Patna High Court
Sheopujan Sah & Ors vs Banshi Sah & Ors on 17 June, 2013
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court SA No.157 of 1991 dt.17-06-2013
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.157 of 1991
(Against the judgment and decree dated 08.03.1991 passed by the
learned 2nd Additional District Judge, Saran at Chapra in Title
Appeal No.73 of 1986 dismissing the appeal and thereby confirming
the judgment and decree of the trial court dated 31.07.1986 passed
by learned 2nd Subordinate Judge, Saran at Chapra in Partition
Suit No.61 of 1979).
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Bengali Sah & Ors.
.... .... Defendants-Appellants-Appellants
Versus
Terash Sah & Ors.
.... .... Plaintiffs-Respondents-Respondents
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Appearance :
For the Appellant/s : Mr. DEVENDRA KR.SINGH
Mr. Ravindra Kumar Singh, Advocates.
For the Respondent/s : None
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
ORAL JUDGMENT
Date: 17 -06-2013
Mungeshwar 1. The defendants have filed this Second Appeal
Sahoo, J.
against the judgment and decree dated 08.03.1991 passed by the learned 2nd Additional District Judge, Saran at Chapra in Title Appeal No.73 of 1986 dismissing the appeal and thereby confirming the judgment and decree of the trial court dated 31.07.1986 passed by learned 2nd Subordinate Judge, Saran at Chapra in Partition Suit No.61 of 1979.
2. The plaintiff-respondent filed the aforesaid suit for partition claiming 1/3rd share in the suit property alleging that the suit property is the joint family property of the parties. For the purpose of deciding this Second Appeal, the other facts are not necessary to be Patna High Court SA No.157 of 1991 dt.17-06-2013 2 detailed because admittedly, the parties belonged to the same family.
3. The defendants filed a contesting written statement alleging that the plaintiff is not in possession of the property and that the defendants have acquired title by adverse possession. It may be mentioned here that no point was raised in the written statement that the plaintiff's suit is bad for partial partition.
4. The trial court decreed the plaintiff-respondent's suit to the extent of 1/3rd share disbelieving the defendant-appellant's case. On appeal, the appellate court dismissed the appeal recording the finding that the plaintiff has got 1/3rd share. It appears that in the appellate court, argument was advanced by the defendant-appellant therein to the effect that the ancestral house property has not been included in the suit, therefore, the partition suit is bad and not maintainable. The appellate court dealt this question at paragraph 20 of the judgment and held that the suit for partition is not bad for partial partition.
5. On 02.12.1991, at the time of admission, the following substantial question of law was formulated:
"Whether the suit was bad for partial partition on account of non-inclusion of the ancestral house?"
6. At the time of hearing of this Second Appeal, the learned counsel appearing on behalf of the appellants pressed only Patna High Court SA No.157 of 1991 dt.17-06-2013 3 this substantial question of law formulated at the time of admission. The learned counsel submitted that it is settled principles of law that a coparcener should file suit for partition including all the joint family property and if all the properties are not included, the partition suit is liable to be dismissed on that score alone.
7. As stated above, nobody appeared on behalf of the respondents.
8. So far the substantial question of law formulated at the time of admission is concerned, it may be mentioned here that there is no factual foundation pleaded by the parties. It appears that at the time of argument before the lower appellate court, only this question was raised. Therefore, the question is whether in fact, there is any ancestral joint family house or not. This is pure question of fact. No issue has been framed on this question nor any party has adduced any evidence on this question.
9. Paragraph 328 of the Hindu Law by Mullah, 16th edition = Paragraph 327 of the Hindu Law by Mullah, 20th edition, provides that partition between coparceners may be partial either in respect of the property or in respect of the persons making it.
10. In the case of Jagannath Mohanty and another v. Chanchala Bewa and others, AIR 1973 Orissa 160, a Division Bench of the Orissa High Court has held that "although as a general Patna High Court SA No.157 of 1991 dt.17-06-2013 4 rule, a suit for partition must comprise the entire family property still there are exceptions to this rule which have been recognised. A suit for partial partition has been allowed when the portion excluded is not in the possession of coparceners and may consequently be deemed not to be available for partition. As stated above, in this case, from perusal of paragraph 20 of the appellate court judgment, it appears that in the plaint, the cause of action has been stated by the plaintiff that the defendants are creating obstacle in the construction of verandah and courtyard by the plaintiff-respondent. The lower appellate court observed that the said house has not been made subject matter of partition in this case. As stated above, there is no pleading by the defendant that the said house is also joint family property and, therefore, that house should also be partitioned. The only point raised before the appellate court is that the suit is bad for partial partition because of non-inclusion of the said house.
11. In the case of Kashinathsa Yamosa Kabadi, etc., v. Narsingsa Bhaskarsa Kabadi, AIR 1961 Supreme Court 1077, the Apex Court considering the scope of partial partition has held that it is always open to the members of a Hindu family to divide some properties of the family and to keep the remaining undivided.
12. In the case of Apoorva Shantilal Shah V. Commissioner of Income-tax, Gujarat I, Ahmedabad, AIR 1983 Patna High Court SA No.157 of 1991 dt.17-06-2013 5 Supreme Court 409, the Hon'ble Supreme Court has held that "a partial partition of properties brought about by the father between himself and his minor sons cannot be said to be invalid under the Hindu Law and must be held to be valid and binding.
13. In view of the above settled proposition of law laid down by the Apex Court, in my opinion, on the ground of partial partition, the plaintiff's suit for partition could not have been dismissed and cannot be dismissed particularly when there is no averment in the written statement, there is no such issue framed and there is no evidence to that effect and there is no finding recorded by both the courts below that the said so called house is joint family property.
14. In view of the above discussion, the substantial question of law formulated at the time of admission is answered against the appellants. Accordingly, this Second Appeal is dismissed. No order as to cost.
(Mungeshwar Sahoo, J) Saurabh/-