GOPALAN Vs. VASU

JUDGEMENT

(1.) Plaintiff in a suit for partition is the appellant. Defendant is his brother. They are sons of the same father and mother. They are also the only heirs of their mother. The property sought to be partitioned is the only asset that belonged to the mother, who died. Defendant raised various contentions including adverse possession, leasehold right and partial partition. The plea of partial partition was heard as a preliminary issue and it was found that the suit is not bad for partial partition. Thereafter, the defendant amended the written statement and contended that the plaintiff has not included those properties which devolved on the mother as heir of her deceased husband namely the father of the plaintiff and defendant. The Munsiff negatived all the contentions including the plea that the suit is bad for partial partition. The suit was decreed. But in appeal the Subordinate Judge, Palghat accepted the plea of partial partition and dismissed the suit. Hence the plaintiff came up in second appeal.

(2.) Even in the amended written statement it is not specified what are the items of properties left out. There was only a vague statement that the properties inherited by the mother from her deceased husband were not included in the suit for partition and hence the suit is bad for partial partition. The mother admittedly died after commencement of the Hindu Succession Act, 1956. Plaintiff bad a case that the mother bad no right over the properties of the father which were already orally partitioned between the heirs. There was another contention for the plaintiff that even before his death the father divorced the mother and married another lady by name Kali in whom he had children. On account of the divorce also the mother was contended to be not entitled to the assets of the father. Ext. B2 is the partition deed between the plaintiff, defendant, Kali and her children. This document was relied on by the plaintiff in proof of the acceptance of the right on Kali and her children by defendant. Another contention of the plaintiff was that under the provisions of the Hindu Women's Rights to Property Act, 1937, a widow is not entitled to inherit the properties of the husband if they are agricultural lands. It is said that the Act was extended to agricultural lands only on 26-11-1946. Since the father died before that date, the right of the mother was disputed on this ground also, stating that the properties of the father are agricultural lands. There is yet another contention that even if the mother had any right in the properties of the father there is no unity of interest on account of the fact that the second wife and children of the father are also entitled to the properties whereas the plaintiff and defendant alone are the persons entitled to inherit the properties of the mother. It is also stated by the plaintiff that the plea of partial partition cannot be availed of in cases where the parties to the suit for partition are tenants-in-common. The fact that the mother had no other property of her own except by inheritance from the father is admitted even by the defendant.

(3.) The mother admittedly died after the Hindu Succession Act came into force. Therefore inheritance is only under that Act. S.19(b) of the Hindu Succession Act says that if two or more heirs succeed to the property of an intestate, they shall take the property as tenants-in-common and not as joint tenants. The suit was filed in 1977 long after the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force. S.4(1) of the Act provides that as on the date on which the Act comes into force the parties shall be deemed to hold the properties as tenants-in-common as if a partition had taken place among all the members of the undivided family. Under that notion each of the member will be considered as holding his or her share separately as full owner. That means as on the date on which the Act came into force the members will be tenants-in-common. I have mentioned these aspects only to show that the property now scheduled in the plaint as well as the properties, if any, to be included in order to avoid the plea of partial partition, are all coowner-ship properties which could be taken only at tenancy-in-common. Each of the coowner will be entitled to definite shares. Regarding such properties the plea of partial partition may not be available.