Madras High Court
Gandhi vs Saminatha Gounder And Anr. on 6 January, 2006
Equivalent citations: AIR2006MAD155, AIR 2006 MADRAS 155, 2006 (4) ALL LJ NOC 709, 2006 A I H C (NOC) 220 (MAD), (2006) 2 MARRILJ 178, (2006) 1 CURCC 393, (2006) 39 ALLINDCAS 712 (MAD), (2006) 1 CTC 267 (MAD)
Author: P. Jyothimani
Bench: P. Jyothimani
ORDER P. Jyothimani, J.
1. The first defendant in the suit has filed the present second appeal. The first respondent herein, as the plaintiff, has filed the 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 be have been included as schedule property, especially when the plaintiff was aware that it formed part of the joint family property. According to him, the non-inclusion of the "Kasu Malai" is fatal to the suit for partition.
4. Mr. V. Raghavachari, learned counsel for the appellant placed reliance on the judgment of the Supreme Court rendered in Kenchegowda (since deceased) by Legal Representatives v. Sri Slddegowda @ Motegowda . In this case, the Supreme Court has laid down the law holding that in a suit for partition when all the joint family properties are not made subject matter of the suit, such suit is not maintainable. The legal position in that regard is well settled, even though the learned counsel for the first respondent would contend that even the existence of the jewel is not known and therefore, the non-inclusion is not deliberate and in any event, it would not affect the relief of partition claimed.
5. I do not agree with the said contention. As stated above, when the plaintiff as a witness has admitted the existence of such valuable jewel as belonging to the joint family, it was the duty on his part to include that as a schedule property. The non-inclusion thereof is certainly fatal to the relief of partition. In my view, absolutely no question of law, nevertheless a substantial question of law, is involved in the matter and the judgment of the first Appellate Court in coming to a conclusion as if it is not proved that the plaintiff has taken a "Kasu Malai" from the first defendant and therefore, non-inclusion of "Kasu Malai" in the schedule will not affect the relief claimed in the suit is not sustainable. What is important is whether such a property should be included for partition when once it has come to the knowledge of the parties that the said property is available and it is not material as to whether the same is in possession of the plaintiff or the defendant. Therefore, the judgment and decree of the first Appellate Court is liable to be set aside and the decree and judgment of the Trail Court is confirmed. Consequently, the second appeal is dismissed as absolutely no question of law involved in this matter. No costs.