A suit for partial partition without including all necessary parties and joint family properties is not maintainable under the Hindu Succession Act.

JUDGMENT :

S.R. KRISHNA KUMAR, J.

Both these appeals arise out of the impugned judgment and decree dated 30.11.2017 passed in O.S.No.379/2013 by the Principal Senior Civil Judge, Hubballi, [Hereinafter referred to as “the Trial Court”]

2. Brief facts giving rise to the present appeal are as under:

(a) One Kashinath, who expired in the year 1946, was the original propositus and he had two sons viz., Balakrishna, who expired in the year 1972 and Raghunath, who expired in the year 1977. The aforesaid Balakrishna left behind Prabhakar as his only son, while Raghunath who was married to Smt.Sulochana left behind two sons and four daughters as his heirs and legal representatives.

(b) The four daughters of Raghunathrao and Sulochana instituted the aforesaid suit in O.S.No.379/2013 for partition and separate possession of the alleged share in the suit schedule properties. In the said suit, Vinayak and Vinod, the brothers of the plaintiffs were arrayed as defendant Nos.1 and 2 and their mother-Sulochana as defendant No.3, so also Prabhakar S/o.Balakrishan Nandagerikar as defendant No.4. The plaintiffs contended that the suit schedule properties were joint family properties and they were entitled to their legitimate share in the same. 100035/2022 (c) It is matter of record that while the defendant Nos.1 to 3 i.e., the sons and wife of late Raghunathrao did not file their written statement or contest the suit, the aforesaid defendant No.4-Prabhakar S/o.Balakrishna (brother of Raghunathrao) filed his written statement and contested the suit. Apart from disputing and denying the claim of the plaintiffs on merits, the defendant No.4 also took up specific contention that the suit was bad for non-joinder of necessary parties and that various properties standing in the name of late Raghunathrao had not been included in the suit and consequently the suit for partial partition without including all parties and properties was not maintainable and the same was liable to be dismissed.

3. Based on the aforesaid pleadings, the Trial Court framed the following issues and additional issue:

ISSUES

1. Do the plaintiffs prove that suit properties are the ancestral joint family properties of plaintiffs and the defendants?

2. Do the plaintiffs prove that they have legitimate share in all the suit properties as per amended Hindu Succession Act 2005?

3. Do the plaintiffs prove that the defendants have without consent of the plaintiffs, created the registered partition deed dated:21-11-2011 illegally and it is not binding on the plaintiffs?

4. Do the defendants prove that the suit schedule ‘A’ properties fallen to the share of defendant No. 4 and he is in actual possession of ‘A’ schedule properties as contended in his para No. 7 of the written statement?

5. Do the defendants prove that the partition deed is fair and acted upon with the consent of the plaintiffs?

6. Do the defendant No. 4 proves that he has sold the suit properties bearing CTS Ward No.1. CTS No. 2441+2442+2443+2444 of Hubli city measuring 210 sq. yards to the third parties and thereby the suit is not maintainable ?

7. Do the defendants prove that the plaintiffs have no cause of action to file the suit?

8. Do the plaintiffs are entitled for the reliefs sought for?

9. To what reliefs the parties are entitled to?

10. What order or decree.

ADDITIONAL ISSUE :

1. Do the defendant No. 4 proves that suit schedule ‘A’ Sl. No. 2, 5, 6, 7, 8, 10 items are self acquired properties of his father and plaintiffs are not entitle for share as contended in amended written statement?

4. As can be seen from the aforesaid issues and additional issue framed by the Trial Court a specific issue as regards suit for partial partition without including all parties and without encompassing all the properties was maintainable or not was not framed by the Trial Court.

5. The plaintiffs examined plaintiff No.4 as PW1 and Ex.P1 to Ex.P45 were marked by way of documentary evidence. The defendant No.4 examined himself as DW1 and one witness as DW2