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14. The main contention of the learned Counsel for the appellants is that there is no indication in the evidence led by the plaintiff that the suit schedule property is joint family property as plaintiff has not let in evidence regarding the income of the joint family property and also the plaintiff has not placed sufficient material to show that the 1st defen-

dant had control or command over the income of joint family properties of Huvappa Nesarkar, 1st defendant and defendants 7 to 9.

15. It is seriously contended by the learned Counsel for the appellant that Huvappa died on 19-6-1969, the appellant-defendant 1 purchased the suit property on 12-6-1972 for Rs. 10,000.00. Later sold the same to respondents 11 to 15 on 5-9-1984. The plaintiff filed the suit in O.S. 271 of 1984 before the Principal Civil Judge, Belgaum for declaration that the sale of the land dated 5-9-1984 is not binding on him and for partition of 1/5th share in the suit schedule property. The defence taken out by the 1st defendant is that the suit schedule property is the self-acquired property and it is the contention of the 1st defendant that he was staying separately as he could not pull on with his parents amicably. It has also been contended by the learned Counsel for the appellants that R.A. No. 27 of 1987 was filed against the findings of the Trial Court that the suit schedule property is not the self-acquired property of the 1st defendant and the defendants have not established legal necessity for selling the same. The plaintiff filed cross-objections against the finding given against him that the suit was not maintainable for partial partition. The cross-objection was upheld by the I Appellate Court about the maintainability of the suit with respect to the partial partition and also the I Appellate Court held that the suit schedule property is the joint family property. It has been seriously urged by the learned Counsel for the appellants when the suit schedule property was purchased by the 1st defendant, his father Huvappa was not alive and also the plaintiff has not shown, the 1st defendant out of the income of the joint family property purchased the suit schedule property and there was sufficient nucleus and income for the purchase of the same and further the 1st defendant had command and control over the income of the other joint family properties from which income he purchased the suit schedule property. It has been seriously urged by the learned Counsel for the appellant that the plaintiff has not stated in his evidence that the 1st defendant was managing the affairs of the joint family properties on account of that income he purchased in his name. The learned Counsel for the appellant relied on the decision in Dandappa Rudrappa Hampali and Others v Renukappa and Others, wherein it has been held as under:

17. The main contention of the learned Counsel for the appellants is that as seen from the evidence there are other joint family properties belonging to the family and the present suit is filed by one of the coparcener unless all the properties have been included in the suit schedule, the present suit for partial partition is not maintainable. The learned Counsel for the appellants relied on the following rulings:

(1) In the decision in Vemauarapadur Mallikarjuna Rao v Chatur-vedula Siva Sankara Prasad and Others, wherein it has been held that the question therefore is whether there are no cogent grounds for departing from the normal rule of general partition in the instant case. The plaintiff has not given any explanation or reason why he has not filed a suit for partition of all the joint family properties. He has only filed a suit for partition of the 'B' Schedule property. Further the relief asked for the allotment of 'A' Schedule property and a specified Vard share out of 'B' Schedule cannot be gone into since defendants 1 and 2 have interest in every square yard of 'B' Schedule property. Therefore, the suit for partial partition is not maintainable.

The learned Counsel for the appellant has relied on the decision in Vemauarapadur Mallikajuna Rao's case, supra, wherein it has been held that normally a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co-sharers should be impleaded. The suit for partial partition of specified items can only be an exception.

19. It has been contended by the learned Counsel for the appellants that the finding of the I Appellate Court to the effect that the suit by one of the coparceners for partition with respect to one of the items of the Joint Hindu Family property is maintainable in the special circumstances is not proper. During the course of the order, the I Appellate Court has observed that Section 261 of Mulla's Hindu Law, 15th Edn., at pages 351 and 352 makes it clear that non-alienating coparceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for a general partition. In the present case on hand all the non-alienating coparceners have not filed the suit. The mere fact that the other non-alienating coparceners viz, defendants 7 to 9 did not join the plaintiff in filing the suit is not material. The right of non-alienating coparcener in Bombay area does not depend upon the whims and fancies of remaining non-alienating coparceners who for reasons best known to them, may not join the plaintiff in filing suit. Patna and Andhra Pradesh High Courts held that one of the several non-alienating coparceners cannot sue the purchaser for his own share of the alienated property. It has been observed by the I Appellate Court the law applicable in Bombay area does not prohibit the suit by one of the several non-alienating coparceners. The I Appellate Court considered the ruling in Khemchand Shankar Choud-hary and Another v Vishnu Hari Patil and Others, wherein it has been held that a purchaser can be impleaded even when decree for partition of agricultural lands is pending before the Collector for effecting partition. But it is not the case in the present suit. In Janardhan Jog v Srikrishna and Others, it is held that a partition suit should comprise of all the available properties, as far as possible. That decision has been distinguished by tbe I Appellate Court as that was not a case of non-alienating coparcener filing a suit for partition of alienated property. The view that has been taken by the I Appellate Court cannot be stated to be a correct one in the circumstances of the case. It is to be seen that the plaintiff, defendant 1 and defendants 7 to 15 are the members of Joint Hindu Family. There is no partition by metes and bounds of the family properties. The present suit is filed in respect of the suit land only. There are other lands in other villages and also other house properties which have not been included in the suit which are admittedly the joint family properties. It has been observed in Mulla's Hindu Law, 13th Edn. regarding the rights of purchaser of coparcener's interest. It has been stated that the non-alienating coparceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for general partition. It is to be noted that in Vemavarapadur's case, supra, it has been held that normally a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co-sharers should be impleaded. The suit for partition of specified items can only be an exception. In the present case on hand, the 1st defendant has alienated the suit land in favour of defendants 2 to 6. The 1st defendant is the member of the Joint Hindu Family, As already stated that the family has got other several lands and house properties which are the joint family properties. It has been contended by the learned Counsel for the alienees while allotting the share to defendant 1 in the family properties equitable rights of purchasers on partition has to be considered and those rights can be considered only when all the joint family properties are included in the suit for partition. Otherwise, it would be difficult to apply principles of equitable partition. The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotchpot, the suit for partition of the shares of the members of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld. The reason being, the present suit has been filed by one of the non-alienating coparceners of the joint family property. The suit has been filed by the non-alienating coparcener with respect to the only property which has been alienated. This is not a suit for general partition. The contention of the alienees is to the effect that if the share of the plaintiff to be worked out if all the joint family properties had been included in the schedule then, at a partition, the share of the 1st defendant would have been worked out in order to give equitable relief to the alienees also as they have purchased the property by the 1st defendant. In that view of the matter, the present suit filed by the plaintiff without including all the joint family properties and which prejudices the rights of the alienees who have also been impleaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in law. The finding given by the Trial Court with respect to the sixth issue has to be maintained and the finding given by the I Appellate Court that the suit is maintainable without including all the joint family properties cannot be held to be proper in the circumstances of the case. Hence, the finding of the I Appellate Court holding that the suit of the plaintiff for partial partition is maintainable should be set aside and the finding of the Trial Court with respect to the sixth issue that the suit is bad for non-joinder of necessary properties to be included in the suit has to be upheld.

20. So far as working of the shares of the plaintiff and other members of the joint family, they have to be worked out in a properly constituted suit bringing all the properties into the hotchpot and equitable remedy should be worked out. The finding given by the I Appellate Court granting 1/6th share to the plaintiff also should be set aside in view of the finding that the suit of the plaintiff for partial partition is not maintainable and the working of the share should be worked out in a suit in which all the properties are joint family properties to be included.