1. This is appeal is directed against the judgment and decree of the learned Judge. City Civil Court 3rd Court Ahmedabad passed a preliminary decree of favour of the different as prayed for.
2. The plaintiff Bai Kanku widow of Patel Trikmal Atmaram filed a suit on 12-9-1961 for partition of the immovable property of described in para 17 of the plaint claiming 1/3 share therein and for mesne profits. She also prayed for accounts of the income of the property form the 10-6-1938 and for the decree of 1/3 share from the said amount of income. According to the plaintiff her husband Trikumal Atmaram and defendant Shakrabhi Atmaram were their father Atmaram were the members of joint Hindu family. Tarikumal died on or about 15-12-1935 leaving behind him his three sons and one daughter and his widow -- the present plaintiff According to the plaintiff there was partition of the joint family properties in the life time of Trikumal and some property were kept joint and these properties bore municipal; census No. 514, 514/1. 515, 151/1. 516, 516/1 and 686 in Asarva and also agricultural lands bearing survey numbers 233 and 150 in Asarva survey number 137/2 at Hansol and a house bearing municipal census No. 835 at Haripur and also one field bearing survey number 260 known as Gabudiawala field in Asarva. At the time of the partition. It was agreed that Atmaram may take the income of the joint property and for that purpose a document was executed on 10 -11 -1934. After the death of Trikamlal, his three sons died and therefore, the plaintiff inherited the interest of her three sons. After the death of Atmaram on or about 10 -6 - 1938. the defendant was managing the joint family properties. The plaintiff had filed civil suit No. 668 of 1947 which was subsequently treated as jurisdiction suit No. 214 of 1951. A preliminary decree for partition was passed in favour of the plaintiff on 31-8-1953 against which an appeal was preferred by the present defendant in the Bombay High Court being civil appeal No. 59 of 1954. The said appeal was decided on 30-10-1958 wherein the decree of the trail Court was modified with regard to mesne profits. The final decree was then passed on 22-12-1959. According to the plaintiff for the first time, she came to know at the time of the final decree. that the survey number given in para 16-A (2) of the plaint. was wrongly stated though oversight as survey number 160 instead of survey number 260. she gave an application for amendment of the plaint. However the said application was rejected by the Court on the ground that the suit was already disposed of. Thereafter, the present defendant gave the suit filed for removing earth on it and collected Rs. 5,000/- from the firm of contractor Punjalal Nathabhai. The plaintiff who claimed interest in the said amount gave a notice to the defendant and in reply to the notice, the defendant admitted the plaintiff's share in the said survey number 260. As the defendant failed to give the plaintiff her share in the amount realised by him, she has filed the present suit for partition of her share in survey number 260 and for accounts from the defendant. The defendant by his written statement. Ex. 11 raised several contentions. He stated that the decree passed in suit No. 214 of 1954 was binding upon the plaintiff and that the present suit was barred by limitation . He denied that there was bona fide mistake on the part of the plaintiff in mentioning the survey number in the plaint of that suit. He contended that the plaintiff had no interest in survey number 260; that as the plaintiff failed to file an appeal against the order of the court refusing amendment of the plaint as prayed fro by her the present suit was barred by res judicata. The defendant claimed that be was the exclusive owner of survey number 260 as he was in possession thereof for more than 12 years past. The learned Judge. from the pleadings of the parties, farmed issues at Ex. 51. He decided issues Nos. 1, 2, 4, 5 and 6 in the affirmative and issue No. 3 in the negative. On the findings of these issues the learned Judge passed a preliminary decree in favour of the plaintiff as prayed for. Against the said judgment and decree the defendant has preferred the present appeal to this Court.
3. Mr. Arun H. Mehta, learned Advocate for the appellant raised several contentions. He submitted that the present suit was barred by Order 2, Rule 2, Civil P. C. inasmuch as the plaintiff in the previous suit had not included the present survey number for partition. He urged that the plaintiff had failed to prove her interest in the suit property.
4. Mr. B. R. Shah, learned Advocate for the respondent-plaintiff on the other hand, urged that the suit as framed was maintainable because even though according to the plaintiff survey number 260 was the subject-matter in the previous suit the executing Court had negatived the said contention and had refused to amend the plaint. He urged that she had not deliberately omitted to include the said survey number for in the previous suit nor had she relinquished her interest therein . It was only though inadvertence that a wrong survey number was mentioned. That apart, he urged that after the previous partition. during the lifetime of the plaintiff's husband. the properties which had remained undivided were held by them as tenants in common and if in the previous suit for partition filed by the present plaintiff. even if survey number 260 is held not to have been included. the present suit cannot be said to have been barred by the provisions of Order 2. Rule 2, Code of Civil Procedure.
5. In order to appreciate the rival contentions of the parties, it will be worthwhile to refer to the description of the property mentioned in the previous preliminary decree passed by the Court in jurisdiction suit No. 214 of 1954. In that decree the property in dispute has been described as under:--
'Survey No. 160 paiki -- A-G-1-18 Chakarivat known as Gabudiawala having the following boundaries:
East-- There is Charmada land known as Kutariyu.
West- Half the land admeasuring 21/2 bighas belonging to Pujabhai Bapuji, of this very survey number 160.
North-- Field of Balabhai Motilal.
South-- Field of Parshottamdas Kandas'.
In the present suit be the boundaries of survey number 260 as given in the plaint are practically the same as given in the plaint of the previous suit with the difference of survey numbers only. In the present suit, survey number shown in 260 while in the previous suit, it was shown as 160. The defendant no doubt in the written statement has stated that the boundaries mentioned in para 5 of the plaint were not correct. But it is not the say of the defendant that survey number 160 ever belonged to the family of Atmaram. It is not the say of the defendant that survey number 160 ever belonged to him exclusively. It is therefore, clear that the field bearing survey number 160 could not have been the subject-matter of the previous suit. The plaintiff has come out with a clear case that the field bearing survey number 260 was joint between the parties. According to the plaintiff when there was partition during the lifetime of her husband Trikamlal this filed along with other properties was kept undivided and in the jurisdiction suit No. 214 of 1951, along with partition of other properties, she had claimed partition of this filed also. A preliminary decree in her favour was passed by the court for partition of the properties mentioned in the plaint. Thus, if the description of the filed is taken into consideration it is clear that the plaintiff had meant filed bearing survey number 260 and not the filed bearing survey number 160. The plaintiff in fact could not have meant filed bearing survey number 160 for the simple reason that the said filed did not belong to the family at all. The plaintiff, therefore, is right when she urged that through inadvertence. survey number 160 came to be mentioned in the plaint instead of survey number 260. As this mistake was not detected during the trial. naturally. the preliminary decree which was passed by the court also mentioned this property as the field bearing survey number 160. This mistakes came to be detected after the final decree was passed when the plaintiff gave an application for amendment of the plaint which was rejected by the court. The learned Judge observed--
'Section 151 on doubt gives wider powers to the court but such powers cannot be used when there is no case subsisting before the court. Had the suit been alive, the amendment could have been allowed on the ground of typographical mistake provided the description was proper. But at this stage. I cannot use the power under Section 151. C. P. Code and therefore I have to reject this application with costs'.
The result of the order was that the final decree for partition which was passed in jurisdiction suit No. 214 of 1951 did not include the said field bearing survey number 260 though the description of the filed bearing survey number 160 virtually applied to the description of the filed bearing survey number 260. The plaintiff, therefore could not file an execution application to recover her share in the suit filed bearing survey number 260 because the number which was shown in the decree was 160 and no 260. Under the circumstance , the plaintiff had no option but to file a fresh suit for partition and possession of her specific interest in the suit property. The learned Judge passed a preliminary decree in favour of the plaintiff against which the present appeal has been preferred by the defendant.
6. Mr. A. H. Mehta, learned Advocate for the appellant submitted that the present suit would be barred by the provisions of Order 2., Rule 2 of the Code of Civil Procedure. He urged that in the previous suit for partition, the plaintiff ought to have included all the property which were held jointly by the parties as tenants in common. If the plaintiff intentionally relinquished and omitted the suit properties deliberately. she cannot file a fresh suit claiming relief for partition with regard to that property. Order 2. Rule 2 of the said Code states--
'2 (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make to respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.
(2) Where a plaintiff omits to in respect of, or intentionally relinquishes any portion of his claim. he shall not afterwards sue in respect of the portion so omitted or relinquished'.
Relying on these provisions. Mr. Mehta forcefully urged that the suit property which according to the plaintiff, was held jointly as tenants in common by the parties. ought to have been included in the previous suit and even if the plaintiff inadvertently omitted to do so or intentionally relinquished her claim therein, Order 2, Rule 2 of the said code would come into play and the suit would be barred. In support of his say, Mr. Mehta referred to the judgment of the division bench of this court in the case of Prajaram Vithalji Sheth v. Maganlal Vithalji Sheth, (1970) 11 Guj LR 602 wherein at page 605, it was observed that--
'In fact in a suit which a co-heir files against another all the properties held as tenants in common by one or the other co-tenants must be brought into the hotchpotch and accounts must be taken as in a suit by a member of the joint Hindu family for actual partition'. Reliance was placed by the division bench on the case of Yerukola v. Yerukola, (1922) ILR 45 Mad 648 = (AIR 1922 Mad 150) (FB). Relying on these observations. Mr. Mehta urged that as the plaintiff had omitted to include the survey number 260 in the previous suit for partition which it was incumbent on her to do. the present suit would clearly be barred by O. 2. R, 2 of the said Code. I am unable to agree with him. In order to attract the provisions of Order 2, Rule 2, it has to be established that the plaintiff has omitted or intentionally relinquished her claim with regard to the suit property in the previous suit. The averments made in the plaint clearly go to show that the plaintiff in fact had included the very property for partition in jurisdiction suit No. 214 of 1951. Her say is that though mistake, instead of describing the property by survey number 260. it was described as survey number 160. But the boundaries of that property are the same with regard to the suit property. In other words, her case is that she had not omitted the relief with regard to the suit property in the previous suit. But this mistake, had inadvertently crept in. As a result of this typographical error. the preliminary decree which was passed in her favour also mentioned the property as bearing survey number 160 with the result that the final decree also included that number and she was not in a position to get the suit property divided by meets and bounds in execution proceedings. She. therefore, had given an application to the court of amendment of the plaint which was rejected on the ground that the suit was already disposed of . Under the circumstances. she had not option but to file the present suit for partition and possession. From the evidence on record. the learned Judge came to the conclusion that the property which was in fact described in the previous suit for partition, is no other but the suit property and that it was though bona fide mistake that survey number was described as 160. The learned Judge was of the view that the present suit was not hit by the principles of res judicata and that a decree for partition could be passed in favour of the plaintiff. In my opinion. the description of the property as shown in the present suit completely tallies with the description of the property as given in the previous suit. I am. therefore, satisfied about the identity of the property. However. as the court had refused to amend the plaint and allowed the final decree to remain as it is in which the property was described as bearing survey number 160 and as no appeal or revision application had been preferred against the said order, that order remained conclusive with the result that the property bearing survey number 260 was not held to be the subject-matter of that suit. If it were not so. I would have treated the present suit as execution proceedings under Section 47 of the Civil Procedure Code. The question, therefore now which arises for my consideration is whether the present suit is tenable. In my opinion, once the joint family status come to an end on partition between the members of the joint Hindu family. if some properties are allowed to remain joint with them the same are held as tenants in common and it would not be incumbent on one of the co-heirs while not be incumbent on one of the co-heirs while claiming physical possession of his share from others, to include all the properties which were held by them as tenants in common. Mr. Mehta, however urged that in view of the decision of the division bench of this High Court which was binding on me. it was not open to me to hold that such a suit was tenable. It may be noted that the real question before the division bench was as to which of the articles of the Limitation Act applied in a suit for division of property brought by one tenant in common against the others. No question directly arose before the court whether subsequent suit would be barred by the provisions of Order 2, Rule 2 of the Civil Procedure Code. The observations made by the court, therefore, that 'in a suit which a co-heir files against another all the properties held as tenants in common by one or the other co-tenants must be brought into the hotchpotch' cannot be said to lay down any proposition of law. This question did not arise directly in the suit and it was not necessary for the court to give any decision about it. These observations, therefore, were in the nature of mere obiter, and with respect, I beg to differ. Besides, it may to noted that in coming to this view. the bench had relied on the observations made in the case of (1922) ILR 45 Mad 648 = (AIR 1922 Madras decision it is clear that no such point was decided in that case. There also, the question arose as to which articles of the Limitation Act would apply and the full bench of the Madras High Court ultimately gave is finding regarding limitation. No doubt, Kumarswami Sastri. J. who was one of the members of the Full Bench, has made passing observations at page 670 as under:-- 'The rule of Hindu law that a member of a joint family cannot, except in certain specific circumstances, sue for a partial partition is applicable to cases where the joint family has been disrupted by severance of status between the various members. It is clear that if a member of a Hindu family seeks to recover his share of any particular item of property he will be met with the plea that the suit is bad. and that he ought to file a suit for a partition of all the available properties, in order that all the equities may be adjusted between the various parties. Each member will have to bring into the hotshot the properties in his possession, and an account will have to be taken, at least from the date when the joint family became divided in status, of the rents and profits of the joint family properties received by any member and which are liable to be brought into the hotchpot.'
However it may be noted that his was not the law laid down by the full bench in that case. In fact Devadoss, J. who was also a member of the Full Bench at page 702 observed that--
'It is not necessary for the present purpose to examine the law relating to tenants in common. The position of the members of a Hindu Joint family, after division in status and before division of property by metes and bounds or allocation or collection of outstandings, is not the same in all cases. Each case will depend upon the intention and conduct of the members'.
This will go to show that the full bench did not lay down any proposition of law that in a suit for partition by one co-heir against the others, all the properties held as tenants in common must necessarily be brought into hotchpot. In fact that was not the point all issue before the Full Bench and no decision was give thereon. As stated earlier, only Kumarswami Sastri. J. has made passing observations to the said effect. The learned Judge of the division bench of this court in Prajaram's case, (1970) 11 Guj LR 602 (supra) seem to have adopted the view of Kumarswami Sastri, J. But in fact the division bench was not called upon to decide this point and in my opinion, the observations. referred to above were merely 'Obiter Dicta' and cannot be said to lay down any proposition of law. This point had directly arisen before the Bombay High Court in the case of Malhari Vaman Kramavant v. Vinayak Ravji Kramavant, AIR 1929 Bom 323 wherein at page 325, it was observed as under:--
'Although in the case of a joint family a person suing for partition must sue for partition of all the property I am not aware that there is any law by which a tenant in common seeking to recover possession of property left undivided and in possession of other tenants in common is bound to include all these properties in one suit'.
In this case, the court negatived the plea that another suit was barred by res judicata. Similarly, the division bench of the Madras High Court in the case of Pakkiri Kanni v. Haji Mohammad Manjoor Saheb, AIR 1924. observed that--
'There is no direct authority that a suit for partition of common property. not joint property is liable to dismissal on the ground that all the joint property in respect of which it might have been brought, has not been included. The plea of partial partition is not available when a suit for division of common property and not joint property is in question'.
It may be remembered a that this Madras decision was given after the Full Bench decision in Yerukola's case was given. If the Full Bench had laid down an law that a suit for partial partition amongst co-tenants could not lie, the division bench in the subsequent case could not have failed to notice the ratio laid down in that case. In fact no such ratio was laid down by the Full Bench as explained earlier. In my opinion, the only question which had arisen before the Full Bench of the Madras High Court was as to which of the articles of the Limitation Act applied in the case. The Nagpur High Court had taken the same view. In the case of Gapulal v. Gajasa, AIR 1932 Nag 92. it was observed that.
'After a decree has been passed in a suit for partition of the family property a subsequent suit may be brought in respect of any portion of that property which had inadvertently been omitted in the former suit'.
These decisions clearly go to show that the suit of the present nature is tenable and is not barred either by Rule 2, Order, of the Civil Procedure code or Section 11 of the said Code.
7. Coming to the merits of this case. Mr. Mehta urged that the plaintiff had failed to prove that survey number 260 ever belonged to Atmaram. He urged that it was the case of the defendant that the property was acquired by him in 1949 after the death of Atmaram and therefore, the plaintiff was not entitled to claim any partition with regard to the same. Barring the bare word of the defendant, there is nothing to show that this property was acquired by the defendant with his own money in 1949. In fact, the defendant himself had admitted that this very property belonged to Atmaram. It is very clear from his reply Ex. 28 given by him to the notice Ex. 27 served upon him by the plaintiff before filing the present suit. In the notice. Ex. 27. the plaintiff had stated that she had come to know that the field bearing survey number 260 was given to some one for removing the earth therefrom for Rs. 5,000/-. She therefore, informed the defendant that the said act was illegal and was not binding on her. In the reply. Ex. 28. to that portion of the notice, the defendant has stated as under:--
'Subject to the objections stated above. he admitted that the field bearing survey number 260 was leased for a period of five years for removing the earth therefrom'. He also stated that Somabhai Punjabhai. Shivabhai Punjabhai and Shantaben daughter of Bechardas Bapuji had half share in the said property and the other half belonged to Agmaram. He also admitted that after taking account for the amount which he had to pay to the tenant. in pursuance of the judgment in jurisdiction suit No. 214/51. he will do the needful after the appeal was finally decided by the High Court. In view of the categorical admission of the defendant that Atmaram had interest in one-half of the said field, it does not lie in his mouth now to say that the suit property was purchased by him in 1949 and that it did not belong to Atmaram. Mr. Mehta, however. urged that any admission by the defendant cannot be conclusive and of a binding nature. He urged that it was open to the defendant to show by leading evidence that the statement made by him was wrong or that it was inadvertently made. There can be no quarrel with the said submission. But in the instant case. the defendant has been unable to show that the statement made by him was inadvertently made or that it was wrong. Barring the bare word of the defendant that he had purchased the suit property in 1949, there is nothing to show that this field was ever purchased by him with his own money. In fact, that was not his case in written statement filed by him in the present suit. There is no doubt in my mind that the defendant has come out with this case that he purchased the suit field bearing survey number 260 with his own money. just with a view to defeating the plaintiff's claim. In my opinion, the learned Judge was right in negativing the defendant's say.
8. During the pendency of this appeal, the learned Advocate for the respondent has given an application for permitting the plaintiff to amend the plaint in the suit as per the draft memo enumerated in Annexure A. In view of the fact that I have accepted the reasoning of the learned Judge below. It is not necessary to amend the plaint. In my opinion, the suit as framed is tenable without amendment of the plaint. I. therefore. need not pass any orders on this application.
9. In the result, the appeal fails and is dismissed with costs.
10. Appeal dismissed.