Suit for Partial Partition

The Impermissibility of Suits for Partial Partition in Indian Law: Principles, Rationale, and Exceptions

Introduction

The law of partition in India, particularly concerning joint properties, is governed by a fundamental principle that a suit for partition should be comprehensive, embracing all joint properties available for division among the co-owners or co-parceners. The general rule posits that a suit for partial partition, seeking division of only a segment of the joint properties, is not maintainable. This doctrine is rooted in considerations of equity, convenience, and the prevention of multiplicity of litigation. However, this rule is not absolute and admits several well-recognized exceptions dictated by the specific circumstances of a case, the nature of the property, or the interests of justice. This article endeavors to analyze the legal position in India regarding the maintainability of suits for partial partition, drawing upon key judicial pronouncements and established legal treatises.

The General Rule: A Suit for Partition Must Be Comprehensive

The cornerstone of partition law is that a suit for partition must encompass the entire joint estate. The Supreme Court of India and various High Courts have consistently reiterated this principle. In Kenchegowda (Since Deceased) By Legal Representatives v. Siddegowda Alias Motegowda (1994 SCC 4 294, Supreme Court Of India, 1994), the Supreme Court observed that "it is well-settled in law that a suit for partial partition is not maintainable." This view is echoed in numerous judgments, establishing a strong presumption against partial partition.

Foundational Judicial Pronouncements

The Calcutta High Court, in the seminal case of Rajendra Kumar Bose v. Brojendra Kumar Bose (1923 AIR CAL 501, Calcutta High Court, 1922), elaborately discussed this principle. The Court emphasized that "a partition suit should embrace all the joint property." It was noted that this rule is "recognised in a long series of decisions" and is "neither arbitrary nor technical; it is founded on sound and weighty reasons." The Court set aside a preliminary decree for partial partition and remanded the case, directing that all joint properties be included, failing which the suit would stand dismissed. This decision remains a significant authority on the subject.

More recently, the Chhattisgarh High Court in Murari Sahu v. Tarni Sahu And Others (Chhattisgarh High Court, 2022), relying on Ram Gopal v. Jagdish Prasad (2015 (1) CGLJ 466), reiterated that "a suit for division of a portion of the family property cannot lie as a suit for partial partition is not maintainable. The suit for partition of family property must embrace all the joint family property." Similar observations affirming this rule can be found in Sri Tukaram v. Sambhaji and others (ILR 1998 Kar 681), as noted in SRI SHIVALINGEGOWDA v. SMT.SIDDAMMA (Karnataka High Court, 2021) and K. ANANTHA PADMANABA CHAR v. SMT. K. NAGAMANI @ SUBHA. S (Karnataka High Court, 2023).

Rationale Underlying the Rule

The rule against partial partition is primarily designed to prevent certain undesirable outcomes. The Calcutta High Court in Rajendra Kumar Bose v. Brojendra Kumar Bose (1923 AIR CAL 501) articulated these reasons comprehensively:

  • Prevention of Multiplicity of Litigation: "If the rule were not recognised and firmly applied, multiplicity of litigation world be the inevitable result. If suits for partition were allowed to be instituted in fragments the jurisdiction of the Trial Court and the forum of appeal might be altered." This sentiment was also noted by the Patna High Court in S.M.A Samad And Others v. Shahid Hussain And Others (Patna High Court, 1957), stating, "The real objection to the suit is one which seems common to both classes of cases, namely, that it is inexpedient to allow suits for partition of a portion of the properties, because it would lead to a multiplicity of suits and to endless litigation..."
  • Ensuring Equitable Distribution: A comprehensive suit ensures a just partition. As stated in Rajendra Kumar Bose, "parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts."
  • Avoiding Alteration of Jurisdiction and Appeal Forum: Fragmented suits could manipulate or inadvertently alter the trial court's jurisdiction and the appellate forum, potentially prejudicing litigants regarding rights of appeal, including appeals to higher courts.

Recognized Exceptions to the General Rule

While the general rule is firmly established, Indian courts have acknowledged that it is "not an inelastic rule which admits circumstances of a particular case or the interests of justice so require" (B.R. PATIL v. TULSA Y. SAWKAR, Supreme Court Of India, 2022, quoting Mayne's 'Treatise on Hindu Law & Usage'). The Supreme Court in B.R. Patil, referencing Paragraph 487 of Mayne's Treatise (17th Edition), outlined several exceptions where a suit for partial partition may lie. These exceptions, also highlighted in other judicial decisions, include:

Properties Not Available for Immediate Partition

A suit for partial partition may be maintainable "when the portion omitted is not in the possession of coparceners and may consequently be deemed not to be really available for partition, as for instance, where part of the family property is in the possession of a mortgagee or lessee" (Mayne's Treatise, as quoted in B.R. PATIL v. TULSA Y. SAWKAR, 2022 SC).

Impartible Property

If a portion of the joint property is impartible by its very nature, a suit excluding such property can be maintained. The Orissa High Court in Jagannath Mohanty And Another v. Chanchala Bewa And Others (Orissa High Court, 1972) noted that "A suit for partial partition has also been accented when the Portion excepted is impartible property." This is also supported by Mayne's Treatise (via B.R. Patil) and Rajendra Kumar Bose v. Brojendra Kumar Bose (1923 AIR CAL 501).

Property Held Jointly with Strangers

Where a portion of the property is held jointly with strangers who have no interest in the family partition and cannot be conveniently joined as parties to a general suit for partition, a suit for partial partition excluding such property may be allowed. (Jagannath Mohanty And Another v. Chanchala Bewa And Others, Orissa High Court, 1972; Mayne's Treatise via B.R. Patil, 2022 SC; Rajendra Kumar Bose v. Brojendra Kumar Bose, 1923 AIR CAL 501).

Property in Different Jurisdictions

Partial partition by suit is allowed "where different portions of property lie in different jurisdictions, or are out of British India" (Mayne's Treatise via B.R. Patil, 2022 SC; Rajendra Kumar Bose v. Brojendra Kumar Bose, 1923 AIR CAL 501). In Balakrishna Udayar And 3 Others. v. Chellammal And 9 Others. (Madras High Court, 1998), the court noted that properties situated in another village and subject to dispute regarding their partible nature constituted a recognized exception.

Dispute as to Joint Character of Property

According to Mayne's Treatise (as quoted in B.R. PATIL v. TULSA Y. SAWKAR, 2022 SC), "When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by some of them that it belongs to an outsider, then a suit for partition of joint property excluding such item does not become legally incompetent of any rule against partial partition." The Madras High Court in Balakrishna Udayar (1998) also recognized this where there was a dispute regarding whether certain items were partible.

Plaintiff's Lack of Knowledge or Relinquishment

In Jagannath Mohanty And Another v. Chanchala Bewa And Others (Orissa High Court, 1972), the court showed leniency where the plaintiff, an illiterate widow, was not in a position to know all family properties. It was observed: "If she has left out any Property in which Javaram had an interest it may be possible to construe that she has relinquished her right to a share in that Property... She has therefore, sought for partition in respect of only such of the properties which to her knowledge belonged to the family. In the circumstances, therefore, we see no reason why the entire suit should be dismissed on the ground that some other Items of property in which the family has an interest have not been included in the suit." Similarly, the Madras High Court in P.ARUNACHALAM v. M.KALIAMMAL (Madras High Court, 2022) questioned why the court should force plaintiffs to take a share in properties they were not interested in seeking, especially after a long litigation period, implying a form of relinquishment or choice.

Interests of Justice and Convenience

The overarching principle is that the rule is not inelastic and can be relaxed if the "circumstances of a particular case or the interests of justice so require" (Mayne's Treatise via B.R. Patil, 2022 SC). The court in Rajendra Kumar Bose (1923 AIR CAL 501) acknowledged, "It need not be disputed that there may be very special cases where the application of the rule may be justly relaxed," though it found the case before it not to be exceptional.

Application of the Rule to Tenants-in-Common and Alienees

Tenants-in-Common (including Mohammedan Law)

The rigidity of the rule against partial partition is often considered less strict when applied to tenants-in-common as opposed to co-parceners in a Hindu joint family. In S.M.A Samad And Others v. Shahid Hussain And Others (Patna High Court, 1957), the court, referencing Moiddin Kutti v. Mariamumma (AIR 1921 Mad 404), observed: "If the property is not joint family property and the parties are not coparceners but only co-owners or tenants-in-common the rule is not so rigid and partial partition may be allowed if there is not much inconvenience to the other sharers and if the plaintiff will otherwise be left without a remedy... It is then merely a rule of processual law."

This distinction is particularly relevant under Mohammedan Law. In Abdul Karim And Others v. Hafij Mohammad And Others (1988 SCC ONLINE MP 143, Madhya Pradesh High Court, 1988), the court held that "as the parties are governed by the Mohammedan Law, a co-heir or co-sharer can sue for recovery of his own share in any item of joint property. The doctrine of partial partition is applicable only to a Hindu coparcenary, where the coparcenars are joint in estate and not to Muslims, who are only tenants-in-common." The Madras High Court in Balakrishna Udayar (1998) also noted that for tenants-in-common (whether Mohammedans or Hindus), one is not obliged to sue for partition of all items unless it causes inconvenience to other co-owners, as each is entitled to a definite share in every item.

Suits Involving Alienees of a Co-sharer's Interest

The position of an alienee of an undivided share from a co-sharer also presents specific considerations. The Madras High Court in P.ARUNACHALAM v. M.KALIAMMAL (2022) stated, "The right of a purchaser of an undivided share in a property held in co-sharership is to seek partition of the specific share in the specific property concerned merely. Therefore an alienee of a co-sharer cannot institute a suit for partition of all the properties held in co-sharership. Nor can there be a plea of partial partition in defence of a suit for partition [by a co-sharer against the alienee and other co-sharers]."

The Patna High Court in Jagannath v. Diccession Corporation (Patna High Court, 1950) observed, "As regards property held in common tenancy the courts are agreed that the purchaser can sue for partition of the particular property in respect of which he has acquired an interest." However, it was also noted that the transferee's interest is subject to equities between co-owners. It was also stated in Balakrishna Udayar (1998) that the contention of partial partition put forward by alienees cannot be raised against a non-alienating co-owner.

Procedural Implications and Judicial Discretion

When a suit is found to be for partial partition without falling into any recognized exceptions, courts generally provide an opportunity to the plaintiff to amend the plaint to include all joint properties. In Rajendra Kumar Bose v. Brojendra Kumar Bose (1923 AIR CAL 501), the Calcutta High Court remanded the case with a direction that if "the plaintiff declines to have a partition of the entire joint estate, the suit will stand dismissed with costs."

The Kerala High Court in Parameswara Menon v. Sachidananda Menon (Kerala High Court, 1970), while acknowledging the general rule, cautioned against an overly rigid application, stating that the proposition that a suit must necessarily fail if the plaintiff does not amend the plaint after being given an opportunity "in this unqualified form is too broadly stated to be valid." The court emphasized that earlier authorities stated the proposition subject to exceptions and did not exalt it into an inflexible rule.

If the plaintiff fails to cure the defect, the suit may be dismissed. In Karuppayammal v. 1.Samiyappa Gounder (2017 MLJ 6 689, Madras High Court, 2017), the appeal and consequently the suit were dismissed, inter alia, on the ground that all available properties were not included. However, the court clarified that "the dismissal of this appeal will not disentitle or preclude the appellant from instituting a fresh suit for partition, by including all necessary parties and all properties available for partition."

The court's approach often involves balancing the rule with the need to do substantial justice. As seen in P.ARUNACHALAM v. M.KALIAMMAL (2022), the court may exercise discretion, especially when plaintiffs explicitly indicate their lack of interest in omitted properties over a prolonged period.

Conclusion

The principle that a suit for partial partition is not maintainable is a well-entrenched doctrine in Indian jurisprudence, primarily aimed at ensuring comprehensive justice, equitable distribution of all joint properties, and the avoidance of vexatious, piecemeal litigation. This rule, articulated strongly in cases like Rajendra Kumar Bose and affirmed by the Supreme Court in Kenchegowda and B.R. Patil, serves vital procedural and substantive purposes. However, the judiciary has pragmatically recognized that this rule is not immutable and has carved out several exceptions, as detailed in Mayne's Treatise and various judgments. These exceptions cater to situations where insisting on a comprehensive suit would be impractical, unjust, or impossible, such as when properties are impartible, held with strangers, located in different jurisdictions, or their joint character is disputed. Furthermore, the stringency of the rule is often relaxed in cases involving tenants-in-common, including under Mohammedan law, and in specific scenarios involving alienees. Ultimately, while the general bar against partial partition remains a guiding principle, its application is tempered by judicial discretion, the specific facts of each case, and the overarching goal of achieving a fair and final settlement of disputes among co-owners.