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Kurshit Kathum by Agent, Mahomed Ismail Sheriff Sahib Vs. Hyder Khan Sahib and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in75Ind.Cas.93
AppellantKurshit Kathum by Agent, Mahomed Ismail Sheriff Sahib
RespondentHyder Khan Sahib and ors.
Excerpt:
court-fees act (vii of 1870), section 7(v), schedule ii, article 17(6) - suit by muhammadan co-sharer in possession of some items against other co-sharers for partition, nature of. - .....family so as to make section 7, clause (4), of the court-tees act apply, but alleges that he is in joint possession, the article applicable is article 17, clause (6). the present case is one of a muhammadan co-sharer who sues her other co-sharers for partition and possession of her share of her deceased father's properties, and she alleges that she is in possession of some of the items as indicative of her joint possession in law with the other co-sharers of the deceased's estate. there is no case here of her being excluded from any part of that estate by her co-sharers or to put in another way her being ousted from possession of any part of it. in such a case as this the suit is one for partition and possession of one's share by one having joint possession of the estate taken as a.....
Judgment:

Krishnan, J.

1. I think the order of the lower Court cannot be supported. It has been laid down in Gill v. Varada Raghavayya 55 Ind. Cas. 517 : 43 M. 396 : 38 M.L.J. 92 : 11 L.W. 174 (1920) M.W.N. 124 : 17 M.L.T. 146 that a suit for partition of immoveable property when the plaintiff is not a member of a joint family so as to make Section 7, Clause (4), of the Court-tees Act apply, but alleges that he is in joint possession, the Article applicable is Article 17, Clause (6). The present case is one of a Muhammadan co-sharer who sues her other co-sharers for partition and possession of her share of her deceased father's properties, and she alleges that she is in possession of some of the items as indicative of her joint possession in law with the other co-sharers of the deceased's estate. There is no case here of her being excluded from any part of that estate by her co-sharers or to put in another way her being ousted from possession of any part of it. In such a case as this the suit is one for partition and possession of one's share by one having joint possession of the estate taken as a whole. It is clear from Gill v. Varada Raghavayya 55 Ind. Cas. 517 : 43 M. 396 : 38 M.L.J. 92 : 11 L.W. 174 (1920) M.W.N. 124 : 17 M.L.T. 146 and the cases cited there, one of which in Ahamuddin Tamijuddin v. Amiruddin 44 Ind. Cas. 216, is the case of Muhammadans, that the suit falls under Article 17, Clause (6), and not under Section 7, Clause (5).

2. The order of the lower Court is set aside and it is directed to restore the case to its file and to dispose of it according to law. Costs here will abide and follow the result.


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