1. This judgment shall govern the disposal of First Appeal No. 33 of 1965 also which arises out of Civil Suit No. 1-A of 1962 filed by respondents 1, 2 and 3 against respondents 4, 5, 6 and 7 and the appellant Tikam Chand.
2. The present appeal arises out of Civil Suit No. 2-A of 1962 filed by the appellant against the respondents. The appellant had purchased a house situated on plot No. 17/1, Jagdalpur town, from respondents 4 and 5 Gaffar Khan and Sahadat Khan on 15-4-1959 for Rs. 13000/-. The said house belonged to one Sardar Khan who was a Sunni Mahomedan. Sardar Khan admittedly died in the year 1933. At the time of his death, he left behind his three sons Ishak Khan, Gaffar Khan (defendant No, 4). Sahadat Khan (defendant No. 5) and his daughter Smt. Munir Bi (defendant No. 6). Ishak Khan died in the year 1953 leaving behind his two minor sons Rahim Khan (defendant No. 1) and Manjur Khan (defendant No. 2) and his widow Smt. Tazul Bi (defendant No. 3) as his heirs. It is not disputed that in the estate of Sardar Khan his three sons had an equal share of 2/7 each and his daughter had l/7th share and that these heirs inherited the estate of the deceas-' ed as tenants-in-common.
3. At the time of the death of Sardar Khan in 1933, he left behind the following properties:--
(1) Four houses on plot No. 17/1 in the town of Jagdalpur. Area of the plot was 11470 sq.ft.
(2) Agricultural lands 26.79 acres in village Bhond of Jagdalpur Tahsil.
(3) Agricultural land admeasuring 22.50 acres in village Kawarawand of Jagdalpur Tahsil.
In the plaints of Civil Suit No. 1-A of 1962 and Civil Suit No. 2-A of 1962 the area of agricultural land situated in village Kawarawand was stated to be 18.44 acres but the appellant made an application before us on 9-3-1970 alleging that the said area was wrongly stated and the correct area of the said land was 22,50 acres. By our order dated 25-3-1970 we allowed the application for amendment as it was not opposed and as the error in stating the area of the said land was clearly based on a mistake.
4. The case of the plaintiff-appellant as set out in the plaint of Civil Suit No. 2-A of 1962, was that in the lifetime of Ishak Khan in the year 1950 a partition took place orally between his sons and daughter; that in the said partition defendants Gaffar Khan and Sahadat Khan were jointly allotted subplot No. 17/4 out of plot No. 17/1 referred to above and thus got in their share an area of 3762 sq. ft. with a pakka house on it and that agricultural lands in village Kawarawand were also allotted to them in their shares. The shares allotted to Ishak Khan and Smt. Munir Bi were also stated in paragraph 3 of the plaint. It was further averred that later the said oral partition was confirmed by a registered partition-deed executed on 26-5-1958; that Smt. Tazul Bi (defendant No. 3), mother of the minor defendants Kahim Khan and Manjur Khan, represented the branch of Ishak Khan for herself and for her minor sons at the time of the execution of the said partition-deed and precisely the same properties which were previously allotted in the oral partition of 1950 were stated in the partition-deed to have fallen to the shares of the respective heirs of deceased Sardarkhan; that on 14-7-1958 Gaffar Khan and Sahadat Khan (defendants 4 and 5) mortgaged the house which had fallen to their shares namely, the pakka house on plot No. 17/4, to the Firm Rajhumal Relumal of Jagdalpur for the principal amount of Rs. 5500/- and that the mortgagee firm, which was previously the tenant of the said mortgagors, continued in possession of the house paying a rent of Rs. 80/- per month to them.
It was further averred that on or about 10th April 1959 Gaffar Khan and Sahadat Khan (defendants 4 and 5) contracted to sell the mortgaged house after redeeming it from the mortgagee to the plaintiff for a total consideration of Rs. 13000/-. It was alleged that defendants 4 and 5 took advance from the plaintiff, repaid the mortgage-debt and redeemed the mortgaged house on 14-4-1959 and thereafter on 15-4-1959 they sold it to the plaintiff for Rs. 13000/-.
5. It was further urged in the plaint that on 3-2-1962 defendant No. 1 (who had by that time become major) and defendant No. 2 through his next-friend defendant No. 3, and defendant No. 3 in her own right instituted a suit (Civil Suit No. 1-A of 1962) in the Court of the Additional District Judge, Jagdalpur for a declaration that the partition effected under the registered partitiondeed dated 26-5-1958 was inoperative. Invalid, illegal and void and was not binding on them partly for the reason that Smt. Tazul Bi 'was not the de jure guardian of the property of her minor sons and therefore had no legal authority to bind them by act of executing the partition deed and partly for the reason that the partition recorded in the said partition-deed was prejudicial to the interests of the said minors. As a result of the said suit having been brought, the plaintiff instituted the present suit claiming the following reliefs:--
(1) That oral partition of the year 1950 as subsequently confirmed by the registered partition-deed dated 26-5-1958 be confirmed.
(2) That if the partition were not confirmed, a general partition of all the properties of the deceased Sardar Khan amongst the defendants 1 to 3 as representing the branch of Ishak Khan, Gaffar Khan. Sahadat Khan and Smt. Munir Bi (defendants 4, 5 and 6). respectively, be ordered.
(3) That the pakka house on plot No. 17/4, area 3762 sq. ft. alienated by the defendants 4 and 5 to the plaintiff be allotted to the share of the defendants 4 and 5 and equities be worked out between the heirs of Sardar Khan while allotting the said house to the share of defendants 4 and 5.
6. Defendants 4, 5 and 6 remained ex parte. The plaintiff's suit was opposed by defendants 1. 2 and 3 who filed a common written statement. The main contentions raised by them were that no oral partition had ever taken place as alleged by the plaintiff between the heirs of Sardar Khan; that the registered partition-deed dated 26-5-1958 was not binding on them as Smt. Tazul Bi was not their legal guardian and had no right to represent defendants 1 and 2 in the said partition and that the partition allegedly made under the said deed was unfair and was not beneficial to the interests of the minors as properties of higher value and better importance were all allotted to defendants 4 and 5, Gaffar Khan and Sahadat Khan. It was further contended that as defendants 4 and 5 had no right to alienate the pakka house situated on plot No. 17/4 the sale of the said plot by them to the plaintiff was invalid and illegal and therefore the plaintiff was not entitled to the reliefs claimed by him. It was also urged that the plaintiff who was a stranger to the family of the defendants had no right to file a suit for general partition of the properties left by Sardar Khan.
7. The trial Court framed various issues and came to the conclusion thatno oral partition was made in the year 1950 as alleged by the plaintiff; that the partition recorded in the partition-deed dated 26-5-1958 was void and was not binding on defendants 1, 2 and 3 as defendant No. 3 Smt. Tazul Bi was not the legal guardian of the minors and was therefore not competent to represent them in the said partition in the year 1958; that the said partition was prejudicial to the interests of the minors and therefore was not fair; that in Sardar Khan's property Ishak Khan, Gaffar Khan and Sahadat Khan held an equal share of 2/7 each and that Smt. Munir Bi was entitled to l/7th share; that the said pakka house was mortgaged for Rs. 5500/- by defendants 4 and 5 in favour of Firm Rejumal Relumal and that the mortgagee firm was a tenant of the said house even from before the date of mortgage; that the said mortgage was redeemed on 14-4-1959 and the house was sold by defendants 4 and 5 to the plaintiff for a consideration of Rupees 13000/- but it held that defendants 4 and 5 were not entitled to sell the said entire house as they were not exclusive owners thereof.
The trial Court also held that a Sunni Mohammedan is entitled to transfer his undivided share in the joint property without effecting partition and a purchaser from a co-sharer under the Mohamedan Law could maintain a suit for general partition but as defendants 4 and 5 did not alienate their undivided share in favour of the plaintiff but alienated the specific house as such the plaintiff in the instant case was not entitled to file the present suit. The trial Court also held that before purchasing the said house the plaintiff did not make proper enquiries inasmuch as the suit house did not stand in the nazul record in the names of Gaffar Khan and Sahadat Khan upto the date of sale. In tbe result, the trial Court dismissed the plaintiff's suit for declaration and general partition. However, by its decree it directed defendants 4 and 5 Gaffar Khan, and Sahadat Khan to pay Rupees 13000/- to the plaintiff-appellant. Feeling aggrieved against the said judgment and decree, the plaintiff has filed this appeal.
8. In Civil Suit No. 1-A of 1962, defendants 1. 2 and 3 (who were plaintiffs in the said suit) claimed the relief that the partition dated 26-5-1958 be declared to be inoperative, invalid, illegal and void and not binding on the plaintiffs and that it may be declared that the purchaser Tikamchand had not acquired any right, title or interest in the property based on the sale deed dated 15-4-1959. In this suit, Firm Rejhumal Relumal, who was tenant ofthe suit house, was also impleaded as defendant No. 7.
9. It is not necessary to state separately the pleas taken by Tikamchand in his written statement as they are practically the same pleas which he took in his plaint in Civil Suit No. 2-A of 1962. Both the suits were consolidated for trial though they have been disposed of by the trial Court by separate judgments delivered simultaneously. In Civil Suit No. 1-A of 1962, the trial Court decreed the claim of the plaintiffs of that suit, namely, defendants 1 to 3 Rahim Khan. Manjur Khan and Smt. Tazul Bi. Feeling aggrieved by the said decree Tikamchand has filed First Appeal No. 33 of 1965.
10. The first contention raised on behalf of the appellant is that the trial court should have held that there was an oral partition in the year 1950 in the lifetime of Ishak Khan. The trial Court has considered this question under issue No. 2. On consideration of the evidence adduced, we are satisfied that the plaintiff has not been able to prove that there was an oral partition of the estate left by Sardar Khan between his sons and daughter in the year 1950. The most material witness on the point would have been Gaffar Khan (defendant No. 4) but he was not examined by the plaintiff. Tikamchand plaintiff (P. W. 1) and his father Sobhagmal (P. W. 6) are shown to have no direct knowledge about the said partition. Evidence of Smt. Tazul Bi (defendant No. 3) positively establishes that there was no partition of the property left by her father-in-law in the lifetime of her husband. We. therefore, hold that the alleged oral partition has not been proved.
11. It was contended in the second place that even if it were held that no partition took place in the year 1950, the partition evidence by the registered partition deed dated 26-5-1958 should be acted upon as the minors Rahim Khan and Manjur Khan were represented at the time of the execution of the said partition deed by their mother Smt. Tazul Bi. It was also contended that the evidence on record was insufficient to establish that the said partition was prejudicial to the interests of the minors in any way. It is well settled that a deed of partition to which a Mahomedan minor is a party represented by his mother as a de facto guardian is void and not binding on the minor irrespective of the considerations that it benefited him or the arrangement was followed for a long period (see Mohomed Amin v. Vakil Ahmad, AIR 1952 SC 358 and Assiz v. Chithamma. AIR 1954 Trav-Co 370. We therefore hold that the alleged partition recorded in the partition-deed dated 26-5-1958 is not binding on defendants 1 to 3. These defendants are, therefore, entitled to ignore the said partition.
12. The next contention advanced on behalf of the plaintiff-appellant is that as defendants 4 and 5, Gaffar Khan and Sahadat Khan, were each entitled to 2/7th share in the property of their father, they were entitled to transfer their undivided share under the sale-deed dated 15-4-1959. It is further urged that as they sold the pakka house situated on plot No. 17/4 to the plaintiff for value, the plaintiff was entitled to bring a suit for general partition against the heirs of Sardar Khan and was further entitled to this equity that so far as possible the said entire house may be allotted to the share of his vendors. The learned counsel for the appellant placed reliance on a decision of this Court reported in Abdul Rahman v. Hamid Ali, 1958 MPLJ 464 = (AIR 1959 Madh Pra 190) in support of his contention.
13. On the other hand, it was contended that the plaintiff, who is a total stranger to the family, is not entitled to claim a general partition of all the properties between the co-sharers. It is urged that the right to bring a suit for general partition is a personal right of the co-sharers and merely on account of there being an alienation of some property by one of the co-sharers in favour of a stranger he does not get a right to ask for general partition. It is further urged that as defendants 4 and 5 instead of selling their undivided share in the house sold the specific house without being its exclusive owners, the sale was illegal and no title passed under it to the plaintiff alienee. It is also urged that at best his right could only be to ask for the partition of the property sold to him.
14. In our opinion, the contention of the appellant has merit and must be given effect to. On the death of a Mahomedan, his heirs become entitled to their specific shares in the estate of the deceased as tenants-in-common. What they can validly insist upon is that they must be given property equal to their share in the property left by the deceased but they cannot insist that each single property must be divided into so many as represent the shares of the heirs.
It is true that every co-owner has a legal right to have the joint properties partitioned. Mere reluctance or some inconvenience of other co-owners is not by itself sufficient to take away the said right. Different considerations, how-ever, apply where a partition is inconvenient or is destructive of the intrinsic value of the property. In such cases Courts avoid actual partition as far as practicable and adopt a procedure more suitable in the circumstances of the case. The Court has the jurisdiction to allot such a property exclusively to one co-owner with suitable direction for payment of owelty money to the others. We feel that there is no justification to deprive the plaintiff, who is a purchaser for value, from having an equity in his favour to stand in the shoes of Ms ali enors to the extent of claiming a general partition of all the properties so that the equities may be worked out by allotting to the shares of his vendors the properties which have been alienated by them if such a course did not work injustice to the right of the other co-owners.
15. A co-owner under the Mahomedan Law has a right to sell his undivided share in the estate to which he has succeeded as an heir. An alienee of a specific item of the property stands in the shoes of the co-owner from whom he has purchased any specific item of property and thus, in our opinion, he obtains a personal right which he is equally entitled to enforce against the shares of his vendors. We reiterate the view which was taken in Abdul Rahrnan's case. 1958 MPLJ 464 = (AIR 1959 Madh Pra 190) (supra).
16. When the house in question was sold by defendants 4 and 5 in favour of the plaintiff, if the entire house could be allotted in their shares, in our opinion. the property in the entire house must be held to have passed to the plaintiff alienee because the alienee can claim to be allotted the property purchased by him if it is not inconsistent with the rights of other parties and if the value of the specific property does not exceed the value of alienor's share in the entire joint property. In effecting partition of joint property between co-sharers or alienees from one or some of them equity requires that partition should be so effected as not to prejudice the latter. The principles which apply in cases of partition among Hindus also apply in the cases of Mahomedans. The underlying principle is that a bona fide purchaser for value should not be prejudiced by reason of any subsequent suit for partition brought on behalf of the other co-sharers and that if without doing injustice between -the parties the equities between the alienee and the other co-sharers can be so adjusted as to allow the purchaser the full fruits of his bargain for which he has paid full consideration, that ought to be done. The same view was taken in GemalsingjiKhumansingh v. Bai Fati, AIR 1939 Bom 40. We respectfully dissent from the view taken in Dhadha Sahib v. Muhammad Sultan Sahib, AIR 1921 Mad 384 to the contrary.
17. However, if on consideration of the character and nature of the property to be divided and the extent of the shares of other co-owners, the house sold could not be exclusively allotted to the shares of the alienors, in our opinion, the sale must be construed to be the sale of so much portion in that house as could justly be given to the shares of the alienors having regard to all the equities in the circumstances of the present case.
18. We have already said that in the present case there is no dispute about the extent of the property left by the deceased Sardarkhan and about the shares which his three sons and daughter had in his estate and the properties left by the deceased are mentioned in paragraph 2 of the plaint. The appellant filed before us a map showing the four houses on plot No. 17/1. This map was not challenged on behalf of the respondents in spite of an opportunity having been given to them. We, therefore, take it that the houses are correctly represented on the said map and constitute an item of the property which is liable to be partitioned. Similarly, the appellant has filed Khasra for the years 1952 to 1956 of the agricultural lands situated in village Bhond and village Kawarawand. The shares of defendants 1 to 3 who are heirs of Ishak Khan and defendant No. 4 Gaffar Ghan and defendant No. 5 Sahadat Khan are equal in the estate of the deceased Sardar Khan and amount to 2/7th each in that estate. Similarly, the share of defendant No. 6 Smt. Munir Bi is admittedly l/7th in the estate of the deceased. We declare and hold accordingly.
19. As there was no proper evidence about the valuation of the properties, we examined Rahim Khan respondent No. 1 on 20-4-1970 before us. We allowed both the parties to question him. He in his deposition stated that his grandfather had left four houses at the time of his death. One of these houses was a pucca house which has been sold by his uncles Gaffar Khan and Sahadat Khan to the plaintiff-appellant Tikamchand. He stated that the value of the house sold to Tikamchand along with the land appertaining to it is today about Rs. 50,000/-; that the kaccha house and the compound appertaining to it in which respondent No. 1 is residing at present is worth Rs. 9000/- and the house which is in the occupation of respondent No. 6 Smt. Munir Bi is worth about Rs. 2500/- to Rs. 3000/-. .He fur-ther stated that the agricultural land situated at village Bhond is worth about Rs. 250/- to Rs. 300/- per acre. This land admeasures 26.79 acres. He also stated that the value of the agricultural land at Kawarawand is about Rs. 1000/-per acre. That land admeasures 22.50 acres. He has deposed that one of the two kaccha houses which was allegedly allotted to the share of respondents 1, 2 and 3 in the partition, has fallen down. Thus, according to him, the total valuation of all the properties left by his grandfather Sardarkhan comes at least to:
Pucca house sold to Tikamchand _____
One kaccha house in the occupation of respondents 1, 2and 3
One house in the occupation of Smt. Munir Bi. respondentNo. 6 ______
Agricultural land at village Bhond at the rate of Rs.250/- per acre ______
Agricultural land at Kawarawand ________
20. The learned counsel for the appellant Tikamchand accepted for the purposes of this appeal the valuation of the properties given by respondent No. 1 Rahini Khan. On the said valuation, the 4/7th share of respondents 4 and 5 Gaffarkhan and Sahadatkhan, who are the vendors of Tikamchand, comes to Rs. 52000/-. Further it is clear that the house which was sold by them to Tikamchand is not the residential house. Thus, considering the principles which we have discussed above in paragraphs 14 to 18 of the judgment, in our opinion, the house and the land sold to Tikamchand under the sale-deed can safely be allotted to the shares of respondents 4 and 5 Gaffarkhan and Sahadatkhan without any injustice to the other heirs of Sardarkhan. We decide accordingly.
21. As there is no material on record to show how best the remaining 3/7th property can be divided between respondents 1, 2, 3 and 6, we think that it will be proper to remand the case for final partition of the remaining properties to the trial Court.
22. In the result, this appeal is allowed. The decree passed by the trial Court dismissing the suit filed by the appellant Tikamchand is set aside. Instead, we decree the plaintiff-appellant's claim as follows:--
(1) It is declared that respondents 4 and 5 Gaffarkhan and Sahadatkhan are each entitled to 2/7th share in the property of their deceased father Sardar-khan. Their total share thus works out at 4/7th in the estate of the deceased.
(2) It is declared that respondents I to 3 Rahim Khan, Manjur Khan and Tazul Bi are entitled to 2/7th share in the property of Sardarkhan as representing the share of Ishak Khan who was the father of respondents 1 and 2 and the husband of respondent No. 3.
(3) It is declared that respondent No. 6 Smt. Munir Bi is entitled to l/7th share in the property of her deceased father Sardarkhah.
(4) It is further declared that the deceased Sardarkhan left one pucca house and three kaccha houses at the time of his death situated in plot No. 17/1 in Jagdalpur as also the agricultural lands specified above in villages Bhond and Kawarawand.
(5) We further declare that the plaintiff-appellant is entitled to have a general partition between the heirs of the deceased Sardarkhan by virtue of his purchase of the pucca house and the said land for value under the sale-deed dated 15-4-1959.
(6) We further direct that the said pucca house situated on sub-plot No. 17/4 along with the land which was sold under the said sale-deed, is allotted to the share of Gaffarkhan and Sahadatkhan, respondents 4 and 5 and uphold the sale-deed dated 15-4-1959 made by them.
(7) So far as the partition of other properties is concerned, we direct that the trial Court shall proceed to effect partition of the said properties between the respondents in accordance with law after working out the equities between them. The partition of agricultural lands shall be made through the Collector according to the requirements of Order 20. Rule 18, Code of Civil Procedure.
(8) Considering the circumstances of the case, we direct that parties shall bear their costs in both the Courts as incurred so far.