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2023 Supreme(Online)(KER) 25081
HIGH COURT OF KERALA
P.SOMARAJAN, J
MADHAVAN, – Appellant
Versus
KAMALAM, – Respondent
RFA 144 2019
U.BALAGANGADHARAN, SRI.RAJESH SIVARAMANKUTTY
A suit for partial partition is valid; however, all properties must be included, and appellate courts have limited jurisdiction regarding omissions.
Headnote:
Partition - Property Rights - Evidence Act Section List - The court reaffirmed the principle that a suit for partial partition is not inherently flawed but emphasized the need for all properties to be included, clarifying procedural missteps in appellate jurisdiction.
Fact of the Case:
The first defendant contested a decree for partition of property, arguing that part of the property inherited from their father was excluded and claiming rights under a will.
Finding of the Court:
The court concluded that while a suit for partial partition is problematic, the decree itself remains valid. Jurisdiction limits prevent addressing omitted properties at the appellate stage, but the decree stands binding and can lead to further actions.
Issues: Whether the decree for partition was flawed due to the omission of certain properties and the extent of jurisdiction in appellate proceedings regarding such omissions.
Ratio Decidendi: A partial partition is not legally invalid but must address the inclusion of all pertinent properties, which cannot be considered on appeal if not raised during trial.
Final Decision: The appeal is dismissed, affirming the trial court's decree.
JUDGMENT
The first defendant came up aggrieved by the preliminary decree and judgment of the trial court granting partition of the property left out by their father. Admittedly, he was having three daughters and three sons apart from his widow. The daughters came up with the suit challenging the earlier partition entered into under Ext.A1 by the mother along with her two sons and for getting partition of the property left out by the father. Inter alia, the defendants 1 and 2 claimed right over the property left out by their mother under a Will which was proved in accordance with the mandate under Section 68 of the Evidence Act . The grievance of the present appellant/the first defendant is that the father had obtained some other property from his deceased brother which was not incorporated in the present suit and as such the present decree is bad for partial partition. It is true that a suit for partial partition is bad in law and when any such contention was raised, that has to be addressed as a preliminary issue before proceeding further with the suit. But, the very same principle cannot be applied when a decree for partition was granted by omitting some of the property which is available for partition. Due to non incorporation of some of the property to be partitioned, the suit alone will stand bad in law and not the decree or the judgment drawn in the suit. Necessarily, the question of non incorporation of any of the property available for partition should be addressed at the trial stage and it cannot be taken up at the first appellate stage, as it would stand outside the purview of jurisdiction that can be exercised by the appellate court. But, at the same time, it is within the jurisdiction of first appellate court to go into the question of availability of property included in the suit for partition. On the other hand, the decree would stand binding on both the parties as they will get another cause of action for the property, which was omitted to be partitioned. Hence, the present decree granted by the trial court can only be confirmed. I do so. The appeal fails and is dismissed without prejudice to the right of parties to take up the right over any of the properties left out as that of the deceased father by way of a separate suit.
