A suit for partition of joint family property can be maintained even if it does not include all the properties held jointly by the parties, provided that there are cogent grounds for departing from the general rule.

1. Defendants 2 to 4 (Appellants 1 to 3) and one Periasami Udayar are the appellants. Suit O.S. 1552 of 1978, on the file of District Munsifs Court, Ariyalur, was for partition and possession, and also for mesne profits.

2. Chellamuthu Udayar and Ramasami Udayar were brothers. Both of them are no more. Plaintiff is the daughter of Chellamuthu Udayar, and 11th defendant is his widow. Ramasami Udayars widow is the 10th defendant.

3. Plaintiff filed the suit for partition of plaint schedule properties claiming half share over the plaint items. Other defendants are alienees from Ramasami Udayar. It has come out in evidence that apart from the schedule properties, the brothers had properties in the villages Anandavadi, Sendurai, Udayan-Kudikadu and Nakkambadi. The plaint schedule properties are situated in Udayankudikadu. The properties situated in the other villages have not been included in the plaint schedule. The widows of the two brothers are not contesting the suit, and they have no objection for partitioning the property. Even though the appellants contended that over the plaint property, plaintiff was not entitled to any right since Ramasami Udayar became the absolute owner due to survivorship, both the Courts below found that contention against them. It is said that Sellamuthu Udayar died after Hindu Succession Act came into force and naturally the widow and daughter will be entitled to a share under Sec. 6 of the Hindu Succession Act.

4. The alienees have taken documents from Ramasami Udayar as if the property belongs to him. It is under these circumstances, plaintiff filed the suit for partition claiming half share over the plaint items.

5. The trial Court dismissed the suit on the ground that the plaintiff ought to have scheduled the properties in the other villages also and should have claimed a general partition. Since only some of the items belonging to the brothers have been included, the suit is not maintainable due to partial partition.

6. When the matter was taken in Appeal in A.S. No. 42 of 1982, the lower Appellate Court set aside the reasoning of the trial Court, and passed a preliminary decree. The lower Appellate Court held that the suit is really between a co-owner against the alienees and is not really between the members of the family. Therefore, a co-owner is entitled to recover his share of the property in the scheduled items. The alienee cannot contend that the suit is bad for partial partition. That is a right given to the members of the family. It is further found that the plaintiff and defendants 10 and 11 are only female members and, therefore, they are not coparceners. The question of partial partition will arise only in a coparcenary property where they are taken as joint tenants. Such a question cannot arise in a case of co-ownership It was further found that the claim for partial partition was also taken at a belated stage. A preliminary decree was granted by the lower Appellate Court.

7. The decision of the lower appellate Court is assailed in this Second Appeal on the following substantial question of law: —

“Whether it is open to the plaintiff to challenge the validity of an alienation made by another coparcener in a suit for partial partition.”

8. The only question to be decided is, whether the suit is bad for partial partition.

9. In the decision reported in (1969) 2 SCWR 414 ( Mst. Hateshar Kuer & others v. Sakaldeo Singh & others ), Their Lordships held that,

“The rule requiring inclusion of the entire joint estate in a suit for partition is not a rigid and inelastic rule which can admit of no exception. This rule aims at preventing multiplicity of legal proceedings which must result if separate suit were to be instituted in respect of fragments of joint estates. Normally speaking, it is more convenient to institute one suit for partition of all the joint properties and implead all the interested cosharers so that all questions relating to the share of the v arious co-owners and