Non-framing of an issue does not vitiate proceedings absent prejudice where parties fully understood and litigated the dispute.

Late Jayamma, who died intestate and unmarried, owned the properties described in Schedules ‘A’ to ‘C’, comprising immovable properties, bank deposits, securities, cash and other movables.

Her brother and sister, along with the other surviving siblings and legal representatives, instituted O.S. No. 5076/1999 seeking partition, asserting that they were entitled to equal shares as her Class II heirs.

Defendant No.7, M. Ganesh, disputed the claim, contending that certain properties had been acquired through a partnership business with Jayamma and that he was entitled to Item No.1 under a Will dated 17.09.1988.

By judgment dated 20.04.2021, the Trial Court decreed the suit and awarded equal 1/9th shares in the Schedule ‘A’ to ‘C’ properties.

Whether the Trial Court’s judgment and decree were vitiated by its failure to frame a separate issue on the defence that the suit was not maintainable for partial partition due to omission of other properties allegedly owned by Jayamma?

Whether the appellant established that the properties described in the plaint were not exclusively acquired or owned by Jayamma, or that the additional properties mentioned in his written statement belonged to her estate?

Whether the plaintiffs and other parties were entitled to equal 1/9th shares in the suit properties?

The Court applied Section 96 CPC governing first appeals and Order XIV Rules 1–5 CPC concerning the settlement, amendment and framing of issues.

The governing principle is that although framing proper issues is the court’s duty, omission to frame a specific issue is not fatal where the parties understood the real controversy, led evidence on it, and suffered no prejudice or failure of justice.

The Court relied on Makhan Lal Bangal v. Manas Bhunia, AIR 2001 SC 490, for the proposition that non-framing of an issue may justify remand only where prejudice is demonstrated.

The Court relied on Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884, which holds that absence of a formal issue is not fatal when the parties fully understood and contested the rival cases.

Under the law of succession applicable to the parties, the surviving siblings and representatives of predeceased siblings were entitled to succeed to Jayamma’s intestate estate in the proportions determined by the Trial Court.

The High Court held that Issue No.6—whether the plaintiffs were entitled to partition and, if so, in what shares—was sufficiently comprehensive to encompass the defence that the suit was not maintainable for partial partition.

The Trial Court had in fact considered the alleged omitted properties and rejected the defence in paragraph 14 of its judgment.

Ganesh had fully pleaded the contention, entered the witness box, produced documents and cross-examined the opposing witness on the alleged properties; therefore, he could not establish either that he was misled or that he was prevented from presenting his case.

His own admissions undermined his claim: he acknowledged that the relevant sale deeds for the suit properties stood in Jayamma’s name and that no sale deeds in respect of the alleged omitted properties stood in her name.

Ex.D33, relied upon as a power of attorney concerning one omitted property, was unnotarised, unsupported by witnesses and insufficiently proved, while Exs.D39 and D40 were inconsistent and lacked adequate evidentiary support.

Since the appellant failed to prove either exclusive rights in the suit properties or that the omitted properties formed part of Jayamma’s estate, no prejudice resulted from the absence of a separate issue.

It affirmed the finding that the suit properties belonged to Jayamma and that the plaintiffs and other entitled heirs succeeded to them in equal 1/9th shares.

The appeal was dismissed, the judgment and decree dated 20.04.2021 in O.S. No. 5076/1999 were upheld, and costs were made easy in view of the relationship between the parties.