2006 (1) TMI 663 - HC - Benami Property

Summary

Issues:
1. Appeal against suit for partition and possession.
2. Dispute over the non-inclusion of a valuable jewel in the partition suit.
3. Interpretation of legal position regarding non-inclusion of joint family properties in a partition suit.

Analysis:
1. The first defendant filed a second appeal against a suit for partition and possession initiated by the first respondent. The dispute primarily revolved around the non-inclusion of a valuable jewel, "Kasu Malai," in the partition suit. The trial court dismissed the suit due to the plaintiff's failure to include the jewel in the schedule of properties. However, the first appellate court reversed this decision, leading to the second appeal.

2. The substantial legal question raised was whether the exclusion of the "Kasu Malai" jewel was fatal to the partition suit based on partial partition. The appellant's counsel argued that the jewel, acknowledged as joint family property by the plaintiff, should have been included in the schedule, as per the evidence presented during the trial. Citing a Supreme Court judgment, the appellant contended that the non-inclusion of all joint family properties renders the suit not maintainable.

3. The judge disagreed with the respondent's argument that the unknown existence of the jewel justified its exclusion from the schedule. Emphasizing that the plaintiff's acknowledgment of the jewel's joint family ownership required its inclusion, the judge deemed the non-inclusion fatal to the partition suit. The judge highlighted that the possession of the jewel by either party was immaterial, stressing the importance of including known joint family properties in partition suits. Consequently, the first appellate court's decision was overturned, confirming the trial court's judgment and dismissing the second appeal due to the absence of any substantial legal question.