A.A.DAVE - (1.) MR. A. H. Mehta learned advocate for the appellant submitted that the present suit would be barred by the provisions of order 2 rule 2 of the Code of Civil procedure. He urged that in the previous suit for partition the plaintiff ought to have included all the properties which were held jointly by the parties as tenants in common. If the plaintiff intentionally relinquished and omitted the suit property deliberately she cannot file a fresh suit claiming relief for partition with regard to that property. Order 2 rule 2 of the said Code states:-
(2.) (1) Every suit shall include the whole of the 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 in 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. Relying on these provisions Mr. Mehta forcefully urged that the suit property which according to the plaintiff was held jointly as tenants in common by the parties ought to have been included in the previous suit and even if the plaintiff inadvertently omitted to do so or intentionally relinquished her claim therein order 2 rule 2 of the said Code would come into play and the suit would be barred In support of his say Mr. Mehta referred to the judgment of the division bench of this court in the case of Prajaram Vithalji Sheth and another v. Maganlal Vithalji Sheth and others XI G. L. R. 602 wherein at page 605 it was observed that In fact in a suit which a co-heir files against another all the properties held as tenants must be brought into the hotchpotch and accounts must be taken as in a suit by a member of the joint Hindu family for actual partition . Reliance was placed by the division bench on the case of Yerukola v. Yerukola 45 I. L. R. Madras 648. Relying on these observations Mr. Mehta urged that as the plaintiff had omitted to include the survey number 260 in the previous suit for partition which it was incumbent on her to do the present suit would clearly be barred by order 2 rule 2 of the said Code. I am unable to agree with-him. In order to attract the provisions of order 2 rule 2 it has to be established that the plaintiff had omitted or intentionally relinquished her claim with regard to the suit property in the previous suit. The averments made in the plaint clearly go to show that the plaintiff in fact had included the vary property for partition in jurisdiction suit No. 214 of 1951. Her say is that through mistake instead of describing the property by survey number 260 it was described as survey number 160. But the boundaries of that property are the same with regard to the suit property. In other words her case is that she had not omitted the relief with regard to the suit property in the previous suit. But this mistake had inadvertently crept in. As a result of this typographical error the preliminary decree which was passed in her favour also mentioned the property as bearing survey number 160 with the result that the final decree also included that number and she was not in a position to get the suit property divided by metes and bounds in execution proceedings. She thereafter had given an application to the court for amendment of the plaint which was rejected on the ground that the suit was already disposed of. Under the circumstances she had no option but to file the present suit for partition and possession. From the evidence on record the learned Judge came to the conclusion that the property which was in fact described in the previous suit for partition is no other but the suit property and that it was through bona fide mistake that survey number was described as 160. The learned Judge was of the view that the present suit was not hit by the principles of res-judicata and that a decree for partition could be passed in favour of the plaintiff. In my opinion the description of the property as shown in the present suit completely tallies with the description of the property as given in the previous suit. I am therefore satisfied about the identity of the property. However as the court had refused to amend the plaint and allowed the final decree to remain as it is in which the property was described as bearing survey number 160 and as no appeal or revision application had been preferred against the said order that order remained conclusive with the result that the property bearing survey number 160 was not held to be the subject matter of that suit. If it were not so I would have treated the present suit as execution proceedings under sec. 47 of the Civil Procedure Code. The question therefore now which arises for my consideration is whether the present suit it tenable. In my opinion once the joint family status comes to an end on partition between the members of the joint Hindu family if some properties are allowed to remain joint with them the same are held as tenants in common and it would not be incumbent on one of the co-heirs while claiming physical possession of his share from others to include all the properties which were held by them as tenants in common. Mr. Mehta however urged that in view of the decision of the division bench of this High Court which was binding on me it was not open to me to hold that such a suit was tenable. It may be noted that the real question before the division bench was as to which of the articles of the Limitation Act applied in a suit for division of property brought by one tenant in common against the others. No question directly arose before the court whether subsequent suit would be barred by the provisions of order 2 rule 2 of the Civil Procedure Code. The observations made by the court therefore that In a suit which a co-heir files against another all the properties held as tenants in common by one or other co-tenants must be brought into the hotchpotch cannot be said to lay down any proposition of law. This question did not arise directly in the suit and it was not necessary for the court to give any decision about it. These observations therefore were in the nature of mere obiter and with respect I beg to differ. Besides it may be noted that in coming to this view the bench had relied on the observations made in the case of Yerukola v. Yerukola 45 I. L. R. Madras 648 If a reference is made to the Madras decision it is clear that no such point was decided in that case. There also the question arose as to which article of the Limitation Act would apply and the full bench of the Madras High Court ultimately gave its finding regarding limitation. No doubt Kumarswami Shastri J. who was one of the members of the full bench has made passing observations at page 670 as under :- The rule of Hindu law that a member of a joint family cannot except in certain specific circumstances sue for a partial partition is applicable to cases where the joint family has been disrupted by severance of status between the various members. It is clear that if a member of a Hindu family seeks to recover his share of any particular item of property he will be met with the plea that the suit is bad and that he ought to file a suit for a partition of all the available properties in order that all the equities may be adjusted between the various parties. Each member will have to bring into the hotchpotch the properties in his possession and an account will have to be taken at least from the date when the joint family became divided in status of the rents and profits of the joint family properties received by any member and which are liable to be brought into the hotchpotch. However it may be noted that this was not the law laid down by the full bench in that case. In fact Devadoss J. who was also a member of the full bench at page 702 observed that - It is not necessary for the present purpose to examine the law relating to tenants in common. The position of the members of a Hindu Joint family after division in status and before division of property by metes and bounds or allocation or collection of outstanding is not the same in all cases. Each case will depend upon the intention and conduct of the members. This will go to show that the full bench did not lay down any proposition of law that in a suit for partition by one co-heir against the others all the properties held as tenants in common must necessarily be brought into hotchpotch. In fact that was not the point at issue before the full bench and no decision was given thereon. As stated earlier only Kumarswami Shastri J. had made passing observations to the said effect. The learned Judges of the Division of this court in Prajaram's case (supra) seem to have adopted the view of Kumarswami Shastri J. But in fact the division bench was not called upon to decide this point and in my opinion the observations referred to above were merely Obiter Dicta and cannot be said to lay down any proposition of law. This point bad directly arisen before the Bombay High Court in the case of Malhari Vaman Kramavant and others v. Vinayak Ravji Kramavant and others A I.R. 1929 Bombay 323 wherein at page 325 it was observed as under:- Although in the case of a joint family a person suing for partition must sue for partition of all the property I am not aware that there is any law by which a tenant in common seeking to recover possession of property left undivided and in possession of other tenants in common is bound to include all these properties in one suit In this case the court negatived the plea that another suit was barred by res-judicata. Similarly the division bench of the Madras High Court in the case of Pakkiri Kanni v. Haji Mohammad ManjoorSaheb A.I.R. 1924 Madras 124 observed that - There is no direct authority that a suit for partition of common property not joint property is liable to dismissal on the ground that all the joint property in respect of which it might have been brought has not been included. The plea of partial partition is not available when a suit for division of common property and not joint property is in question. It may be remembered that this Madras decision was given after the full bench decision in Yerukolas case was given. If the full bench had laid down any law that a suit for partial partition amongst co-tenants could not lie the division bench in the subsequent case could not have failed to notice the ratio laid down in that case. In fact no such ratio was laid down by the full bench as explained earlier. In my opinion the only question which had arisen before the full bench of the Madras High Court was as to which of the articles of the Limitation Act applied in the case. The Nagpur High Court had taken the same view. In the case of Gapulal v. Gajasa and others A.I.R. 1932 Nagpur 92 it was observed that After a decree has been passed in a suit for partition of the family property a subsequent suit may be brought in respect of any portion of that property which had inadvertently been omitted in the former suit. These decisions clearly go to show that the suit of the present nature is tenable and is not barred either by rule 2 order 2 of the Civil Procedure Code or sec. 11 of the said Code.;