Decided on July 05,1963



Jaganmohan Reddy, J. - (1.) The simple Question in this second appeal is whether the suit of the respondent is barred by Order 2, Rule 2 C.P.C. There was an earlier partition suit filed on behalf of the minor through her fattier and now the respondent after she became a major has filed a suit with respect to three items of property which were left out in that suit. The appellant is the 3rd defendant who is the sister of the respondents husband. She claimed these properties as having been gifted to her by her father as Pasupukunkuma and that is the reason why they were not included by the respondent in the former suit. Alternatively she claimed title by adverse possession, it may at this stage be stated that the averment of oral gift to her is not pressed, nor is there any validity relating to adverse possession which has been found as a fact against the appellant by the first appellate court. Learned Advocate for the appellant contends that me first appellate Court is wrong in this conclusion, because it has ignored the evidence of leases and the oral evidence of the lessees as also of the cist receipts. I do not think the lower Court has ignored the evidence. On me other hand, it has considered It and has come to a conclusion against the appellant, it did not rely very much upon the oral evidence of the village officers, nor was the other evidence sufficient to draw a conclusion in favour of the appellant of her right to adverse possession. The only question, therefore, is whether under Order 2, Rule 2 the suit of the respondent is barred.
(2.) Learned advocate for the appellant, Sri Gangadhar Rao, contends that the evidence in this case shows that the guardian of the respondent was fully aware that there were other items than those which formed We subject-matter of the former suit; that this fact was mentioned to his lawyer who said that he can file another suit later on in respect of them. The first appellate Court, however, on that evidence took the view that the respondents father who was the guardian in the former suit was not aware of these specific items of property as such, in a suit for partition, a subsequent suit in respect of property of which the plaintiff was Ignorant could be filed. But the learned advocate contends that this view is incorrect on the evidence of P. Ws. 1 and 2. P. W. 1 is the widow of the predeceased son and the plaintiff-respondent in the case. She was of course a minor at the time and consequently any evidence which she may give is only what she could nave gathered later on from her father. In so far as the evidence of P. W. 2 is concerned he says that Pichi Pullayya, the father of the appellant, had given a list of the joint family properties and said apart from these, there are some immovable properties, the survey numbers of which he could not remember. In cross-examination P. W. 2 admits that he mentioned this fact to his lawyer no said that a suit could be filed later on. It is obvious that the guardian of the respondent was not aware of the details of the property, though he had factual Knowledge of me existence of some other properties. It is contended that he could have easily ascertained the details of the properties and included them in the former suit, but it is contended by the learned advocate for the respondent that there is no obligation on the part or the guardian to ascertain. At any rate, even if he did not ascertain, that does not mean that he had knowledge of the specific Items of the properties in order to attract the bar under the previsions of Order 2, Rule 2 C.P.C. He has further contended that at any rate the omission or the negligence of the guardian in not protecting the interests of the minor, cannot negative the right of that minor when she attains majority to file a suit in respect of these properties. Order 2, Rule 2 is as follows: "2.(1) Every suit shall include the whole of me claim which the plaintiff is entitled to make in 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 sue 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". These provisions have been considered in several authorities ail of which clearly accept in principle that in a partition suit where properties are left out due to the ignorance or lack of knowledge, Order 2, Rule 2 cannot be a bar and that this knowledge should be actual knowledge and not constructive knowledge. Walsh, J. in Ram Harakh v. Ram Lal, ILR 38 All 217, (AIR 1916 All 172} however tried to interpret Order 2, Rule 2 to mean that the omission to sue involves intention. It is ejusdem generis with intentional relinquishment. In other words, what the learned Judge means that unless it can be shown that me plaintiff has intended to relinquish his right, it cannot be said that he has omitted for purposes of Sub-rule (2) of Rule 2 of Order 2. But this view has been dissented from by a Bench of the Madras High Court in Basavana Gowd v. Doddalingappa, 44 Mad LJ 652: (MR 1923 Mao 584) where Venkatasubbarao, J., observed at p. 651 (of Mad LJ): (at p. 585 of AIR) with reference to the above case: ".. . . . .with all respect we differ from the learned Judges in the view we take of that case and are unable to follow them in the remainder of their judgments. In the Madras case it was held that a suit for partition of joint family property is a comprehensive ascertainment of the assets, including immovable properties, belonging to the family and the liabilities to be satisfied out of those assets; and it is settled law that only one suit for partition would lie. This statement, however, is subject to the qualifications that if at the time of filing the suit the plaintiff is ignorant of the existence of certain properties and has not included in the schedule all the properties liable for partition, he can certainly file another suit in respect thereof. the same learned Judge in vasudevan v. Arunachala Aiyar, 23 Mad LW 415 said that there can be no omission to sue under Order 2, Rule 2 unless the plaintiff was at sometime prior to the suit was aware or informed of the claim or of the facts which would give him a cause the action, In support of this proposition, he has cited the case of Amanat Bibi v. Imdad Hussain, 15 Ind App 106 (PC) where their Lordships of the Judicial Committee observed that a right which a litigant possesses without Knowing or ever having known that he possesses it, can hardly be regarded as a portion of his claim within the meaning of the section in question. In Chandikamba v. Viswanadnamayya, Am 1936 Mad 699, Venkataramana Rao, J., after considering the several judgments observed at page 700, that a litigant cannot be required to include in his suit the claim or relief based on facts of which he is ignorant and that actual Knowledge and not constructive knowledge would be necessary to bar the relief. A Bench of the Andhra High Court also in venkara subbayya v. Virayya, 1956 Andh WR 1082: (AIR 1957 Anon Pra 981) considered Order 2, Rule 2 vis-a-vis the question or Res judicata and observed at page 1088: "We are not concerned in this case with an omission by mistake to ask for division of a particular property, where the plaintiff was not aware of its existence at the time he filed the previous suit such as that which was dealt with by Devadoss, J., in Subramaman v. Lakshminarasamma, AIR 1927 Mad 213. What is an omission to sue has been stated by their Lordships of tne Privy council as long ago as 1866-67 in Moonshee Buzloor Ruheem v. Shumsnoonissa Begum, 11 Moo Ind App 551 at p. 604, by Sir James William Colvlle: ". ..... .The words of this law are, if a plaintiff relinquish or omit to sue for any portion of his claims". IE plainly includes accidental or Involuntary omissions as well as acts of deliberate relinquishment." These decisions lend support to the view mat unless by ignorance or lack of knowledge the plaintiff omits to sue in respect of properties which he could have included in the former suit, the subsequent suit would be a bar in respect of the omitted properties under Order 2, Rule 2. It cannot be said that a person omits to sue in respect of property which he does not know or of which he nas no knowledge. No properly can be included in a schedule In a vague sort of manner. He must have knowledge on specific properties before he can be said to have omitted them from the suit. That the plaintiffs next friend did not have Knowledge of the particular properties which are the subject-matter of this suit appears clear from his statement when he says that Pichi Pullayya informed him that there are other properties, but he did not know the survey numbers. The next friend consulted His lawyer in this regard and probably in view of the tact that he did not get the survey numbers of the property about which Punch Pullayya has indicated, led the lawyer to advise him that a suit can be filed with respect to these properties subsequently after he comes to know the details. The evidence or P. W. 2 does not show that on the date when the former suit was tiled he had actual knowledge of the properties, it may also be noted that immediately after the death of me husband of the respondent, her father raised a dispute with respect to the properties and a list of the joint family properties was prepared. In this atmosphere, probably, he elicited that there were other properties, but he was not able to get any more details and he certainly had no intention of omitting these properties, it there were any.
(3.) Apart from these, there is also one other point to which the advocate referred, -- that the mistake of the guardian cannot preclude We minor after she attains majority in filing a suit in respect of the properties omitted In the former suit. This contention is supported by a judgment of the Bench of the Bombay High Court in Vyankat v. Onkar Nathu, ILR 45 Bom 805: (AIR 1921 Bom 434) where Macleod, C.J. said at p. 303 (of ILR Bom): (at p. 434 of AIR): "...., .The plaintiff has now filed this suit to recover possession of another portion of family property, and in the first place it was argued that the suit was barred under Order II Rule 2, as the subject-matter of this suit ought to have been included in the previous suit. That argument would not apply to a case like this where the previous proceedings were taken in the name of the minor by his next friend. The minor could not possibly be prejudiced by a mistake made by those representing mm during his minority as his rights to sue in his own person only come Into effect when he attains majority. He MM, therefore, be entitled to disregard any proceedings which had been taken during his minority if his interests had not been properly safeguarded. I cannot see how he could possibly be injured and prevented from now suing for the suit property owing to the tact that his adoptive mother did not sue for it in 1910 during his minority.;

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