@ Motegowda Vs. Kenchegowda  INSC 312 (11 May 1994)
Judgment of the Court was delivered by MOHAN, J.- Both these appeals can be
dealt with under a common judgment since they arise out of a common judgment
rendered by High Court of Karnataka at Bangalore in Regular Second Appeal Nos. 768 and 769 of 1979.
following genealogical tree will establish the relationship between the
Siddegowda Kenchegowda Kalegowda Ninegowda @ Addegowda (D- 1 in OS No. (D- 1 in
OS No. 346 of 1976) 347 of 1974) Siddegowda Boregowda @ Motegowda @ Kenchegowda
filed two suits bearing OS Nos. 346 and 347 of 1974 before the learned Munsiff
at Mandya for declaration of his title and permanent injunction. The suit
property consists of 30 guntas of and in Survey No. 214 in each suit.
plaint averments are shortly as under. The plaintiff's father and his brother
formed a Joint Hindu Family. The father of the plaintiff died about 30 years ago
leaving behind him the plaintiff and his brother Boregowda.
the lifetime of the plaintiff's father there was a division of the properties
belonging to Joint Hindu Family.
the partition the plaintiff's father purchased the suit Survey No. 214
measuring one acre 20 guntas along with two other properties under a registered
sale deed dated 5-7- 1929. Therefore, the suit land is a self-acquired property
of the plaintiff's father which devolved on the plaintiff and his brother. The
plaintiff and his brother divided their family properties six years ago and in
that partition the suit property was allotted to the share of the plaintiff. As
such he became the exclusive owner of the suit land.
Notwithstanding this being so the first defendant sold 30 guntas to the second
defendant for a sum of Rs 5000 under registered sale deed dated 296 14-6-1973.
Similarly, the remaining 30 guntas of land was sold in favour of the second
defendant in OS No. 347 of 1974 by sale deed dated 27-6-1973 without any right whatsoever.
the plaintiff was compelled to file the suits for the relief of declaration of
title and permanent injunction.
defendants in both the suits filed separate written statements. However, their defence
is common. The relationship between the parties was admitted. The principal
stand is that the suit property was purchased by the plaintiff's father as
Manager of the Joint Hindu Family by himself and his brothers out of the joint
the death of plaintiff's father, as a member of the Joint Hindu Family, the
plaintiff represented by the mother and the first defendant in the two suits
sold some other properties. As regards the suit Survey No. 214, on the division
of properties of the Joint Hindu Family between the plaintiff and the first
defendant, it fell to the share of the first defendant. The plaintiff was in
possession of the suit land. On trial, the case of the defendant came to be
accepted that the suit land was the joint family property.
fallen to the share of the defendant. In this view, the suit came to be
appeals were preferred. The first defendant in OS No. 347 of 1974 died during
the pendency of the appeal. His legal representatives were not brought on
record. As a result, the appeal abated. It was held that the cause of action
survived against the second defendant in OS No. 347 of 1974. Ultimately, it was
concluded that the partition was true. But defendants in both cases failed to
prove that the suit properties fell to their shares. Further the purchase of
the suit land by the father of the plaintiff was out of Joint Hindu Family
funds. With these observations, the learned Civil Judge, Mandya dismissed both
two second appeals bearing Nos. 768 and 769 of 1979 were preferred. Along with
the appeals ail application seeking the amendment of plaint was also taken out
stating that the plaintiff, in any event, would be entitled to 1/3rd share.
Therefore, a decree for partition of the said 1/3rd share be passed. The
learned Single Judge allowed the appeal in modification of the decree of trial
court. A preliminary decree for partition of 1/3rd share of the suit property
came to by passed. Hence, these SLPS.
Originally, when SLPs came before this Court notice was issued on 10- 12-1990 in the following terms:
notice limited to the question whether all the parties, necessary to be party
in a suit of partition were on record in the second appeal. The suit was
permitted to be converted in partition particularly in the light of the
circumstance that one of the coparceners had died and legal representatives had
not been brought on record in the first appellate court and at all events, the
share would only be 1/4th not 1/3rd. The notice will specify that the matter
will be finally disposed of at the SLP stage itself." The above notice is
withdrawn. Notice on SLPs is issued.
Leave granted. Appeals were heard on merits.
is argued on behalf of the appellant that the learned Single Judge went wrong
in converting the suits for declaration and injunction into one for partition
when all the joint family properties were not made tile subject- matter of the
suits nor were all the co-sharers impleaded.
well-settled in law that a suit for partial partition is not maintainable.
Merely because the plaintiff came to file an application under Order 6 Rule 17
CPC it would not mean it could be allowed and a preliminary decree for
partition be passed. As a matter of fact, the causes of action are different. Therefore,
the High Court went wrong in holding the larger relief of declaration of title
and injunction even though not available to the plaintiff the smaller relief
for partition could be granted.
The court of first appeal had, in fact, accepted the partition of the joint
family. No doubt, it has observed that the allotment of these specific
properties in favour of the first defendant in both the suits had not been
the High Court had held otherwise and proceeded on a wrong assumption. On the
death of Kalegowda, the first defendant in OS No. 347 of 1974 during the pendency
of the appeal the legal representatives ought to have been brought on record.
Therefore, as far as the first defendant in that suit was concerned the suit
findings of the trial court had become final and conclusive. This means the
finding of fact regarding the partition set up by the first defendant could no
longer be interfered with. Further, the name of the first defendant had been
deleted from the array of parties. Therefore, the passing of the preliminary
decree for partition overlooking this important aspect is unsustainable in law.
opposition to this, the learned counsel for the respondent would submit that
once the property was held to be joint family property the relationship between
the parties having been admitted there could be no impediment in passing the
preliminary decree for partition. No doubt, what was sought for was exclusive
title but that does not prevent the court from granting a smaller relief. Such
relief could not be denied on mere technicality. Hence, where justice has been
done there is no scope for interference.
Having regard to the above contentions we will now proceed to consider whether
the High Court was justified in passing the preliminary decree for partition of
1/3rd of plaintiff's share. During the pendency of the first appeal Kalegowda,
the first defendant in OS No. 347 of 1974 died.
finding of the trial court was clearly in his favour and it is to the following
No. 3.- The evidence on record especially the evidence of PW 1 and the
averments in Ex. D-1 clearly establish that the suit schedule property was the
Joint family property of the father of the plaintiff and his brothers. The evidence
of defendants disclose that in a partition which took place subsequently the
suit land was allotted to the shares of the first defendants in both the suits.
Apart from tile oral evidence, the Revenue records at Ex. P-1 to P-3, kandayam
receipts at 298 Ex. D-4 and D-5, certified copies of the pahani extracts at Ex.
D-6 to D-17, R.T.C. extract at Ex. D-18, another kandayam receipt at. Ex. D-20
and Ex. D-21 the certified copy of the order passed by the Tahsildar clearly
prove that the suit schedule properties are owned by the first defendants in
these suits. If actually this was allotted to the shares neither of plaintiff
or of PW 1, necessarily they would not have kept quiet in spite of coming to
know that this land was entered in the katha of the first defendant in both the
suits. These documents therefore prove the claim of the defendants to the
effect that these properties were allotted to the shares of 1st defendant in
both the suits in a partition that took place subsequently.
this issue is answered accordingly in the affirmative." 14.The death of Kalegowda
and his legal representatives not having been brought on record and the
deletion of his name from the array of parties would result in the abatement of
that suit. The finding extracted above became final and conclusive and binding
between the parties. Therefore, to hold, as the High Court has done, that the
cause of action will survive as against second defendant, is incorrect.
Equally incorrect is the assumption made by the High Court that the court of
first appeal had not accepted the case of partition. On the contrary, what the
appellate court has found is as follows:
regard to the partition alleged by the defendants even though the plaintiff's
own witness PW 1 has admitted that there was a partition amongst the
plaintiff's mother Ningamma, himself and the 1st defendant in the two suits.
There is no satisfactory evidenc e to prove that in that partition the suit
property was allotted to the share of the 1st defendant in the two suits
Therefore, what has been held is that the property had not been allotted in favour
of the first defendant in the partition. That is very different from holding
that the case of partition had not been accepted by the first appellate court.
This being so, a decree for partition could not have been passed on a mere
application for amendment. In fact, as rightly urged by the learned counsel for
the appellant that the causes of action are different and the reliefs are also
different. To hold that the relief of declaration and injunction are larger reliefs
and smaller relief for partition could be granted is incorrect. Even otherwise,
a suit for partial partition in the absence of the inclusion of other joint
family properties and the impleadment of tile other co-sharers was not
warranted in law. Thus, we find no difficulty in allowing these appeals which
are accordingly allowed. The judgment and decree of the trial court as affirmed
by the first appellate court are restored. However, there shall be no order as