Hindu Law – Joint family property – Partition – Members suing for partition not bound to bring into hotchpot all family property

Dhapibai vs. Tejubai    AIR 2013 MP 149

The defendant No.1 and 2 Tejubai and Supdibai are the real sisters of plaintiff No.1 Dhapubai. The property under dispute is the agriculture lands of late Bhilya father of Plaintiff No. 1 and defendant. As per allegations made, plaintiff No. 1 being the youngest daughter, after her marriage with the plaintiff No. 2, both continued to reside and live with Bhilya. The couple looked after Bhilya and managed his affairs including cultivation over the land in dispute. It was alleged that Bhilya died intestate in the year 2001, therefore his interest would devolve exclusively upon the plaintiffs as per custom and usage and not upon other surviving members of the family. It was further alleged that defendants were trying to interfere in the possession over the land in dispute therefore, the suit for permanent injunction.

Defendants denied the claim of plaintiffs that they exclusively succeeded to the Bhilyas interest in the agricultural land in dispute as per custom or usage. They also denied existence of any such usage and custom. They claimed that upon the death of Bhilya, his daughters jointly succeeded and each and equal share. They also filed a counter claim claiming 1/4th share in the land in dispute.

The Trial Judge, on due consideration of evidence found no merit and substance in the case set up by the plaintiffs. On the other hand, the trial court found that defendants were able to establish their counter claim, accordingly while dismissing plaintiffs suit, a partition decree was passed in favour of respondents.

The lower appellate court continued the dismissal of the suit while affirming the decree of partition passed in favour of respondents. Hence, the second appeal.

Referring to section 332 of Mulla’s Hindu Law (21st Edition), it was submitted that a member suing for partition is bound to bring into hotchpot all family property in order that there may be complete and final partition between coparceners. In this connection, it was submitted by the plaintiff that since the defendants did not include the residential house of Bhilya in their counter claim therefore, it was liable to be dismissed and courts below erred in allowing the counter claim. The submission ignores the fact that a partition may be partial either in respect of property or in respect of the person making it. It is open to the members of joint family to make a division and severance of interest in respect of a part of the joint estate section 325 of Mullas Hindu Law. The appeal was dismissed.