Decided on January 21,1955


Referred Judgements :-


Cited Judgements :-



- (1.)This appeal raises a difficult question of law. The plaintiff is the apellant and the appeal is confined only to item 2 of the plaint schedule. The suit was filed for partition and separte possession of a 2/3rd share in the land. The plaintiff and defendant are sons of two, brothers Akkayya and Ramaswami. The defendants father, Ramaswami, got himself divided from the joint family and took away his 1/4th share. The plaintiffs father died thereafter and as the plaintiff was unwilling to live jointly with the defendant, he called upon him to effect a partition of the properties and deliver to him his 2/3rd share.As there were crops on the land at the time, a letter makred as Ex. A-1 was executed by the defendant in favour of the plaintiff. O. S. No. 318 of 1939 was filed by the plaintiff in the file of the District Munsifs Court, Repalle, for partition and separate possession of all the joint family properties. Item 2 of the plaint schedule in the present suit was included as item 8 in the plaint in O. S. No. 318 of 1939 District Munsifs Court, Repalle. The B Schedule attached to the plaint in the former suit related to the property alienated by the defendant.The defendant contended in the prior suit that the latter, dated 20-11-1936, and marked as Ex. A--1 in the present suit was nominal one, that the plaintiffs father Akkayya gave up his interest in the joint family and was not entitled to any share in the suit properties. The trial Court having dismissed the suit, the plaintiff preferred A. S. No. 128 of 1943, before the Subordinate Judges Court, Tenali. The appellate Court held that Akkayya did not give up any share in the family properties, that the letter dated 20-11-1936, was not a nominal share in the plaint schedule properties.As findings were not recorded on some of the issues, the suit was remaded to the trial Court. The plaintiff filed a memo into Court that he did not press for any relief in regard to B Schedule property alienated in favour of third parties and prayed for permission to file a separate suit for recovery of a sahre in the sale proceeds from the defendant. A preliminary decree, marked as Ex. A--2 was passed by the District Munsif of Repalle on 23-8-1940.Unfortunately, the decree didnot provide for partition of items 6 and 8, even though, as stated supra, the Subordinate Judge of Tenali held on appeal that the plaintiff was entilted to a share in all the items mentioned in the plaint schedule. The plaintiff filed an application for amendment and review on 5-7-1948, marked as Ex. B--9 and also an application I. A. No. 492 of 1948 under O. 20, R. 18 and O. 26, R. 14, marked as Ex. B--7 as Ex. B--7 that if 2/3rd share in item 8 was not given to him hemight at least be awarded Rs. 2,400.00 as the value of that share. As the plaintiff did not pay court-fee on the review applications, it was rejected on 6-8-1948. The other application I. A. No. 492 of 1948 wasnot pressed as the review application had been rejected.The present suit O. S. No. 98 of 1948 was filed before the Subordinate Judge, Tenali, for partition and recovery of a 2/3rd share in respect of item 2 (corresponding to item 8 of A schedule in the priior suiut). The question that arises for consideration is, whether the plaintiff is not entilted to maintain the suit for partition and recovery of his 2/3rd share by reason of the proceedings in the prior suit O. S. No. 318 of 1939, District Munsifs Court, Repalle.
(2.)It might be pointed out that the defendant who claimed item 2 as the self-acquired property did not adduce any evidence on tht question and so issue No. 1 was decided against the defendant, respondent herein. The facts narrated above establish beyond doubt that item 2 is joint family property in which the plaintiff is entitled to 2/3rd share and the defendant acknowledged the plaintiffs right in the letter Ex. A--1 dated 20-11-1936. It is also clear that the Subordinate Judge, on apeal, upheld the plaintiffs claim in regard to item 8 and that, by mistake, the preliminary decree did not provide for partition and separate possession.I may however point out, at this stage, tht the District Munsif of Repalle allowed the amendment application filed by the plaintiff to include item 6 which was similarly left out in the preliminary decree -- vide Ex. B--11 and B--12. The Court below has also found on the facts that item 8 was omitted from the preliminary decreeby mistake. The plaintiff who was examined in the case as P. W. 1 deposed as to the circumstances under which the mistake crept in the preliminary decree.The defendant did not go into the witness box and suggest any reasons why relief was not given to the plaintiff in respect of item 8. I accept the evidence of the plaintiff. I have no doubt in my mind tht the omission to include item 8 in the preliminary decree was the result of a pure mistake. The amendment application in respect of item 8 oiught to have been allowed, as in the case of item 6 and no court-fee as for review ought to have been demanded.
(3.)The Subordinate Judge of Tenali held that the present suit is barred by res judicata by reason of the proceedings in O. S. No. 318 of 1939, district Munsifs Court, Repalle. Mr. K. Kotayya, the learned Advocate for the appellant, contended that the finding on the question of res judicata was unsustainable. He urged that if by mistake or by consent of the parties, a partition is effected of only some of the properties, a subsequent suit for partition of the other joint properties is maintainable.He strongly relied on the decision in -- Jogendra Nath Rai v. Baladeo Das, 35 Cal 961 (A), in support of his contentioin and this decision supports him. What happened in that case was that the preliminary decree provided for a partition; but by mistake of the parties to the litigation, which was shared by the Commissioner, the portion in dispute in the subsequent suit was omitted from the report and therefore there was no final decree in respect of that property/Reference was made therein to the Privy Council decision in -- Chidamabaram Chettiar v. Gauri Nachiar, 6 Ind App 177 (PC) (B), for the proposition that the mere defintion of the shares of the joint family does not amount to partition of the property though such determination may effect a severance of the joint family. The deicison in -- Barness v. Boardman, 157 Mass (C), was followed. The following passage sets out the proposition adumbrated by the Bench and is as follows:
"We must consequently, affir, without hesitation the doctrine that, although a co-owner cannot enforce a partition of a part only of the commoin lands leaving the rest undivided, and, although the entire property must be included in the partition, yet, if by mistake or by consent of the co-owners, acting innocently and fairly, a partition of a portion only of their estate has been made, whether by the order of the Court or otherwise, there is no reason why the Court should not grant a division of the remainder at the instance of one or more of the co-owners. The conclusion is, therefore, irresistable that the effect of the decree in the partition suit was to leave untrouched the joint title and possession of the parties and tht the present suit for recovery of joint possession may well be maintained."
A similar question came up for consideration before the Madras High Court in -- K Venkataswamy v. Baligadu, AIR 1917 Mad 761 (D). The head-note neatly sets out the point decided and is as follows:
"In a suit for partition between a father and his son a certain mortgage bond was left out of account as worthless. Subsequently, the father brought a suit on the mortgage-bond and it was pleaded that the plaintiff and his son were not divided in respect of the properties covered by the mortgage bond and that the son was, therefore, a necessary party: Held, per Napier J., that, all the properties of the family not having been included in the partition suit, only partial partition had taken place and that therefore, the property covered by the mortgage bond remained joint family property. Per Sadasiva Iyer J., that a complete partition having taken place between the father and the son, the latter was not a necessary party to the suit on the mortgage bond."
At page 762, Napier J., followed the decisioin of the Calcutta, High Court in -- Jogendranath Rai v. Baldeo Das, (A). Though Sadasiva Iyer J., did not specifically refer to this decision he held as follows:
"It follows that after such a partition, none of the parties to it holds any of the properties (till then held jointly) along with any other party, unless the partition agreement or the partitioin award or decree itself provides for such joint holding or unless there has been accident, mistake or fraud in the non-conlcusion of some of the property at the division ............... (except on the ground of accident, mistake of fraud, therefore, there cannot be second partition"

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