S. Barman, J.
1. This appeal arises out of a suit filed by the plaintiff for partition. The defence contention is that there was previous partition and that assuming that there was no partition, all the properties are not included in this suit for partition nor were the purchasers from the joint family impleadcd. Both the Courts below found that there was no previous partition of the suit properties and decreed the plaintiff's suit accordingly for partition.
2. The material facts are these : Sanatan and Ananda were two brothers. Sanatan died leaving him surviving his widow defendant No. 5 Maguni and three sons, namely, plaintiff Benudhar, Defendant No. 3 Pira and minor defendant No. 4 Panchu. Sanatan's brother Ananda also died leaving him surviving his widow defendant No. 2 Labanya and son defendant No. 1 Balanki who is the appellant in this second appeal. The main reliefs prayed for in paragraph 7 of the plaint are these :
(a) The properties mentioned in Schedule 'A' be partitioned by mates and bounds through a Commissioner appointed by the Court and the plaintiff be given separate possession of his share of lands through Court.
(b) The lands mentioned in schedule 'C' and 'D' be excluded from partition and the 'B' sch. lands be adjusted to the share of the defendants Nos. 1 and 2 and the 'E' schedule lands be adjusted to the share of the plaintiffs and the defendants 3, 4 and 5 and let it adjudged that Sudarsana Pradhan being unheard of for more than 10 years has died a civil death from the family of the plaintiff and the defendants 8, 4 and 5.
3. The appellant-defendant No. 1 Balunki contested the suit. His contention is that the entire family properties had been partitioned between Sanatan and Ananda, that they were in separate possession of their respective shares till their death, and that after their death, the parties inherited the shares of their respective fathers and separately possessed the same. It was, however, conceded by the appellant-defendant that some homestead lands were not partitioned at the time of the previous partition between Sanatan and Ananda; and that the purchasers have been in possession of some lands in their right, title and Interest. That apart, the maintainability of the present suit for partition in its present form, was also challenged on the ground that the necessary parties were not impleaded and the entire properties have not been brought into hotch pot. The defendant-appellant's mother defendant No. 5, Labanya supported him. The other defendants 3 to 5 supported the plaintiff's case.
4. As regards the properties which had been sold, it is said that the alienation was made by the members of the family jointly, In any event, the properties which are now in the hands of the purchasers are not available for partition in the present suit. The well settled position in law is this .
'The general rule is that where a suit for partition is brought by a co-parcener against the other co-parceners, it should embrace the whole family property. This rule is subject to certain qualifications. Thus where a portion of the property is not available for actual partition as being in the possession of a mortgagee or where it is held jointly by the family with a stranger, a separate suit for partition may be brought in respect of that portion.'
Mulla's Principles of Hindu Law 12th Edition p. 511. Thus assuming that certain joint family properties had been alienated and those properties had not been included in the present suit, even so, it cannot be said that the present suit for partition is not maintainable
5. The Courts below declared the shares of the parties, passed a preliminary decree for partition and appointed a Commissioner to effect partition with the directions to him that;
(1) The lands specifically mentioned in Schedule D of the plaint be excluded from partition.
(2) The lands specifically mentioned in Schedule B be allotted to the share of the defendant 1 and the lands specifically mentioned in Schedules C and E of the plaint be allotted to the share of the plaintiff and the defendants 3 to 5 together. As the lands mentioned in Schedules B, C and E of the plaint are not available for partition, the same amount of land will be deducted from the respective shares of the parties at the time of allotment of shares.
(3) The respective possession of the parties, as far as practicable, will be maintained at the time of allotment of the shares.
In my opinion, the Courts below had rightly decreed the suit for partial partition in the manner as indicated above. The terms in which the preliminary decree has been passed meet all the contentions of the appellant-defendant urged herein.
6. In this view of the case, I find nomerit in this appeal. The decision of theCourt below is confirmed. This appeal is dismissed with costs.