1. Suit for partition and separate possession of shares in properties and rentals — claim based on intestate succession of self-acquired properties. (Para 1 , 3 )
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2022 Supreme(SC) 270
SUPREME COURT OF INDIA
K.M. JOSEPH, HRISHIKESH ROY, JJ.
B.R. Patil – Appellant
Versus
Tulsa Y. Sawkar & Ors. – Respondents
Civil Appeal No(s). 2652-2654 of 2013
Decided on : 09-02-2022
Advocates appeared:
For the Appellant(s) :Salim A. Inamdar, Rabin Majumder, Advocates
For the Respondent(s):S. N. Bhat, D. P. Chaturvedi, Tarun Kumar Thakur, Parvati Bhat, Anuradha Mutatkar, Advocates
For the Appellant(s) :Salim A. Inamdar, Rabin Majumder, Advocates
For the Respondent(s):S. N. Bhat, D. P. Chaturvedi, Tarun Kumar Thakur, Parvati Bhat, Anuradha Mutatkar, Advocates
IMPORTANT POINT
(1) Principle that there cannot be a partial partition is not an absolute one – It admits of exceptions. Properties not in possession of co-sharers/coparceners being omitted cannot result in a suit for partition of properties which are in their possession being rejected.
(2) CPC permits a plaintiff to join causes of action but it does not compel a plaintiff to do so.
(3) Mere continuance in possession of a co-owner does not suffice to set up a plea of ouster.
Headnote:
(A) Property Law – Partition – Law looks with disfavour upon properties being partitioned partially – Principle that there cannot be a partial partition is not an absolute one – It admits of exceptions – Properties not in possession of co-sharers/coparceners being omitted cannot result in a suit for partition of properties which are in their possession being rejected. (Para 10 and 11)
(B) Civil Procedure Code, 1908 – Order II Rules 2 and 3 – Joinder of causes of action – Order II Rule 3 does not compel a plaintiff to join two or more causes of action in a single suit – Failure to join together all claims arising from a cause of action will be visited with consequences proclaimed in Order II Rule 2 – Order II Rule 3 permits plaintiff to join together different causes of action – CPC permits a plaintiff to join causes of action but it does not compel a plaintiff to do so – Consequences of not joining all claims arising from a cause of action may be fatal to plaintiff. (Paras 16 and 17)
(C) Property Law – Ouster (Adverse Possession) – It is not the law that a co-owner cannot acquire his own independent or separate properties – Possession of a co-owner however long it may be, hardly by itself, will constitute ouster – In case of a co-owner, it is presumed that he possesses property on behalf of entire body of co-owners – Even non-participation of rent and profits by itself need not amount to ouster – Proof of ingredients of adverse possession are indispensable even in a plea of ouster – However, there is additional requirement in case of ouster that elements of adverse possession must be shown to have been made known to co-owner – Very essence of adverse possession and therefore ouster lies in a party setting up a hostile title in himself – Possession of a co-owner is ordinarily on his behalf and also on behalf of entire body of co-owners – In case of an ouster, co-owner must indeed have hostile animus – He must assert a title which is not referable to lawful title – Mere continuance in possession of a co-owner does not suffice to set up a plea of ouster – Possession of co-owner will also be referable to lawful title. (Paras 24 and 29)
Facts of the case:
The first defendant in O.S. No.7944 of 2003 in the Court of Additional City Civil Judge at Bangalore is the appellant. The said suit was filed by his sister as the first plaintiff and his sister- in-law as the second plaintiff for, (a) partition and separate possession of their 1/5th share each, in the suit schedule items 1 to 3 properties by metes and bounds and 1/5th share each, in the sale proceeds of items 4 & 5 of suit schedule properties, after their sale.
(b) a direction to the 1st defendant to render accounts of the rentals received by him, from item no. 1 and 3 of the suit schedule properties from 1983 onwards till the date of suit and for partition of 1/5th share of each plaintiff, in the said rentals.
(c) For an enquiry into the rentals to be received by the 1st defendant from suit items 1 & 3 during the pendency of the suit and for partition of 1/5th share of each plaintiff, and
(d) for mesne profit from the date of preliminary decree, till date of delivery of the 1/5th share of each plaintiff, and
(e) for such other relief or reliefs as this Hon’ble Court deems fit to grant to the plaintiffs in the facts and circumstances of the case.
Findings of Court:
No reason to go into the question about the allotment of properties which is a matter to be gone into in the final decree proceedings. As to what is to be actual division of the properties, it is for the appellant to raise such contentions as are available in this regard.
Result : Appeals dismissed.
Legal Category Hierarchy
- family law
- practice and procedure
- property law
Table of Contents
2. Non-joinder of necessary parties — partial partition — claim that properties were joint family assets — plea of ouster regarding exclusive possession. (Para 5 , 6 )
3. Admission of self-acquired nature of properties — failure to prove identity of omitted joint properties — lack of hostile animus for ouster. (Para 7 , 8 , 9 , 11 , 12 , 13 , 19 , 20 , 24 , 25 , 26 , 27 , 29 )
4. Possession of a co-owner is presumed on behalf of all; ouster requires open assertion of hostile title and exclusive possession known to other co-heirs. (Para 21 , 23 , 24 )
5. Appeals dismissed; preliminary decree for partition upheld. (Para 31 )
6. When is a suit for partial partition maintainable?
While generally discouraged, partial partition is allowed when omitted properties are not in the possession of coparceners, are held jointly with strangers, lie in different jurisdictions, or are not admitted by all parties as joint property. (Para 10 , 11 )
7. What are the requirements to establish ouster of a co-heir?
Ouster requires evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment to the knowledge of the other co-heir, including a declaration of hostile animus and long uninterrupted possession. (Para 21 , 23 )
8. Does the failure to join all causes of action or all potential parties necessarily invalidate a partition suit?
No; Order II Rule 3 permits but does not compel the joinder of different causes of action. Non-joinder of parties is only fatal if the parties are necessary to the specific cause of action pleaded. (Para 15 , 16 , 17 , 18 )
9. Is the exclusive possession of a property by one co-owner sufficient to claim adverse possession?
No; the possession of one co-owner is presumed to be on behalf of all co-owners. It only becomes adverse if there is a clear ouster by denying the title of other co-sharers. (Para 21 , 23 , 24 )
JUDGMENT :
K. M. Joseph, J.
The first defendant in O.S. No. 7944 of 2003 in the Court of Additional City Civil Judge at Bangalore is the appellant before us. The said suit was filed by his sister as the first plaintiff and his sister-in-law as the second plaintiff. The reliefs sought read as follows: -
"(1) (a) For partition and separate possession of their 1/5th share each, in the suit schedule items 1 to 3 properties by metes and bounds and 1/5th share each, in the sale proceeds of items 4 & 5 of the suit schedule properties, after their sale.
(b) a direction to the 1st defendant to render accounts of the rentals received by him, from item no. 1 and 3 of the suit schedule properties from 1983 onwards till the date of suit and for partition of 1/5th share of each plaintiff, in the said rentals.
(c) For an enquiry into the rentals to be received by the 1st defendant from suit items 1 & 3 during the pendency of the suit and for partition of 1/5th share of each plaintiff, and
(d) for mesne profit from the date of preliminary decree, till date of delivery of the 1/5th share of each plaintiff, and
(e) for such other relief or reliefs as this Hon'ble Court deems fit to grant to the plaintiffs in the facts and circumstances of the case.
(2) For Perpetual injunction restraining the 1st defendant from interfering with the peaceful possession and enjoyment of 1st floor of item no. 3 of the suit schedule property and to park the car in the premises of the item No. 3 by the 2nd plaintiff."
2. The Trial Court partly decreed the suit. It granted prohibitory injunction in favour of the second plaintiff.
ORDER
"The suit is decreed in part.
The claim of plaintiff for partition and separate possession of their alleged 1/5th share each and other consequential reliefs as prayed in Paras (b) to (d) is dismissed.
The reliefs claimed by defendant No. 1, defendant No. 2 and defendant No. 3 are disallowed.
The claim of plaintiff No. 2 for the relief of injunction is granted in the following terms:
Defendant No. 1, his men, agents etc., are directed not to interfere with peaceful possession and enjoyment of 1st floor of item No. 3 of the suit schedule by plaintiff no. 2 and her right to park the car in the premises of Item No. 3 till the division in the estate of the joint family takes place by metes and bounds, in accordance with law.
In the circumstances of the case, parties are left to bear their own costs.
Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this the 9th day of July, 2005.
(I.S. Antin)
XXII Addl. City Civil Judge,
Bangalore"
3. Feeling aggrieved by the aforesaid judgment, three separate appeals have been generated. RFA No. 1503/2005 was filed by the appellant. RFA No. 1296/2005 was filed by the plaintiffs whereas RFA No. 1369/2005 was filed by the second defendant in the suit. By the impugned judgment, the High Court has allowed the appeal filed by the plaintiffs and the second defendant and dismissed the appeal filed by the first defendant. Resultantly, the High Court has decreed the suit in the following manner: -
"33. Accordingly, the judgment dated 08.07.2005 passed by the XXII Addl. City Civil Judge, Bangalore in O. S. No. 7944/2003 in respect of partition of suit schedule properties, is set aside. The appeals are allowed insofar as partition of item Nos. 1 to 4 of plaint schedule properties. The suit for partition of item No. 5 of the plaint schedule property is dismissed.
34. The plaintiff Nos. 1 and 2 and defendant Nos. 1 to 3 who are legal heirs of the deceased R.M. Patil are entitled for 1/5th share each in item Nos.1 to 4 of the suit schedule properties which were acquired by R.M. Patil during his lifetime. Insofar as item No. 5 i.e., library books purchased and maintained by late R.M. Patil during his lifetime is concerned, the plaintiffs have averred in the plaint that the value of the library books is about Rs. 1 lakh and it was purchased about 30 years back, but no documentary evidence a
