1985 Supreme(MP) 9

J. S. Verma, J.
Janouti Bai v. Rajobai.
S. A. No. 261 of 1979 (J); Decided on 4-1.1985,

Headnote:(1) Hindu Law-family arrangement-not a partition.

       

        (2) Partition Act, 1893-S. 2-parrition-suit for-whole joint property must be embraced-partition sought only of agricultural land while other properties not made subject matter-suit not maintainable

       

        (3) Partition-should be sought of whole joint properties.

       

        This is defendants second appeal. It arises out of a suit for partition of 15-31 acres of agricultural lands in village Kesra, tahsil and district Durg, and for seperation possession of the plaintiffs share therein. These agricultural lands are the only suit property. These lands belonged to Firanta, who died in the year 1965, survived two widows, namely, defendant Janouti Bai and plaintiff No.1 Rajobai; two sons, plaintiff No. 2 Gokaru and plaintiff No.3 Avadhram; and three daughters, plaintiffs Nos. 4, 5 and 6 Urmila Bai Aswani Bai and Pramila Bai. The plaintiffs case is that they and the defendant have a share in these lands and the same not having been divided, they have to be partitioned between them. The defendant Janoutibai contested the suit. It was contended by her that as a result of her intention to separate, an oral partition was made by the Panchas of the agricultural lands, giving half of the suit lands i. e., 7.68 acres to her and plaintiff No.2 who were to Li"Ve together, and the remaining half to the remaining plaintiffs; that plaintiff No.2 Gokaran went away to Li"Ve with his mother, plaintiff No.1 Rajobai and, therefore, the arrangement was modified, giving to the defendant only khasra No, 425{1, area 3 acres and 0.60 acres, out of Khasra No. 423 or, in all, 3.60 acres of land; that. the defendant has been in possession of these 3.60 acres of lands since then. It has also been contended that the defendant, while being given 3,60 acres of land as per share in the agricultural lands, was not given any share in the remaining joint family property, to which also she is entitled. Admittedly the joint family has other immovable properties also in addition to the agriculture land which are not included in the suit property.

       

        Held: It is no longer in dispute that the defendant and plaintiff No.2 Gobran were given 7.68 acres of agricultural lands as a result of the aforesaid arrangement and subsequently, when plaintiff No.2 Gokaran left the defendant and went to Jive with his mother plaintiff No. 1 Rajobai, the arrangement was modified, giving to the defendant only 3.60 acres of land, as claimed by her. The question really is of the effect of this fact, which is no longer in controversy and has also been found proved by the first appellate Court.

       

        The first appellate Court has come to the conclusion that the above arrangement between the parties was only a family arrangement for the enjoyment of the agricultural lands and that it did not· amount to a partition of the agricultural lands between them. On this basis, the suit for partition has been decreed There does not appear to be any infirmity in this conclusion that the family arrangement, as a result of which the defendant was given 3.60 acres of land for enjoyment by her alone, did not amount to a partition but only to a family arrangement for enjoyment of the total area 15.31 acres of agricultural lands belonging to the family. The question, however, is whether even on this conclusion the suit could be decreed for partition of the agricultural lands alone, when admittedly the joint family properties include other immovable and movable properties as well. It is settled that a suit for partition must embrace all the joint family properties. It is common ground that there has been no earlier partition between the parties inasmuch as even the defendant claims that there has been to partition of any property other than the agricultural lands. For this reason alone, the suit must fail as it does not embrace all the joint family properties, which is admittedly a fatal defect in a suit for partition. Appeal allowed.