Research › Browse › Judgment

Karnataka High Court · body

1993 DIGILAW 253 (KAR)

K. VENKATA RAO v. K. NARAYANA RAO

1993-10-05

K.H.N.KURANGA, S.A.HAKEEM

body1993
S. A HAKEEM, J. ( 1 ) THIS appeal by the legal representatives of defendant 4-Sri K. Venkata Rao, is directed against the Judgment and decreepassed by the learned Second Additional City Civil Judge,bangalore, dated 25-8-1987 in OS No. 7977 of 1980, whereby theplaintiffs suit for partition and possession of his l/4th share inthe suit schedule immovable properties, was decreed. ( 2 ) FOR the sake of convenience the parties are referred to by their status and ranking in the suit. Late Dr. Gundopanth and K. V. Kuppurao along with theplaintiff and defendants 1 to 4 constituted a joint Hindu family. The first defendant is the adopted son of Dr. Gundopanth, whilethe plaintiff and defendants 1 to 4 are the sons of K. V. Kuppurao. The joint family owned extensive properties in,bangalore City, including the suit schedule property situated ingundopanth Street, in the heart of the City of Bangalore. Earlier, the plaintiff had filed OS No. 70 of 1958 in the Court ofthe District Judge, Bangalore, seeking partition of his l/4thshare in the joint family properties. In the said suit, the presentsuit properties were shown as Item Nos. 4 to 6 of Schedule 'b'. The said suit came to be disposed of on the basis of Compromisepetition dated 29-6-1961. Under the said Compromise, theplaintiff having received certain movable assets gave up hisrights in respect of certain properties which were exclusivelyowned by Dr. Gundopanth; and the suit schedule properties,which had been dedicated for charitable purpose by the familywere excluded. Subsequently, the said Dr. Gundopanth filed apartition suit in OS 47 of 1970 in the Court of the Civil Judge,bangalore, against Kuppurao and his sons, inter alia, seekingpartition and possession of his share in the properties mentionedin the schedule thereto. Among other properties the instant suitschedule property was also included for partition between theparties thereto. It is pertinent to note that the plaintiff was not aparty to that suit allegedly on the ground that he had nosubsisting interest whatsoever in any of the properties sought tobe partitioned since he had relinquished his right and interesttherein under the Compromise decree in the earlier suit. ( 3 ) OS 47 of 1970 also ended in a Compromise on 11-12-1975 whereby defendants 1 to 3 and 4 to 7 partitioned the instant suitschedule property among themselves. ( 3 ) OS 47 of 1970 also ended in a Compromise on 11-12-1975 whereby defendants 1 to 3 and 4 to 7 partitioned the instant suitschedule property among themselves. It is the case of theplaintiff that since he was residing at Bombay all along, he wasignorant of these developments and that he came to know aboutthe partition between his father and uncle only when he came tobangalore to attend to the obsequies of his uncle Dr. Gundopanth, who died on 17-3-1980. Having thus narrated theentire course of events, right from the filing and disposal of thefirst partition suit-OS 70 of 1958 to the date of the instant suit,the plaintiff has asserted that in the circumstances he waswrongfully excluded from sharing the suit property, and that heis entitled to l/4th share therein, and equitable partition andpossession thereof, and for recovery of the mesne profits. ( 4 ) DEFENDANTS 1 to 3, who constitute one branch of the jointfamily through Dr. Gundopanth, inter alia, pleaded in theirwritten statement that since the suit property constituted aprivate trust, it was not partitioned in the earlier suit OS No. 70of 1958. As the plaintiff had separated himself from the family inpursuance of the terms of the decree in OS No. 70 of 1958 he hadno subsisting right to claim any share in the property left by Dr. Gundopanth. However, if for any reason the plaintiff is held tobe entitled to a share in the suit property, it would be only out ofthe share allotted to the branch of the joint family comprising ofdefendants 4 to 7, for which they had no objection. ( 5 ) DEFENDANTS 4 to 7, however, are the main contesting partieswho resisted the suit on various grounds. In brief, their plea isas follows: that, the plaintiff having included the instant suitproperty for partition in his earlier suit OS 70 of 1958 andhaving given up his right therein in lieu of the movable assetsreceived by him in accordance with the Compromise petition, hasno right to reopening of the earlier partition to claim a share inthe suit property. It is further pleaded that the suit property hadbeen dedicated along with certain other properties for charitablepurposes under the earliest family partition dated 8-8-1906,under which Dr. Gundopanth and Kuppurao had reserved tothemselves exclusively the control and management of the suitproperty and the right to terminate the Trust and appropriatethe property to themselves. It is further pleaded that the suit property hadbeen dedicated along with certain other properties for charitablepurposes under the earliest family partition dated 8-8-1906,under which Dr. Gundopanth and Kuppurao had reserved tothemselves exclusively the control and management of the suitproperty and the right to terminate the Trust and appropriatethe property to themselves. And having terminated the Trustthe said parties were perfectly within their right to partition thesuit properties among the members who constituted the jointfamily, by excluding the plaintiff, who had already separatedfrom the joint family by taking his share by virtue of thecompromise decree in OS 70 of 1958. They have further deniedthat the suit property was excluded from the partition in theplaintiffs suit OS 70 of 1958, either by mistake or fraud asaverred in para 8 of the plaint. As such they sought for dismissalof the suit. ( 6 ) ON the above pleadings, as many as 16 issues came to beframed by the trial court, as follows:"1. Whether plaintiffs uncle and father mislead him (plaintiff)that the suit properties were charity properties andthus practiced fraud on him?2. Whether the fraud came to light and became known toplaintiff in March 1980, as alleged?3. Whether plaintiff could seek reopening of the partitionaffected in OS 47 of 1970 and whether he is entitled tothe said relief?4. Whether plaintiff is entitled to 1/4th share in the suitproperty?5. Whether the relief prayed for re-opening of the partitionin OS 47 of 1970, without seeking for reopening thepartition effected in OS 70 of 1958, is tenable in law?6. Whether the suit brought only in respect of one propertyis maintainable?7. Whether plaintiff is entitled to the declaration and equitabledivision and enquire into future mesne profits asprayed for?8. To what reliefs are parties entitled?additional Issues9. Whether the suit is barred by limitation?10. Whether defendants 4 to 7, have perfected their title byadverse possession?11. Whether the court-fee paid is sufficient?12. Whether plaintiff has given up all his claim in respect ofall the properties mentioned in the schedule to theplaint in OS 70 of 1958?13. Whether the portion 'none of the parties have any interesttherein' appearing in Clause 3 of the Compromisepetition in OS 70 of 1958, is void in law?14. Whether suit property is joint property between plaintiffand defendants 1 and 4, and plaintiff has a claim to ashare in it, and whether it got revived in view of thedecree in OS 47 of 1970?15. Whether suit property is joint property between plaintiffand defendants 1 and 4, and plaintiff has a claim to ashare in it, and whether it got revived in view of thedecree in OS 47 of 1970?15. Whether there was an exclusion of present suit propertyas alleged in para 8 (a) of plaint?16. Whether the said exclusion was on account of anyhonest mistake on the part of father and uncle of plaintiffas alleged? ( 7 ) ISSUE Nos. 3, 5 and 11 were deleted by the court below by consent of parties. Issue Nos. 1, 2, 9, 10, 12, 13, 15 and 16 wereanswered in the negative; Issue Nos. 4, 6, 7 and 14 were held infavour of the plaintiff. In the result the suit came to be decreedas prayed for. ( 8 ) SRI M. R. Narasimhamurthy, the learned counsel for the appellant has challenged the Judgment and decree on theground that on the facts and circumstances, the trial court wasnot right in holding that the suit property was available forpartition and decreeing the suit. Elaborating his arguments, it isurged that the plaintiff having sought for reopening the earlierpartition on the basis of mistake and fraud committed by hisfather Dr. Gundopanth and his uncle Kuppurao and the saidplea having been later abandoned and held against him, therewas no cause of action for the suit. As such, the impugnedjudgment and decree cannot be sustained. In any event, it isurged, that a bare perusal of the Compromise petition in OS No. 70 of 1958 makes it clear that the plaintiff had consciouslyrelinquished all his rights, inter alia, in respect of the suitproperty and the same had been subsequently partitionedbetween the continuing members of the joint family in OS 47 of1970. ( 9 ) ON the other hand, Sri Kumar, learned counsel for theplaintiff sought to support the decree, mainly on the ground thatthe suit property which was kept apart as being impartible inthe earlier suit and subsequently being available the plaintiff isentitled to his legitimate share therein and hence the suit filedby him is perfectly maintainable in law. ( 10 ) IN order to appreciate the rival contentions it is appropriate to extract relevant portions of the Compromisememo on the basis of which the plaintiffs suit in OS 70 of 1958was disposed of. ( 10 ) IN order to appreciate the rival contentions it is appropriate to extract relevant portions of the Compromisememo on the basis of which the plaintiffs suit in OS 70 of 1958was disposed of. The Memo reads as under:"the difference in the above case between the plaintiff onthe one hand and the defendants on the other hand aresettled as follows: 1. That the plaintiff separates himself from the defendantsby taking for his share in the family properties, the following,namely: (a) Forty Mysore Bank shares shown as Item (1) in the ASchedule of the plaint, having been since converted into 80shares of the State Bank of Mysore 45 of these lattershares shall be taken by the plaintiff for himself. The concernedshare certificates shall be delivered to the plaintiffand necessary transfer documents shall be signed by theconcerned defendants and also other acts which may berequired to be done by them to effectuate a transfer of thesaid 45 shares to the name of plaintiff, shall also be doneby them, the cost of transfer, however, having to be borneby the plaintiff himself. (b) A sum of Rs. 1,060/- having been received by the seconddefendant as dividend for the said shares; in one year subsequentto suit, the second defendant shall pay to theplaintiff 5/8th share of the said amount, viz. , Rs. 662. 50 np. (c) A sum of Rs. 2,613/- having been found to be in depositin the Salem Bank, which is covered by Item 3, of theplaint A Schedule, the second defendant in whose namethe said account is kept, shall pay to the plaintiff, one thirdof the said deposit, namely Rs. 871/- (d) The compensation amount granted by the Governmentin respect of the Jodi villages of Mahantha Lingapura anddeevatige Ramanhalli, viz. , Items 7 and 8 of the plaint 'b'schedule having been deposited by the 2nd defendant inthe joint names of himself and the third defendant in thecanara Bank, Bangalore, that is Item (5) of the plaint 'a'schedule by means of four fixed deposit receipts for Rs. 9,750/-, Rs. 975/-, Rs. 5,000/- and Rs. 8,000/-, the saiddeposits shall be taken over completely by the plaintiff. The said fixed deposit receipts shall be handed over to theplaintiff immediately and defendants 2 and 3, shall sign allnecessary forms and write necessary letters to the concernedbank to effectuate the transfer of the said depositsto the plaintiffs name. (e) An additional sum of Rs. 5,000/- and Rs. 8,000/-, the saiddeposits shall be taken over completely by the plaintiff. The said fixed deposit receipts shall be handed over to theplaintiff immediately and defendants 2 and 3, shall sign allnecessary forms and write necessary letters to the concernedbank to effectuate the transfer of the said depositsto the plaintiffs name. (e) An additional sum of Rs. 8,000/- having also been givenas compensation for the above villages) in the form of fourgovernment Bonds, three of the denomination of Rs. 1,000/- each and one of Rs. 5,000/- all the aforesaid Governmentbonds shall be delivered to the plaintiff and needfulaction taken by the second defendant or such others inwhose name or names the bonds at present stand, to seethat the bonds are assigned to the plaintiff in theprescribed manner. 2. The plaintiff having taken the above-mentioned propertiesin lieu of and in full and final satisfaction of his sharein the family properties, inclusive of mesne profits, hehereby gives up his claim in the rest of the propertiesshown in the two plaint Schedules, the defendants being atliberty to live together, as heretofore, or separate themselves,if they so desire, taking their respective shares in theproperties, left over, in which the plaintiff states, he has noclaim whatsoever. 3. It is hereby agreed that the first defendant was dividedfrom defendant 2, so early as 1906, by means of aregistered partition deed, that items 3, 9 and 10 shown inthe B Schedule of the plaint belonging to defendant 1, exclusivelyand that plaintiff and defendants 2 and 3 have nomanner of interest in the said items. It is also agreed that Items 4, 5 and 6 of the said Schedulebelong to the family charities and that none of the partieshave any interest therein. 4. The parties shall bear their own cost. "this application was obviously settled by the learned counselfor both the parties and signed by the parties to the suit andtheir counsel. It is pertinent to note that the 4th defendant Srik. Venkat Rao himself was an Advocate. The decree wasdirected to be drawn up in terms of Compromise. ( 11 ) IT is seen that under the Compromise the plaintiff has separated himself from the defendants by taking only themovable assets towards his share of the family properties. Thesaid assets are: Mysore Bank shares, which form Item 1 of the'a' Schedule property valued therein at Rs. The decree wasdirected to be drawn up in terms of Compromise. ( 11 ) IT is seen that under the Compromise the plaintiff has separated himself from the defendants by taking only themovable assets towards his share of the family properties. Thesaid assets are: Mysore Bank shares, which form Item 1 of the'a' Schedule property valued therein at Rs. 12,320/-, apart fromcertain share in the dividend income and deposits in the Salembank and certain amount payable under the Government Bonds,which were delivered to the plaintiff. That apart, he was entitledto receive compensation in respect of certain agriculturalproperty, which got vested in the State by virtue of the relevantlegislation. ( 12 ) A perusal of para 2 of the Compromise petition apparently discloses that the said movable assets were received by theplaintiff in full and final settlement of his share in the familyproperties, and that, he had relinquished his right in otherproperties shown in the two plaint schedules. In para 3 of thecompromise, it is, inter alia, agreed that Items 4, 5 and 6 of thesuit property, corresponding to the instant suit property,constituted family charities and that none of the parties to thesuit have any interest therein. The entire dispute in the suitrevolves round the interpretation of the Compromise petition. While, according to the learned counsel for the plaintiff, byvirtue of the specific term in para 3 of the agreement, the suitproperties among others, were excluded from the purview of thepartition; Sri Narasimhamurthy, learned counsel for thecontesting defendants, contends that para 2 of the Compromisememo determined the rights of the parties in respect of theentire properties, including the instant suit properties. It isurged that even assuming that last sentence in para 3, can beread as a separate clause (excluding the suit properties), theearlier portion of the Compromise would be dominant todetermine the rights of the parties. On this point reliance isplaced upon the decision reported in Ramkishorelal and Anotherv Kamalnarayan which was followed in AIR 1968 Cal. 496 . Thedecision is also relied upon by the other side. The principlesettled therein reads thus:"the golden rule of construction, it has been said, is toascertain the intention of the parties to the instrumentafter considering all the words in their ordinary, naturalsense. To ascertain his intention, a court has to considerthe relevant portion of the document as a whole and also totake into account the circumstances under which the particularwords were used. To ascertain his intention, a court has to considerthe relevant portion of the document as a whole and also totake into account the circumstances under which the particularwords were used. Very often the status and thetraining of the parties using the words have to be takeninto consideration. It has to be borne in mind that verymany words are used in more than one sense and thatsense differs in different circumstances. Again, even wherea particular word has, to a trained conveyancer a clear anddefinite significance and one can be sure about the sense inwhich such conveyancer would use it, it may not bereasonable and proper to give the same strict interpretationof the word when used by one who is not so equallyskilled in the art of conveyancing. Sometimes it happens inthe case of documents as regards disposition of properties,whether they are testamentary or non-testamentary instruments,that there is clear conflict between what isstated in one part of the document and in another. In casesof such a conflict the earlier disposition of absolute titleshould prevail and the later direction of disposition shouldbe disregarded as unsuccessful attempt to restrict the titlealready given. It is clear, however that an attempt shouldalways be made to read the two parts of the documentharmoniously, if possible; it is only when this is not possible,e. g. , where an absolute title is given in clear andunambiguous terms and the later provisions trench on thesame, that the later provisions have to be held to be void. " ( 13 ) IN view of the conflict between the parties it is incumbent upon the court to make an honest attempt to read the twoprovisions in the Compromise petition harmoniously and onlywhen it is not possible to do so, as stated in the above ruling, theearlier provision would prevail and the latter becomes otiose. ( 14 ) IN Chinnathayi v Kulasekhara Pandiya Naicker and Others, the Supreme Court has stated the principle thus: (para34):"the whole emphasis of Mr. Raghavan who represented Kulasekhara was on the words of the deed contained inclause 5 set out above. Sundara Pandiya by this clausestipulated that he will have no right to the property shownas belonging to the widow. Sundara Pandiya was thenagreeing that the widow should retain the Zamindariabsolutely, his mind being influenced by the will. Raghavan who represented Kulasekhara was on the words of the deed contained inclause 5 set out above. Sundara Pandiya by this clausestipulated that he will have no right to the property shownas belonging to the widow. Sundara Pandiya was thenagreeing that the widow should retain the Zamindariabsolutely, his mind being influenced by the will. Later onby the Compromise made in Kandasami's suit what hadbeen given absolutely to the widow was converted into alife estate with the exception of the pannai lands andkandasami was acknowledged as the rightful heir. Therecitals in the release deed, therefore, have to be read inthe light of the terms and conditions of the deed ofcompromise and the proper inference from these is thatsundara Pandiya relinquished his rights to succeed to thezamindari immediately as the seniormost member of thefamily but that he did not renounce his contingent right ofsucceeding to it by survivorship if and when the occasionarose. It is well-settled that general words of a release donot mean release of rights other than those then put upand have to be limited to the circumstances which were inthe contemplation of the parties when it was executed. " ( 15 ) IN Habib Mian and Another v Mukhtar Ahmad and Another, a Full Bench of the court has stated the principle thus:"i think it necessary at the outset to examine theprovisions of the Compromise decree and to ascertain howthe several rights and liabilities between the parties havebeen distributed under the decree. In doing so, theprinciples of construction of a compromise decree must beborne in mind. There is authority for the proposition that acompromise decree is a creature of the agreement onwhich it is based and is subject to all the incidents of suchagreement, that it is but a contract with the command of ajudge superadded to it and in construing its provisions thefundamental principles governing the construction ofcontracts are applicable. "40. "one of the cardinal principles in the construction ofcontracts is that the entire contract must be taken asconstituting an organic synthesis, embodyingprovisions which balance in the sum of reciprocalrights and obligations. It is through the prism of thatprinciple that the terms of the Compromise decreemust be analysed. "40. "one of the cardinal principles in the construction ofcontracts is that the entire contract must be taken asconstituting an organic synthesis, embodyingprovisions which balance in the sum of reciprocalrights and obligations. It is through the prism of thatprinciple that the terms of the Compromise decreemust be analysed. " ( 16 ) IN order to appreciate the rival contentions as to the realintention of the parties in respect of para 3 of the Compromisepetition, it is pertinent to refer to the relevant pleadings in theearliest suit (OS No. 70 of 1958 ). In para 3 of the plaint, theplaintiff has stated that the family owns and possesses the movableand immovable properties described in A and B Schedules. 'b' Schedule pertains to the immovable properties and Items 4 to6 are the instant suit properties. In their written statement, defendants 1 and 4 (i. e. , late Dr. Gundopanth and his adopted son Ramachandra Rao), havestated in para VI (c) thus:"items 3 to 9 and 10 all these exclusively and entirelybelong to them under the terms of the partition deed andthat the 2nd defendant and his sons have no share in them. "in the subsequent para they have pleaded thus:"by common consent, Items 4, 5 and 6 in Schedule Bwere set apart and given for the charities and belong to'dharma' as set out in the partition deed. They do notbelong to the family and are not liable to be divided. Thefirst defendant has been managing the Dharma as provided for in the deed of 8-8-1906. No member of thefamily can claim to have any interest or the share in these properties. "similarly, in the written statement filed by the 2nd defendant,k. V. Kuppu Rao, whose branch is represented by the contestingdefendants herein, it is stated thus in paras 2 (iii) and 2 (iv) asfollows:" (III) Items 3, 9 and 10 belong to the first defendantaccording to the terms of the partition deed of 8-8-1906. (IV) Items 4, 5 and 6 belong to charities and the family isnot the owner thereof. Hence, are not therefore liable to bedivided. " ( 17 ) IN OS 47 of 1970 filed by Dr. (IV) Items 4, 5 and 6 belong to charities and the family isnot the owner thereof. Hence, are not therefore liable to bedivided. " ( 17 ) IN OS 47 of 1970 filed by Dr. K. V. Gundopanth (the plaintifftherein) has stated thus:"the plaintiff submits the premises bearing No. 97 (andthe shops attached to it bearing different numbers) situatein Gundopanth Street, Bangalore, though is ancestral, isindivisible in view of the fact that the premises belong to atrust, formed by the ancestors of the plaintiff, more than100 years back. Hence, this property is not included in thesuit. The plaintiff has got other properties, which are notancestral, but are his self acquisitions. " ( 18 ) WITH regard to Items 4, 5 and 6 of the 'b' Schedule (in OS No. 70 of 1958), Sri Gundopanth has stated that they do notbelong to the joint family and are not liable to be divided. He (Dr. Gundopanth) is managing Dharma as provided for in thedeed of 8-8-1906. That, no member of the family can claim tohave any interest or share in the properties. Similarly, he hasreferred to the written statement filed by his brother K. V. Kuppu Rao, in which a similar pleading had been made. ( 19 ) THE plaintiffs grievance in para 6 is that contrary to the specific stand taken by the defendants resulting in the Compromisedecree in OS No. 70 of 1958, the defendants colluded inobtaining a Compromise decree in OS No. 47 of 1970, withoutimpleading him as party, and that he came to know about this fact only when he arrived from Bombay in or about the year1980, to attend to the obsequies of his uncle-Dr. Gundopanth,which according to him, amounts to a fraud. The plaint has beenamended by including paragraph 8 (a), wherein the plaintiff hasalternatively pleaded thus: "that even if inclusion of the suit property did not takeplace on account of any misleading by his father and uncle,the inclusion was however, due to an honest mistake ontheir part, that the properties in question had beendedicated to charity, and they had no intention then tostop, even if they could do so. " Meaning thereby that thedefendants had no intention on the date of the Compromisedecree in OS 70 of 1958, to terminate the charitable trust. " Meaning thereby that thedefendants had no intention on the date of the Compromisedecree in OS 70 of 1958, to terminate the charitable trust. However, the plaintiff has further pleaded that the scheduleproperty did not belong to charity, since the father and uncletreating it as a joint property got it partitioned between themselvesin the suit OS No. 47 of 1970. ( 20 ) AS stated earlier, the plaintiff did not press his plea offraud against his father and uncle in including the suit propertyfor partition in OS No. 70 of 1958, and his stand appears to bethat the said property being utilised for 'dharma' under acharitable Trust subsisting at that time, was indeed not availablefor partition. Examining the relevant terms in the Compromisepetition in the background of the clear stand of theparties emerging out of the irrespective pleadings, which arereiterated in their evidence, leads to the irresistible conclusionthat para 3 thereof was in the nature of a proviso to paragraph2, and therefore, has to be read accordingly. In para 3, Items 3, 9and 10 shown in the 'b' Schedule to that plaint are recognised asthe properties belonging exclusively to defendant 1 (Dr. Gundopanth)and that the other parties having no manner of interest therein. In addition it is further specifically provided that theinstant schedule property belongs to the said charities and thatnone of the parties to that suit have any interest therein. ( 21 ) HAVING come to the conclusion that para 3 of the Compromise petition in OS No. 70 of 1958, has to be read independently,the only question that remains for consideration iswhether the instant suit filed by the 1st respondent can be construedas a suit for reopening the earlier partition or whether itis for partition of properties excluded by consent of parties in theprevious partition suit? ( 22 ) THE case of the appellants appears to be that the exclusion of the suit properties from the purview of the partition in theplaintiffs earlier suit OS No. 70 of 1958 has to be treated asrelinquishment of his right therein, whereby, the defendants willget vested interest entitling them to seek partition of the saidproperty. ( 22 ) THE case of the appellants appears to be that the exclusion of the suit properties from the purview of the partition in theplaintiffs earlier suit OS No. 70 of 1958 has to be treated asrelinquishment of his right therein, whereby, the defendants willget vested interest entitling them to seek partition of the saidproperty. A perusal of the pleadings in the earlier suits, especiallythe portions extracted above and the clinching evidence in theinstant case, clearly indicates that the parties had intentionallyexcluded the suit properties from the purview of the partition inthe earlier suit on the ground that the said properties are dedicatedto charities and they are not partible or available for partition. In this context, we may refer to the observation of thesupreme Court in Chinnathayi's case (supra ). (para 34):"it is well-settled that general words of a release do notmean release of rights other than those then put up andhave to be limited to the circumstances which were in thecontemplation of the parities when it was executed. "as such, it is not possible to read Clause (2) of the Compromisepetition as a relinquishment of the plaintiffs right inthe suit properties. In Savitri Bai v Devendra Balappa Patil , dealing with thequestion as to when a suit for partial partition is maintainable,this court has held thus at para 5:"it is a well-settled rule that a suit for partition of propertybelonging to a Hindu joint family like a suit for partition ofproperty belonging to more than one co-owner, must compriseall the properties which are available for partition ordivision. But it should be remembered that during a longperiod of time there has been a recognition by the courts ofmany exceptions to that rule, and those exceptions arewhat are demanded by reason and justice. While the insistenceon a claim for partition in the first suit of a propertythen unavailable for division or was outside the jurisdictionof the court cannot have the support of reason, therefusal to entertain, the second suit when the non-inclusionof a property in the first was induced by mistake,accident, fraud or a like reason does not promote justice. The main purpose of the rule that normally there can beonly one suit for partition between Hindus is to bestow ona partition the attribute of finality, but if there could be apartial partition by consent, which is permissible, the viewthat a second suit for partition can never lie cannot besound. The main purpose of the rule that normally there can beonly one suit for partition between Hindus is to bestow ona partition the attribute of finality, but if there could be apartial partition by consent, which is permissible, the viewthat a second suit for partition can never lie cannot besound. "similar view is taken in Kashibai and Others v Smt. Putalibai. In that case, it is found that the plaint avermentmade it clear that what was pleaded was partial partition on anearlier occasion and not general partition of all the properties ofthe family. That partial partition is valid and what remains isjoint family property held by the persons who hold such propertyas tenants in common. Where there is evidence to show that theparties intended to sever, then the joint family status is put anend to and with regard to any portion of the property whichremained undivided the presumption would be that the membersof the family would hold it as tenants-in-common unlessand until a special agreement to hold as joint tenants is proved. In the facts and circumstances of that case, it was held thatpartial partition of the properties is permissible and the partitionof the remaining properties can be sought and the familycan be deemed to have continued in a joint status insofaras theproperties are concerned and as such the presumption was neverrebutted by the defendants. Similar is the situation in the instant case. In Thimmappa Shambu v Ramachandra Krishna andanother , it is observed that:"plaintiffs withdrew from the earlier partition suit twoproperties on the representation of the defendants thatpermission of the Charity Commissioner was necessary forpartition of those two properties. Subsequently plaintiffsapplied to the Charity Commissioner and contested thematter upto the Revenue Appellate Tribunal and afterfinal orders were obtained presented the present suit forpartition of those two properties. "it was held:"that the suit was not barred by Order 2, Rule 2 or Order 23, Rule 1, CPC. "it was further observed that:"an acceptable explanation should be given in the second suit about the incompleteness of the first suit and if the explanation is satisfactory, the second suit is not barred. "the facts of this case appear to be similar to the said case. "it was further observed that:"an acceptable explanation should be given in the second suit about the incompleteness of the first suit and if the explanation is satisfactory, the second suit is not barred. "the facts of this case appear to be similar to the said case. The properties in the cited case had been excluded in the earlier suit on the ground that permission of the Charity Commissioner was required for effecting partition and the second partition suit was filed later when the said objection was removed. In the instant case, as stated earlier, by consent of parties, the suit properties were intentionally and deliberately excluded from the purview of the earlier suit. As such, a second suit for partition thereof was clearly maintainable. Hence the view taken by the learned trial Judge in this behalf is unexceptionable. ( 23 ) THE only other question that remains for consideration is regarding the mesne profits? While, the plaintiff himself has sought relief regarding mesne profits to be calculated from the date of the suit to the date of delivery of his share in the suit property, the trial court has granted the same with effect from 29-11-1975; that is, the date of the decree in OS No. 47 of 1970. This part of the decree cannot be sustained. ( 24 ) IT is submitted by Sri Narasimha Murthy, that since the will stated to have been executed by Dr. Gundopanth, is not the subject-matter of these proceedings, the same has to be excluded from the purview of the suit. There cannot be any dispute regarding this proposition for obvious reasons. ( 25 ) BEFORE parting with this appeal, we have to refer to the specific contentions raised by Sri Gunjal, learned counsel for respondents 2 to 8, it is urged that the portion of the suit property already allotted to these respondents has to be affirmed as per the earlier decree in OS No. 47 of 1970 in which event there cannot be any objection for carving out the plaintiffs one fourth (1/4th) share by metes and bound out of the property allotted to k. V. Kuppurao. This contention, in our opinion, is misconceived for the simple reason that when the entire property is open for partition as the partition arrived at between Sri Kuppurao and dr. This contention, in our opinion, is misconceived for the simple reason that when the entire property is open for partition as the partition arrived at between Sri Kuppurao and dr. Gundopanth in OS No. 47 of 1970 is not binding upon the plaintiff, the share of the parties has to be carved out by metes and bounds from the entire suit scheduled property in accordance with law. As such, the said contention is rejected. ( 26 ) IN the view, we have taken above, we make the following order: the appeal is allowed in part. While affirming the judgment and decree, it clarified that the plaintiff would be entitled to seek mesne profits only with effect from the date of the instant suit and not from the date of the decree in OS No. 47 of 1970. Having regard to the relationship between the parties, we direct them to bear their own costs in this appeal. --- *** --- .