IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 SA.No. 17 of 1996(B) -------------------------------- AS.289/1990 of DISTRICT COURT, THRISSUR OS.613/1988 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT/APPELLANT/3RD DEFENDANT: ------------------------------------------------------------- RAMAN, S/O. NJATTUVEETTIL THARAYIL SANKARAN, PALLIPRAM AMSOM, DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK (DIED) SUPPLEMENTAL APPELLANTS: 2. KAMALA, W/O. LATE RAMAN, AGED 67 YEARS. 3. UDAYAN, S/O. LATE RAMAN, AGED 38 YEARS. 4. SHEELA, D/O. LATE RAMAN, AGED 35 YEARS. (SUPPLEMENTAL APPELLANTS 2, 3 AND 4 ARE RESIDING IN NHATTUKETTI THARAYIL HOUSE, KARIYAMUTTOM (PO), VIA. VALAPPAD, THRISSUR DISTRICT.) (SUPPLEMENTAL APPELLANTS 2 TO 4 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED APPELLANT VIDE ORDER DATED 01.10.07 IN IA. NO.1684/07). BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENTS/RESPONDENT/SUPPL.2ND PLAINTIFF AND ORIGINAL PLAINTIFF AND DEFENDANTS 2 AND 4: ------------------------------------------ 1. NARAYANAN, S/O. NJATTUKETTI THARAYIL SANKARAN, PALLIPPRAM AMSOM, DESOM, VALAPPAD, CHAVAKKAD (DIED). 2. DAMAYANTHI, W/O. KOTTUKAL VELAYUDHAN, KARIYAMUTTOM DESOM, VALAPPAD VILLAGE, CHAVAKKAD. S.A.NO.17 OF 1996 3. INNOOLI, W/O. EATTATH RAMAN, PERINJANAM AMSOM, DESOM, CHAVAKKAD. 4. NARAYANI, W/O. VALIYAPARAMBIL APPUTTY, PERINJANAM VILLAGE, CHAVAKKAD TALUK. SUPPLEMENTAL RESPONDENTS: 5. SARASWATHY, W/O. LATE NARAYANAN, AGED 58 YEARS, NJATTUKETTITHARAYIL HOUSE, MURIYATHODE DESOM, VALAPPAD, THRISSUR DISTRICT. 6. DEEPA, W/O. JYOTHI BASU, SREENARAYANAPURAM VILLAGE, MOORAVAYIL HOUSE, KODUNGALLUR TALUK, THRISSUR DISTRICT. 7. BINI, W/O. RAVINDRAN, PUTHENPURAYIL HOUSE, VDALAPPAD PO, KODUNGALLUR TALUK, THRISSUR DISTRICT. 8. TINI, W/O. RAJESH, ERANJEZHATHU HOUSE, THALIKULAM PO, CHAVAKKAD, THRISSUR DISTRICT. 9. REEJA, D/O. LATE NARAYANAN, PO KARYAMUTTAM, CHAVAKKAD, THRISSUR DISTRICT. (SUPPL. RESPONDENTS 5 TO 9 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED FIRST RESPONDENT VIDE ORDER DATED 28.9.06 IN IA.NO. 1556/05). ADV. SRI.S.SREEKUMAR FOR R2 & R4 SRI.S.SREEKUMAR FOR ADDL.R5 TO 9 SRI.K.C.ELDHO FOR ADDL.R5 TO 9 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.6.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ----------------------------------------------- S.A. NO. 17 OF 1996 C ----------------------------------------------- Dated this the 3rd May, 2009 JUDGMENT Appellant is the third defendant in a Suit filed for partition. The Suit was originally instituted by the sister of the appellant and the respondent. Later on, she filed a petition to the effect that she is not pressing the Suit. Thereupon, the first defendant filed application to get himself transposed as supplemental plaintiff. The said petition was allowed. Thereafter, the trial court proceeded to find that the plaintiff, namely the first respondent has one-half right and passed a preliminary decree for partition on the said basis. Other directions were also issued which may not be relevant. Appellant was unsuccessful in the First Appeal and hence this Second Appeal. 2. Heard Shri K.G. Balasubramanian, learned counsel for the appellant and also the learned counsel appearing on behalf of the respondent. Essentially, the question of law that is purported to be raised is this: The Suit out of which the Appeal arises is a SA.NO.17/96B 2 Suit for partition. The supplemental plaintiff in his examination, according to the appellant, has admitted that certain items of properties were not included in the schedule. This renders the Suit bad by reason of the fact that what is sought is partial partition. It is pointed out that the trial court has brushed aside this aspect and the Appellate Court also fell in the same error. It is the case of the appellant that when the plaintiff himself has, in his deposition, virtually admitted the case that certain items are left out, the courts below should not have decreed the Suit. Per contra, learned counsel appearing on behalf of the first respondent would point out that the aspects which are projected in the Appeal Memorandum, as admissions from the plaintiff regarding the items of properties which were left out, stand clarified in re-examination. If that be so, it can only be a matter of appreciation of evidence. 3. I notice that regarding the question of partial partition, this Court has already spoken through two decisions. Firstly in Parameswara Menon v. Sachidananda Menon (1970 KLT 1031), SA.NO.17/96B 3 Justice V.R. Krishna Iyer (as His Lordship then was), after survey of the decisions including the Judgment of the Apex Court in CA No.1112/1965, proceeded to hold as follows: “The argument that a suit for partition of joint family property is bad, if some item or other is omitted is unsound although normally, such a suit should embrace all the assets of the family. There may be circumstances in which practical considerations may justify the institution and continuance of a suit for partition where certain items of co-parcenary property are not included. There is no legal inhibition, if there are justifying features, in allowing a suit for partial partition.......When there are certain items which are omitted from the earlier suit for good practical reasons, the second suit will not be barred.” In fact, in the decision of the Apex Court, it was, inter alia, observed as follows: “When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by some of them that it belongs to an outsider, then a suit for partition of joint SA.NO.17/96B 4 property excluding such item does not become legally incompetent because of any rule against partial partition. In the present case, before the gifted Bangra land can legitimately be considered to be joint property available for partition, the gift has to be got rid of by appropriate proceedings to which the donee would be a necessary party. That controversy may also involve other dispute which may have little to do with the pleas affecting the merits in a partition suit. The gift, it is admitted, was made in 1949 and remained unchallenged ever since. The present suit for partition was instituted in 1951. Consideration of convenience and the larger interest of justice, on the facts and circumstances of this case, seem to justify the exclusion of the Bangra land from the present suit for partition. In any event, there is no insurpasable legal impediment in the competence of the suit as instituted and its trial.” This was followed by another learned Judge of this Court in Gopalan v. Vasu (1986 KLT 1100). Therein, it was held as follows: SA.NO.17/96B 5 “6. It may be always desirable, in order to avoid multiplicity of suits and consequent harassment and inconvenience that as far as possible all the properties should be included even in a suit for partition of co-ownership properties. But, in such cases, it is not essential that all the properties held in common should be brought in the common hotchpot in the same suit. Even in such cases, depending upon the facts and circumstances and the nature of properties, it is competent for the court to order the plaintiff to include the remaining properties also subject to the question of jurisdiction. A suit for partition of co-ownership properties cannot be thrown out on the ground of partial partition. The ordinary rule that a suit for partition is not maintainable cannot apply in case of co-owners having distinct rights. Where the causes of action and the claims are not identical, it may not be desirable to insist on the compliance of the rule against partial partition. 7. The rule against partial partition is only one of equity and convenience. Therefore, it is better to limit the rule in its application to properties over which the parties have community SA.NO.17/96B 6 of interest and unity of possession. If partial partition can be had without inconvenience to the other sharers and if it will not stand in the way of equities being adjusted, it is not necessary to insist that all properties will have to be scheduled. Plaintiff is the master of the litigation. Normally, he is the person to decide what are the reliefs to be claimed and who are all to be impleaded. Of course, these are all not to be left to the sweet will and pleasure of the plaintiff. His choice could always be only subject to the relevant provisions of law. But, normally, he cannot be compelled to fight persons against whom he does not want to fight. So also, he cannot be compelled to schedule properties which according to him are not partible. As earlier stated, these are not hard and fast propositions.” I also note that the learned Judge has taken note of the fact that in the said case, the plaintiff has got a case that the items which were sought to be included are not partible also. It is also to be noted that DW1 who was the son of the appellant did not depose regarding other properties to be included in the partition. SA.NO.17/96B 7 4. The court also has not found in favour of the oral partition set up. The court further took note of the fact that DW1 has admitted that both PW1, namely the first respondent and the appellant were employed in Ceylon and both had acquired properties in their names by their savings. It is further noted that the appellant has no case in the written statement that the self-acquisitions made by the first respondent also are to be included in the partition. There does not appear to be much dispute that the statements made in the cross-examination of PW1 are explained in the re-examination. If that be so, there is no merit in the Second Appeal and it is dismissed. Sd/= K.M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge SA.NO.17/96B 8 K.M.JOSEPH, J. S.A.NO.17 OF 1996 B JUDGMENT 3rd June, 2009.