N.H. Bhatt, J.
1. This is an appeal by the original defendants Nos. 1 (1) to 1 (4) and the defendant No. 3 of the regular civil suit No. 87 of 1978 filed by the respondent No. 1 Jbrahim Kasambhai for partition of the properties of one Keshar Ahmed, the common predecessor of the parlies. The learned trial Judge passed the following order:--
'It is hereby declared that the pltf. and deft. No. 5 Ismail Kasam each has share of 5.21 Ps. in a rupee in the suit S Nos. 254/1 and 254/2. The branch of Ali Amad (i.e. present defts. Nos. 1A to ID collectively) has a share of 50 Ps. in a rupee in the suit S. Nos. It is further declared that deceased deft. No. 2 Kha-tija has a share of 8.59 Ps. in a rupee in the suit S. Nos. It is further declared that Aba Keshar deft. No. 3 has share of 14,59 Ps. in a rupee in the suit S. Nos. and also that deft. 6 Noorbai and deceased Mariam, the mother of deft. No. 7 each gets 7.29 Ps. in a rupee as their respective shares in the suit S. Nos. Ashabai, the mother of the pltf., has also a share of 1.83 ps. in a rupee in the suit S. Nos. As the suit lands are agricultural lands, the Collector, Juna-gadh District, Junagadh be appointed to effect partition of the suit S. Nos. as per the respective shares of the aforesaid parties. The Collector is directed that as far as possible, 32 gunthas of land which are sold to deft. No. 4 be given into the share of the heirs of AH Amad Aba Keshar and Khatija deceased deft. No. 2. A true copy of the decree be sent to the Collector, Junagadh.....'.
It is to be noted that Ashabai, who has been declared to have 1.83 Ps. in a rupee in the suit agricultural lands, was never made a party to this litigation.
2. Being aggrieved by the aforesaid preliminary decree, these appellants had preferred the Civil Appeal No. 51 of 1977 in the District Court, Junagadh. The learned appellate Judge allowed that appeal only notionally andor nominally. The order reads as follows :--
'.....Regular civil appeal No. 51/77would partly stand allowed. The order of the learned Civil Judge directing the original defendant No. 4 appellant of Civil Appeal No. 51/77 to render accounts is set aside.'
I say nominally because that has nothing to do with the present appeal.
3. Mr. Vyas, the learned advocate appearing for the appellant before me, has canvassed the following points of law:--
(1) A suit for partition in respect of shares in a Muslim's properties is not maintainable and the only suit that could be filed is the one for administration;
(2) A suit was not maintainable because one of the sharers, namely, Asha-ben, whose share has been declared to be 1.83 Ps. in a rupee, was never made a party to this suit for partition;
(3) There cannot be a share for a woman, who has remarried, namely, Ashaben;
At the time of the hearing of this second appeal before me, only the point No. 2 was pressed and as I uphold that point, other points were not pressed into service.
4. The short question that falls for determination is whether in a suit for partition, all the co-sharers or co-heirs are necessary parties or not. Incidentally, the question to be decided is that if such a necessary party is not impleaded whether that non-impleading will go to the root of the suit making it liable to be dismissed on that technical score.
5. Mr. Vyas invited my pointed attention to the judgment of the Supreme Court in the case of Kanakarathanamma) v. V. S. Loganatha Mudaliar : 6SCR1 . In paragraph 9 of the said reported judgment, the point in question has been dealt with. It was a common ground that the appellant there had brothers alive and even in the trial Court the respondents Nos. 1 and 2 had taken an alternative plea that if the property was found to be belonging to the appellant's mother, under the relevant Mysore law the appellant and her brothers would be entitled to succeed to that property and the non-joinder of the brothers was, therefore, fatal to the suit. As a matter of fact, the trial Court had dismissed the appellant's suit on this ground of not impleading her brothers. Dealing with the provisions of law in question, the Supreme Court ultimately held as follows (Para 9):--
'On the other hand, if Section 10(2)(d) applies to the properly, the appellant will not be exclusively entitled to the property and her brothers would be necessary parties to the suit. In that case, the plea of non-joinder would succeed and the appellant's suit would be dismissed on that ground'.
This is the clear exposition of law and even on the first principles also, it is necessary that all persons who are entitled to a share in the property by in-heritance must be made parties to the suit for partition, Let us lake the case on hand. In the case of Ashaben, her share is declared to be 1.83. For ought we know, she may not accept this apportionment or recognition of her right and can file a fresh suit, claiming a larger amount. If her plea succeeds, then this decree would be rendered a nullity or of no operation. Because of this intrinsic difficulty possibly arising in such suits, it has been laid down as an absolute proposition of law that in a suit for partition of the properties in which various claimants have different shares, all must be made parties so that a dispute is resolved once and for all.
6. Mr. Chhaya, who appeared in this matter for the original plaintiff, however, urged that what was good in the case of Hindu co-heirs would not necessarily be good in the case of Muslim co-heirs. The argument proceeds to state that Muslim heirs get specified shares soon on the demise of the propositus and one co-heir will not be representing the other co-heirs. Even in cases where the law of inheritance of Hindu operates, there are specified shares and the property devolves on those heirs in specified shares as it is in the case if Muslims. So this line of distinction sought to be pleaded is non-existing. Mr. Chhaya, however, urged that Muslim heirs inherit as tenants-in-common while Hindu heirs inherit the property as co-tenants. Mr. Chhaya was not ready to accept the proposition that co-tenancy and the tenancy-in-common are synonymous, Mulla's principles of Hindu law, (16th Edition) at page 89, Caption 31, mentions that according to the Mitakshara School, two or more persons inheriting jointly take as tenants-in-common except some four exceptional situations where heirs take as joint tenants with rights of survivorship. The jurisprudence talks in all of two types of such jointness. It is either joint tenancy or tenancy-in-common. The third category of co-tenancy invoked by Mr. Chhaya is not known to me and Mr. Chhaya has not been able to show me any such third category existing in the legal realms, The question of representation does not arise when different persons inherit the property in different specified shares. As long as partition is not effected, there is an undivided specified share of all the heirs, both Hindus and Muslims, in respect of the entire property and here also there is nothing peculiar about the Muslim inheritance.
7. To the credit of Mr. Chhaya it should be stated that there are two earlier judgments which tend to support his view. The first is the judgment of the Allahabad High Court in the case of Mt. Zabaishi Begam v. Naziruddin Khan : AIR1935All110 and the other is the judgment of the Rajasthan High Court in the case of Mahommad Subhan v. Dr. Misbahuddin Ahmad, AIR 1971 Raj 274. With respects to the learned Judges who decided the above-mentioned cases, I fail to appreciate and, therefore, do not accept the distinction sought to be made out amongst the heirs under the Hindu law getting right by inheritance and the heirs under the Mohammedan law also getting the property under inheritance. In my view, wherever the law of inheritance applies, either Hindu law or Mohammedan law, the heirs get specified shares as laid down by these laws. To illustrate, I would take the facts of the case of Kanakarathanammal : 6SCR1 (supra). There, the mother's estate was the subject matter of litigation. The married daughter claimed partition without impleading her brothers and the Supreme Court stated that in absence of the brothers, who were co-heirs and, therefore, tenants-in-common, the suit was liable to fail. In that case, the appellant before the getting properties under specified shares. So, in my view, these two judgments, which supported Mr. Chhaya's contention, I say, so with respect, do not lay down the law on the subject correctly.
8. On above ground, I allow this appeal and set aside the judgment of the Courts below by dismissing the plaintiffs' suit. The parties are directed to bear their own costs throughout.