IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 125 of 1996(F)
1. RUGMINI AMMA
... Petitioner
Vs
1. THRESIAMMA
... Respondent
For Petitioner :SRI.T.V.GEORGE
For Respondent :SRI.P.R.VENKETESH
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/12/2009
O R D E R
THOMAS P. JOSEPH, J.
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S.A.No.125 of 1996
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Dated this the 15th day of December, 2009.
JUDGMENT
This Second Appeal is at the instance of plaintiffs who got a preliminary
decree for partition of plaint schedule items Nos.1 and 2 which was reversed by
the first appellate court on the ground that the suit is bad for partial partition.
According to the appellants schedule properties along with other items were
acquired by respondent No.2/defendant No.1, their mother in a family partition as
per Ext.B1, partition deed of 1116. On 26.6.1979 respondent No.2 assigned
item No.1 in favour of respondent No.1/defendant No.2 as per Ext.A1,
assignment deed as if that property absolutely belonged to her while actually it
was property of the tavazhi consisting of appellants and respondent No.2. At the
time of Ext.A1, appellant No.1 was a major but she is not a party in that
assignment deed. Appellant Nos.2 to 5 were minors but neither were they
represented in the assignment deed nor sanction of the court obtained for the
transfer as required under law. Appellants claimed that assignment does not
bind their right, interest or title in the suit properties, wanted a declaration that
suit properties belonged to their tavazhi, to set aside Ext.A1, sale deed, recover
possession of plaint schedule item No.1 and partition of plaint schedule item
Nos.1 and 2. Appellants claimed that they are entitled to 1/6th share each.
Respondent No.2 did not contest the suit. Respondent No.1, assignee from
respondent No.2 in respect of item No.1 claimed that appellant No.5 was born in
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1977 after joint family system was abolished by the Kerala Joint Hindu Family
System (Abolition) Act, 1976 which came into effect on 1.12.1976 and hence
appellant No.5 is not entitled to any share in the suit property. Respondent No.1
also claimed that the suit is bad for partial partition in so far as other items
belonging to the tavazhi as per Ext.B1 are not included in the suit. It is
contended by respondent No.1 that what is assigned to him as per Ext.A1 is the
absolute property of respondent No.2 and that at any rate, the suit for partition is
barred by law of limitation. Respondent No.3/defendant No.3 is a tenant under
respondent No.1 in the building in plaint schedule item No.1. He also contested
the suit. Trial court believing the evidence of appellant No.1/PW1 held that
appellant No.5 was born on 29.5.1974 and hence he is entitled to a share in item
Nos.1 and 2. It was found that item Nos.1 and 2 are tavazhi properties since it
was acquired by respondent No.2 in a family partition as per Ext.B1 and on the
birth of appellants it transformed into tavazhi properties which are available for
partition among appellants and respondent No.2. On the issue regarding
limitation, trial court found that so far as appellant No.1 is concerned, though she
was a major at the time of Ext.A1 she is not a party to it and hence she can
ignore the same and seek partition. So far appellant Nos.2 to 5 are concerned
trial court found that since the sale as per Ext.A1 was without obtaining sanction
from the court as required under Section 8(2) of the Hindu Minority and
Guardianship Act sale as against appellant Nos.2 to 5 is voidable at their
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instance and suit is filed within three years of their attaining majority and hence
the contention that suit is barred by limitation cannot be accepted. As regards
the plea of respondent No.1 regarding partial partition it was held that evidence
of appellant No.1/PW1 would show that other items dealt with under Ext.B1 are
in the possession of strangers and hence the suit cannot be said to be bad for
partial partition. Accordingly a preliminary decree was passed setting aside
Ext.A1, assignment deed, declaring that item Nos.1 and 2 are properties of the
tavazhi and directing partition of the said items into six equal shares.
Respondent No.1 challenged the judgment and preliminary decree. First
appellate court confirmed all the findings entered by the trial court except as
regards as partial partition. First appellate court held that failure of appellants
to seek partition of all properties belonging to the tavazhi inspite of a specific
contention raised by respondent No.1 would result in injustice and inequity to
respondent No.1 in that, had the entire properties been brought up for partition,
equities could have been worked out so that share of respondent No.2 could
have been allotted to respondent No.1 which would have satisfied the
acquisition made as per Ext.A1. So far as the issue regarding entitlement of
appellant No.5 for share is concerned, that issue was not considered since the
first appellate court found that suit is otherwise not maintainable. Judgment and
decree of the first appellate court are under challenge in this Second Appeal.
The substantial question of law framed for a decision is whether finding of the
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first appellate court that suit is bad for partial partition is legally correct?
Learned counsel for respondent No.1 requested that in so far as the first
appellate court has not considered the correctness of the finding of trial court as
to entitlement of appellant No.5 for partition, that question also may be
considered in the Second Appeal. Accordingly after hearing both sides
question whether trial court was legally justified in holding that appellant No.5 is
entitled to partition is also framed as a substantial question of law.
2. So far as partiability of the properties is concerned, it is not
disputed before me that though respondent No.2 got the properties by Ext.B1,
partition effected in her family on the birth of appellant Nos.1 to 5 character and
nature of the properties in the possession of respondent No.2 changed into
tavazhi properties. Courts below rightly found that the suit properties are
partiable.
3. So far as issue regarding partial partition is concerned, learned
counsel for appellants contend that the first appellate court was not justified in
holding that the suit is bad for partial partition without considering the evidence of
appellant No.1/PW1 that other items to which respondent No.2 is otherwise
entitled as per Ext.B1 are in the possession of strangers and there is no contra
evidence. It is the contention of learned counsel that respondent No.1 not being
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a member of the family is concerned only with item No.1 of the plaint schedule
and hence she cannot raise a plea of partial partition. Learned counsel for
respondent No.1 points out from Ext.B1 that the E schedule which was allotted
to respondent No.2 in the family partition (Ext.B1) took in eight items including
item Nos.1 and 2 and further, it was recited in Ext.B1 that on the death of holder
of G schedule property, 1/4th of that item also went to respondent No.2.
Learned counsel submits that in that situation entire properties over which
respondent No.2 acquired right as per Ext.B1 must have been sought to be
partitioned. Learned counsel points out that inspite of specific contention in the
written statement appellants have not amended the plaint to bring in said items
also and seek partition. Learned counsel would refer to me the decision in
Gopalan v. Vasu (1986 KLT 1100) and contend that to work out equity
between the parties, it is necessary that entire properties are brought up for
partition. Learned counsel submits that the said decision did not concern the
right of alienee from one of the sharers as in the present case where, had the
entire properties been brought up for partition there could have been an
equitable division without causing injustice to respondent No.1. Learned counsel
has placed reliance on the decision of the Andhra Pradesh High Court in
N.Jangi Reddy & Others v. Yellaram Narsimha Reddy & Others
(AIR 2008 (NOC) 1057).
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4. Argument of learned counsel for appellants that respondent No.1
being only an assignee of item No.1 could not raise a plea based on partial
partition, I am afraid cannot be sustained. May be, respondent No.1 has no
direct interest in the other properties referred to in Ext.B1 but as assignee of item
No.1 she steps into the shoe of respondent No.2 who is a sharer and hence can
resist the suit for partition on any ground available to her assignor. More so,
she is requesting for an equitable division of item No.1 along with all the
properties available for partition in which case the claim of respondent No.1 as
per Ext.A1 according to her, could be satisfied by allotting the share of
respondent No.2 to her. Hence it is open to respondent No.1 to raise the plea of
partial partition.
5. Then the question is whether first appellate court was justified in
reversing the finding of trial court that suit is not bad for partial partition. Both
sides placed reliance on the decision in Gopalan’s case (supra). Principle laid
down in that case is that even when partition is in respect of joint family
properties, there is no inflexible rule that there cannot be partial partition and
that in a given set of facts it is open to the court to entertain a suit for partial
partition. In that case this Court observed,
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“6. It may be always desirable, in order to avoid
multiplicity of suits and consequent harassment and
inconvenience that as far as possible all the properties
should be included even in a suit for partition of co-
ownership properties. But in such cases it is not
essential that all the properties held in common should
be brought in the common hotchpot in the same suit.
Even in such cases, depending upon the facts and
circumstances and the nature of properties, it is
competent for the court to order the plaintiff to include
the remaining properties also subject to the question
of jurisdiction. A suit for partition of co-ownership
properties cannot be thrown out on the ground of
partial partition. The ordinary rule that a suit for
partition is not maintainable cannot apply in case of
co-owners having distinct rights. Where the causes of
action and the claims are not identical, it may not be
desirable to insist on the compliance of the rule
against partial partition.
7. The rule against partial partition is only one of
equity and convenience. Therefore, it is better to limit
the rule in its application to properties over which the
parties have community of interest and unity of
possession. If partial partition can be had without
inconvenience to the other sharers and if it will not
stand in the way of equities being adjusted, it is not
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necessary to insist that all properties will have to be
scheduled. Plaintiff is the master of the litigation.
Normally he is the person to decide what are the
reliefs to be claimed and who are all to be impleaded.
Of course, these are all not to be left to the sweet will
and pleasure of the plaintiff. His choice could always
be only subject to the relevant provisions of law. But
normally he cannot be compelled to fight persons
against whom he does not want to fight. So also he
cannot be compelled to schedule properties which
according to him are not partiable. As earlier stated
these are not hard and fast propositions.”
So it is not the inflexible rule even in partition of joint family properties that the
entire properties must have been brought up for partition. Another decision that
would throw light on the issue is Parameswara Menon v.
Sachidananda Menon (1970 KLT 1031). There it was held that the
argument that suit for partition of joint family properties is bad if some item or the
other is omitted is unsound although normally such a suit should embrace all the
assets of the family. But there may be circumstances in which practical
considerations may justify the institution and continuance of a suit for partition
where certain items of co-parcenary property are not included. There is no legal
inhibition if there are justifying features in allowing a suit for partial partition.
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Reference was made to the decision of the Calcutta High Court in Rajendra
Kumar Bose v. Brojendra Kumar Bose (AIR 1923 Calcutta 501), of
the Rajastan High Court in Sambhudutt and others v. Srinarain and
others (AIR 1954 Raj. 269) and the Patna High Court in S.M.A.Samad
and others v. Shahid Hussain and others ( AIR 1963 Patna 375).
In that decision a distinction was made between partition of joint family property
(joint tenants) and partition among tenants-in-common. The reason for the
distinction is that in the former case, unlike in the latter case, there is unity of
title, interest and possession over each and every item of property and hence
the normal rule is that partition should be of entire properties of the joint
family. In the case of partition between co-parceners (in respect of joint family
properties) the entire property must be thrown in to hotchpot except for certain
well recognized exceptions. Where a member of a joint hindu family who broke
up the joint status wants the joint family property to be divided, the cause of
action arises at one time and he must therefore include every item of property in
the suit. It was pointed out that so far as tenants-in-common are concerned as
there is no unity of title and interest but only unity of possession it is not
necessary that cause of action for partition of every item of property held in
common must arise at the same time. No doubt, in the matter of partition of
properties held by tenants-in-common principle regarding partial partition may
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apply depending on the facts and circumstances of the case. But I must bear-in-
mind that so far as the partition of co-ownership properties in the possession of
tenants-in-common is concerned, as pointed out by Wanchoo C.J. in
Sambhudutt and others’ case (supra) it is not necessary that cause for action
seeking partition should arise only once. It may arise at different times in respect
of different items of co-ownership properties. Hence the rule regarding partial
partition as it applies to the case of joint family properties cannot as such be
applied in the case of partition of co-ownership properties in the possession of
tenants-in-common. In the present case since the Kerala Joint Hindu Family
System (Abolition) Act came into force on 1.12.1976, there is a notional partition
in the tavazhi and hence the members of the tavazhi must be treated as
tenants-in-common in respect of the properties belonging to the tavazhi after
1.12.1976. Based on the above legal position I shall consider whether in this
case the suit can be said to be bad for partial partition.
6. So far as availability of other items for partition referred to by the
learned counsel for respondent No.1 is concerned, appellant No.1/PW1 while
giving evidence stated that those items are not available for partition since it is in
the possession of strangers. I do not find any contra evidence in that regard.
Respondent No.1 when examined as DW1 has not even adverted to that aspect.
That means what is available is the evidence of appellant No.1 as PW1 that
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those properties are not available for partition. A further fact which persuades
me not to apply the rule against partial partition is that respondent No.1 while
acquiring item No.1 as per Ext.A1 should have been aware that the properties
belonged to the tavazhi but the properties were acquired from respondent No.2
as if it is the absolute property of respondent No.2. Having regard to these
circumstances I am not inclined to think that in this case, for the reason of all
other items allegedly available for partition not being brought up the suit must
fail. Decision of the Andhra Pradesh High Court in N.Jangi Reddy’s case (supra)
relied on by learned counsel for respondent No.1 concerned joint family property
where ofcourse non-inclusion of all items was found to be affecting the right of
alienees and it was held that suit is bad for partial partition. I must bear-in-mind
that in this case apart from pleading that suit is bad for partial partition
respondent No.1 did not incorporate in the written statement the other items of
properties available for partition. In the circumstances trial court was justified in
holding that suit is maintainable. First appellate court appears to have been
carried away by the impression that if item Nos.1 and 2 alone are partitioned in
the way asked for, it will result in injustice to respondent No.1 and hence the
suit is bad for partial partition. Other relevant circumstances which I have
discussed above have not been considered. Hence answering the substantial
question of law framed in favour of the appellants I hold that the finding of the
first appellate court that the suit is bad for partial partition cannot be sustained. I
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hold that the suit is maintainable.
7. Then the question for consideration is whether finding of the trial
court that appellant No.5 is entitled to share is correct. That issue depends on
the question whether birth of appellant No.5 was before or after 1.12.1976.
According to the appellants it was on 29.5.1974. But respondent No.1 would say
that birth was after 1977 and hence in view of the Kerala Joint Hindu Family
System (Abolition) Act, 1975 appellant No.5 having born after 1.12.1976 is not
entitled to share in the family property. Trial court found in favour of the
appellants merely relying on the evidence of appellant No.1/PW1. Trial court
observed that the version of appellant No.1/PW1 regarding date of birth of
appellant No.5 was not challenged in cross examination. That, I have to say is
a factual mistake. Going by the evidence of PW1 in cross examination I find
that she was subjected to cross examination regarding date of birth of appellant
No.5 spoken to by PW1. PW1 claimed that birth of appellant No.5 was intimated
to the Registrar of Births and Deaths and that the register maintained in that
office would reveal the date of birth. Admittedly no document from that office is
summoned or produced to prove the date of birth of appellant No.5. When a
document which was required to be proved was not proved it should result in an
adverse inference against the appellants. It is true that when respondent No.1
was examined as DW1 she stated that she has not enquired about date of birth
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of appellant No.5. I must bear-in-mind that she is an alienee from respondent
No.2 and not a member of the tavazhi. She has denied the allegation that birth
of appellant No.5 was prior to 1.12.1976. In that situation it was the
responsibility of the appellants to prove by acceptable evidence that birth of
appellant No.5 was prior to 1.12.1976 and therefore he is entitled to a share in
the property. It is relevant to note that even in the plaint there is no reference to
the date of birth of appellant No.5 and only in the cause title while describing
age of appellant No.5, it is stated that he is aged 12 years (on the date of suit –
20.11.1985) in which case, his birth must have been in the year 1973 and not
29.5.1974 as stated by appellant No.1/PW1. As such I am inclined to think
that trial court was not legally correct in holding that date of birth of appellant
No.5 was on 29.5.1974. Trial court has proceeded on the basis that version of
appellant No.1 as PW1 regarding date of birth of appellant No.5 is not
challenged, which I said, is factually wrong. Since the finding is based on the
evidence of appellant No.1/PW1 under the impression that the said evidence is
not under challenge, the finding involved a substantial question of law. I hold
that appellants failed to prove that appellant No.5 was born prior to 1.12.1976
and hence is entitled to a share in the suit properties.
8. Though trial court set aside Ext.A1 as a whole, that also
cannot be sustained to the extent it concerned share of respondent
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No.2/defendant No.1 in item Nos.1 and 2 for she was competent to transfer her
share to respondent No.1 since the transfer was subsequent to 1.12.1976.
Hence Ext.A1 can be set aside only to the extent it concerned appellant Nos.1
to 4. In the light of what I have stated above, judgment and decree of the first
appellate court has to be set aside. At the same time the preliminary decree
passed by the trial court requires modification in that appellant No.5 is not
entitled to any share in the suit properties. Substantial questions of law framed
are answered accordingly.
Resultantly, Second Appeal is allowed in part in the following lines:
i. Judgment and decree of the first appellate court are set aside.
ii. The preliminary decree passed by the trial court is modified to the
following extent:
(a) The preliminary decree to the extent that it allowed share to
appellant No.5 is set aside.
(b) Schedule properties shall be divided among appellant Nos.1
to 4 and respondent No.2 in equal shares.
(c) Share of respondent No.2 shall be allotted to respondent
No.1 to the extent it can be confined to item No.1 and so far as it does not
exceed the area referred to in Ext.A1.
iii. Question whether respondent No.1 is entitled to value of
improvements concerning item No.1 shall be decided by the final decree court.
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iv. The claim of respondent No.1 for allotment of the portion where
the building is put up in item No.1 shall be considered by the final decree
court.
v. Appellant Nos.1 to 4 will be entitled to get share of mesne profits of
item No.1 from respondent No.1 at the rate fixed by the trial court.
vi. It will be open to appellant Nos.1 to 4 or respondent Nos.1 and 2
on payment of court fee to apply for passing final decree and allotting their
share.
vii. Cost shall come out of the estate.
C.M.P.No.292 of 1996 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks
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Thomas P.Joseph, J.
S.A.No.125 of 1996
JUDGMENT
15th December, 2009.