Judgment The legality and correctness of the Judgment passed by the 4th Addl. City Civil Judge, Bangalore, Mayo Hall Unit dt.25.9.2004 in O.S.No.355/2005 is called in question in this appeal. 2. Theappellant was the plaintiff. Deceased R-1 was the 1st defendant and R-2 was 2nd defendant in the Trial Court. The suit was instituted by the plaintiff claiming 1/2 share in the plaint schedule property and for account from 1.7.1978 till the date of suit and also for future mesne profits. 3. The subject matter of the suit is property bearing Municipal old No.6, New No.28 situated at Lalbagh Road (also called as Mission Road), Bangalore which consists of main building, out house, cottage, garage, etc measuring on the eastern side 192.3 ft + 35 ft, west by 207.3 ft north by 94 ft. south by 86 ft. 8 inches. In all, 19863 sq.ft. with a building of 14639 sq.ft. 4. According to the plaint averments, the plaintiff is the only son of the 1st defendant. The plaintiff and 1st defendant constituted a joint Hindu family and they are governed by Mithaksara School of Law. The 1st defendant was a member of a joint family of which the grand father of the plaintiff Manjanathaiah was the Karta and that the joint family had properties and there was an oral partition dream among the grand father of the plaintiff and his uncle and the 1st defendant on 1.4.1955, which later reduced into regular deed of partition on 8.5.1955. In the aforesaid partition, an estate known as Biligere estate and cash was given to the share of the 1st defendant. After 1.4.1955 the defendant-1 was enjoying the joint family property as a karta and that the plaintiff being the only son is entitled to claim equal share in all the suit schedule properties. The suit property was purchased by the 1st defendant from K.P.Arsiwala and others under registered sale deed dated 30.3.1968 and the sale consideration was paid by the 1st defendant from out of the joint family income and the unpaid sale consideration was later paid out of the joint family income of the family. A building was constructed by the 1st defendant and the same was let out to the tenants. It is the case of the plaintiff that there was an oral partition. A building was constructed by the 1st defendant and the same was let out to the tenants. It is the case of the plaintiff that there was an oral partition. Later the same was recorded in writing on 1.11.68 between him and his father the 1st defendant. In the said partition, the plaintiff was allotted half share in the joint family property. Remaining half share had fallen to the share of the 1st defendant and since 1.11.1968 1st defendant being the father of the plaintiff has no right to represent the plaintiff in any manner in view of the properties divided and joint family has been severed between him and the 1st defendant. According to him from 1.11.1968 the plaintiff and defendants are enjoying the properties as tenants-in-common and the partition of 1.11.1968 has been admitted and accepted by the Agricultural Income Tax Officer also. The plaintiff being a minor, the profits and loss accounts were annually maintained by the defendant-1 and accounts of the plaintiff was maintained separately in view of the partition dated 1.11.1968. It is the specific case of the plaintiff that the plaintiff’s family was not a trading family and it is an agricultural family. It appears, the 1st defendant flouted a company known as M/s Agro Private Limited and the venture of the 1st defendant was highly speculative one and that the plaintiff was no way concerned or interested in the company and much less the defendant-1 could deal with the property of the plaintiff in order to run the business flouted under the name and style M/s Agro Private Ltd. It appears, the firm was flouted in the aforesaid name on or about 1.1.1973 and the right of the 1st defendant in the suit property was thrown into the hotchpot of the firm and thereafter the 1st defendant agreed to sell the property in favour of the 2nd defendant for a sum of Rs.13 Lakhs under the agreement dated 20.4.1978. A sum of Rs.50,000/- was received by the defendant-1 under the agreement and the agreement was further extended by agreement dated 1.7.1978 whereunder a sum of Rs.6,50,000/- was paid and the balance was agreed to be paid on or before 30.9.1978. A sum of Rs.50,000/- was received by the defendant-1 under the agreement and the agreement was further extended by agreement dated 1.7.1978 whereunder a sum of Rs.6,50,000/- was paid and the balance was agreed to be paid on or before 30.9.1978. Subsequently, the 1st defendant sold the entire property to the 2nd defendant on 21.4.1979 for a valuable sale consideration of Rs.13 Lacs and which sale deed does not bind the rights of the plaintiff in respect of his half share. Contending that the defendant No.1 had no right to alienate the entire building and that the plaintiff is having half share in the suit property, filed the suit for partition and separate possession of his half share. The 1st defendant – father did not contest the suit. However, the suit was stoutly resisted by the 2nd defendant, the purchaser of the suit property from the 1st defendant. According to the 2nd defendant, there was no partition between the plaintiff and 1st defendant in respect of the plaint schedule properties on 1.11.1968. It is contended by the 2nd defendant that the said deed is a sham and not a genuine document. It is also the case of the 2nd defendant that even if the document dated 1.11.1968 is accepted, the said document is only an evidence to show the oral partial partition under which the plaint schedule property was not included and the schedule property was not the subject matter of the oral partial partition dated 1.11.1968, and that the suit filed by the plaintiff is not maintainable. It was also contended that the Agricultural Income Tax returns and the orders passed by the officers are pertaining to the Biligere estate and not the subject matter of the suit property. It is the case of the defendant No.2 that on 1.1.1973 father of the plaintiff flouted the partnership firm under the name and style of M/s Agro (P) Ltd. and later the same was dissolved on 12.6.1973. It is the case of the defendant No.2 that on 1.1.1973 father of the plaintiff flouted the partnership firm under the name and style of M/s Agro (P) Ltd. and later the same was dissolved on 12.6.1973. It is also the case of the defendant No.2 while reconstituting Agro Private Ltd, the suit property was thrown into hotchpot of the firm towards the share of the 1st defendant and his family and since then the suit property is treated as the property of M/s Agro (P) Limited and the suit property was mortgaged in favour of the Syndicate Bank to raise the fund by the 1st defendant to discharge the loan payable on behalf of the firm and that the suit property was also sold only to discharge the loan of the Company which was the business of the 1st defendant and his family. Therefore, it was contended that the property was sold by the 1st defendant to repay the debt incurred by M/s Agro Private Limited and for legal necessity of the family and therefore the plaintiff cannot maintain the suit. It was also the case of the 2nd defendant that the plaintiff’s mother Bhavani Gowtham was one of the Directors of the Agro Industries Private Limited and subsequently the plaintiff also became a Director of the said Company. Therefore, he cannot contend that the properties sold in favour of the 2nd defendant by the 1st defendant was not for the legal necessity of the family. It was also contended that the suit filed by the plaintiff was not maintainable since other joint family properties are not included. It is also contended that since the value of the suit property has gone up, only to deprive the rights of the 2nd defendant, at the instance of the 1st defendant, the father of the plaintiff, the suit was filed. In the circumstances, the defendant requested the court to dismiss the suit. The defendant also contended that the court fee paid by the plaintiff is not maintainable since the plaintiff has to pay the court fee on the market value and it was further contended that without seeking cancellation of the document executed by the 1st defendant in favour of the 2nd defendant, the suit filed by the plaintiff is not maintainable. The defendant also contended that the court fee paid by the plaintiff is not maintainable since the plaintiff has to pay the court fee on the market value and it was further contended that without seeking cancellation of the document executed by the 1st defendant in favour of the 2nd defendant, the suit filed by the plaintiff is not maintainable. It was also contended that the 1st defendant for the legal necessity of his family which consists of himself, plaintiff, plaintiff’s sisters and mother, had sold the Biligere estate situated in Madikeri in Kodagu Dist. and that the plaintiff had filed a suit in O.S.No.2/83 for cancellation of the sale deed executed by the 1st defendant in favour of the purchasers of the two estates viz., Biligere and Gemini estates in O.S.No.2/83 on the file of Civil Judge, Kodagu, which suit was later withdrawn by the plaintiff accepting the recital in the sale deed that the sale of those two estates was for the legal necessity of the family by receiving consideration of Rs.1 lakh and therefore he contends that when the suit was filed by the plaintiff claiming partition of agricultural land situated in Kodagu district in O.S.No.2/83 since the plaintiff did not include the present plaint schedule properties in the aforesaid suit, the suit of the plaintiff is barred by the provisions of or.2 Rule 2 of CPC. In the circumstances, he requests the court to dismiss the suit. Based on the above pleadings, the following issues were framed and reframed on several occasions: Issues framed on 26.9.1986: 1. Doss plaintiff proves that there was an oral partition as evidenced by memorandum dated 1.11.1968? 2. Does plaintiff further proves that in view of the said oral partition he has become owner in common with the defendant in respect of his share in the property? 3. Does plaintiff proves that the alienation made by defendant No.1 during his minority are not binding on the plaintiff? 4. Does plaintiff further proves that the agreement entered into between the 1st and 2nd defendant on 20.4.1978 and 1.7.1978 are not binding so far as the share of the plaintiff is concerned? 5. Whether plaintiff is entitled to get the schedule property divided into 2 shares and to get one of such shares as his property? 6. Whether suit filed by the plaintiff is barred by limitation? 7. 5. Whether plaintiff is entitled to get the schedule property divided into 2 shares and to get one of such shares as his property? 6. Whether suit filed by the plaintiff is barred by limitation? 7. Whether defendant No.2 has perfected title to the suit property by adverse possession? 8. Whether valuation of the suit by the plaintiff is proper and court fee paid thereon is sufficient? 9. To what reliefs the parties are entitled? Addl. Issues framed on 18.1.1997: 1. Whether 2nd defendant proves that the suit is bad for non-joinder of necessary parties viz., M/s Agro Pvt. Ltd. and Smt. Bhavani Goutham? 2. Whether the 2nd defendant proves that karta alone be an assessee for the purpose of agricultural Income Tax, as contended in para-3 of its additional written statement? 3. Whether the 2nd defendant proves that the suit does not survive for consideration in view of the death of the 1st defendant? 4. Whether the suit is bad for mis-joinder of parties? Addl. Issues framed on 14.9.2001: 1. Whether the plaintiff proves that the suit property is joint family property? 2. Whether the suit is not maintainable in view of the omission of the suit in O.S.No.2/83 on the file of the Civil Judge (Sr.Dn.), Mercara and what is the legal effect of such omission on this suit? 3. Whether the plaintiff proves that the constitution of the partnership firm and bringing the property as partnership and the subsequent dissolution of the firm and allotment of partnership estate are illegal and in contravention of legal provisions? Addl. Issue framed on 14.2.2003: Whether the 2nd defendant proves that there is no cause of action for the suit as contended in para- 11 of the written statement? In order to prove their respective contentions, on behalf of the plaintiff, the plaintiff alone got examined as PW1 and relied upon Ex.P1 to P17. On behalf of the 2nd defendant one D.H. Shabbar was examined as DW1 and relied upon Ex.D1 to D61. The Trial Court after appreciating the evidence let in by the parties answered the aforesaid issues as hereunder: Issues framed on 26.9.1986: Issue No.1 .. In the affirmative Issue No.2 .. In the affirmative Issue No.3 .. Does not arise for consideration Issue No.4 .. Does not arise for consideration Issue No.5 .. Does not arise for consideration Issue No.6 .. In the affirmative Issue No.2 .. In the affirmative Issue No.3 .. Does not arise for consideration Issue No.4 .. Does not arise for consideration Issue No.5 .. Does not arise for consideration Issue No.6 .. Does not arise for consideration Issue No.7 .. Does not arise for consideration Issue No.8 .. Does not arise for consideration Addl. Issues framed on 18.1.1997: Addl. Issue No.1 .. Does not arise for consideration Addl. Issue No.2 .. Does not arise for consideration Addl. Issue No.3 .. Does not arise for consideration Addl. Issue No.4 .. Does not arise for consideration Addl. Issues framed on 14.9.2001: Addl. Issue No.1 .. In the affirmative Addl. Issue No.2 .. Does not arise for consideration Addl. Issue No.3 .. Does not arise for consideration Addl. Issues framed on 14.2.2003: Addl. Issue .. Does not arise for consideration Ultimately the suit of the plaintiff came to be dismissed on the ground that the suit filed by the plaintiff was not maintainable since the plaintiff did not sought cancellation of the sale deed executed by the 1st defendant in favour of the 2nd defendant. Being aggrieved by the Judgment and decree of the Trial Court, the present appeal is filed by the unsuccessful plaintiff. 5. Wehave heard Sri. Amar Kumar, counsel for the appellant and Sri.Y.K.Narayana Sharma for R-2. 6. The main contention of Mr.Amar Kumar before us is that trial court has committed a serious error in dismissing the suit even though all the issues are answered in his favour, only on the ground that the suit filed by the appellant was not maintainable without challenging the sale deed executed by the 1st defendant in favour of 2nd defendant. According to him, appellant was not a party to the sale deed executed by the 1st defendant in favour of the 2nd defendant and when sale deed is not executed by the 1st defendant as a minor guardian of the appellant and when there was a partition on 1.11.1968 between the plaintiff and 1st defendant and when the plaintiff had half a share in the property, question of challenging the sale deed executed by the 1st defendant or attacking the sale deed does not arise for consideration. According to him, trial court has wrongly interpreted the judgment of the Hon’ble Supreme Court in (2001 (6) S.C.C.-163). According to him, trial court has wrongly interpreted the judgment of the Hon’ble Supreme Court in (2001 (6) S.C.C.-163). In the circumstances, he requests the court to allow the appeal and set aside the judgment of the court below and to grant half share in the plaint schedule property. 7. Per contra, Mr.Y.K.Narayana Sharma, counsel for R-2 contends that trial court has committed a serious error in answering several issues against Respondent-2 without appreciating the evidence let in by the parties. According to him, respondent has two options to attack the findings of the trial court – either by filing cross-objections or in the alternative to challenge the findings at the time of arguments in view of order-41 Rule-22 of CPC. In the circumstance, he requests the court to reverse the findings of the trial court on several issues held in favour of the appellant and against R-2 for the following reasons: According to him, trial court did not consider that Ex.P-1 an oral partial partition said to have been drawn between the plaintiff and the 1st defendant on 1.11.1968. According to him, under the said document suit property was not included. What was included under the document is in regard to sharing the coffee estate declaring that plaintiff is having half share and 1st defendant had remaining half share in the coffee estate. He contends that under any circumstances Ex.P-1 could not have been accepted by the court below since Ex.P-1 has not been proved by the plaintiff in accordance with law. He further contends that even if Ex.P-1 is accepted as true, said partial partition has never acted upon by the plaintiff and 1st defendant and that it was only to declare the share in respect of agricultural lands declaring share of the plaintiff and that of the 1st defendant and that the plaint schedule was not included under the document. Even if for the sale of argument suit schedule property was included under Ex.P-1 cannot be considered as partition by mates and bounds, it only declares shares of the plaintiff and 1st defendant and such declaration was not at all required since there are no other co-parceners in the joint family of the plaintiff and 1st defendant. Even if for the sale of argument suit schedule property was included under Ex.P-1 cannot be considered as partition by mates and bounds, it only declares shares of the plaintiff and 1st defendant and such declaration was not at all required since there are no other co-parceners in the joint family of the plaintiff and 1st defendant. In other words, what he contends is that it is more or less similar to that of declaring share of the parties and it cannot be treated as full and final partition by separate mates and bounds. He further contends that 1st defendant even after 1.11.1968 has treated the property as a joint family property and was managing the properties as a karta of the joint family and as karta of the joint family for the benefit of the joint family had flouted a partnership under the name and style of Agro Construction Co. Ltd. and that the suit schedule property was thrown into the hotchpot of the firm towards the share of the 1st defendant and that the plaintiff’s mother Bhavani Goutham was a director, later plaintiff also became a director of the said company and for the business of the said company loan was raised from several financial institutions and that the suit property was also mortgaged in favour of Syndicate Bank not only by the 1st defendant but also by Agro Construction Company and for all purpose suit schedule property was treated as a property of Agro Construction Company. Plaintiff having not challenged the action of 1st defendant in throwing the plaint schedule property into the hochpot of the firm and having accepted the firm’s business as a family business, he cannot be permitted to contend that business of Agro Construction Co. was not that of the family and that the sale deed executed by 1st defendant in favour of 2nd defendant was not for the joint family benefit. 8. He further contends that the sale deed was executed by the 1st defendant in favour of 2nd defendant on 21.4.1979 pursuant to an agreement of sale dated 20.4.1978 and it is curious to note that plaintiff is seeking accounts from 1.7.1978 and not prior to the sale. This would only shows the conduct of the plaintiff in filing the suit. 9. This would only shows the conduct of the plaintiff in filing the suit. 9. He further contends that plaintiff had also challenged the sale deed executed by the 1st defendant in respect of the two coffee estates situated in the District of Mercara by filing a suit in O.S.No.2/83 on the file of Civil Judge, Mercara raising the similar grounds and the copy of the plaint in O.S.No.2/83 is nothing but the replica of the plaint in the present case. He contends that even in the said suit it was contended by the plaintiff that sale of coffee estate was not for the benefit of he joint family and that 1st defendant had no right to alienate the said estate in view of the partition dated 1.11.1968 as per Ex.P-1 and ultimately said suit was settled between the parties in view of the affidavit filed by the plaintiff whereunder plaintiff had admitted the sale in respect of the aforesaid two coffee estates was for the family necessity. According to him, aforesaid two coffee estates which were the subject matter of O.S.No.2/83 was sold by the 1st defendant only to discharge the loan of Agro Construction Company only. In the circumstances, he contends that the suit of the plaintiff was not maintainable and with a malafide intention the suit is filed even otherwise present suit is hit by principles of order-2 Rule-2 of CPC. He further contends that when the plaintiff is admitted the existence of several other shop properties without including all the joint family properties, suit filed by the plaintiff seeking partition only in respect of the plaint schedule property is also not maintainable. In the circumstances, he requests the court to reverse the findings of the trial court on issues held in favour of the appellant and against the 2nd defendant and dismiss the suit as not maintainable. 10. Havingheard the counsel for the parties, we are of the opinion that the following points are to be considered in this appeal: 1. Whether under the oral partial partition dated 1.11.1968 suit property was included and whether the suit property was divided by mates and bounds giving half share to the plaintiff? 2. Whether the suit filed by the plaintiff was barred by principles of Order-2 Rule-2 of CPC in view of non-inclusion of plaint schedule properties in O.S.No.2/83 on the file of Civil Judge, Marcara? 3. 2. Whether the suit filed by the plaintiff was barred by principles of Order-2 Rule-2 of CPC in view of non-inclusion of plaint schedule properties in O.S.No.2/83 on the file of Civil Judge, Marcara? 3. Whether the suit filed by the plaintiff is maintainable without including all the other existing joint family properties? 4. Whether the sale made by the 1st defendant is binding on the plaintiff in view of the contentions raised by the 2nd defendant that the sale was for the benefit of the joint family and joint family business? 5. Whether the trial court was justified in dismissing the suit on the ground of non-challenge of sale deed executed by the 1st defendant in favour of the 2nd defendant? 11. Since all the points arise for consideration are inter-linked, they are considered together. 12. Having heard the counsel for the parties and on perusal of pleadings and evidence including the documentary evidence produced by both the parties, we have noticed the following un-disputed facts in this appeal: It is not in dispute that the plaintiff is the son of the first defendant. It is also not in dispute that the suit property was acquired under registered sale deed dated 30.3.1968 from K.P.Arsiwala and that the building was constructed by the 1st defendant out of the income of the Joint family. It is the specific case of the plaintiff that there was oral partial partition between the plaintiff and 1st defendant and the same was later reduced into writing by way of memorandum on 1.11.1968 and that the plaintiff got himself divided in the status from the 1st defendant from 1.11.1968. Right of the plaintiff in all family properties including the schedule property were divided and that the plaintiff has become the owner of 50% of the plaint schedule property and started enjoying the properties as a tenants in common. But the defendant has denied the contention of the plaintiff that under the memorandum dated 1.11.1968 plaint schedule property was included and it was divided by mates and bounds. But the defendant has denied the contention of the plaintiff that under the memorandum dated 1.11.1968 plaint schedule property was included and it was divided by mates and bounds. It is the specific case of the 2nd defendant that oral partial oral partition dated 1.11.1968 is only in regard to agricultural lands and not in respect of plaint schedule property, but the trial court relying upon Ex.P-1 has come to the conclusion that plaint schedule property was also the subject matter of Ex.P-1 and that there was a partition between the plaintiff and 1st defendant. 13. It is to be noticed here that the joint family as on 1.11.1968 consists of plaintiff and 1st defendant only. There were no other co-parceners as on that day. It is also not in dispute that the plaintiff as well as the 1st defendant being the only co-parceners are entitled to seek share in all the joint family properties. In this background, we have to consider the contents of Ex.P-1 in order to find out whether the plaint schedule property was included under the oral partial partition. If the plaint schedule property had been included under the said document, this court has to examine whether oral partition dated 1.11.1968 has been acted upon and whether really partition was by mates and bounds, if the said partition dated 1.11.1968 is not by metes and bounds, whether plaintiff can seek partition claiming half share in the plaint schedule property. In one breath plaintiff contends that there was partition by mates and bounds and it is a full and final partition. The Title-sheet of Ex.P-1 reads as hereunder: “Shri G.M.Mohan’s Family Memorandum of oral Partial Partition effected on 1.11.1968.” But in the plaint, plaintiff has taken up a contention as if it is a full and final partition. This document is signed by two persons i.e., 1st defendant G.M.Mohan as kartha of the family and Mrs.Bhavani Goutham representing plaintiff Mahendra, minor co-parcener, it is signed by two witnesses G.M.Manjanathayya grand-father of the plaintiff and another witness by name H.N.Chandrashekhar. This document is signed by two persons i.e., 1st defendant G.M.Mohan as kartha of the family and Mrs.Bhavani Goutham representing plaintiff Mahendra, minor co-parcener, it is signed by two witnesses G.M.Manjanathayya grand-father of the plaintiff and another witness by name H.N.Chandrashekhar. Since the entire disputes rests on the partition deed Ex.P-1, we re-produce entire document as here under: “Deed of oral partial partition already effected on the first day of November, 1968 this narration be-list and a record of the oral partial partition already effected between: Mr.G.M.Mohan Kartha of the Family Master Mahendra Minor Co-parcener represented by the mother and natural guardian Mrs.Bhavani Goutam Mrs.Bhavani Goutam wife of the kartha Miss Rajyashree minor daughter represented by the father and natural guardian Mr.G.M.Mohan Miss Swathibindu minor daughter represented by the father and natural guardian Mr.G.M.Mohan Miss Shanthala minor daughter represented by the father and natural guardian Mr.G.M.Mohan G.M.Mohan Mrs.Bhavani Goutam Kartha of the family representing minor co-parcener Master Mahendra Witnesses G.M.Manjanathayya H.H.Chandrashekahar CAPITAL OF THE FAMILY AS ON 1st NOVEMBER, 1968 Rs.609732-82 Add: Revaluation of Estate Lands over and above the book value as per list made on this day at the time of oral Partial Partition already agreed 600000-00 1209732082 Less: Value of Hindu Undivided Family assets retained as such and not partitioned in the oral partial partition already effected: 1. Property at Bangalore Rs.216385-00 2. Due from Agro Pvt. Ltd.Rs.300000-00 516385-00 693347-82 (Emphasis supplied by us) Add: Loan due o Arsivala and sisters in respect of property at Bangalore to be treated as the loan of the joint family 150000-00 Balance capital of the family taken for partial partition on oral partition carried over: Already effected 843347-82 G.M.Mohan Mrs. Bhavani Gautam representing minor co-parcener Master Mahendra Kartha of the family WITNESSES: G.M.Manjanathaya H.N.Chandrashekhar BALANCE CAPITAL OF THE FAMILY TAKEN FOR PARTILAL PARTITION ON ORAL PARTITION ALREADY EFFECTED Brought forward 843347-82 Less: 1. Education, Maintenance & marriage expenses provided in the oral partial partition already effected to: Minor Miss Bajyashree .. 75000-00 2. Education, Maintenance & marriage expenses provided in the oral partial partition already effected to: Minor Miss Swathibindu .. 75000-00 3. Education, Maintenance & marriage expenses provided in the oral partial partition already effected to: Minor Miss Shanthala .. 75000-00 4. Provision for maintenance of Mrs.Bhavani Gautam wife of Mr.G.M.Mohan provided in the oral partial partition already effected: .. 75000-00 2. Education, Maintenance & marriage expenses provided in the oral partial partition already effected to: Minor Miss Swathibindu .. 75000-00 3. Education, Maintenance & marriage expenses provided in the oral partial partition already effected to: Minor Miss Shanthala .. 75000-00 4. Provision for maintenance of Mrs.Bhavani Gautam wife of Mr.G.M.Mohan provided in the oral partial partition already effected: .. 75000-00 300000-00 Capital allotted to co-parceners Rs.543347-82 G.M.Mohan Mrs.Bhavani Gautam representing minor co-parcener Master Mahendra Kartha of the family Witnesses G.M.Manjanathaya H.N.Chandrashekhar Capital allotted to co-parceners Brought forward Rs.543347-82 CAPITAL ALLOTTED TO MR.G.M.MOHAN being 50% of Rs.543347-82 equal to Rs.271673-91 which includes the Beligere Coffee Estate and lands etc., which have been divided in the oral partial partition between Mr.G.M.Mohan and his Minor Co-parcener Master Mahendra represented by mother and natural quardian Mrs.Bhavani Gautam whereby the said agricultural Coffee Estate was divided and held by the said two coparceners as TESANTS –IN-common in equal shares 271673-91 CAPITAL ALLOTTED TO MINOR CO-PARCENER MASTER MANENDRA REPRESENTED BY MOTHER AND MATURAL GUARDIAN MRS. BHAVANI GANUTAM on oral partial partition already effected holds the said agricultural estate in equal shares with his father and other co-parcener Mr.G.M.Mohan as TESANT-IN common in equal shares 271673-91 Total: Rs.543347-82 G.M.Mohan Mrs.Bhavani Gautam representing minor co-parcener Master Mahendra Kartha of the family WITNESSES G.M.Manjanathaya H.N.Chandrashekhar” Therefore, what is to be considered by us in this appeal is whether under Ex.P-1 plaint schedule property which is described as Bangalore property was really partitioned between the plaintiff and 1st defendant by mates and bounds. Trial court, without considering the pith and substance of Ex.P-1 without looking into the details of Ex.P-1 has erroneously came to the conclusion that there was a partition on 1.11.1968 in respect of plaint schedule property. While doing so, court did not observe the value of un-divided family assets retained as such and not partitioned under the oral partial partition viz., property of Bangalore (subject matter of the suit) and loan payable by M/s Agro Private Ltd. to the plaintiff’s family in a sum of Rs.516385-00. If this had been considered by the court below, court below could not have come to the conclusion that under Ex.P-1 suit property was also included under the partial partition. If this had been considered by the court below, court below could not have come to the conclusion that under Ex.P-1 suit property was also included under the partial partition. Therefore, we are of the view that the finding of the trial court in regard to oral partition dated 1.11.1968 holding that the suit schedule property was also included is held to be perverse and not based on proper appreciation of Ex.P-1 and interpretation of Ex.P-1. In the circumstances, we hold that plaint schedule property was not the subject matter of partial partition drawn between the plaintiff and 1st defendant. When we have come to the conclusion that plaint schedule property was not the subject matter of partial partition, plaintiff cannot claim any share without challenging the sale deed executed by his father as not for the benefit of the joint family without including all other joint family properties for the following reasons: Plaintiff though contended in the plaint that there was a full and final partition on 1.11.1968 in view of Ex.P-1, plaintiff cannot be permitted to contend that the entire joint family properties were divided. Pleadings of the plaintiff is contrary to Ex.P-1. In this background, other than the plaintiff, plaintiff has not chosen to examine any one. 1st defendant, father of the plaintiff who was alive did not step into the witness box. Plaintiff was represented by his mother Bhavani Gautam under Ex.P-1 with whom plaintiff is living even today. There is no difference of opinion between the plaintiff and his mother as on today and even there was no difference of opinion between the plaintiff and his late father G.M.Mohan who was the 1st defendant. It is the specific case of the 2nd defendant that suit property was thrown into the hotchpot of the firm known as M/s Agro Construction Company for which plaintiff’s father was the Managing Director, his mother Bhavani Gautam was also a Director. Later, plaintiff has also become the director. Suit property was let out to several tenants. Tenants were paying rents to M/s Agro Construction Pvt. Ltd. and these facts are not in dispute in view of the admissions of the plaintiff in his cross-examination. Later, plaintiff has also become the director. Suit property was let out to several tenants. Tenants were paying rents to M/s Agro Construction Pvt. Ltd. and these facts are not in dispute in view of the admissions of the plaintiff in his cross-examination. If the plaintiff’s father has treated the plaint schedule property which was not the subject matter of the partition deed dated 1.11.1968 and when the suit property was being managed and maintained by him as a karta of the joint family, if for the business of the family has thrown into the hotchpot of the firm towards his share and based on the said act of the 1st defendant if the firm has raised loan from Syndicate Bank and other financial institutions by mortgaging the plaint schedule property and if suit schedule property has been sold by the 1st defendant in favour of 2nd defendant in order to discharge the mortgage loan payable to the Syndicate Bank and other creditors of Agro Constructions Company which was later turned into Agro Pvt. Ltd., no court can hold that said transactions cannot be for the benefit of the joint family. Even though plaintiff has contended that Ex.P-1 is acted upon, there is nothing on record to show that in terms of Ex.P-1 properties allotted to the shares of plaintiff and defendants were managed by them separately. As could be seen from Ex.P-1 it is held that plaintiff and 1st defendant are entitled to equal share in respect of the properties divided under oral partial partition. 14. Joint family of the plaintiff and 1st defendant is also having other joint family properties. At page179 of the paper book filed by the appellant, plaintiff has admitted in his cross-examination as hereunder: “My date of birth is 19th March, 1966. I am a coffee planter. My coffee estates are at Suntikoppa of Kodagu District. The estate is about 220 acres. That property is being cultivated by my family from past 125 years.” From the above admission it is clear that the family of the plaintiff is having large extent of agricultural land which are not the subject matter for partition in the present case. 15. My coffee estates are at Suntikoppa of Kodagu District. The estate is about 220 acres. That property is being cultivated by my family from past 125 years.” From the above admission it is clear that the family of the plaintiff is having large extent of agricultural land which are not the subject matter for partition in the present case. 15. In page-187 of the paper book he admits as hereunder: “I do not know since May, 1965 my mother is the director of M/s Agro Pvt. Ltd., but I do not know since when my mother is the Director of M/s Agro Pvt. Ltd., Agro Pvt. Ltd. trade in motor bikes. I do not know that 11 acres of land at Kanakapura road belongs to M/s Agro Pvt. Ltd., After attaining my majority, I asked my father as to what happened to the property, and at that time my father told me that he has entered into partnership with M/s Agro Pvt. Ltd. and M/s Gautham Investment Ltd.. I do not know the partnership firm name is Agro Construction Ltd. I cannot recall as to who told me that the partnership firm Agro Construction Ltd. was dissolved. I do not know that Agro Pvt. Ltd. was represented by my mother, in the partnership of M/s Agro Construction Company. I am not aware M/s Gautham Investment Ltd. Company was represented by K.T.Bhagath in the partnership of M/s Agro Construction Company. I do not know that my father had not paid property tax to the suit schedule property since 1973 till today. I do not know from 1973 till April 1979 rents of the suit schedule property were credited to M/s Agro Pvt. Ltd. in the books of accounts of M/s Agro Pvt. Ltd.. I do not know that my father had not paid property tax to the suit schedule property since 1973 till today. I do not know from 1973 till April 1979 rents of the suit schedule property were credited to M/s Agro Pvt. Ltd. in the books of accounts of M/s Agro Pvt. Ltd.. I do not know the books of accounts of M/s Agro Pvt. Ltd. shows rent paid by M/s Agro Pvt. Ltd. to the 2nd defendant from the date of purchase of suit property by the 2d defendant.” In page-221 of the paper book he has admitted as hereunder: “It is true I am the Director of M/s Agro Computers Systems (Petitioner) Ltd. which is now known as Infocon International.” It is curious to note in page-225 of the paper book, he has admitted as hereunder: “It is true as on the day of institution of suit I have not seen the sale deed in favour of the 2nd defendant. I do not know the exact date on which I have seen Ex.P-12. I applied for the certified copy of the sale deed and subsequently I filed the suit, that in respect of Ex.P-12. During the year 1984 I came to know of sale of suit property in favour of 2nd defendant.” From the above admission, it is clear that plaintiff who is seeking partition of his half share of the schedule property had not even seen the sale deed executed by his father in favour of 2nd defendant on the date of filing the suit. From this it is clear that plaintiff is not the person instituted suit, but it has been instituted at the instance of some other person who could be none other than the 1st defendant. This is the only inference this court could be drawn in the back drop of the suit filed by the plaintiff before the Civil Judge, Mercara in O.S.No.2/83. Ex.D-1 is the copy of the plaint filed by the plaintiff in O.S.No.2/83. It would be useful for the court to compare plaint averments made in O.S.No.2/83 and present plaint. Both are replica except changing the parties and the property. In the aforesaid suit also plaintiff had claimed partition is equal proportion is respect of two items of the properties which are very large extent of coffee plantation situated at Kurgandur village, Somwarpet Tq., Kodagu Dist. Both are replica except changing the parties and the property. In the aforesaid suit also plaintiff had claimed partition is equal proportion is respect of two items of the properties which are very large extent of coffee plantation situated at Kurgandur village, Somwarpet Tq., Kodagu Dist. and Beligere estate in Somwarpet Taluk and also the property situated in Kumboor village in Somwarpet Tq.. Plaintiff who filed the aforesaid suit claiming partition and separate possession in respect of the properties mentioned therein, filed a memo on 29.10.1988 as hereunder: “The plaintiff submits that the above case may be dismissed as not pressed for the reasons sworn to and set out in the affidavit accompanying this memo.” 16. Ex.D-3 is the affidavit filed by the plaintiff in O.S.No.2/83. One of the paragraph in the affidavit reads as hereunder: “After I took over the case personally, I went through the various papers/records, discussed the matter with my parents and maternal grand-father late G.M.Manjanathaiah and convinced myself that the alienation of the suit properties was justified by legal necessity and discharging the antecedents debts such as bank dues, income tax arrears etc..” In another paragraph he states as hereunder: “I, therefore, hereby withdraw all my contentions raised in the suit and declare that I have no further claim, title, title or interest in the suit properties. I accept the alienation made by my father as valid and binding on me. I have already got the C.R.P.No.4436/1986 instituted by me in the High Court of Karnataka dismissed as not pressed.” From the above two paragraphs in the affidavit Ex.D-3 it is clear to the court that plaintiff in unequivocal terms accepted the sale made by his father was for discharging the family debts and for legal necessity and therefore he has withdrawn the contentions raised in the plaint in O.S.No.2/83. It is to be observed that he did not file memo for withdrawal voluntarily but to file memo he has received additional consideration of Rs.10 lakhs from the purchasers of the property. This would only show the conduct of the plaintiff in filing the present suit to extract the money from 2nd defendant who has purchased the property for valuable consideration. 17. This would only show the conduct of the plaintiff in filing the present suit to extract the money from 2nd defendant who has purchased the property for valuable consideration. 17. When the affidavit Ex.D-3 discloses that sale made by the father of the plaintiff in favour of the purchasers of those two estates was to discharge family debts and when the father of the plaintiff has sold present property in favour of 2nd defendant only to discharge loan raised by him from Syndicate Bank in respect of the family business, is it open for the plaintiff to contend that such sale is not binding on him. 18. In view of the categorical admission of the plaintiff that the joint family is having other properties and that he had filed a suit in O.S.No.2/83 claiming half share in respect of two estates sold by his father, is it open for the plaintiff to file one more suit for partition without including all the joint family properties and whether such suit will not be hit by provisions of order-2 Rule-2 of CPC. In this background, it is for us to refer to provisions of Order-2 Rule-2 of CPC which reads as hereunder: “2. Suit to include the whole claim – (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim – Where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission tosue for one of several reliefs. –A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. (3) Omission tosue for one of several reliefs. –A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.” From the reading of the above provision, it is clear that plaintiff in a suit for partition is required to include whole of the claim which he is entitled to make in respect of the cause of action. But it is also open for the plaintiff to relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. If the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim later on he cannot sue in respect of the portion so omitted or relinquished and similarly sub-rule(3) of Order-2 also provides for the plaintiff to seek permission of the court to institute a suit in respect of any one of the cause of action at a future date. In the present case, plaintiff has filed the suit in O.S.2/83 for partition and separate possession, on the ground that under the partition deed dated 1.11.1968 he had become absolute owner of half of the portion of the property allotted to him. When he contends that he has become the absolute owner of 50% of the joint family property, and if he has filed a suit for partition he has to file a suit for partition in respect of all the properties wherever they are situated. For the reasons best known to the plaintiff in O.S.2/83, he did not include the present suit property. Similarly he also did not include other joint family properties. Similarly, he also did not crave leave the court to institute a suit in respect of the property not included in the said suit to treat the said suit as a suit for partial partition only. There is no proper explanation by the plaintiff in this regard. Similarly he also did not include other joint family properties. Similarly, he also did not crave leave the court to institute a suit in respect of the property not included in the said suit to treat the said suit as a suit for partial partition only. There is no proper explanation by the plaintiff in this regard. When he has omitted to include plaint schedule property as the cause of action in the present suit was also there as on the date of institution of the suit in view of the law laid down by this court in SRI TUKARAM Vs. SRI SAMBHAJI AND OTHERS (I.L.R. 1998 KAR.-681) which is as hereunder: “19. It has been contended by the learned counsel for the appellants that the finding of the I Appellate Court to the effect that the suit by one of the co-parceners for partition with respect to one of the items of the Joint Hindu Family property is maintainable in the special circumstances is not proper. During the course of the order, the appellate court has observed that Sec.261 of Mulla Hindu Law 15th Edn. At pages 351 and 352 makes it clear that non-alienating co-parceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for a general partition. In the present case on hand all the non-alienating co-parceners have not filed the suit. The mere fact that the other non-alienating co-parceners vis., defendants 7 to 9 did not join the plaintiff in filing the suit is not material. The right of non-alienating co-parcener in Bombay area does not depend upon the whims and fancies of remaining non-alienating coparceners who for reasons best known to them, may not join the plaintiff in filing the suit. Patna and Andhra Pradesh High Courts held that one or the several non-alienating co-parceners cannot sue the purchaser for his own share of the alienated property. It has been observed by the I Appellate Court the law applicable in Bombay area does not prohibit the suit by one of the several non-alienating co-parceners. The I Appellate Court considered the ruling in A.I.R.1983 SC.-124 wherein it has been held that a purchaser can be impleaded even when decree for partition of agricultural lands is pending before the collector for effecting partition. But it is not the case in the present it. The I Appellate Court considered the ruling in A.I.R.1983 SC.-124 wherein it has been held that a purchaser can be impleaded even when decree for partition of agricultural lands is pending before the collector for effecting partition. But it is not the case in the present it. In ILR 1989 Kar 1895 it is held that a partition suit should comprise of all the available properties, as far as possible. That decision has been distinguished by the I Appellate Court as that was not a case of non-alienating co-parcener filing a suit for partition of alienated property. The view that has been taken by the I Appellate Court cannot be stated to be a correct one in the circumstances of the case. It is to be seen that the plaintiff, defendant No.1 and defendants 7 to 15 are the members of the Joint Hindu Family. There is no partition by metes and bounds of the family properties. The present suit is filed in respect of the suit land only. There are other lands in other villages and also other house properties which have not been included in the suit which are admittedly the joint family properties. It has been observed in Mulla Hindu Law – 13th Edn. Regarding the rights of purchaser of coparceners interest. It has been stated that the non-alienating co-parceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without brining a suit for general partition. It is to be noted that in AIR 1984 AP 84 it has been held that normally a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co-sharers should be impleaded. The suit of partition of specified items can only be an exception. In the present case on hand, the 1st defendant has alienated the suit land in favour of defendants 2 to 6. The 1st defendant is the member of the Joint Hindu Family. As already stated that the family has got other several lands and house properties which are the joint family properties. In the present case on hand, the 1st defendant has alienated the suit land in favour of defendants 2 to 6. The 1st defendant is the member of the Joint Hindu Family. As already stated that the family has got other several lands and house properties which are the joint family properties. It has been contended by the learned counsel for the alienees while allotting the share to defendant-1 in the family properties equitable rights of purchasers on partition has to be considered and those rights can be considered only when all the joint family properties are included in the suit for partition. Otherwise, it would be difficult to apply principles of equitable partition. The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotch-pot, the suit for partition of the shares of the member of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld. The reason being, the present suit has been filed by one of the non-alienating co-parceners of the joint family property. The suit has been filed by the non-alienation co-parcener with respect to the only property which has been alienated. This is not a suit for general partition. The contention of the alienees is to the effect that if the share of the plaintiff to be worked out if all the joint family properties had been included in the schedule then, at a partition, the share of the dist defendant would have been worked out in order to give equitable relief to the alienees also as they have purchased the property by the 1st defendant. In that view of the matter, the present suit filed by the plaintiff without including all the joint family properties and which prejudices the rights of the alienees who have also been impleaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in law. The finding given by the trial court with respect to the sixth issue has to be maintained and the finding given by the I Appellate Court that the suit is maintainable without including all the joint family properties cannot be held to be proper in the circumstances of the case. Hence, the finding of the I Appellate Court holding that the suit of the plaintiff for partial partition is maintainable should be set aside and the finding of the trial court with respect to the sixth issue that the suit is bad for non-joinder of necessary properties to be included in the suit has to be upheld.” Taking into consideration this citation, the court has to hold that the suit filed by the plaintiff was not maintainable as the suit for partial partition cannot be maintained without seeking leave of the court as contemplated under the provisions of Order-2 Rule-2 of CPC. Therefore, we are of the view that suit of the plaintiff was also not maintainable on this ground. 19. Unfortunately, trial court without considering these facts has held that plaintiff has proved partition deed dated 1.11.1968 and that under the said document plaintiff was declared as the owner of half of the property and that the sale deed executed by the 1st defendant in favour of the 2nd defendant is not binding on him. Trial court has committed an error in not noticing that Ex.P-12 sale deed executed in favour of the 2nd defendant is not only by the 1st defendant but also by Agro Pvt. Ltd. since property had vested with Agro Pvt. Ltd. as the same was allotted in favour of M/s Agro Pvt. Ltd. under the dissolution deed dated 12.7.1973. In the circumstances, we are of the opinion that all the points arise for our consideration are to be held in favour of the respondents and against the appellant and the findings of the court below that the plaintiff has become the owner of 1/2 share in respect of the suit property under Ex.P1 is held to be perverse and not based on proper appreciation of the oral and documentary evidence. 20. In the result, the appeal is dismissed. Parties to bear their costs.