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(Duvvuri) Subramaniam and anr. Vs. (Duvvuri) Lakshminarasamma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad213
Appellant(Duvvuri) Subramaniam and anr.
Respondent(Duvvuri) Lakshminarasamma
Cases ReferredBasavana Gowd v. Doddalingappa A. I. R.
Excerpt:
- - the respondent's vakil who appeared in the lower court is now dead and in the circumstances i thought it best to allow the point to be argued. 2. whether defendants failed to include any properties in the partition deed;.....omission to sue within the meaning of this rule unless the plaintiff was at some time prior to the suit aware or informed of the claim or of the facts which would give him a cause of action.6. i think that when a person is not aware of the existence of an item of property which belongs to the family and wants to sue for its division, it cannot be said that he ought to have included it in the previous suit. in this case the money was not being paid for a number of years and it is difficult to say anyone was aware of the existence of this fund, and i do not think the plaintiff is precluded from suing for her husband's share of the fund.7. the next contention urged by mr. somasundaram is that under the partition deed the defendants get their shares with their appurtenances and, therefore,.....
Judgment:

Devadoss, J.

1. Mr. Somasundaram for the appellants wants to raise the question of res judicata which, according to him, was argued before the learned Judge but was not noticed by him. He has filed an affidavit from the vakil in the lower Court that he pressed the point of res judicata. The learned Judge who is always careful to note the points pressed before him has not adverted to it in his judgment. The respondent's vakil who appeared in the lower Court is now dead and in the circumstances I thought it best to allow the point to be argued. The contention is that in the previous Original Suit No. 8 of 1913 the plaintiff's husband asked for a partition of the properties not partitioned at the time of the partition and a specific issue was raised in the following terms:

2. 'Whether defendants failed to include any properties in the partition deed;' and that question having been decided by the Court it is not now open to the present plaintiff to sue for the husband's share of the same property which is admittedly the family property. In dealing with that issue the learned Subordinate Judge expressed himself as follows:

I have considered the points comprised by these issues in connexion with plaintiff's D schedule and defendants' 3 schedule and find both the issues against the plaintiff.

3. The question in that case was not whether all the properties of the family were included in the suit, but whether certain properties mentioned in certain schedules were the family properties or not. Therefore, it cannot be said that the issue was comprehensive enough to include all the properties belonging to the family. The property which is now in dispute is a sum of money payable by the Vizianagaram Samasthanam to the plaintiff's family on account of the Samasthanam having taken a portion of the family property for making a road; and instead of a lump sum the Samasthanam agreed to pay yearly about Rs. 5-8-0. This sum was not paid for a number of years and that is admitted by both the parties. At the time of the division this sum was not paid by the Samasthanam. It is only quite recently in 1920 the Vizianagaram Samasthanam paid this amount. The question is whether in these circumstances it can be said that this amount formed the subject-matter of the Suit No. 8 of 1913.

4. In a partition all the properties of the family should be included. It is not open to a member of the joint family to ask for a partition of a certain item and leave the rest except in cases where some of the items could not be divided by reason of their being in the possession of usufructuary mortgagees or being under a long lease or set apart for maintenance of a widow or some member of the family or some other reasons. It is not left to the option of the plaintiff in a partition suit to ask for relief in respect of certain properties and then to say that he would ask for partition of the other properties at some future time, when the circumstances above adverted to are not present. It was held in Basavana Gowd v. Doddalingappa A. I. R. 1923 Mad. 584 that two suits cannot be filed for partition simply by reason of the properties being situated in two different Presidencies, but the case here is slightly different. There is no finding that the plaintiff or the plaintiff's husband was aware of the existence of the fund payable by the Samasthanam. If they were aware of it some provision would have been made in the partition deed, Ex. 1, for its division. Mr. Somasundaram's contention is that the plaintiff's husband was aware of the existence of such fund, but he did not care to include it. He wants to rely upon the statement of the defendants' first witness that he was aware of it; but there is no finding that he was so aware of it. It is not proper now to say that he was aware of the existence of this fund.

5. When parties are ignorant as to the existence of some family property and divide the property that is known to them, and if afterwards it be discovered that some property belonging to the joint family has been left undivided, I do not see any ground for refusing to give relief to the party who asks for partition. The following observation of the learned Judges in Basavana Gowd v. Doddalingappa A. I. R. 1923 Mad. 584: -

The cause of action, as already observed, in a partition suit of joint family property must be regarded as exhaustive of the whole property available for division, so far as its existence is known at the date of the plaint

does not support the wide principle for which Mr. Somasundaram contends. Mr. Justice Venkatasubba Rao who was a party to the decision in Basavana Gowd v. Doddalingappa A. I. R. 1923 Mad. 584 observes in Vasu devan v. Arunachala Ayyer [1926] M. W. N. 94:

But it has been held that there could be no omission to sue within the meaning of this rule unless the plaintiff was at some time prior to the suit aware or informed of the claim or of the facts which would give him a cause of action.

6. I think that when a person is not aware of the existence of an item of property which belongs to the family and wants to sue for its division, it cannot be said that he ought to have included it in the previous suit. In this case the money was not being paid for a number of years and it is difficult to say anyone was aware of the existence of this fund, and I do not think the plaintiff is precluded from suing for her husband's share of the fund.

7. The next contention urged by Mr. Somasundaram is that under the partition deed the defendants get their shares with their appurtenances and, therefore, it must be taken that this fund was included in the shares as appurtenant to them. Even though the Telugu words mean 'with its appurtenances,' the plaint amount cannot be considered as appurtenant to the property, as it is being given by the Vizianagaram Samasthanam as the price of the land which the Samasthanam acquired from the joint family. There is no other point in the case.

8. The second appaal fails and is dismissed with costs.


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