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Korumbakkat Parkum Vengaalasheri MoidIn Kutti Vs. Thuniyilandiyil Mariamumma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1921Mad404; (1921)41MLJ457
AppellantKorumbakkat Parkum Vengaalasheri MoidIn Kutti
RespondentThuniyilandiyil Mariamumma and ors.
Cases ReferredPalott Chandu v. Kolathuru Karammal
Excerpt:
- - if this were a case of hindu law the objection would certainly hold good -vide sundara iyer v. the rule can at best apply to the muhammadans only in the manner it applies to tenants-in-common among hindus, and we understand the case in 15 c. 677 in which the parties were muhammadans (distinguished, though not disapproved, in 23 i......stated. defendants 4, 5 and 6 are muhammadan brothers. the 7th defendant is their sister. the suit property belonged in jenm to their father who demised it on kanom to 1st defendant on 4th june 1903, ex. c being the marupat. the defendants 4. and 5 granted a melcharth of the property to plaintiff by ex. b (dated 20th february 1915) and on its footing the plaintiff 'brought a suit for redemption of the kanom (o: section no. 616 of 1915). that suit was dismissed on the ground that ex. b. was valid only as regards the 4/7th share of defendants 4 and 5 and was not binding on defendants 6 and 7 and the suit could not be converted into a suit for partition without the consent of the defendants. see mamu v. kuttu i.l.r(1882) . mad. 61. the present suit is for partition and recovery of the.....
Judgment:

1. The facts of the case may be briefly stated. Defendants 4, 5 and 6 are Muhammadan brothers. The 7th defendant is their sister. The suit property belonged in jenm to their father who demised it on kanom to 1st defendant on 4th June 1903, Ex. C being the marupat. The defendants 4. and 5 granted a melcharth of the property to plaintiff by Ex. B (dated 20th February 1915) and on its footing the plaintiff 'brought a suit for redemption of the kanom (O: Section No. 616 of 1915). That suit was dismissed on the ground that Ex. B. was valid only as regards the 4/7th share of defendants 4 and 5 and was not binding on defendants 6 and 7 and the suit could not be converted into a suit for partition without the consent of the defendants. See Mamu v. Kuttu I.L.R(1882) . Mad. 61. The present suit is for partition and recovery of the 4/7th share. It may be mentioned that meanwhile the kanom in favour of 1st defendant had expired and the 1st defendant had a renewal under Ex. I from the 6th defendant. The Lower courts found that Ex. I is valid only in respect of the 2/7th share of the 6th defendant.

2. The 1st, 6th and 7th defendants contended that the suit was not maintainable, being one for partial partition. The Munsif allowed this contention ; but the Subordinate Judge reversed his finding and remanded the appeal for disposal according to law. This appeal against the order of the Subordinate Judge has been filed only by the 1st defendant who repeated the contention before us. If this were a case of Hindu Law the objection would certainly hold good - Vide Sundara Iyer v. Krishna-moorthi Iyer : (1916)31MLJ317 and Manjaya v. Shunmuga 26 M.L.J. 576. But the objection can be raised only by the members of the family and not by strangers. See Ibranisa Rowthan v. Thiruvenkataswami Naick 20 M.L.J. 743 where it is said that a stranger cannot enforce partition against the will of the other members without suing for a general partition. It follows that the objection may be waived by them and this can be done at any stage.

3. Again even as a rule of Hindu Law, it is a rigid rule only so far as joint family property is concerned being a substantial rule of Hindu Law-See Bakewell, J in Manjaya v. Shanmuga 26 M.L.J. 576. If the property is not joint family property and the parties are not co-parceners but only co-owners or tenants-in-common the rule is not so rigid and partial partition may be allowed if there is not much inconvenience to the other sharers and if the plaintiff will otherwise be left without a remedy--See Radha-kanta Shah v. Bipro Das Roy (1904) 1 C.L.J. 40, and Syed Habibur Rasul Abdul Faiz v. Ashitu Mohan Ghosh 12 C. 34 C.W.N. 640 and Uma Sundari Debi v. Benode lal Pakrashi I.L.R(1907) . Cal. 1026 and A.S. No. 133 and 184 of 1907. It is then merely a rule of processual law.

4. In the case of Muhammadans, the co-heirs are only tenants-in common, and there is no joint family in the Hindu Law sense of the term. The rule can at best apply to the Muhammadans only in the manner it applies to tenants-in-common among Hindus, and we understand the case in 15 C.W.N. 677 in which the parties were Muhammadans (distinguished, though not disapproved, in 23 I.C. 442) only to lay down that it is not desirable' to allow a suit for partial partition among co-heirs, if it causes much inconvenience to the defendants who are co-heirs, because such suits lead to a multiplicity of suits and to endless litigation. That the scope of the rule as applicable to Muhammadans cannot be extended beyond this is clear from the observations of Ayling and Tyabji JJ in Moideensa Rowthan v. Muhammad Kasim Row-than (1915) 28 I.C. 895 .

5. For the proper disposal of the appellant's contention, if necessary we would have to call for a finding on the point. We asked the plaintiff's counsel to ascertain from his client if he is willing to have joint possession with 1st defendant or, otherwise, so amend the pLalnt as to avoid the objection. The respondent's counsel has now stated that he is content with a decree for redemption of 4/7th share and joint possession. - See, Palott Chandu v. Kolathuru Karammal (1915) M.W.N. 189.

6. The case will be remanded to the District Munsif for disposing of any other points that remain undecided, such as the value of improvements and for passing a decree for redemption and for joint possession of 4/7th share. Each party to bear its own costs in this appeal.


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