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Sundaresa Aiyar Vs. Krishnamoorthy Aiyar Minor by His Guardian, Natesa Aiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in35Ind.Cas.677
AppellantSundaresa Aiyar
RespondentKrishnamoorthy Aiyar Minor by His Guardian, Natesa Aiyar and ors.
Cases ReferredIburamsa Rowthan v. Thiruvenkatasami Naick
Excerpt:
partition - partial partition, when allowed--joint family property--share of one co-parcener sold in execution--purchaser suing for co-parcener's share in item of property in. possession of defendant--suit, whether maintainable. - - k 196 the court had held that in the like circumstances the remaining co-parceners were entitled to sue the alienee from one co-parcener for partition of their shares in the specific item, which was in effect to allow others to sue for partial partition; i fail to see any such grounds 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.....john wallis, c.j.1. in this case one of four co-parceners mortgaged his share of the joint family properties in 1895. the assignee of the mortgagee obtained a decree in original suit no. 93 of 1101 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, original suit no. 200 of 19il 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 1st defendant, who claims under a decree obtained by his predecessor-in title in original suit no......
Judgment:

John Wallis, C.J.

1. In this case one of four co-parceners mortgaged his share of the joint family properties in 1895. The assignee of the mortgagee obtained a decree in Original Suit No. 93 of 1101 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, Original Suit No. 200 of 19il 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 1st defendant, who claims under a decree obtained by his predecessor-in title in Original Suit No. 36 of 1901 on the file of the Court of the Subordinate Judge of Kumbakonam against the surviving members of the joint family for specific performance of an agreement to sell and possession, which was executed in 1905 by delivery of the 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 Order XXI Rule 100 of the Code of Civil Procedure. In this suit he seeks to recover the one-fourth share of the co-parcener 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 persons in possession of other items to recover the co-parcener'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, Original Suit 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 co-parcener 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 Original Suit No. 2,00 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 Nanjaya Mudali v. Shanmuga Mudali 22 Ind. Cas. 555 : 26 M.L.J. 576 : (1914) M.W.N. 356 the rule against partial partition is a mere processual law. It is dictated by considerations of convenience and has not been adhered to in certain classes of cases in which apparently it was considered to lead to inconvenience. In Venkatarama v. Meera Labai 13 M.k 275 this Court, applying the rule against partial partition, refused to allow the alienee from one co-parcener of a specific item of joint family property to sue the remaining co-parceners 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 Sripati Chinna Sanyasi Razu v. Sripati Suriya Razu 5 M.k 196 the Court had held that in the like circumstances the remaining co-parceners were entitled to sue the alienee from one co-parcener for partition of their shares in the specific item, which was in effect to allow others to sue for partial partition; and in Iburamsa Rowthan v. Thiruvenkatasami Naick 7 Ind. Cas. 559 : 20 M.L.J. 743 a Full Bench of this Court extended this right to the alienees of the remaining coparceners. Fresh exceptions to the rule against partial partition should, however, be made sparingly and only on grounds of manifest convenience. I fail to see any such grounds 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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