A partition suit is bad for partial partition when the plaintiff admits omitting family properties.

The plaintiff sought partition and separate possession of a share in property at Kyasanur.

Defendant No. 1 contended that the suit was bad for partial partition because it omitted properties at Chikkalavathi said to be part of the joint family estate.

The Trial Court decreed the suit, but the Lower Appellate Court allowed the appeal and dismissed it on the ground of partial partition.

In the second appeal, the plaintiff argued that the defendants had not proved that the Chikkalavathi properties were joint family properties

1. Whether the plaintiff could maintain a partition suit confined to the Kyasanur property despite the defence that properties at Chikkalavathi formed part of the joint family estate

2. Whether the Lower Appellate Court’s finding that the suit was bad for partial partition warranted interference in second appeal

Under Section 100 of the Code of Civil Procedure, a second appeal lies only where a substantial question of law arises.

A partition suit ordinarily must include all properties forming part of the joint family estate, subject to recognised exceptions; where non-inclusion is specifically pleaded, the claim must be considered against the pleadings and evidence concerning the omitted properties

The Court held that, notwithstanding the initial burden on defendant No. 1, the plaintiff’s own admissions supplied material supporting the defence: his father and uncles held lands at Chikkalavathi, his father cultivated lands there as a tenant, the plaintiff had lived and cultivated there, and there had been a partition between the plaintiff and his uncles concerning one survey number.

The plaintiff also claimed that Survey No. 22 was self-acquired, but the Court considered his age at the alleged time of purchase and the absence of cogent evidence establishing his independent means.

Taken cumulatively, the admissions supported the conclusion that the plaintiff could not seek partition of only the Kyasanur property while excluding the Chikkalavathi properties.

It dismissed the Regular Second Appeal, leaving the dismissal of the plaintiff’s suit in force.