1. This is an appeal by Shambhudutt and others against the judgment and decree of the District Judge Jodhpur in a suit for partition.
2. The suit was brought by Srinarain plaintiff against Laxmi Narayan, Harnarayn and Pyarelal who were brothers of the plaintiff for partition of his one-fourth share in certain properties situate in Jodhpur and mentioned in Schedule 'A' annexed to the plaint, which were claimed to be joint properties of the four brothers.
The case of the plaintiff respondent was that though he and his brothers had separated long before and there had been severance of status, yet immovable properties which were coming on in the family from the time of their ancestors were not divided by metes and bounds. The plaintiff, therefore, wanted his one-fourth share to be so divided.
3. The suit was resisted by Harnarayan defendant who died during the course of the trial and is now represented by Sambhudutt and others -- appellants. Among other pleas, one of the objections of Harnarayan was that the suit should be thrown out as it was bad for partial partition for some properties had not been included in the list of properties. These properties were said to be certain movables and cash with the plaintiff and certain other defendants and some land in village Sogawas in District Nagaur.
4. A preliminary issue whether the suit was not maintainable because it was for partial partition of the property was framed and decided against the present appellants. Thereafter, the Court proceeded to decide the other issues and eventually a preliminary decree for his one-fourth share was passed in favour of the plaintiff and the Court gave the right to any of the four brothers or their descendants to apply for final decree.
5. The appellants have come up to this Court and urge that the case be remanded for enquiry into and inclusion of all the properties of Dhanraj (who was father of the parties) in this suit.
6. The District Judge decided the preliminary issue against the present appellants holding that the suit was for partition of property belonging to tenants-in-common and in such a suit. It was not necessary that every bit of property in common should be included in one suit.
7. Two points have been urged on behalf of the appellants before us. The first is that the District Judge was wrong in coming to the conclusion that the brothers had divided long before the suit had been filed and that this is really a suit for partition between coparceners.
We are of opinion that there is no force in this contention and the District Judge was right in the view that he took. There is the definite statement of two of the brothers, namely, Srinarayan plaintiff and Laxminarayan defendant, to the effect that all the brothers had been living separately for years before the suit was filed and severance of status had taken place long ago. The third brother also admitted that all of them had been living separately for a long time. Harnarain, contesting defendant, said in his written statement that the brothers had been earning their livelihood and living separately for a long time and that they were not joint at that time. Therefore, the suit was only for division of property held in common by the brothers who had separated long before and not for a division between, coparceners of a joint Hindu family.
8. The next point that is urged is that even if the brothers had separated before the suit was filed and the suit was for division of property held in common, the principle which was applicable to partition between coparceners also applied to partition between co-tenants.
The general rule of Hindu Law is that where a suit for partition is brought by a coparcener against the other coparceners it should embrace the whole family property. This rule is subject to certain exceptions, e.g., where a portion of the property is not available for actual partition, or where it is held jointly by the family with a stranger, or where part of the joint property consists of land situated outside the jurisdiction of the Court in which the suit for partition is brought. This principle however, has not been applied with full force to the case of partition between co-tenants.
9. In -- 'Rajendra Kumar Bose v. Brojendra Kumar', AIR 1923 Cal 501 (A), on which learned counsel for appellants strongly relies, it is certainly laid down that the general rule was that all property held in co-tenancy and nothing but property held in co-tenancy should be included in a partition suit, and practically the same principles which applied to partition between coparceners were applied in this case to a partition between co-tenants. We may, however, say with respect that this case goes too far when it makes the same principles applicable to cases of co-tenants as are applicable to coparceners.
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.
The objection that there would be multiplicity of suits will not be insuperable because suits may have to be filed at different times if cause of action for division arises on different occasions. It is of course desirable in the case of co-tenants that, if possible, all the property in common may be included in one suit, provided if they are immovable properties, they all lie within the jurisdiction of the Court in which the suit is brought. But the suit cannot be dismissed simply on the ground that all the common property has not been included in it.
10. We may in this connection refer to certain cases in support of the view that we have taken, In -- 'Pakkiri Kanni v. Haji Mohammed Manjoor Saheb', AIR 1924 Mad 124 (B), it was held that there is no direct authority that a suit for partition of common property, as distinguished from joint property, is liable to dismissal on the ground that all the common property in respect of which it might have been brought has not been included. The plea of partial partition is not available when the suit is for division of common property, and not joint property.
11. In -- 'Thakar Singh v. Sant Singh', AIR1S33 Lah 465 (O), it was held that
'a suit for partition of common properties andnot joint properties is not liable to be dismissedon the ground that the suit did not include allthe common properties available for partition.'
12. In -- 'Sitaram v. Narayan', AIR 1943 Bom 216 (D), it was held that:
'The ordinary rule applicable to suits for coparcenary property is that when a suit for partition is between coparceners, it should embrace the whole family property, and a member of a joint family suing his coparceners for the partition of joint family property is bound to bring into hotchpot all the property that may be in his own possession in order that there may be a complete and final partition. The rule is subject to exceptions arising out of conveniences and from other causes. But there is no such basis for the application of the rule to property which is held in common although special circumstances do sometimes exist which make it necessary or desirable to apply the rule to suits relating to land held in common.'
13. The strict view taken by the Calcutta High Court in -- 'Rajendra Kumar Bose's case (A)' was departed from even in that Court in --'Hemanta Kumar v. Satish Chandra', AIR 1941 Cal 635 (E). Mukherjea J. referred to -- 'Rajendra Kumar Bose's case (A) in his judgment and observed as follows at page 633; 'But even assuming that the present suit, in substance, is one for partition, I do not think that it should fail on the ground that it did not embrace all the joint properties of the parties. The rule that there cannot be a partial partition of a joint estate is not an inelastic rule which admits of no exception. It has been held that the application of this rule may be relaxed, if the circumstances of a particular case or the interests of justice so require.' In that case three brothers had a number of properties. One of these properties was acquiredunder the Land Acquisition Act and as it was in the name of one brother only, the compensation money was taken away by that brother. The other brothers sued for refund of their two-third share. The suit was dismissed by the subordinate Courts but the High Court allowed the second appeal.
14. 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 I included.
15. Let us now look to the facts of this case and see how Ear the defendants-appellants have made out a case for inclusion of other properties in this suit.
The other properties, as we have already pointed out, consist of certain movables said to be in possession of the plaintiff and certain defendants and some land in Nagaur District. So far as the land is concerned, it is not disputed that it cannot be included in this suit and a separate suit will have to be filed in another Court having jurisdiction with respect to that land.
There only then remains the question of certain movable property which consists of ornaments and cash. So far as that is concerned, the plaintiff does not admit that any movable property has remained undivided. Under these circumstances, it is, in our opinion, not desirable that the Court should order that every disputed item of property should be included in this suit for division. If the defendants-appellants feel that other property has really not been divided between themselves and their co-tenants, they can file a separate suit.
16. In this view of the matter, this is one of those cases where the Court was right in proceeding to divide the properties in suit only. We, therefore, dismiss the appeal with costs to the plaintiff-respondent.