NARASIMHAIAH Vs. CHIKKATHIMMAIAH

JUDGEMENT

(1.) The facts of this case are not in dispute. The defendant is the son of one Dodda Thimmian who was a member of Hindu Joint family with him and who is now dead. During his lifetime, he had sold to the plaintiff a small piece of land measuring about an acre described in the A schedule to the plaint (which will be referred to hereafter as the suit land) and had put him in possession. After his death the defendant and another younger brother of his, who is also now dead, tried to disturb the plaintiff's possession and he therefore brought a suit in O.S. No. 3 of 42-43 on the file of the Munsif, Tumkur, against them for a permanent injunction. It was held in that suit that the plaintiff was entitled to retain possession of the suit land and that Dodda Thimmiah's sons might get their shares divided arid separated by a suit of their own for partition if the alienation by their father was found not binding on them. Accordingly they filed a suit O.S. No. 208/44-45 against the plaintiff for partition and possession of their 2/3rds share. At that time, an appeal by the sons of Dodda Thimmiah against the decision in O.S. No. 3/42-43 was pending before the Subordinate Judge. The present plaintiff had pleaded in that suit that the alienation in his favour was fully binding on the sons of Dodda Thimmiah and that their suit must be dismissed. But later on, after the disposal of that regular appeal and a second appeal therefrom, he made an application in O.S. No. 203/44-45 for permission to amend his written statement and to ask that there should be a general partition of the family properties which belonged to Dodda Thimmiah and his sons, that the suit land may be allotted to the share of the deceased Dodda Thimmiah and that he the plaintiff may be con-finned in its possession. That application was not allowed on the ground that the suit O.S. No. 208 of 44-45 was filed for partition of only the suit land and not for a general partition, a suit which the sons of Dodda Thimmiah were then en-titled to bring. A decree was ultimately passed in that suit declaring that Dodda Thimmiah's sons were entitled to 2/3rds share of the property and for its partition. The plaintiff has therefore brought the present suit for a general partition of all the family properties of the plaintiff and Dodda Thimmiah. He had described in the B schedule all those other family properties and has prayed that he might be confirmed in his possession of the suit land after allotting it to the share of his vendor or that he may be granted an area equal in extent and value in all the family properties. The Munsiff granted a decree in his favour and allotted the suit land to the plaintiff. His decision was reversed on appeal by the Subordinate Judge of Tumkur and the plaintiff has come up in second appeal.

(2.) The learned Subordinate Judge was of the view that the plaintiff's present suit was barred by 'res judicata'. For the appellant, it is contended that he was not bound, in O.S. No. 208/44-45, to have asked for a general partition, that he could not do so as an appeal was pending against the decision in O. S. No. 3/42-43 where he was claiming that the sale in his favour was binding on the entire suit land including the shares of Dodda Thimmiah's sons therein that that suit was by the present defendant and his brother for a limited relief, viz., for a partial partition, and that it was not incumbent on the plaintiff to seek ior a general partition in that suit alone. Mr. Krishnamurthi, the learned Counsel for the Appellant, has relied on a case reported in -' Kandaswami Udayan v. Velayudha Udayan', AIR 1926 Mad 774 (A) where, dissenting from -' Sowrimuthu v. Pachia Pillai', AIR 1926 Mad 241 (B), it has been held that in a suit instituted by a coparcener of a joint Hindu family to set aside the sale of an ancestral immoveable property by his father or manager on the ground that the sale was not for family necessity and to recover possession of the property from the purchaser, the latter is not entitled to insist on the plaintiff submitting to a partition either of the item sold or of the entire family property. Though it is open to a Court where all the facts and all the persons interested are before it and where the suit is practically one for general partition, to allow a purchaser to retain the property sold to him it was neither expedient nor reasonable that the purchaser should be able to insist that such a suit should be converted into one for general partition as it would involve the presence of other parties and an enquiry into debts and liabilities of the family. It was also held in that case that a decree obtained by a member of a joint Hindu family against an alienee for his share of the property on the ground that the alienation is not binding on him does not bar a subsequent suit by the alienee for a general partition and asking therein for allotment of the alienated property to the share of the alienating coparcener. Their Lordships further pointed out that the proper course in such cases, where one of the coparceners has brought a suit for partial partition, is for the alienee to bring a separate suit of his own for general partition so that the suit for partition may be tried along with the suit for setting aside the alienation. If the alienation was found not binding on the impeaching coparcener's share but only on the alienor's share, the Court would be in a position to consider in the suit for general partition whether the property alienated should be allotted to the alienor's share or not. This Madras case does not appear to have been cited before the learned Subordinate Judge and he has proceeded merely on general principles as to what the plaintiff might or ought to have made the ground of defence or attack in the former suit.

(3.) I think, with great respect to the learned Judges who have decided -- 'AIR 1926 Mad 774 (A)', it lays down the correct principles which might be followed in such cases. As has been rightly pointed out by them, if a member of a joint Hindu family is allowed to bring a suit for partition against an alienee objecting to the alienation of a particular item and thereby his right to bring a suit for partition against the other members of the family is not affected and the principle of 'res judicata' would not avail against the alienating coparcener, it is difficult to hold that a suit by an alienee, who stands only in the shoes of the alienating coparcener for partition, would be so barred. I think also that to thereby force a coparcener convert a suit for partial partition which he is entitled to bring under such circumstances into a suit for general partition is neither reasonable nor required by law. Moreover, it would be going counter to decisions of this Court and in the other High Courts in which it has been held that a coparcener or his alienee in such a case cannot be compelled to sue for general partition, see Mayne's Hindu Law, 11th Edn., para. 383, pp. 489-490. The learned Subordinate Judge thought it unnecessary to consider any other aspect of the case in the light of his conclusion that the plaintiff's suit was barred by 'res judicata' though he also thought that no question of allotting a share to the alienor arose in this suit as the alienor was dead.