Properties not in possession of co-sharers/coparceners being omitted cannot result in suit for partition of properties which are in their possession being rejected: SC

Read Judgment: B. R. PATIL vs. TULSA Y. SAWKAR & ORS. 

Pankaj Bajpai

New Delhi, February 15, 2022: While highlighting that Order II Rule 3 of CPC, 1908 does not compel a plaintiff to join two or more causes of action in a single suit, the Supreme Court has observed that properties not in the possession of co-sharers/coparceners being omitted cannot result in a suit for the partition of the properties which are in their possession being rejected.

A Division Bench of Justice K.M Joseph and Justice Hrishikesh Roy observed that the law looks with disfavor upon properties being partitioned partially, as the principle that there cannot be a partial partition is not an absolute one. 

Going by the background of the case, in a suit filed for partition and peaceful possession of equal share and division of mesne profit, the Trial Court decreed the suit and granted prohibitory injunction. On appeal, the High Court set aside the partition. This came to be challenged by contending that the suit is liable to be dismissed on the ground that there was non-joinder of necessary parties and that the plaintiffs have not scheduled all the properties which should have been included for the purpose of partition. It was further submitted that the Plaint Schedule Properties were actually purchased out of the Joint Family funds. 

After considering the submissions, the Top Court found that the appellant has not been able to clearly establish the exact extent or identity of the property available by way of ancestral property, despite claiming to have documents relating to the properties and admitting to having no difficulty to produce them. 

It is obvious that the appellant does not claim to be in possession of the said properties even if it be as a co-owner on the basis that it is ancestral property, as his evidence discloses that in reality and on the ground these properties could not be said to be actually available for the parties to the present suit to lay claims over them, added the Court.

Speaking for the Bench, Justice Joseph observed that if the finding that the plaint schedule properties are the separate properties of R.M. Patil is invulnerable, that would conclusively rule out the need to implead the appellant’s uncle or his successor in interest. 

“The case that is set up by the plaintiffs and which is sought to be drawn upon by the appellant is that the grandfather of the appellant had two sons, including his father and since there was this extent of property which is spoken by and since that is not included, it would be contrary to public interest also to deprive the other sharer in the joint family, namely, the brother of the appellant’s father an opportunity to appear in the suit and establish that the plaint schedule properties were acquired with the help of joint family funds in which they also had a share”, added the Bench. 

Justice Joseph further pointed that the cause of action for the present suit is based on the rights of the plaintiff to the separate and self-acquired properties of R. M. Patil and the parties do not have any birth right in the said properties and they could not have brought a suit based on such a right. 

The cause of action arose therefore only upon his death and on the basis of intestate succession plaintiffs have brought the present suit, whereas, a suit for partition in regard to ancestral property/joint family property on the other hand would be premised on birth right, added the Bench. 

The Top Court went on to note that the possession of a co-owner however long it may be, hardly by itself, will constitute ouster, as in the case of a co-owner, it is presumed that he possesses the property on behalf of the entire body of co-owners. 

Even non-participation of rent and profits by itself need not amount to ouster, and the proof of the ingredients of adverse possession are undoubtedly indispensable even in a plea of ouster, added the Court. 

However, the Apex Court clarified that there is the additional requirement in the case of ouster that the elements of adverse possession must be shown to have been made known to the co-owner, which is apparently for the reason that the possession of a co-owner is treated as possession of other co-owners. 

While it may be true that it may not be necessary to actually drive out the co-owner from the property, mere continuance in the possession of a co-owner does not suffice to set up a plea of ouster, added the Court.