Document Fragment View

Matching Fragments

3. The main thrust of the argument advanced by learned Advocate appearing for the appellant is two fold;-

(1) trial Court as well as lower appellate Court committed an error in dismissing the suit on the ground that suit for partial partition is not maintainable ; and (2) that an application has been filed in the present appeal seeking amendment of the plaint in Misc.Civil.No.10518/2010 and same be allowed by setting aside the judgment and decree passed by the Courts below and matter be remitted to the trial Court for adjudication afresh in view of the defect in the plaint which is now sought to be cured by way of amendment of plaint.

4. Per contra, Sri P T Hebbar, learned Advocate appearing for respondent No.8 would support the judgment and decree passed by the trial Court as affirmed by lower appellate Court and contends that the trial Court has taken into consideration admission of P,.W.1 elicited in the cross examination which was to the effect that there were and are joint family properties available as on the date of filing of the suit. Hence, he contends, non-inclusion of all the properties in a suit for partition would not be maintainable for partial partition. In support of his submissions, he would rely upon following two judgments:

regarding the rights of purchaser of co- parceners interest. It has been stated that the no-alienating co-parceners 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 sis to be noted that in AIR 1984 AP 84 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 of 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 defendants 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 or the alieness 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 hotch-pto, 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 ahs been filed by one f the no-alienating co- parceners of the joint family property. The suit has been filed by the no- alienating co-parceners with respect to the only property which has been alienated. This is not a suit for general 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 A 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.

18. The dicta laid down by Hon'ble Apex Court and the Division Bench of this Court as well as Co- ordinate Bench of this Court would clearly establish the fact that a suit for partition would not be maintainable when filed seeking partition of alienated item only particularly when the joint family owned number of properties and non inclusion of all other properties belonging to the family in the plaint would be fatal. In that view of the matter, it has to be held that a suit for partial partition was not maintainable when admittedly joint family possessed other properties and plaintiff being conscious of this fact did not include those properties in the suit and as such the very frame of the suit itself was not maintainable.