"CR"
THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.
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AFA No.18 of 1992
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Dated 20th September 2010
Judgment
Bhavadasan, J.
This appeal arises out of a suit for partition, in
which the defendants suffered a preliminary decree at the
hands of the appellate court. The parties and facts are
hereinafter referred to, as they are available before the
Trial Court.
2. The suit for partition was laid on the allegation
that Ext.A2 acquisition by Madhavi Amma was for and on
behalf of the thavazhi of which she was the eldest female
member, at the relevant time. Defendants 2 and 3 are her
daughters and the rest of the parties are her grand
children. It is alleged that Ext.A2 acquisition by Madhavi
Amma, was utilising the funds of the thavazhi and it has
been treated as a thavazhi property as would be evident
from Exts.A5 to A7. Since the plaintiffs did not intend to
continue joint possession, they sought partition of the
property, claiming 42 shares out of 55.
3. Except defendants 4, 6, 12 and 13, the other
defendants contested the suit. According to them, the plaint
schedule property is not available for partition. The
contention taken was that Ext.A2 acquisition was the self
acquisition of Madhavi Amma, utilising her own funds and
that was never treated as a thavazhi property. Madhavi
Amma had assigned that property in 1960 in favour of
defendants 2 and 3. The claim of joint possession etc., are
without any basis. They also contended that if at all the
plaintiffs had any manner of rights, the same had been lost
by adverse possession and limitation. Along with the
above contentions, they also pointed out that the suit is bad
for partial partition because the property covered by Ext.A1
document has not been included in the plaint. They,
therefore, prayed for a dismissal of the suit.
4. The Trial Court raised necessary issues for
consideration. The evidence consists of the testimony of
PWs 1 to 3 and documents marked as Exts.A1 to A7 from
the side of the plaintiffs. The defendants examined DW1
and had Exts.B1 to B51 marked. On an appreciation of the
evidence, the Trial Court came to the following
conclusions :
(1) The acquisition under Ext.A2 was a self acquisition
by Madhavi Amma.
(2) The assignment in favour of defendants 2 and 3 by
Madhavi Amma is good and binding.
(3) Even if the plaintiffs and other sharers had any rights
over the suit property, the same had been lost by
adverse possession and limitation.
5. On the basis of the above findings, the suit
was dismissed. The plaintiffs carried the matter in appeal
as AS No.350/82 before this Court. The first Appellate
Court, on a re-evaluation of the materials before it, came to
the following conclusions :
(1) The acquisition under Ext.A2 was a self acquisition
of Madhavi Amma.
(2) There was blending of the self acquired properties
with the joint family properties and therefore, the plaint
schedule property was available for partition.
6. On the basis of the above findings, the Trial
Court decree was reversed and the suit was decreed,
directing partition of the plaint schedule properties into 55
equal shares and allotment of 42 shares to the plaintiffs.
The contesting defendants challenge the above Judgment
and decree in this appeal.
7. The following questions of law are seen
formulated in this memorandum of appeal :
"1. In the absence of any pleading in the memorandum
of appeal, was the learned Single Judge correct in
passing a preliminary decree for partition on the ground
notwithstanding Ext.A2 acquisition by Madhavi Amma
being separate and her own acquisition, there was a
blending of the property by Smt.Madhavi Amma with the
thavazhi property being possessed and enjoyed as
one ?
2. There was no contention at all by the plaintiffs in the
appeal before the learned Single Judge that even if
Ext.A2 was a separate acquisition by Smt. Madhavi
Amma, nonetheless there is a blending of property with
the thavazhi property enjoyed and possessed as one
and therefore, liable for partition, was the learned Single
Judge justified in law in passing a preliminary decree for
partition, on the ground that notwithstanding the
individual nature of Ext.A2 acquisition there was a
blending of such property with the thavazhi property
enjoyed and possessed as one by the thavazhi ?
3. The learned Single Judge on the evidence came to
the conclusion in confirmation of the findings of the trial
court that Ext.A2 acquisition in the name of
Smt.Madhavi Amma was her self acquisition that
Smt.Madhavi Amma was not the Karanavathi of the
thavazhi at least at the time of Ext.A2 acquisition - in the
absence of any evidence to the contrary and in the
absence of any contention in that behalf by the plaintiffs,
was the learned Single Judge justified in law in coming
to the conclusion that Smt.Madhavi Amma threw the
properties into the common stock enjoyed and
possessed by the thavazhi as one ?
4. Will the evidence on record especially Exts.A5, A6
and A7 support the conclusion that Smt.Madhavi Amma
threw Ext.A2 property into the common stock possessed
and enjoyed as one by the thavazhi whether the
conclusions of the learned Single Judge based on
Exts.A5, A6 and A7 that there was a blending of Ext.A2
property by Smt.Madhavi Amma possessed and
enjoyed by the thavazhi as one ?
5. Was the conclusion of the learned Single Judge that
the suit was maintainable, in the absence of a prayer for
partition of Ext.A1 partition also in the absence of a
prayer for partition of Ext.A1 partition also in the
absence of any evidence on record that Exhibit A1
properties were lost by the thavazhi ?
6. Ext.A2 properties being assigned by Smt.Madhavi
Amma as per document dated 30.09.1960 in favour of
defendants 2 and 3 was the suit maintainable without
the prayer for setting aside the said assignment in
favour of defendants 2 and 3. Even assuming that the
learned Single Judge justified in coming to the
conclusion that there being no severance in status,
execution of assignment deed by an undivided member
of a Marumakkathayam thavazhi having no legal effect
no legal right claimed on this document. Possession of
defendants 2 and 3 being traceable to document of
30.09.1960 was not the suit then barred by adverse
possession and limitation ?"
8. The learned counsel for the appellants
pointed out that the first Appellate Court was not justified in
coming to the conclusion that there has been a blending of
the property acquired under Ext.A2 with the joint family
property. The learned counsel went on to contend that
there is no pleading in the plaint to that effect and even
assuming there is some evidence in that regard, it cannot
be looked into. All that was stated in the appeal
memorandum was that the plaint schedule property has
been impressed with the thavazhi character. Both the
courts have concurrently found the acquisition under
Ext.A2 was a self acquisition by Madhavi Amma. There is
no cross objection against that finding by the plaintiffs and
therefore, the said finding has become final. It was
contended that the plea of blending was wrongly sustained
by the first Appellate Court since there was no pleading
and acceptable evidence in that regard, as already stated.
In support of his contention, the learned counsel relied on
the decisions in Venkatasubramania v. Easwara Iyer
(AIR 1966 Madras 266), Venkata Reddi v. Lakshmama
(AIR 1963 SC 1601) and D.S.Lakshmaiah v.
L.Balasubramanyam (2003(1) SCC 310).
9. It is also contended that even assuming that
the plaintiffs had any manner of right over the suit property,
the same had been lost by adverse possession and
limitation. Even in the reply notice sent by the defendants
to the notice issued by the plaintiffs, it has been clearly
mentioned that Madhavi Amma had assigned property in
favour of defendants 2 and 3 in the year 1960 and being a
registered document, the plaintiffs should be deemed to
have notice of the transfer. It was thus contended that at
least from 1960 onwards, defendants 2 and 3 have been in
possession of the property to the exclusion of others and
that is sufficient to constitute adverse possession and
limitation. In support of the said contention, the learned
counsel relied on the decision in Vasantiben Prahladji
Nayak v. Somnath Muljibhai Nayak (2004(3) SCC 376).
10. It was contended that the defendants had
pointed out that the property covered by Ext.A1 which is set
apart to the share of Madhavi Amma and her children had
not been included in the plaint though it was available for
partition. Therefore, the suit was bad for partial partition. In
support of the said contention, considerable reliance was
placed on the decision in Kenchegowda v. Siddegowda
(1994(4) SCC 294). Accordingly, it was stressed that the
Judgment and decree of the first Appellate Court is
unsustainable both on facts and in law.
11. The learned counsel for the respondents, on
the other hand, pointed out that it is idle for the appellants
to contend before this Court that the respondents in the
appeal cannot urge the ground that Ext.A2 acquisition by
Madhavi Amma was for and on behalf of the thavazhi. The
learned counsel pointed out that though the said plea was
not accepted by the first Appellate Court, the decree had
gone in their favour. True, they could prefer a cross
objection. But, it was not mandatory for them to do so in
view of Order XLI Rule 22 CPC. It is also pointed out that in
view of Order XVI Rule 33 CPC, this court is competent to
pass such a decree as it deems fit and proper in the facts
and circumstances of the case. In support of the said
contention, reliance was placed on the decision in
S.Nazeer Ahamed v. State Bank of Mysore (AIR 2007
SC 989) and Anilkumar Gupta v. Municipal Corporation
of Delhi (AIR 2000 SC 659).
12. According to the learned counsel, the
thavazhi of which Madhavi Amma was the senior-most
family member at the relevant time, had obtained the
property under Ext.A1 deed. Therefore, funds were
available with the thavazhi. It is true that her son Govindan
Nair was the Manager of the thavazhi property. But, there
is nothing to show that Madhavi Amma had independent
source of income. There is no whisper in the written
statement filed by the contesting defendants that Madhavi
Amma could command independent funds and thereby she
had acquired the property covered by Ext.A2 in her own
name. Therefore, the presumption is that the acquisition
was for and on behalf of the thavazhi. This would be further
clear from a reading of Exts.A5 to A7, so says the counsel.
According to him, it is clear from the evidence on record
that the acquisition under Ext.A2 was treated as a thavazhi
acquisition and it was dealt with as such. The finding of the
courts below that the property is the self acquired property
of Madhavi Amma, is therefore, not correct either on facts
or in law. The learned counsel further contended that the
subsequent dealings with the property by the members of
the thavazhi and Madhavi Amma clearly indicate that there
was a blending of the property covered by Ext.A2 with the
thavazhi property and therefore, at any rate, the findings of
the first Appellate Court do not call for any interference.
13. The learned counsel for the respondents
also pointed out that the claim of the contesting
defendants at the time of evidence was that funds were
provided by the husband of Madhavi Amma. If that be so,
going by S.64 of the Cochin Nair Act, the acquisition will be
deemed to be for and on behalf of the thavazhi.
14. As far as the contention based on adverse
possession is concerned, according to the learned counsel
for the respondents, a high degree of proof of ouster is
necessary. It has to be clearly shown that the co-owner
had been holding the property hostile to the title of the
other co-owners and there is a clear ouster of other co-
owners from the property. Merely because the contesting
defendants had possessed the property for a long time and
had taken the income therefrom, those acts do not lead to
the conclusion that the rights of the other co-owners are
barred by adverse possession and limitation. Reliance was
placed on the decision in Saramma Ittoop & Ors. v. Kunjamma Kuruvilla & Ors. (ILR 2006(3) Kerala 272). According to the
learned counsel, the plea based on partial partition is also
unsustainable. It is not incumbent on the part of the person
who sues for partition to include all the properties that may
be available for partition. A suit for partition cannot be
dismissed on that ground. Reliance was placed on the
decision in Gopalan v. Vasu (1986 KLT 1100).
15. The first question that arises for
consideration is whether the plaintiffs in the suit can raise
the issue as to whether the acquisition under Ext.A2 is for
and on behalf of the thavazhi. One may recall here that the
findings of the Trial Court as well as the first Appellate
Court is that the plaint schedule property is a self acquired
property of Madhavi Amma. However, one cannot omit to
note that the Appellate Court held in favour of the plaintiffs
though the claim that the property covered by Ext.A2 was a
thavazhi property went against them. As rightly pointed out
by the learned counsel for the respondents the plaintiffs
could not have preferred an appeal because the decree
was in their favour. May be that they could have filed cross
objections. But, in the light of order XL1 Rule 22 CPC, even
if they do not prefer a cross objection, they can still support
the decree on the ground which went against them in the
lower court. Order XLI Rule 22 CPC reads as follows :
"22. Upon hearing respondent may object to decree as if
he had preferred separate appeal - (1) any respondent,
though he may not have appealed from any part of the
decree,may not only support the decree but may also
state that the finding against him in the Court below in
respect of any issue ought to have been in his favour
and may also take any cross objection to the decree
which he could have taken by way of appeal, provided
he has filed such objection in the Appellate Court within
one month from the date of service on him or his
pleader of notice of the day fixed for hearing the appeal
or within such further time as the Appellate Court may
see fit to allow."
In the decision reported in Anilkumar Gupta v. Municipal
Corporation of Delhi (AIR 2000 SC 659), it was held as
follows :
"17. In view of the recent Judgment of this Court in
Ravindra Kumar Sharma v. State of Assam (1999) 7
SCC 435 : 1999 AIR SCW 3578 : (AIR 1999 SC 357), it
is, in our opinion, open to the respondents to attack the
adverse findings arrived at or observations made by the
High Court, even if the respondents had not filed a
separate appeal against that part of the judgment.
Hence the respondents can contend that the finding or
observation that their appointments were tainted was not
correct. We have also condoned the delay in filing the
Special leave Petition (CC 3960/99) and therefore for
both reasons, it will be open to them to attack the said
finding in the appeals of the appellants or as appellants
in their own civil appeal arising out of SLP (CC 3960/99)"
In the decision reported in S.Nazeer Ahmed v. State Bank
of Mysore (AIR 2007 SC 989), it was held as follows :
"The respondent in an appeal is entitled to support the
decree of the trial court even by challenging any of the
findings that might have been rendered by the trial court
against himself. For supporting the decree passed by
the trial court, it is not necessary for a respondent in the
appeal to file a memorandum of cross-objections
challenging a particular finding that is rendered by the
trial court against him when the ultimate decree itself is
in his favour. A memorandum of cross-objections is
needed only if the respondent claims any relief which
had been negatived to him by the trial court and in
addition to what he has already been given by the
decree under challenge..............
In an appeal against dismissal of suit, the appellant is
entitled to challenge all the findings rendered against it
by the trial court and seek a decree as prayed for in the
plaint from the appellate court. Once appellant is found
entitled to a decree on the basis of the reasoning of the
appellate court, the suit could be decreed by reversing
the appropriate findings of the trial court on which the
dismissal of the suit was based. For this, no recourse to
Order XLI Rule 33 is necessary. Order XLI Rule 33
enables the appellate court to pass any decree that
ought to have been passed by the trial court or grant
any further decree as the case may require and the
power could be exercised notwithstanding that the
appeal as only against a part of the decree and could
even be exercised in favour of the respondents, though
the respondents might not have filed any appeal or
objection against what has been decreed. There is no
need to have recourse to Order XLI, Rule 33 of the
Code in a case where the suit of the plaintiff has come
up in appeal claiming a decree as prayed for by him in
the suit."
16. Apart from Order XLI Rule 22 CPC, the
appellants can take the aid of Order XLI Rule 33 also. The
said provision reads as follows :
"33. Power of Court of Appeal - The Appellate Court
shall have power to pass any decree and make any
order which ought to have been passed or made and to
pass or make such further or other decree or order as
the case may require and this power may be exercised
by the court notwithstanding that the appeal is as to part
only of the decree and may be exercised in favour of all
or any of the respondents or parties, although such
respondents or parties may not have filed any appeal or
objection and may where there have been decrees in
cross-suits where two or more decrees are passed in
one suit, be exercised in respect of all or any of the
decrees, although an appeal may not have been filed
against such decrees."
In the light of the above provisions, the contention raised
on behalf of the appellants that the plaintiffs cannot be
heard to say that the property acquired under Ext.A2 was
for an on behalf of the thavazhi cannot be countenanced
merely because there has been concurrent findings against
them in that regard by the courts below.
17. It is not in dispute that Madhavi Amma and
her children obtained property under Ext.A1 partition deed.
The acquisition under Ext.A2 was subsequent to the
partition under Ext.A1. True, she could not be in the
management of the property though she was the eldest
female member of the thavazhi. Her eldest son Govindan
Nair was in the management of the property. It is also true
that Ext.A2 is in the name of Madhavi Amma. The property
has a considerable extent. A major portion of the sale
consideration is appropriated towards a mortgage debt.
The balance amount paid as per the deed comes to about
Rs.78/-. It is significant to notice that Ext.A2 is silent about
the source of funds. One must notice that Ext.A2 is of the
year 1094 ME. The Cochin Nair Act came into force on
22.07.1938. It can be seen that at the time when Ext.A2
was entered into, the prestine Marumakkathayam Law was
in force in full vigour. Knowing full well of the consequence
of the acquisition, if the acquisition under Ext.A2 was to be
a self acquisition, surely, there would have been an
indication to that effect in the document itself. The
conspicuous absence of the source of funds and also the
fact that there was a nucleus available, from which funds
could be raised for the acquisition, as would be evident
from Ext.A1 partition deed, makes the claim of the
contesting defendants open to serious doubts. The said
deed would clearly suggest that Ext.A2 acquisition was for
and on behalf of the thavazhi headed by Madhavi Amma.
As per Ext.A1, Madhavi Amma and her children got three
items of properties which had substantial extents. The
sales consideration made mention of in Ext.A2 is
considerable and there is nothing to show that Madhavi
Amma had any independent source of income. It is true
that at the time of evidence, the contesting defendants had
put forward a case that she had obtained funds from her
husband. If, as a matter of fact, one is to assume so and
come to the conclusion that the husband had purchased
the property in the name of the wife then, as rightly pointed
out by the learned counsel for the respondents in this
appeal, S.64 of the Cochin Nayar Act would be attracted.
Section 64 of the Cochin Nayar Act reads as follows :
"64. Where a person bequests or makes a gift of any
property to, or purchases any property in the name of
his wife alone or his wife and one or more of his children
by such wife together, such property shall, unless a
contrary intention appears from the will or deed of gift or
purchase or from the conduct of the parties, be taken
as thavazhi property by the wife, her sons and
daughters by such person and the lineal descendants of
such daughters in the female line.
Provided that in the event of partition of the property
taking place under this chapter, the property shall be
divided on the stirpital principle, the wife being entitled to
a share equal to that of a son or daughter."
Viewed from that angle also, the claim of the plaintiff gains
strength.
18. Coming to the documents relied on by the
first Appellate Court, namely, Exts.A2, A5, A6 and A7, they
would in fact, go to show that the property was treated as a
thavazhi property. Going by the description in Ext.A2, it is
very clear that the entire sale consideration was not paid
and a good portion of the same was utilised to wipe off a
mortgage debt. One may take note of the description of the
plaint schedule property contained in the said deed. Ext.A5
is the mortgage deed, executed by Madhavi Amma and
other members of the thavazhi. Ext.A5 creates a mortgage
and takes in two items of properties. Item No.1 is the
property covered by Ext.A2 document. In the body of the
said document, it is recited as follows :
(the entire bundle of rights we have)
19. Ext.A6 is another mortgage deed, executed
by some members of the thavazhi in which also the
property covered by Ext.A2 figures as one of the items in
the mortgage. An identical recital as in Ext.A5 is seen in
Ext.A6 also. Ext.A7 is the sale deed executed by Govindan
Nair, the eldest son of Madhavi Amma in favour of other
members of the thavazhi. It covers the properties taken in
by Exts.A1 and A2. What is important is that he assigns his
rights in respect of Item No.2 also, which is the property
covered by Ext.A2.
20. The assertion of rights by the members of
the thavazhi including Madhavi Amma over Item No.1 in
Exts.A5 and A6 and the sale of Govindan Nair of his right
over the property covered by Ext.A2 would clearly indicate
that members of the thavazhi of Madhavi Amma were
treating the property acquired under Ext.A2 as a thavazhi
property and the acquisition was treated on behalf the
thavazhi. The recitals in these documents are clear
enough to come to the conclusion that the acquisition
under Ext.A2 was for and on behalf of the thavazhi of which
Madhavi Amma was the eldest female member. It is here
that the non-production of the so-called assignment deed
by Madhavi Amma in favour of defendants 2 and 3
assumes importance.
21. It is contended on behalf of the contesting
defendants that Madhavi Amma had assigned the property
to defendants 2 and 3 and that shows that it was a self
acquired property. For reasons best known to those
defendants, they chose not to produce the said document
and therefore, this court is not in a position to ascertain the
recitals contained in the said deed regarding tracing of title
by Madhavi Amma in that document.
22. In the light of the finding that the property
has been acquired as a thavazhi property, the question as
to whether there was blending of the property as was
found by the first Appellate Court, does not arise for
consideration.
23. The next contention taken up by the
appellants is that even if the plaintiffs had any manner of
right over the suit property, that has lost by adverse
possession and limitation. Reliance was placed on the sale
deed said to have been executed by Madhavi Amma in
favour of defendants 2 and 3 and it is contended that this
was made known to the plaintiffs in the reply notice sent by
the contesting defendants. According them, their exclusive
possession and assertion of rights over the property begin
from the date of the sale deed and since the suit was filed
only in the year 1979, the title of the plaintiff is lost by
adverse possession and limitation. In the decision relied on
by the learned counsel for the appellants in Vasantiben
Prahladji Nayak v. Somnath Muljibhai Nayak (AIR 2004
(3) SC 376), it is observed as follows :
"To establish ouster in cases involving claim of adverse
possession, the defendant has to prove three elements,
namely, hostile intention, long and uninterrupted
possession and exercise of the right of exclusive
ownership openly and to the knowledge of the owner. In
cases of adverse possession, the starting point of
limitation does not commence from the date when the
right of ownership arises to the plaintiff but it
commences from the date when the defendant's
possession became adverse. Therefore, in the present
case, the starting point of limitation for adverse
possession cannot be taken as 29.11.1965 and one has
to take the date when the respondents' possession
became adverse."
It has to be said that the above contention has no
substance at all. One must remember that hostile title is
claimed against a co-owner. In the decision reported in
Saramma Ittoop & Ors. v. Kunjamma Kuruvilla & Ors. (ILR 2006(3)
Kerala 272), it has been held as follows :
"Mere possession by him for any length of time would
not entitle him to claim exclusive title unless there is
proof of ouster and adverse possession. It is well-settled
that as between co-heirs there must be evidence of
open assertion of hostile title, coupled with exclusive
possession and enjoyment by one of them to the
knowledge of other as to constitute ouster. A secret
hostile animus to possess adversely to the real owner is
not sufficient."
The law is well settled in this regard. The onus to prove
adverse possession and ouster is on the person who sets
up the adverse title. It is well settled that mere keeping the
possession or not sharing the income by itself are not
sufficient to constitute ouster. The principle is that the
adverse possession pleaded must be adequate,
continuous and exclusive. There must be evidence of
assertion of a hostile title coupled with exclusive
possession and enjoyment by one of them to the exclusion
of all others.
24. The reliance placed on the deed of
assignment which is not even produced before the courts
to claim plea of adverse possession and limitation, cannot
be countenanced. There is nothing to indicate that at any
point of time, the other co-sharers were made aware of the
so called assignment deed said to have been executed by
Madhavi Amma in favour of defendants 2 and 3. There is
nothing to indicate that even thereafter, there was any
assertion of hostile title by the contesting defendants to the
knowledge of other co-sharers. Hence this plea also
cannot be accepted.
25. Finally, it is contended that the suit is bad for
partial partition. It is true that in the decision reported in
Kenchegowda v. Siddegowda (1994(4) SCC 294), it was
held that a suit may be bad for partial partition, but the
principle in the said decision has to be confined to the facts
of that case.
26. The general rule is that there cannot be a
partial partition. But, there is no invariable rule that a suit
has to fail merely due to seeking of partial partition. Partial
partition may be in respect of parties or it may be in respect
of properties. Normally, when a suit for partition is laid, it is
presumed that all the properties, which are available for
partition, are included. However, it does not mean that it is
mandatory that all the properties should be included for
seeking partition. The co-sharers may decide to keep some
items in common and seek partition in respect of some
other items.
27. In the case on hand, the learned counsel
for the appellants pointed out that in the written statement,
the contesting defendants had clearly stated that the
property covered by Ext.A1 document was available for
partition. It was contended that there was no reason as to
why the plaint did not include that property. It is also
contended that there is nothing to show that the suit
property was not available for partition.
28. The learned counsel appearing for the
respondents placed reliance on the decision reported in
Gopalan v. Vasu (1986 KLT 1100) wherein it was held as
follows :
"There is no rule of law which says that a party
suing for partition will have to include all the properties
to which he is entitled along with others, whatever be
the capacities in which they claim partition regarding
different items. Order II Rule 2 of CPC is also applicable
only in cases where the claim is based on the same
cause of action. The rule of partial partition is only one
of prudence and convenience. At any rate, the bar of
partial partition or Order II Rule 2 of CPC could only
apply to joint tenancies where the cause of action is the
same and not to tenancies-in-common where the cause
of actions are distinct and separate. Prohibition against
partial partition even in joint tenancies is only a rule of
construction, prudence and convenience and not a rule
of law which is invariably applicable in all cases. The
argument that even in the case of joint family or tarwad,
a suit for partition will always be bad for the simple
reason that some item was omitted is unsound, although
for the sake of convenience and adjustment of equities,
such a suit should cover all the joint family or tarwad
properties. There may be instances in which even in the
case of a joint family or tarwad practical considerations
may justify institution and continuance of suits for
partition without including all the joint family or tarwad
properties. A second suit for partition may not be barred
where the omission to include those items in the
previous suit was for good reasons. Judicial
pronouncements in this respect lay down only a rule of
construction, prudence and convenience in relation to
the partial partition. It is not an inflexible proposition of
law. 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
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."
It may be noticed that in his evidence, PW1 has stated that
the property covered by Ext.A1 document was no longer
available for partition. If, as a matter of fact, the contesting
defendants had a case that the said property was available
for partition, nothing precluded them from showing it in the
schedule to the written statement and claim partition
thereof. It is well settled that in a suit for partition, the
defendants also occupy the status of plaintiffs. Since the
plaintiffs have asserted that the property was not available
for partition, it is for the defendants to show that it was not
so. No attempt was made from the side of the defendants
to establish the said fact. There is nothing to show that the
property covered by Ext.A1 is available for partition. So,
this ground too should fail.
29. The result is that this appeal is without
merits and it is liable to be dismissed. We do so. The
preliminary decree passed by the first Appellate Court is
upheld, though for different reasons. There will be no order
as to costs.
THOTTATHIL.B.RADHAKRISHNAN,
JUDGE
P.BHAVADASAN, JUDGE
sta