PARAMESWARA MENON Vs. SACHIDANANDA MENON

JUDGEMENT

(1.) THAT a partition suit is bad for partial partition is like a slogan, more true in part than a wholly correct statement of the law.

(2.) THIS Civil Revision Petition springs from an order directing the plaintiff to amend the plaint by including some items of properties mentioned in written statement of the 1st defendant, entailing the dismissal of the suit if there is failure to carry out the direction, on the score of partial partition. The plaintiff brought a suit for partition of three items of properties in which he and defendants 1 and 2 were interested, The parties were members of a larger tarwad which divided itself by Ext. P1 partition died into several 'sakhas, the parties to the present suit constituting the 8th 'sakha'. The case of the plaintiff is that item 1, in which the tarwad house is situated and which is included in C schedule to Ext. P1, has been directed to be enjoyed in a special manner in the family partition. Item 2, which is included in the K schedule to Ext. P1, had been allotted to a member of the tarwad, by name Krishna Menon, to be enjoyed for life by him with a vested remainder in the 8th sakha consisting of the parties to the present suit. Item 3 also has special features. What was emphasised was that these three items, included in the A schedule to the plaint, were not being enjoyed on a common basis with any other items as a tavazhi and, at a certain stage, counsel for the revision petitioner went to the extent of stating that the parties to the suit were not holding the suit properties as joint family property but only as co-owners, a position repudiated by the respondent. The 1st defendant, in his written statement, raised, inter alia, the platitudinous contention that the suit was bad for partial partition. He gave a list of properties in his written statement, which are J schedule properties in Ext. P1, and claimed that they were also joint family property of the 8th sakha available for division, without whose inclusion in the plaint the suit was liable to be dismissed. The learned Subordinate Judge raised issues 14 and 15, the former of which covered the question of the portability, as tavazhi asset, of the items included in the written statement and the latter related to the maintainability of the suit in view of the plea of partial partition. On both these issues, the court upheld the contention of the defendants and directed the plaintiff to seek partition of the J schedule item in Ext. P1 partition deed, by amending the plaint. THIS order is attacked before me by the plaintiff on various grounds.

(3.) COUNSEL on both sides have exhaustively surveyed the precedents on the point and, in my view, the latest decision of the Supreme court in C. A. No. 1112 of 1965 (decided on 28-8-1969; authoritatively declares the law on the subject. But it must be said, in fairness to the earlier authorities, that almost all of them have stated the proposition as subject to exceptions and have not exalted them into any inflexible proposition of law. Indeed, the ruling often relied upon in support of the rule is the one reported in AIR. 1923 Calcutta 501. Speaking for the court, Mr. Justice Mukherjea discussed the question elaborately although the case before the court was itself one of co-ownership and not of co-parcernership. The learned judge observed: "the established rule may accordingly be taken to be that a suit for partition should include all the lands of the co-tenancy, and if it does not, any party interested may insist that the omitted land or lands be included in the suit Exceptions to the rule that a suit cannot lie for partition of a portion of the family property have been recognised when different portions of the family property are situated in different jurisdictions, and separate suits for separate portions have sometimes been allowed, where different rules of substantive or or adjective law prevail in the different courts. " The learned judge summed up his detailed discussion in the following words: "the rule that a partition suit should embrace all the joint property is neither arbitrary nor technical; it is founded on sound and weighty reasons. If the rule were not recognised and firmly applied, multiplicity of litigation would be the inevitable result, If suits for partition were allowed to be instituted in fragments, the jurisdiction of the trial Court and the forum of appeal might be altered; it might be of paramount importance to a parly litigant whether he should have a first appeal or a second appeal to the High Court, and whether he should at all be permitted to seek the judgment of the Judicial Committee with regard to the matters in controversy. The rule further ensures a just partition; parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts. It need not be disputed that there may be very special cases where the application of the rule may be justly relaxed. " In A. I. R. 1954 Raj. 269, Wanchoo C. J. , speaking for the court, discussed all the authorities on the subject: "the general rule of Hindu Law is that where a suit for partition is brought by a coparcener against the other coparceners it should embrace the whole family property. Thisrule is subject to certain exceptions, e. g. , where a portion of the property is not available for actual partition, or where it is held jointly by the family with a stranger, or where part of the joint property consists of land situated outside the jurisdiction of the court in which the suit for partition is brought. This principle however, has not been applied with full force to the case of partition between co-tenants. " The learned judge explained the rationale of the rule in regard to joint family partitions and its inapplicability to cases of co-tenancy thus: "the reason why in the case of partition between coparceners all the property must be thrown in the hotchpot except for certain well recognised exceptions is that where a member of a joint Hindu family, who broke up the joint status, wants the joint family property to be divided, the cause of action arises at one time, and he must therefore include every item of property in the suit. But in the case of tenants-in-common it is not necessary that the cause of action for partition of every item of the property which is held in common must arise at the same time. Therefore, it may be possible in cases of co-tenants that a suit may lie for one item of property at one time and for another item at another time". The Division Bench judgment summed up thus: "it is clear, therefore, that in the case of tenants-in-common it is not essential that all the property held in common should be brought into hotchpot though it is desirable that as far as possible, in order to avoid multiplicity of suits, all the property should be included in one suit. It is, however, for the Court in each case to decide whether the case is of such a nature that the plaintiff should be ordered to include the remaining property also in the suit for division, provided of course the property is within the jurisdiction of the court in case it is immovable property. But the suit, in our opinion, cannot be thrown out on the mere ground that all the property which is capable of partition was not included. " Again, in AIR. 1963 Patna 375, a Bench of that court also dealt with the question at some length. Their Lordships had no hesitation to hold that the ordinary rule that a suit for partial partition is not maintainable does not apply to the case of co-owners who hold land as tenants-in-common as distinguished from co-sharers holding land as joint tenants. Even in the case of joint family partition, their Lordships were at pains to explain that it was merely a rule of processual law, calculated to provide against multiplicity of proceedings and inconvenience in working out equities rather than a rigid limitation on the substantive right to partition: "from the foregoing discussions, it appears to be well-settled that (1) the rule that the suit for partition must cover the entire property held jointly by the parties is merely a rule of equity and convenience. (2) a suit for partition must embrace only the property in which the parties have community of interest and unity of possession; (3) there is substantially no difference in respect of the subject-matter of a suit for partition amongst Muslim co-owners or Hindu co-owners where they hold property as tenants-in-common; and (4) a suit for partition of even one item of such property is maintainable, provided that the partition can b3 effected without much inconvenience to the other co-owners. In other words, in the case of tenants-incommon, whether such tenants are Mohammedans or Hindus, one of them is not obliged to sue for the partition of all the items of the property in which they are interested, inasmuch as each of them is entitled to bis definite share in every item of the property, unless the partition sought for results inconvenience to the other tenants-in-common. " In this background, such doubts as may survive on the maintainability of an action for partition of a joint family which doss not take in all the items belonging to it are dissipated by the recent decision of the Supreme Court adverted to by me earlier. The court observed (I quote the whole paragraph dealing with this subject in the judgment): "in this Court Shri Har Dev Singh, counsel for the appellants, questioned the correctness of this view. He submitted that the non-inclusion of the gifted land situated in village Bangra in the properties sought to be partitioned was fatal to the competence of the partition suit and the High Court was in error in sustaining its competence. We are unable to accept this submission. The rule requiring inclusion of the entire joint estate is a suit for partition is not a rigid and inelastic rule which can admit of no exception. This rule aims at preventing multiplicity of legal proceedings which must result if separate suits were to be instituted in respect of fragments of joint estates. Normally, speaking, it is more convenient to institute one suit for partition of all the joint properties and implead all the interested co-sharers so that all questions relating to the share of the various co-owners and the equitable distribution and adjustment of accounts can be finally determined. But this being a rule dictated by considerations of practical convenience and equity may justifiably be ignored when, in a given case, there are cogent grounds for departing from it. When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by some of them that it belongs to an outsider, then a suit for partition of joint property excluding such item does not become legally incompetent because of any rule against partial partition. In the present case, before the gifted Bangra land can legitimately b e considered to be joint property available for partition, the gift has to be got rid of by appropriate proceedings to which the donee would be a necessary party. That controversy may also involve other disputes which may have little to do with the pleas affecting the merits in a partition suit. The gift, it is admitted, was made in 1949 and remained unchallenged ever since. The present suit for partition was instituted in 1951. Consideration of convenience and the larger interest of justice, on the facts and circumstances of this case, seem to justify the exclusion of the Bangra land from the present suit for partition. In any event, there is no insurpasable legal impediment is the competence of the suit as instituted and its trial. "