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Noor Mohammad and ors. Vs. Zainul AbdIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1940All399
AppellantNoor Mohammad and ors.
RespondentZainul AbdIn and ors.
Excerpt:
- - 4. now, the whole difficulty in this case has, to my mind, arisen out of a failure to understand this elementary truth about the nature of a partition action and to follow the directions of the code in respect of the decree that should be made. so far, so good. it would have been better perhaps if the learned civil judge had given the munsif his own assistance by drafting the decree for him. i cannot overcome the difficulty with which i am faced by the circumstance that this is a partition suit and that it is the duty of the court, first to ascertain and declare the rights of the parties interested in the property. there would have been a good deal of force in that if the defendants themselves had ever taken that objection......thing that the court has got to do by the decree it makes is to 'declare the rights of the several parties interested in the property.' the court has therefore first to ascertain judicially who all the persons are who are interested in the land to be partitioned and then in its decree it has to declare who they are and also what their rights are. it then goes on to make provision for giving practical effect to the partition and for separate possession to the various participants. it goes to the whole root of the matter that at the outset the entire interests in the property should be ascertained and fixed. that is why the code is careful to require the decree to be in this form.4. now, the whole difficulty in this case has, to my mind, arisen out of a failure to understand this.....
Judgment:

Braund, J.

1. This is a second appeal involving a matter of very small value. The suit was a partition suit. It is important to observe that. The pedigree by which the interests of the contesting parties is traced is a complicated one and I do not propose to set it out in every detail. To put the matter as shortly as it can be put, there was a property which many years ago was in the ownership of a common ancestor named Hayatan. Hayatan had three sons, Abdul Rahman, Suleman and Ibrahim, the first-named by his first wife and the two last-named by a second wife. The property in question which is sought to be partitioned in this suit was, it is said in the joint ownership of Suleman and Ibrahim. The plaintiffs who are three in number trace their title through Ibrahim and the defendants trace their title through Suleman. Defendant 6 is a formal party. The half-share of the property which devolved upon the death of Ibrahim together with a further 20 out of 192 shares devolved, according to the plaintiff's story, as to an aggregate of 58 shares, upon a lady named Fatima and as to the remaining 58 shares upon one Ali Ahmad, the deceased husband of plaintiff 3, Mt. Khair-un-nisa. On the death of Fatima no difficulty arises because her 58 shares admittedly devolved upon the plaintiffs. As to the 58 shares, however, of Ali Ahmad, the husband of Mt. Khair-un-nisa, the matter is not quite so easy.

2. According to the plaintiffs' version, as set out in para. 4 of their plaint, Mt. Khair-un-nisa acquired not only 14&farac; 12; such shares in her own right upon the death of her husband but also the remaining 43&farac12; shares in lieu of her dower which, it is alleged, was at that date unpaid. It is important to observe, therefore, that while the plaintiffs traced their title to 72&farac12; out of the 116 shares which they claim by devolution from Ibrahim the-remaining 43&farac12;| shares are claimed by Mt. Khair-un-nisa as having been acquired and taken possession of by her in lieu of her dower to which she was entitled from-her husband. The relevance of this question is that if this allegation on the part of Mt. Khair-un-nisa relating to these 43|&farac12; shares-is not correct, they would have devolved in part, at any rate, under the ordinary Mahomedan law of inheritance, upon the other branch of the common family altogether, that is to say, the branch of Abdul Rahman.-It comes to this that while as to 72&farac; 12; shares-the plaintiffs have traced their title by descent from the common ancestor, as to the remaining 43&farac; 12; shares one of them claims under the arrangement with her husband in respect of dower and in such a way that if she is right the interests not only of the plaintiffs and the defendants to this suit will be affected but also of the heirs of the third brother Abdul Rahman who are not and never have been parties to these proceedings. In the written statement the defendants in paragraph 15 deny that Mt. Khair-un-nisa was entitled to anything in respect of dower and they allege that 1f she was, her dower was only a trifling amount of some Rs. 150. They dispute that she ever took possession of these 43&farac; 12; shares in lieu of dower. And, accordingly, as between themselves and the plaintiffs, at any rate, they put at once in issue the destination of the 43&farac12; shares in question.

3. Now at that point it is necessary for me to draw attention once again to the fact that this is a partition suit. There is no mystery about a partition suit. It is simply a suit in which persons who are jointly entitled to an undivided property set in motion the processes of the Court to obtain a division of it in severalty among themselves. There is accordingly in Order 20, Rule 18 precise machinery provided for the Court to do what is necessary to be done. And it is carefully provided what the Court's decree is to contain and what is the order to be carried out. It is obvious that when a property is to be divided not merely into undivided shares but by a physical partition the first thing to be done is to ascertain who are exactly the people entitled to share in the division. Bach of them is interested in seeing that what is done is rightly done, and for that reason we find that in Order 20, Rule 18, which in this respect has not been materially amended by our own rules, the first thing that the Court has got to do by the decree it makes is to 'declare the rights of the several parties interested in the property.' The Court has therefore first to ascertain judicially who all the persons are who are interested in the land to be partitioned and then in its decree it has to declare who they are and also what their rights are. It then goes on to make provision for giving practical effect to the partition and for separate possession to the various participants. It goes to the whole root of the matter that at the outset the entire interests in the property should be ascertained and fixed. That is why the Code is careful to require the decree to be in this form.

4. Now, the whole difficulty in this case has, to my mind, arisen out of a failure to understand this elementary truth about the nature of a partition action and to follow the directions of the Code in respect of the decree that should be made. The Munsif before whom the matter first came determined a number of facts. He held first that the properties in question were the joint properties of Suleman and Ibrahim. So far, so good. He then went on to find also as a fact that Mt. Khair-un-nisa did get the 43&farac; 12; shares in question in lieu of her dower and there were certain other issues determined by him which are not material for me to mention. What I must point out is that the finding at which the learned Munsif arrived in respect of 43&farac12; shares was one arrived at in a suit which, so far as the heirs of Abdul Rahman were concerned, was wholly ex parte. They were the people who were interested to resist Mt. Khair-un-nisa's claim and they were never before the Court. It is difficult to see therefore how in those circumstances the Court could possibly comply with Order 20, Rule 18 by giving a judicial declaration as to the rights of the several parties interested in the property. I venture to think that not only must the parties themselves to the partition suit take care that they bring before the Court all persons who are or may be interested in what it is proposed to divide but that the duty lies upon the Court itself in matters such as these to see that it has before it everyone whose presence is necessary to enable it to make the declaration which it is required to make by Order 20, Rule 18. The matter does not quite end there because looking at the decree which the Munsif actually made we find that it makes no attempt whatever to comply with Order 20, Rule 18. It is merely a slovenly declaration that the plaintiff's suit is to be decreed, whatever that may mean. I sympathize with the difficulty in lower Courts which the absence of practice and the pressure of work gives rise to, but I cannot too strongly impress upon subordinate Courts that it is essential both to comply with the provisions of the Code as to the form in which decrees should be, where such form is provided for, and more generally, in every case to pay far more attention than is paid at present to the drawing up of intelligible decrees.

5. The learned. Civil Judge, into whose hand the matter next came, was, I think, alive to this part of the difficulty. He was alive to the importance of ascertaining the rights of the parties and he directed further definite issues as regards this outstanding question of who was entitled to the 43&farac; 12; shares which Mt. Khair-un-nisa claimed by virtue of her dower. He appreciated, I think, that it was part of the duty of the Court to ascertain and fix the rights of the several parties interested in the property to be partitioned. He accordingly remanded these further issues to the lower Court to be tried. But what I venture to think even he overlooked was the fact that they could not be judicially determined in the absence of the persons interested to contest them. It is quite true that an ex parte finding could be made as, indeed, the Munsif did find, but when Order 20, Rule 18 lays upon the Court the duty of declaring what the rights of the parties interested in the property are, it means that there shall be a judicial declaration and not a mere ex parte declaration in the absence of the parties. These matters went back to the learned Munsif and were determined by him again ex parte-against some at any rate of the persons who were interested to resist them.

6. The matter then came on full first appeal before the Civil Judge who disagreed with the findings of fact in the Court below and eventually found that Mt. Khair-un-nisa was not entitled to the odd 43 shares. In other words, he found in favour of the absent heirs of Abdul Rahaman. In the actual order that he made he again came near the truth when he directed that a partition decree should be drawn up under Order 20, Rule 16 {semble Rule 18), Civil P.C. He returned it to the Munsif with a direction, in effect, to draw up a proper decree. It would have been better perhaps if the learned Civil Judge had given the Munsif his own assistance by drafting the decree for him. In the result there has not yet come into existence any decree which remotely conforms to Order 20, Rule 18. That is the condition in which it comes before me in second appeal. I cannot overcome the difficulty with which I am faced by the circumstance that this is a partition suit and that it is the duty of the Court, first to ascertain and declare the rights of the parties interested in the property. I cannot do that in any manner which in my judgment can be contemplated by the Code without having those parties before me. As it seems to me, the whole proceedings are misconceived in the absence of persons who are or may be interested in the land to be divided. And as a result of-this I must I think see that the proceedings, if they are to be continued, should continue in the proper form. I have been a great deal puzzled to know what is actually the right step to take. The Court even in appeal has full jurisdiction under Order 1, Rule 18 to require such parties to be added as are necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. One of the questions involved in the suit is undoubtedly who is entitled to the 43 shares in question. Under Order 41, Rule 25 I have jurisdiction to frame an issue and to return it to the Court from which this appeal comes to be tried. And I wondered whether I ought not to frame this particular issue again and to refer it to the first Appellate Court under that rule.

7. The course however that I must take is, I think, determined for me by a case in Shiam Lal Joti Prasad v. Dhanpat Rai (1925) 12 AIRAH 768. It is a two Judge-decision of this Court and is to the effect that if the Appellate Court is of opinion that a certain person is a necessary party, and ought to have been impleaded, the proper procedure is to remand the case to the Court of first instance with a direction that the Court should implead that person and then proceed to dispose of the case. In those circumstances I think I have no alternative but to direct that this case be remanded to the original Court of the Additional Munsif of Azamgarh and to direct him to cause the heirs of Abdul Rahman to be added as parties to the suit. That will be done, of course, in pursuance of Order 1, Rule 10. The plaint will have to be amended to be served on them and they will have opportunities of filing their written statements. He will then have to dispose of the case. It may be from their written statements that it will emerge that they do not contest certain matters in which case his task will be easier. I cannot give him any directions or to advise him as to that. When he has disposed of the matter and come to his findings, if he should have determined that it is a case in which an order for partition should be made, then I draw his attention once more to Order 20, Rule 18 as to the form in which his decree should be. He is required by law to 'declare the rights of the several parties interested in the property.' That means that he is required to fix and ascertain the rights of everyone interested in the property and to set them out in his decree and then the decree should follow the other provision of the rule. I shall accordingly remand this second appeal for these steps to be taken.

8. As regards the costs I am urged by the respondents to allow them their costs in this Court throughout upon the footing that, if there has been expense incurred, it has been due to the plaintiff's initial mistake in misconstituting the suit. There would have been a good deal of force in that if the defendants themselves had ever taken that objection. But what the defendants have done is that they have gone on and fought the suit upon the footing that the suit was properly constituted. On the whole I think the right order to make as to the costs of the proceedings so far as they have at present gone, that is to say, the costs so far incurred in the Munsif's Court, in first appeal and upon this appeal is that I should make no order as to them but that I should direct that they be dealt with by the learned Munsif in the proceedings which will now be held before him and should be treated as costs of those proceedings and subject to whatever order he makes in respect of the costs of these proceedings. The court-fee will be refunded.


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