Hindu Law - Joint Family property - Partition - Co-parcener can bring suit for partition of whole property

2004(3) ALL MR 660

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

 Govindrao S/O Gangaramji Ajmire Vs. Dadarao Alias Shrawan S/O Gangaramji Ajmire (Dead)

 Second Appeal No.220 of 1990

 Hindu Law - Joint Family property - Partition - Co-parcener can bring suit for partition of whole property - Partial partition can be sought only in exceptional circumstances - Suit for partial partition not covered by exception - Suit is not maintainable.

 The general rule is that all the joint family properties should be brought into common hotchpotch and then seek partition of the same. A member of a joint family property suing his co-parceners for partition of family property is bound to bring into common hotchpotch the entire joint property in order that there may be complete and final partition of family properties that may be in his possession. The general rule is that initially suit for partition is brought by a co-parcener against other co-parceners, it should embrace the whole family property but this rule is subject to certain qualifications and exceptions. In the present case the plaintiff has filed suit for partition and separate possession of his half share in the suit house, without bringing into common hotchpotch the house property and open plot which are described in the written statement filed by him in earlier Regular Civil Suit. The plaintiff even did not make any reference to those properties in his plaint and simply stated that the agricultural lands were partitioned by a partition deed between him and his brother Shrawan. It would thus reveal that there was already partition of some of the properties which were the agricultural lands by virtue of the said partition deed. [Para 15]

 It may be pertinent to note that the rule that a partition suit should embrace of the joint family property is recognized and firmly applied in order to bring the equitable partition by metes and bounds. If the rules were not recognized and firmly applied, the multiplicity of litigation would be the inevitable result. If the suit for partial partition is 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 it 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. [Para 17]

 The instant suit filed by the plaintiff does not fall in any of the exceptions and it is, therefore, apparent that the plaintiff ought to have brought the entire family property in common hotchpotch so as to bring about the complete and final partition of all the joint family house property and thus the instant suit, singling out a house for partition is not maintainable. [Para 18]

 Cases Cited:

 Harihar Rajaguru Mohapatra Vs. Nabakishore Rajaguru Mohapatra, AIR 1963 Orissa 45 [Para 5,12]

 Sitaram Vinayak Hasabnis Vs. Narayan Shankarrao Hasabnis, AIR (30) 1943 Bombay 216 [Para 5,9,12]

 Apporva Shantilal Shah Vs. Commissioner of Income Tax, Gujarat, AIR 1983 SC 409 [Para 5,12]

 Kashinath Yamosa Kabadi Vs. Narsingsa Bhaskarsa Kabadi, AIR 1961 SC 1077 [Para 5,12]

 Rajendra Kumar Bose Vs. Brojendra Kumar Bose, AIR 1923 Cal 501 [Para 8,13]

 Kenchegowda Vs. Siddegowda alias Motegowda, (1994)4 SCC 294 [Para 8,14]