GANDHI Vs. SAMINATHA GOUNDER

JUDGEMENT

(1.) THE first defendant in the suit has filed the present second appeal. The first respondent herein, as the plaintiff, has filed suit for partition and possession. The first defendant/appellant herein has defended the suit on various grounds, including ouster in respect of right of using a well. The first defendant has also filed his additional written statement to the effect that the suit is bad for partial partition for the reason that when the plaintiff in his evidence has admitted that the jewel called "kasu Malai" being 15 sovereigns was available, which was the subject matter of a panchayat, the non-inclusion of such a valuable jewel belonging to the family will be fatal to the suit for partition. The Trial Court, having held that in the third item of the suit property, namely the well, the plaintiff has a right of partition since he is deemed to have been in constructive possession thereof, came to the conclusion that the plaintiff is not entitled to the relief sought for on the basis that he failed to include 15 sovereigns of "kasu Malai" in the schedule of properties and dismissed the suit. However, the first appellate Court has reversed the said judgment on the ground that there is a dispute regarding the existence of 15 sovereigns of "kasu Malai" and therefore, its non-inclusion will not affect the right of plaintiff for seeking the relief of partition. It is against the said judgment of the first Appellate Court that the first defendant has filed the present second appeal.

(2.) THE substantial question of law raised at the time of admission before this Court is whether the non-inclusion of the "kasu Malai" jewel is fatal to the suit for partition on the basis of partial partition.

(3.) THE learned counsel appearing for the appellant would contend that the Trial Court has found in the narration of evidence of the plaintiff during the trial, in which the plaintiff has specifically stated that the 15 sovereigns of "kasu Malai" was taken from his father by pangali which was kept in common pool by his mother and the first defendant. Therefore, according to the learned counsel for the appellant, the evidence of PW-1 itself is clear that the valuable jewel, namely "kasu Malai", belonging to the joint family, whether it was in possession of the plaintiff or the defendant, ought to have been included as schedule property, especially when the plaintiff was aware that it formed part of the joint property. According to him, the non-inclusion of the "kasu malai" is fatal to the suit for partition.