debt Recovery Tribunal, reported in 2023 SCC OnLine SC 1266 upheld power of karta for alienation as part of management of joint family.

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It is further seen trial Court framed a specific issue i.e. issue no.4 - 'Whether plaintiff proves that all the properties of joint family are brought on record ?'. While answering said issue, trial Court specifically observed that PW.1 admitted some other properties being left out in present suit. It also notes her explanation that said properties were also sold by defendants no.1 to 4. Main reason assigned for answering it in affirmative, however, is its assumption that suit for partial partition was valid in eye of law. Admittedly, conclusion was without specific pleading and contrary to material on record.

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In fact, Division Bench of this Court in case of G.M. Mahendra v. G.M. Mohan & Anr., reported in 2010 SCC OnLine Kar. 5291 , held:

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"39. In view of the categorical admission of the plaintiff that the joint family is having other properties and that he had filed a suit in O.S. No. 2/ 83 claiming half share in respect of two estates sold by his father, is it open for the plaintiff to file one more suit for partition without including all the joint family properties and whether such suit will not be hit by provisions of Order-2 Rule-2 of CPC. In this background, it if for us to refer to provisions of Order-2 Rule-2 of CPC which reads as hereunder:

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“ 2. Suit to include the whole 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 within the jurisdiction 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.

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(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 relief's; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

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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.”

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40. From the reading of the above provision, it is clear that plaintiff in a suit for partition is required to include whole of the claim which he is entitled to make in respect of the cause of action. But it is also open for the plaintiff to relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. If the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim later on he cannot sue in respect of the portion so omitted or relinquished and similarly sub-rule (3) of Order-2 also provides for the plaintiff to seek permission of the Court to institute a suit in respect of any one of the cause of action at a future date. In the present case, plaintiff has filed the suit in O.S. No. 2/83 for partition

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and separate possession, on the ground that under the partition deed dated 1.11.1968 he had become absolute owner of half of the portion of the property allotted to him. When he contends that he has become the absolute owner of 50% of the joint family property, and if he has filed a suit for partition he has to file a suit for partition in respect of all the properties wherever they are situated. For the reasons best known to the plaintiff in O.S. No. 2/83, he did no include the present suit property. Similarly he also did not include other joint family properties. Similarly, he also did not crave leave the Court to institute a suit in respect of the property not included in the said suit to treat the said suit as a suit for partial partition only. There is no proper explanation by the plaintiff in this regard. When he has omitted to include plaint schedule property as the cause of action in the present suit was also there as on the date of institution of the suit in view of the law laid down by is Court in Sri Tukaram v. Sri Sambhaji, ILR 1998 KAR 681 which is as hereunder:

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“19. It has been contended by the learned Counsel for the appellants that the finding of the I Appellate Court to the effect that the suit by one of the co-parceners for partition with respect to one of the items of the Joint Hindu Family property is maintainable in the special circumstances is not proper. During the course of the order, the appellate Court has observed that Sec. 261 of Mulla Hindu Law 15th Edn. At pages 351 and 352 makes it clear that non-alienating co-parceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for a general partition. In the present case on hand all the non-alienating coparceners have not filed the suit. The mare fact, that the other non-alienating co-parceners viz., Defendants 7 to 9 did not join the plaintiff in filing the suit is not material. The right of non-alienating co-parcener in Bombay area does depend upon the whims and fancies of remaining non-alienating co-parceners who for reasons best known to them, may not join the plaintiff in filing the suit. Patna and Andhra Pradesh High Courts held that one or

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the several non-alienating co-parceners cannot sue the purchaser for his own share of the alienated property. It has been observed by the I Appellate Court the law applicable in Bombay area does not prohibit the suit by one of the several non-alienating coparceners. The I Appellate Court considered the ruling in AIR 1983 SC 124 wherein it has been held that a purchaser can be imp leaded even when decrees for partition of agricultural lands is pending before the collector for effecting partition. But it is not the case in the present it. In ILR 1989 KAR 1895 it is held that a partition suit should comprise of all the available properties, as far as possible. That decision has been distinguished by the I Appellate Court as that was not a case of non-alienating co-parcener filing a suit for partition of alienated property. The view that has been taken by the I Appellate Court cannot be stated to be a correct one in the circumstances of the case. It is to be seen that the plaintiff, defendant No. 1 and defendants 7 to 15 are the members of the Joint Hindu Family. There is no partition by metes and bounds of the family properties. The present suit is filed in respect of the suit land only. There are other lands in other villages and also other house properties which have not been included in the suit which are admittedly the joint family properties. It has been observed in Mulla Hindu Law -13th Edn. Regarding the rights of purchaser of co-parceners interest. It has been stated that the non-alienating coparceners are entitled in Bombay, madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for general partition. It is to be noted that in AIR 1984 AP 84 it has been held that normally a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co-sharers should be impleaded. The suit of partition of specified items can only he an exception. In the present case on hand, the 1^st defendant has alienated the suit

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land in favour of defendants 2 to 6. The 1^st defendant is the member of the Joint Hindu Family. As already stated that the family has got other several lands and house properties which are the joint family properties. It has been contended by the learned Counsel for the alienees while allotting the share to defendant-1 in the family properties equitable rights of purchasers on partition has to be considered and those rights can be considered only when all the joint family properties are included in the suit for partition. Otherwise, it would be difficult to apply principles of equitable partition The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotchpot, the suit for partition of the share of the members of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld. The reason being, the present suit has been filed by one of the non-alienating coparceners of the joint family property. The suit has been filed by the nonalienation co-parcener with respect to the only property which has been alienated. This is not a suit for general partition. The contention of the alienees is to the effect that if the share of the plaintiff to be worked out if all the joint family properties had been included in the schedule then, at a partition, the share of the dist defendant would have been worked out in order to give equitable relief to the alienates also as they have purchased the property by the 1st defendant. In that view of the matter, the present suit filed by the plaintiff without including all the joint family properties and which prejudices the rights of the alienees who have also been imp leaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in law. The finding given by

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the Trial Court with respect to the sixth issue has to be maintained and the finding given by the I Appellate Court that the suit is maintainable without including all the joint family properties cannot be held to be proper in the circumstances of the case. Hence, the finding of the I Appellate Court holding that the suit of the plaintiff for partial partition is maintainable should be set aside and the finding of the Trial Court with respect to the sixth issue that the suit is bad for non-joinder of necessary properties to be included in the suit has to be upheld.”

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41. Taking into consideration this citation, the Court has to hold that the suit filed by the plaintiff was not maintainable as the suit for partial partition cannot be maintained without seeking leave of the Court as contemplated under the provisions of Order 2, Rule 2 of CPC. Therefore, we are of the view that suit of the plaintiff was also not maintainable on this ground."

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Even Hon'ble Supreme Court in case of

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Kenchegowda v. Siddegowda reported in (1994) 4 SCC 294 , held:

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"16. Therefore, what has been held is that the property had not been allotted in favour of the first defendant in the partition. That is very different from holding that the case of partition had not been accepted by the first appellate court. This being so, a decree for partition could not have been passed on a mere application for amendment. In fact, as rightly urged by the learned counsel for the appellant that the

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causes of action are different and the reliefs are also different. To hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other cosharers was not warranted in law. Thus, we find no difficulty in allowing these appeals which are accordingly allowed. The judgment and decree of the trial court as affirmed by the first appellate court are restored. However, there shall be no order as to costs." (emphasis supplied)

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Though, first appellate Court upset judgment and decree passed by trial Court solely on this ground, no effort is made by plaintiffs to include other joint family properties. Explanation, though strenuous and vehement by learned counsel for plaintiffs that said properties were already sold and not in existence would not suffice, as even present suit property has suffered alienation and suit was filed after such sale.

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For aforesaid reasons, though, reason assigned by first appellate Court about right of plaintiffs to seek partition during lifetime of defendant no.3 and 1 respectively would not sustain, judgment and decree by first appellate Court would not

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call for interference on ground that plaintiffs had failed to include all joint family properties in a suit for partition, which would be fatal to their suit. Hence, no substantial question of law arises for consideration.

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21. Appeal is dismissed .

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Pending applications, if any, are disposed of accordingly.

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Sd/(RAVI V HOSMANI) JUDGE

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PSG List No.: 1 Sl No.: 26

Y R Yashwanth v. Chikkegowda

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Y R Yashwanth v. Chikkegowda

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