Partition is the division of shares in a property by an act of court or otherwise for representing proportionate interests of the owners of property. Partition may be effected through various modes such as partition by mere declaration or partition by father or partition by suit. If partition suit is instituted then a decree resulting in the severance of joint status be passed by the court allotting definite shares to the members. Partition could be partial or total. When some members contend that the partition was partial then they have to prove the same.
Order II Rule 2 of The Code of Civil Procedure says that:
Every suit instituted should include the whole claim and if any part is relinquished then the plaintiff cannot sue for it in the future for the same cause of action.
Now if we talk about the question as to what are the consequences for not including any property in a partition suit then the answer to this could be best resolved by referring to the following case:
BakshiFaiz Ahmad vs Bakshi Farooq Ahmad And Another:[1]
The principle underlying the provisions of Order II Rule 2 of the Code is that the plaintiff is not allowed to split relief arising out of the same cause of action by filing separate suits. No one should be vexed twice by splitting the claim and splitting the remedies.
So, if we are dealing with the consequences of not including any property in the partition suit then we should resort to Order II Rule 2 of Code of Civil Procedure which expressly mentions that the plaintiff cannot exclude part of the whole claim unless permitted by the court.
In a partition suit filed by the plaintiff where all the properties are not included and he has no knowledge about the same and had no intention to hide it from the court then the plaintiff can file subsequent suit for the rest of the property if the cause of action is not same.
Even if the part is relinquished then the plaintiff cannot claim for that in the later stage and sue for the same if it arises from the same cause of action. But there is no restriction in filing for subsequent suit for different cause of action.
So, as per my view the plaintiff is not allowed to misuse the partition suit for his own advantage. He has to include whole property in the suit when he is well aware of the same and he can only exclude it with the prior permission of the court and in the scenario when he had not done either of the above then it would be considered by the Court as a bad act and the suit be liable to dismissed as stated . One cannot take the advantage of his rights by prejudicing the rights of the opponent. This principle is followed by the judicial system before granting relief to the plaintiff.
[1]2018 TaxPub (CL) 1227 (J&K)
This article is authored by Neha Kumari, student of B.Sc LL.B at New Law College, Pune
Also Read – Partition How Executed Under Hindu Law
