T.P. Naik, J.
1. The appellants are the plaintiffs. They had purchased house No. 588 situate in Jawaharganj ward of the Jabalpur town from Hamid Ali Shah (defendant No. 1) and Ahmad Ali Shah (defendant No. 2), sons of Mohammad Ali Shah, by a registered sale deed dated 2-6-1945. In pursuanceof the aforesaid sale, they also entered into its possession. The house in suit belonged to Mohamma Ali Shah, and the vendors, defendants Nos. 1 and 2, were only two of the heirs of the deceased Mohammad Ali Shah.
In the year 1945 the other heirs of Mohammad Ali Shah, defendants Nos. 4 to 9 (respondents Nos. 4 to 9) filed a civil suit, No. 68-A of 1945, in the Court of the Additional Civil Judge, Class II, Jabalpur, against the plaintiffs only, claiming their share in this house No. 588 on the ground that Hamid Ali Shah and Ahmad Ali Shah, two of the heirs of the deceased Mohammad Ali Shah, had no right to alienate the shares of defendants 4 to 9 in the suit property.
The appellants who were the defendants in that case objected to the suit on the ground that a claim for partial partition was incompetent and that the entire property of the deceased Mohammad Ali Shah should have been made available for general partition so that the equities between the parties could be adjusted. This objection was disallowed by the Court in that suit by an order dated 9-9-1946.
2. Thereupon the appellants filed the present suit seeking to have a general partition effected of all the properties of the deceased Mohammad Ali Shah so that the equities between the parties may be worked out fully by allotting the (sic)use in suit to the vendors of the plaintiffs, namely, Hamid Ali Shah and Ahmad Ali Shah if this could be done without injustice to the non-alienating heirs of Muhammad Shab. The respondents resisted the present suit on the ground that the plaintiffs had no right to sue inasmuch as they had no right to the properties of which they sought a general partition.
3. The suit was dismissed by the trial Court and this dismissal was confirmed by the lower appellate Court. The Courts below held that under the Mahomedan law a vendee of a specific property from some of the heirs could not ask for a general partition in order to have the equities adjusted by allotting the property alienated to him by some of the heirs to their share while effecting a general partition of the whole property.
4. The learned counsel for the appellants contends that there is no warrant for the proposition that such a suit was against any express text of the Mahomedan law and that if such a course was necessitated for working out the equities between the parties, the Court ought not to deny the relief to the plaintiffs. It is not disputed that under the Mahomedan law every joint owner of the several items of property left by a deceased Mahomedan has in every item of the property a specific share which vests in him on the death of the original owner.
The result is that no one co-owner can alienate any one specific item of property before the same has been allotted to his share in a general partition, effected either through Court or privately and if a co-owner alienates any specific property without the consent of the other co-owners, the other co-owners may sue for a partial partition of the property so alienated.
5. The question then arises: how are we to work out the equities which undoubtedly a vendee from a co-owner possesses by virtue of his purchase for valuable consideration? Nothing has been shown to me why under these circumstances a suit for a general partition of all the properties at the instance of the alienee would not lie. No specific text or a ruling has been cited to me to show why a purchaser for value should be precluded from having an equity in his favour to stand in the shoes of his vendors to the extent of claiming a general partition of all the properties so that the equities may be worked out by allotting to the share of their 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.
In my opinion, in so far as a co-owner under the Mahomedan law has such a right viz., of claiming a general partition of all the properties, the right ought not to be denied to an alienee of ft specific item of the property by some of the co-owners. The alienee obtains a personal right which he is equitably entitled to enforce against the share of his vendors which can only be done by a general partition of the entire property.
6. In a suit where the plaintiff had asked for partial partition of one item of the joint property, the learned Judges of the Division Bench of Madras High Court in Pakkiri Kanni v. Manjoor Sahib ILR 46 Mad 844: (AIR 1924 Mad 124} observed that though such suits are not unsustainable, 'it is .....always open to the defendants in such a case as the present, if ho thinks himself prejudiced by the exclusion of any property, himself to bring a suit in respect of it and have it tried with the suit already pending.'
It is true we do not know whether in that case the suit was against the co-owners or against the alienees from some of the co-owners, but the important thing to observe is that the Court envisaged the filing of a suit for general partition at the instance of the defendant if he thinks himself prejudiced by the exclusion of any property' and if the alienee has a personal right which he is equitably entitled to enforce against his vendors, I see no reason to deny the right of a suit for general partition to the vendors for working out the equities in his favour.
7. It may also be observed that in the other suit (civil) suit No. 63-A of 1945) filed at the instance of defendants 4 to 9 for a partial partition of one item of properly, the objection regarding its maintainability was dismissed with the observations:
'As pointed out in ILR 46 Mad. 844: (AIR 1924 Mad 124) it is open to the defendants if they think themselves prejudiced, to bring a suit including all property for partition and have it tried with the present suit.'
and, in my opinion, it would be inequitable to disallow the right of such a suit to the appellants under the special circumstances of the case.
8. The case in Ghumamnal Lokumal v. Faiz Muhammad Haji Khan, AIR 1948 Sind 83 relied on by the lower appellate Court and on which reliance is placed by the learned counsel for the respondents here is clearly distinguishable for in that case after the suit for partial partition against the alienees at the instance of the non-alienating co-owners had been decreed, the alienees had filed a suit for general partition of the remaining properties and such a suit was rightly held not maintainable at the instance of the vendee on the ground that he had no interest or equity in the property he sought to get partitioned.
No other ease was cited and in my opinion, there is no warrant for the proposition that such a suit was not maintainable. It would, however, be to the general convenience and necessary for the ends of justice that this suit for general partition ought to be tried with civil suit No. 68-A of 1945 for partial partition which is already pending. The two suits should be consolidated and tried togetherso that the equities between the parties may beworked out to do complete justice to all the parties.
9 The appeal is therefore allowed and theorders of the Courts below dismissing the plaintiffs' suit as not maintainable are set aside. It isdirected that the said suit shall now be proceededwith along with civil suit No. 68-A of 1945 alreadypending in a civil Court at Jabalpur. Costs of allthe Courts shall be borne by the defendants respondents.