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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: T.C. Mohandas
Judges
  • Padmanabhan, J.
Acts
  • provisions of the Hindu Women's Rights to Property Act, 1937,
  • Order II Rule 2 of the Code of Civil Procedure
  • Act. S. 19(b) of the Hindu Succession Act
  • HINDU SUCCESSION ACT 1956
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: T.C. Mohandas
Judges
  • Padmanabhan, J.
Acts
  • provisions of the Hindu Women's Rights to Property Act, 1937,
  • Order II Rule 2 of the Code of Civil Procedure
  • Act. S. 19(b) of the Hindu Succession Act
  • HINDU SUCCESSION ACT 1956
See more information ...
Smart Summary

Structured Summary of the Opinion (Partition Suit — Second Appeal)

Factual and Procedural Background

The plaintiff (appellant) and defendant are brothers and the only heirs of their mother. The suit sought partition of property that was the only asset belonging to their mother, who had died. The defendant raised several defenses, including adverse possession, leasehold rights and a plea of partial partition. The plea of partial partition was tried as a preliminary issue and found against the defendant. The defendant then amended his written statement, alleging that the plaintiff omitted certain properties which the mother inherited from their deceased father. The Munsiff rejected all the defendant's contentions (including the plea of partial partition) and decreed the suit in favour of the plaintiff.

On appeal, the Subordinate Judge, Palghat accepted the plea of partial partition and dismissed the suit. The plaintiff therefore filed this second appeal. The amended written statement did not specify the omitted items of property; it advanced only a general allegation that properties inherited by the mother from the father were not included in the plaint. The plaintiff countered that the mother had no right to certain paternal properties because those were either orally partitioned among heirs, or because the father had divorced the mother and remarried, producing a second family (including a person named Kali and her children), evidenced by Ext. B2 (a partition deed). The plaintiff also relied on the contention that, under the Hindu Women's Rights to Property Act, 1937, a widow was not entitled to inherit agricultural land unless the Act was extended to agricultural lands (allegedly extended on 26-11-1946), and that the father died before that date.

Legal Issues Presented

  1. Whether a suit for partition is barred for partial partition when the omitted properties are co-ownership properties (tenants-in-common) as opposed to joint family/coparcenary properties.
  2. Whether the rule against partial partition (and Order II Rule 2 CPC) applies where the cause(s) of action in respect of different properties are distinct (i.e., in cases of tenants-in-common) or where the plaintiff has not specified the omitted properties.
  3. Whether the Subordinate Judge was justified in dismissing the suit on the ground of partial partition, overturning the Munsiff's decree.

Arguments of the Parties

Appellant (Plaintiff)'s Arguments

  • The plaintiff asserted that the property sued for partition was the only asset of the mother and that the mother had no right over certain properties of the father because those were already orally partitioned among the heirs.
  • The plaintiff contended that the father had divorced the mother and married another woman named Kali, who had children; Ext. B2 (a partition deed between the plaintiff, defendant, Kali and her children) was relied upon to show acceptance by the defendant of rights in Kali and her children.
  • The plaintiff relied on the Hindu Women's Rights to Property Act, 1937 to argue that a widow was not entitled to inherit agricultural lands unless the Act was extended to agricultural lands (claimed to have occurred on 26-11-1946), and that the father died before that date — thus disputing the mother's right to certain paternal properties.
  • The plaintiff argued that the plea of partial partition cannot be availed of where parties seek partition as tenants-in-common (i.e., under S.19(b) of the Hindu Succession Act heirs take as tenants-in-common).
  • The plaintiff pointed out that the amended written statement did not specify which properties were allegedly omitted from the plaint.

Respondent (Defendant)'s Arguments

  • The defendant raised contentions of adverse possession and lease-hold rights over parts of the property sought to be partitioned.
  • The defendant argued partial partition: that certain properties (inherited by the mother from the deceased father) were omitted from the plaint, and therefore the suit was bad for partial partition.
  • In his written statement amendment, the defendant alleged that properties which devolved on the mother as heir of her deceased husband were left out of the suit for partition.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Parameswara Menon v. Sachidananda Menon (1970 KLT 1031) Illustrates that a suit for partition of joint family property is not necessarily bad if some items are omitted; exceptions may justify allowing a suit without including all family assets. The court relied on this decision to support the proposition that the rule against partial partition is not an inflexible rule of law but one of construction, prudence and convenience; it may be relaxed in appropriate cases.
Rajendra Kumar v. Brojendra Kumar (AIR 1923 Cal. 501) Sets out the foundational reasons for the rule that a partition suit should embrace all joint property — to avoid multiplicity of litigation, ensure just partition, prevent prejudice in equitable adjustments and appeals. The court quoted the decision to acknowledge the strong reasons behind the rule against partial partition, but used it as context to explain why the rule may be limited in application where unity of interest is absent (e.g., tenants-in-common).
Sambhudult v. Srinarain (AIR 1954 Rajasthan 269) Discusses exceptions to the rule against partial partition and explains differences between coparcenary (joint family) property and tenancy-in-common; in tenants-in-common, causes of action may arise at different times. The court relied on this authority to show that in tenants-in-common it is not essential that all common property be included in a single suit, and that the court has discretion whether to order inclusion of remaining properties; thus a suit should not be summarily thrown out for omission.

Court's Reasoning and Analysis

The court's reasoning proceeded in identifiable steps grounded in the material facts and the cited legal provisions:

  1. The mother died after the Hindu Succession Act, 1956 came into force; therefore inheritance to her heirs is governed by that Act. Section 19(b) of the Hindu Succession Act provides that where two or more heirs succeed to the property of an intestate they shall take as tenants-in-common and not as joint tenants. This classification establishes that the properties in question are co-ownership properties as tenants-in-common.
  2. The suit was filed after the Kerala Joint Hindu Family System (Abolition) Act, 1975; Section 4(1) of that Act deems, as on its commencement, parties to hold properties as tenants-in-common as if partition had taken place. The court invoked this statutory context to demonstrate that the properties scheduled in the plaint and any properties that might be alleged omitted are co-ownership (tenants-in-common) properties, each with definite shares.
  3. The court examined the legal rule against partial partition and the relevance of Order II Rule 2 CPC. It concluded that Order II Rule 2 is applicable only where the claim is based on the same cause of action. The court emphasized that the rule against partial partition is a rule of prudence and convenience, not an inviolable rule of law.
  4. Applying the precedents, the court distinguished joint family/coparcenary situations (where unity of interest and a single cause of action make inclusion of all items more necessary) from tenants-in-common/co-ownership situations (where causes of action for different items may arise at different times). The court relied on Parameswara Menon, Rajendra Kumar and Sambhudult to frame the limitations and exceptions to the rule against partial partition.
  5. The court applied the above legal principles to the facts: the plaint schedule and the properties sought to be added are co-ownership properties; causes of action for paternal and maternal properties are different and arose at different times; there were no equities alleged that required global adjustment, and the items allegedly omitted were not specified in the amended pleading. The plaintiff also had factual contentions that the omitted properties were not partible or that additional persons (the father's second wife and her children) would be entitled to shares, which would complicate inclusion.
  6. Given these factual circumstances and the legal position that the rule against partial partition is not absolute, the court found no basis to interfere with the trial court's (Munsiff's) discretion in favour of the plaintiff. It held that the Subordinate Judge was not justified in dismissing the suit on the ground of partial partition.
  7. On this basis the court allowed the second appeal, set aside the decree and judgment of the Subordinate Judge, restored the decree of the Munsiff and directed that the parties bear the costs incurred before this Court.

Holding and Implications

The second appeal is allowed; the decree and judgment of the Subordinate Judge are set aside and the decree of the Munsiff is restored.

Consequences and implications:

  • Direct effect on the parties: The plaintiff's suit for partition is reinstated as decreed by the Munsiff; the dismissal by the Subordinate Judge is set aside. The parties are directed to bear the costs incurred before this Court.
  • Scope of the decision: The court applied and explained established principles governing the rule against partial partition, emphasizing that the rule is one of equity, prudence and convenience rather than an absolute bar, and that it is applied differently where property is held as tenants-in-common. The opinion limits the application of the rule to properties over which there is unity of interest and possession and recognizes judicial discretion to permit or refuse inclusion of omitted properties depending on facts and equities.

The opinion does not purport to create a new rule of law; it applies existing statutory provisions and precedents to the facts before the court and restores the trial court's decree.

Show full summary ...

    Gopalan v. Vasu

    1. Plaintiff in a suit for partition is the appellant. Defendant is his brother. They are sons of the same father and mother. They are also the only heirs of their mother. The property sought to be partitioned is the only asset that belonged to the mother, who died. Defendant raised various contentions including adverse possession, lease-hold right and partial partition. The plea of partial partition was heard as a preliminary issue and it was found that the suit is not bad for partial partition. Thereafter, the defendant amended the written statement and contended that the plaintiff has not included those properties which devolved on the mother as heir of her deceased husband namely the father of the plaintiff and defendant. The Munsiff negatived all the contentions including the plea that the suit is bad for partial partition. The suit was decreed. But in appeal the Subordinate Judge, Palghat accepted the plea of partial partition and dismissed the suit. Hence the plaintiff came up in second appeal. Even in the amended written statement it is not specified what are the items of properties left out. There was only a vague statement that the properties inherited by the mother from her deceased husband were not included in the suit for partition and hence the suit is bad for partial partition. The mother admittedly died after commencement of the Hindu Succession Act, 1956. Plaintiff bad a case that the mother bad no right over the properties of the father which were already orally partitioned between the heirs. There was another contention for the plaintiff that even before his death the father divorced the mother and married another lady by name Kali in whom he had children. On account of the divorce also the mother was contended to be not entitled to the assets of the father. Ext. B2 is the partition deed between the plaintiff, defendant, Kali and her children. This document was relied on by the plaintiff in proof of the acceptance of the right on Kali and her children by defendant. Another contention of the plaintiff was that under the provisions of the Hindu Women's Rights to Property Act, 1937, a widow is not entitled to inherit the properties of the husband if they are agricultural lands. It is said that the Act was extended to agricultural lands only on 26-11-1946. Since the father died before that date, the right of the mother was disputed on this ground also, stating that the properties of the father are agricultural lands. There is yet another contention that even if the mother had any right in the properties of the father there is no unity of interest on account of the fact that the second wife and children of the father are also entitled to the properties whereas the plaintiff and defendant alone are the persons entitled to inherit the properties of the mother. It is also stated by the plaintiff that the plea of partial partition cannot be availed of in cases where the parties to the suit for partition are tenants-in-common. The fact that the mother had no other property of her own except by inheritance from the father is admitted even by the defendant.

    2. The mother admittedly died after the Hindu Succession Act came into force. Therefore inheritance is only under that Act. S. 19(b) of the Hindu Succession Act says that if two or more heirs succeed to the property of an intestate, they shall take the property as tenants-in-common and not as joint tenants. The suit was filed in 1977 long after the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force. S. 4(1) of the Act provides that as on the date on which the Act comes into force the parties shall be deemed to hold the properties as tenants-in-common as if a partition had taken place among all the members of the undivided family. Under that notion each of the member will be considered as holding his or her share separately as full owner. That means as on the date on which the Act came into force the members will be tenants-in-common. I have mentioned these aspects only to show that the property now scheduled in the plaint as well as the properties, if any, to be included in order to avoid the plea of partial partition, are all co-owner-ship properties which could be taken only as tenancy-in-common. Each of the co-owner will be entitled to definite shares. Regarding such properties the plea of partial partition may not be available.

    3. 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 the Code of Civil Procedure 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 the Code of Civil Procedure 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 based on the consequent difficulties and inconvenience 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 nog 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 is always subject to exceptions in appropriate cases. Parameswara Menon v. Sachidananda Menon ( 1970 KLT 1031), wherein a suit for partition without including all the properties was ordered to continue, itself was a case of joint family properties. In that decision it was observed:

    “The argument that a suit for partition of joint family property is bad if some item or other is omitted is unsound although normally, such a suit should embrace all the assets of the family. 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 partition.

    When there are certain items which are omitted from the earlier suit for good practical reasons the second suit will not be barred”

    4. The reasons for the rule against partial partition in joint tenancies laid down in the decision in Rajendra Kumar v. Brojendra Kumar (AIR 1923 Cal. 501) and quoted with approval in the above decision reads:

    “The rule that a partition suit should embrace all the joint property is neither arbitrary nor technical; it is founded on sound and weighty reasons. If the rule were not recognised and firmly applied, multiplicity of litigation would 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; it might be of paramount importance to a party litigant whether he should have a first appeal or a second appeal to the High Court, and whether he should at all be permitted to seek the judgment of the Judicial Committee with regard to the matters in controversy. The rule further ensures a just partition; parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts. It need not be disputed that there may be very special cases where the application of the rule may be justly relaxed”.

    5. Sambhudult v. Srinarain (AIR 1954 Rajasthan 269) was another decision quoted with approval in Parameswara Menon's case (1970 KLT 1031). In that decision the exceptions to the rule of partial partition in joint tenancies was stated thus:

    “The reason why in the case of partition between coparceners all the property must be thrown in the hotchpot except for certain well recognised exceptions is that 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. But in the case of tenants-in-common it is not necessary that the cause of action for partition of every item of the property which is held in common must arise at the same time. Therefore, it may be possible in cases of co-tenants that a suit may lie for one item of property at one time and for another item at another time”.

    6. So also the inapplicability of the rule in relation to co-ownership properties was summed up in that judgment thus:

    “It is clear, therefore, that in the case of tenants-in-common it is not essential that all the property held in common should be brought into hotchpot though it is desirable that as far as possible, in order to avoid multiplicity of suits, all the property should be included in one suit. It is, however, for the Court in each case to decide whether the case is of such a nature that the plaintiff should be ordered to include the remaining property also in the suit for division, provided of course the property is within the jurisdiction of the court in case it is immovable property. But the suit, in our opinion, cannot be thrown out on the mere ground that all the property which is capable of partition was not included”

    7. 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.

    8. 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 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 act want to fight. So also he cannot be compelled to schedule properties which according to him are not partible. As earlier stated these are not hard and fast propositions.

    9. In this case firstly the plaint schedule ‘property and the properties sought to be included are all co-ownership properties. For claiming partition of the father's and mother's properties the cause of actions are different arising at different times. There are no equities to be adjusted. There is no allegation of any inconvenience also. The items sought to be included are not specified. The plaintiff has got a case that those properties are not partible also. Even if partible, the allegation is that there are other persons also entitled to claim share. If those properties are included factual and legal contentions not existing at present may also arise. Additional parties also will have to be impleaded. There is no unity of interest also. Further, the trial court has exercised its discretion in favour of the plaintiff and the exercise of discretion is not in any way shown to be wrong. Under such circumstances, I am of opinion that the Subordinate Judge was not justified in law or equity in interfering with the discretion for the purpose of non-suting the plaintiff on the basis of the rule of partial partition which is only a rule of prudence and equity. The second appeal is therefore allowed. The decree and judgment of the Subordinate Judge are set aside and those of the Munsiff restored. In the circumstances, the parties are directed to suffer costs incurred before this Court.

    10. Allowed.

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    Comments

    Gopalan v. Vasu
    (Jul 31, 1986)