IMPORTANT POINT
A suit for partial partition is impermissible if not all joint family properties are included, and admissions made by parties are binding.

JUDGMENT :

This second appeal is filed challenging the judgment and decree of reversal passed by the First Appellate Court in R.A.No.54/2016 on 11.07.2018 granting the relief of partition and separate possession of 1/3rd share in the suit schedule property in favour of the plaintiff.

2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent Nos.2 and 3.

3. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.

4. The factual matrix of the case of the plaintiff before the Trial Court that defendant No.1 is the mother and defendant No.2 is the brother of plaintiff. The suit schedule property is a site and the same was allotted in favour of his mother on account of death of his father in recognizing the service rendered by his father. Hence, the same is the property of the family and not the exclusive property of his mother and the same is a joint family property of himself, defendant Nos.1 and 2. Defendant Nos.1 and 2 are not having exclusive right to sell the property and hence, the plaintiff is entitled for the relief of partition and separate possession of his 1/3rd share. Defendant No.1 filed written statement supporting the case of the plaintiff contending that defendant No.2 i.e., another son of defendant No.1, fraudulently obtained the signature of her on the sale deed saying that he requires the document to avail loan. Defendant No.3 appeared and filed written statement contending that he is the bonafide purchaser of the suit schedule property and there are other joint family properties other than the suit schedule property and the same have not been included in the suit hence, the suit is not maintainable as it is a suit for partial partition. It is also contended all the documents stands in the name of defendant No.1.

5. The Trial Court having considered the pleadings of the parties framed the following Issues:

1. Whether the plaintiff proves that the suit schedule property is the ancestral and joint family property of plaintiff and defendant Nos.1 and 2?

2. Whether the defendant No.3 proves that there are other joint family properties other than the suit schedule property?

3. Whether the defendant No.3 proves that he is a bonafide purchaser of the suit schedule property?

4. Whether the defendant No.3 proves that the suit is not maintainable as it is a partial partition suit?

5. Whether the plaintiff proves that she has 1/3rd share over the suit schedule property?

6. Whether the plaintiff is entitled for relief sought in the plaint?

7. What order or decree?

ADDITIONAL ISSUE:

1. Whether the first defendant proves that the sale deed dated 18.01.2001 was got executed by the 2nd defendant under the circumstances pleaded in para 11 of the written statement and the same does not bind her?

6. The Trial Court having considered the pleadings of the parties, allowed them to lead their evidence. In order to prove the case of the plaintiff, he himself examined as PW1 and got marked the documents at Ex.P1 to P10. On the other hand, defendant Nos.1 and 3 have examined themselves as DW1 and DW2 respectively and got marked the documents at Ex.D1 to D20. The Trial Court having considered both oral and documentary evidence placed on record answered Issue No.1 as affirmative and answered Issue No.2 as negative coming to the conclusion that defendant No.3 is the bonafide purchaser of the suit schedule property and answered Issue No.3 as affirmative and Additional Issue is answered as negative and remaining other Issues are also answered as negative. Accordingly, dismissed the suit.

7. Being aggrieved by the judgment and decree of dismissal of the suit, an appeal was filed by the plaintiff in R.A.No.54/2016. The First Appellate Court considering the grounds urged in the appeal memo, formulated the following Points:

1. Whether the Trial Court was correct in holding that the suit schedule property is the absolute property of de