The Bombay High Court has held that an alienation of joint family property made by an outsider cannot be made a subject matter of a partition suit between the members of the joint family. The Court observed that whether the outsider had title to pass on to the purchaser cannot be decided in a suit for partition of the joint family properties.

Justice Sandeep V. Marne was hearing a writ petition filed challenging the City Civil Court's rejection of petitioners' applications seeking amendment of the plaint in a partition suit. The suit was instituted for declaration of a land (Survey No. 151A) as joint family property, and seeking its partition by metes and bounds.

The land had been transferred by the Khot family to a Bafna Charitable Trust (BCT) under an Indenture dated 14 January 1971, before the partition suit was instituted. BCT subsequently obtained an order directing deletion of Survey No.151A from the partition suit. The plaintiffs thereafter sought to implead BCT and bring Survey No.151A back into the suit. They contended that deletion of the property bearing Survey No.151A was sought by the BCT only on the ground that it was not impleaded as a party Defendant to the Suit.

The Court noted that despite being aware of the position that the Khot family had alienated land bearing Survey No.151A in favour of BCT by Indenture of 14 January 1971, the Plaintiffs consciously did not implead BCT so as to avoid the vice of misjoinder of cause of action. It held that if BCT is now permitted to be impleaded in the suit, the same would give rise to an inconsistent position being taken by the Plaintiffs.

On the issue of challenge to alienation, the Court refuted the argument that an alienation made by a coparcener of joint family property can never be questioned in a partition suit. It observed:

“It is permissible to challenge alienation of joint family property by Karta or by another coparcener even in a suit for partition. The challenge cannot be independent of suit for partition… only a combined suit for partition and alienation can resolve the lis relating to validity of alienation.”

However, the Court noted that in the present case, the alienation is not done by a coparcener, but the same is done by an outsider, i.e., the Khot family. It held that the issue of alienation by the Khot family to BCT could not be a subject matter of the suit for partition between the Patil family members.

“… the issue of alienation by Khot family to BCT cannot be a subject matter of suit for partition between Patil family members. Whether Khots had title to pass on to BCT is something which cannot be decided in a suit for partition of joint family properties of Patils,” the Court remarked.

The Court further held that the proposed amendments were grossly barred by limitation. The plaintiffs had knowledge of the 1971 Indenture when the suit was filed, while the amendment seeking relief against BCT was filed only in May 2010; the amendment concerning Atul Builders was also barred since Atul Builders had stepped into the shoes of BCT.

The Court also found that allowing the amendment would alter the nature of the suit, as an enquiry in a suit for partition of joint family properties will get diverted into the validity of alienation made by the Khot Family in favour of BCT. It therefore held that the City Civil Court had rightly rejected the applications for amendment and dismissed the writ petition.

Case Title: Arun Narayan Patil v. Jayshree Jaywant Patil [Writ Petition No.1918 of 2016]

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