KANDUM VENKATASWAMY Vs. BALIGADU; BOYA CHINNA RAMIGADU; DUDGALA SUBBANNA; GURRALA RAMMAYYA; THIKKALINGADU; ANKADU

JUDGEMENT

(1.) I had the great advantage of a perusal of the judgment just now pronounced by my learned brother before I began to write the following opinion. The material question for decision in these connected cases is whether in the moneys claimable under the mortgage documents sued on, the plaintiff s divided son possesses any interest notwithstanding the decree in the partition suit, Original Suit No. 7 of 1901 on the tile of the District Court of Kurnool, brought by the plaintiff s son against the plaintiff. The decree, Exhibit B, in that suit, Original Suit No. 7 of 1901, contains the schedule of properties, the partition of which was prayed for in that suit. Item 35 of that schedule B is "Decrees, accounts, documents, vagaira" and Rs. 1,000 is given as the value of these incorporeal personalties. Vagaira means "things of a similar character to those mentioned just previously." It is quite clear from the judgment, Exhibit A, and the decree, Exhibit B, that the suit brought by the plaintiff s son was a suit for partition of all the properties then belonging jointly to himself and to his father (the plaintiff) and it was never intended to reserve any property for future partition. The 1st issue in the judgment, Exhibit A, is "what is the net value of the defendant s property?" and the judgment decided that the value of the half share in B schedule property was Rs. 1,210 and gave a decree for that sum against the plaintiff in favour of plaintiff s son. The lower Appellate Court does not deny (see paragraph 3 of its judgment) that item 35 of schedule B in the decree in the suit of 1901 did include all the bond debts due to the plaintiff and plaintiff s son. But as I understand the judgments of the lower Courts, they held that because the plaintiff in that suit (that is, the present plaintiff s son through his next friend) and the defendant in that suit (that is, the present plaintiff) both treated the bonds as worthless, the value of the plaintiff s son s half share of the family moveables was claimed in that plaint and awarded by the decree excluding the amounts of the present bond debts. The plaint bond-debts were not partitioned and remained the joint or common property of the plaintiff and his son. The plaintiff says in his evidence that he has paid up the amount due to his son under the decree. I am unable to accept the view of the lower Courts on this point. Plaintiff s son s next friend did not claim any money for his share of the amounts which may be recovered under these bonds, because he believed that nothing could be recovered on these bonds. He treated them as of no value and consented to the Court allowing nothing to him specifically for half the value of these bonds. The Court (see Exhibit A) was not, in fact, asked to give more than Rs. 1,210 (including Rs. 1,000 of which for the decrees, accounts, documents, and bond debts), and the Court did award that sum. As said in Mayne, paragraph 493: "Every suit for partition should embrace all the joint family property" if all the property lies within the same jurisdiction, "unless some portion of it is at the time incapable of partition, as for instance from being in the, possession of a mortgagee or is from its nature impartible, or is held jointly with strangers to the family, who have no interest in the family partition and therefore cannot be made parties to the joint family suit for partition." Where there has been a partition at all, the presumption is that it was a complete one, and that it embraced the whole family property." It follows that after such a partition, none of the parties to it holds any of the properties (till then held jointly) along with any other party, unless the partition agreement or the partition award or decree itself provides for such joint holding or unless there has been accident, mistake or fraud in the non-inclusion of some of the property at the division. The usual concluding portion of a partition-deed is "hereafter there shall be only connection by blood between us but no connection as co-sharers in any of the properties till now belonging to us in common." If property is afterwards found in the exclusive possession of one member of the family and it is alleged that such property is still undivided and divisible, the proof of such an allegation rests upon the party making it. [Narayan Babaji v. Nana Manohar 7 B.H.C.R.A.C.J. 153.] Except on the ground of accident, mistake or fraud, therefore, there cannot be a second partition, "it cannot be successfully disputed" unless in exceptional cases "that at the time of" "a partition" "all the assets are determined and divided." "All accounts should be presumed to have been taken with a view to ascertain the properties" to be divided, and the cash to be paid to the plaintiff s son in full satisfaction of his claim in respect of his half share must be taken to have been arrived at after such a complete account. In Appeal Suit No. 47 of 1913 very recently decided by the First Bench, Seshagiri Aiyar, J., says: "Mr. Mitra in his Tagore Lectures, dealing with this special question, quotes from the Smrithis and commentaries to show that partial partition was unknown to Hindu Law." "As regards decided cases Sir Richard Garth in Radha Churn Dass v. Kripa Sindhu Dass 5 C. 474, 4 C.L.R. 428 says: it seems indeed very doubtful whether by the Hindu Law any partial partition of the family property can take place except by arrangement. In Vaidyanath Aiyar v. Aiyasamy Aiyar 1 Ind. Cas. 408; 3 2 M. 191; 19 M.L.J. 94; 5 M.L.T. 49, it was clearly laid down that when once a partition was made, the presumption is that it effected a complete severance of interest." I am clear that a co- parcener who wishes to get a partition of family properties has only a single cause of action in respect of all the joint properties and hence it is that a suit for partial partition has been consistently held not to lie.

(2.) Order II, Rules 1 and 2, of the new Civil Procedure Code, corresponding to Sections 42 and 43 of the old Civil Procedure Code are as follows: 1. Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them." 2. (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. (2) 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. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; 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.

(3.) Section 11 of the Civil Procedure Code (corresponding to old Section 13) in explanations 4 and 5 says on the question of res judicata: