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Sundara Aiyar Vs. Krishnamurthi Aiyar (Minor by His Guardian Natesa Aiyar) and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported in(1916)31MLJ317
AppellantSundara Aiyar
RespondentKrishnamurthi Aiyar (Minor by His Guardian Natesa Aiyar) and anr.
Cases Referred and Ibrumsa Rowthen v. Tiruvengadaswami Naich I.L.R.
Excerpt:
- - 196, the court had held in the like circumstances the remaining coparceners were entitled to sue the alienee from one coparcener for partition of their shares in the specific item which was in effect to allow others to sue for partial partition ;and ibrumsa rowthen v. i fail to see any ground in the present case. on the contrary, it seems to me that the rights of the plaintiff himself in the share to which he is entitled and the rights of the other parties interested can best be established once for all in a suit for general partition and i would therefore set aside the decree of the subordinate judge, restore that of the district munsif and dismiss the suit with costs throughout.john wallia, cj.1. in this case one of four coparceners mortgaged his share of the joint family properties in 1895. the assignee of the mortgagee obtained a decree in o.s. no. 93 of 1901 on the file of the court of the district munsif of shiyali for sale of his interest which was purchased by one rama ayyar through whom the plaintiff claims. the plaintiff instituted a suit, o.s. no. 200 of 1911 on the file of the court of the district munsif of shiyali for partition against the surviving members of the joint family and was allotted the suit properties among others by the decree. when however he attempted to execute the decree for possession he was resisted by the first defendant who claims under a decree obtained by his predecessor in title in o.s. no. 36 of 1904, on the file of the court.....
Judgment:

John Wallia, CJ.

1. In this case one of four coparceners mortgaged his share of the joint family properties in 1895. The assignee of the mortgagee obtained a decree in O.S. No. 93 of 1901 on the file of the Court of the District Munsif of Shiyali for sale of his interest which was purchased by one Rama Ayyar through whom the plaintiff claims. The plaintiff instituted a suit, O.S. No. 200 of 1911 on the file of the Court of the District Munsif of Shiyali for partition against the surviving members of the joint family and was allotted the suit properties among others by the decree. When however he attempted to execute the decree for possession he was resisted by the first defendant who claims under a decree obtained by his predecessor in title in O.S. No. 36 of 1904, on the file of the Court of the Subordinate Judge of Kumbakonum against the surviving members of the joint family for specific performance of an agreement to sell and to give possession, which was executed in 1905 by delivery of suit properties. In these circumstances the plaintiff's application for delivery of these specific immoveable properties was dismissed as they were in the possession of third parties claiming under an independent title and he was left to bring the present suit to establish such right to present possession under O. XXI Rule 100 of the Code of Civil Procedure. In this suit he seeks to recover the one-fourth share of the coparcener under whom he claims in the items of joint family property now in the possession of the defendants, intending apparently to bring other suits against the person in the possession of other items to recover the coparcener's share in them also. The difficulty has arisen from the fact that the defendants in possession of these items were not made parties to the present plaintiff's partition suit O.S. No. 200 of 1911. If that had been done, the court following its ordinary practice would have allotted other items to the plaintiff in respect of the share of the coparcener under whom he claims. According to the finding of the Subordinate Judge it is not shown that the plaintiff's next friend knew of the defendants' rights when he filed O.S. No. 200 of 1911 but he might easily have found out about them. In this state of things the defendants have raised the objection that the plaintiff is not entitled to bring a suit for partial partition. This objection was allowed by the District Munsif, but overruled by the Subordinate Judge purporting to act on the authority of certain decisions which, as was admitted at the bar, do not really conclude the case. As observed by Bakewell J. in Nanjayya Mudali v. Shunmuga Mudali (1918) 26 M.L.J. 576, the rule against partition is a mere processual law. It is dictated by considerations of convenience and had not been adhered to in certain classes of cases in which apparently it was considered to lead to inconvenience. In Venkatarama v. Meera Labai I.L.R. (1889) MAD. 275, this Court applying the rule againt partial partition refuse to allow the alienee from one coparcener of a specifie item of joint family property to sue the remaining coparceners for his alienor's share in that item and left him to enforce his rights in a general suit for partition. On the other hand in Chinna Sanyasi v. Surayya I.L.R. (1882) MAD. 196, the court had held in the like circumstances the remaining coparceners were entitled to sue the alienee from one coparcener for partition of their shares in the specific item which was in effect to allow others to sue for partial partition ; and Ibrumsa Rowthen v. Tiruvengadaswami Naich I.L.R. (1910) M. 269 : 20 M.L.J. 743 a Full Bench of this Court extended this right to the alienees of the remaining co-parceners. Fresh exceptions to the rule against partial partitions should however be made as sparingly and only on grounds of manifest convenience. I fail to see any ground in the present case. On the contrary, it seems to me that the rights of the plaintiff himself in the share to which he is entitled and the rights of the other parties interested can best be established once for all in a suit for general partition and I would therefore set aside the decree of the Subordinate Judge, restore that of the District Munsif and dismiss the suit with costs throughout.

Coutts Trotter, J.

2. I agree.


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