1. This is an appeal by defendants 4 and 6 against a preliminary decree for partition made in favour of the first respondent by the Subordinate Judge of Tinnevelly. The plaintiff and defendants 1 to 13 are Mahcmedans and alleged to be co-sharers. The other defendants are alienees from some of the defendants of portions of the properties in suit. The plaintiff claimed that he was entitled to 19/240th share in the properties set out in the schedules to the plaint.
2. Though there was some contest in the trial Court, there was no dispute before us about the relationship between the plaintiff and defendants 1 to 13. One Pakkiri Taragan had four sons, Alliyar, Sheik Uduman, Syed Ahmed and Ghosu Muhammad and a daughter Kathija. Alliyar married one Nagoor Meeral and by her he had a son Syed Ahamad and a. daughter Mukkuthi. The plaintiff is the husband of Mukkuthi. Nagoor Meeral, before she married Alliyar, was the widow of one Abu Bucker, by whom she had a son named S.M. Muhammad. Sheik Uduman, the second son of Pakkiri, was married to the seventh defendant. The first defendant is his son and the eighth and ninth defendants are his daughters. Syed Ahamad, the third son of Pakkiri, was married to the tenth defendant. The second and third defendants are his sons and the eleventh and twelfth defendants his daughters. The third defendant died pendente lite and defendants 36 to 39 were added as his legal representatives. Gbosu Muhammad, the fourth son, had three sons, defendants 4, 5 and G and a daughter, the 13th defendant.
3. Pakkiri died in 1903. There is no reliable evidence as to the properties left by Pakkiri. Alliyar died on 25th January, 1905. There is documentary evidence that by the date of his death, immoveable properties worth about Rs. 7,000 had been purchased in his name and in the names of his three brothers (vide Exs. P-1 to P-4, D. 8-g, D. g-n and D. 11-y). The extent of land covered by these deeds was about four acres and a half. Alliyar's son Syed Ahamad and his daughter Mukkuthi continued to live with their uncles and in 1913 Mukkuthi was married to the plaintiff. In 1914, Alliyar's widow Nagoor Meeral died, and next year, i.e., in 1915, Alliyar's son Syed Ahamad died. In 1918, Mukkuthi, the plaintiff's wife, died issueless.
4. During the period between 1905 that is the date of Alliyar's death, and 1915, the year of Syed Ahamad's (Alliyar's son's) death, certain immoveable properties were purchased in the name of the three brothers of Alliyar and Syed Ahamad, the son of Alliyar. Ex. P-6 series relate to such purchases and they comprise a total extent of five acres 31 cents wet and 5 cents dry.
5.Though the members of the family resided at Melapalayam in the Tinnevelly district, there is evidence to show that even during the lifetime of Alliyar there was a business in cloth and carpets with branches at Rangoon and at Cuddalore (see Ex. P-12). The name of the firm was S.P.A. Sheik Uduman and Brothers. Though there is no documentary evidence of the fact, it is alleged that besides cloth and carpet business, there was also a flourishing business in oil carried on in Rangoon. Syed Ahamad, the third son of Pakkiri, died in 1918, Ghosu Muhammad, the fourth son, in 1934 and Sheik Uduman, the second son, in 1941. After the death of Alliyar's son Syed Ahamad, several purchases of immoveable properties were made between 1916 and 1930. The sale deeds were taken only in the names of the surviving sons of Pakkiri and the sons of the deceased brothers other than Alliyar. Mukkuthi, the daughter of Alliyar, was not a party to any of the transactions in her lifetime, though it must be also mentioned that no other female member of the family is a party to any of the transactions. The plaintiff was the heir of his wife Mukkuthi but his name admittedly does not find a place in any of the documents. It is common ground that the plaintiff was employed in the business carried on in Rangoon till at least 1933. He was being paid a salary and he held a power of attorney (Ex. D-3) executed in his favour by Sheik Uduman, Ghosu Muhammad and the son of Syed Ahamad (third son of Pakkiri). The vilasam of the business carried on in Rangoon and Cuddalore which was originally S.P.A. Sheik Uduman and Brothers was changed in 1926 into S.P. Sheik Uduman and Brothers, the significant alteration being the dropping of the letter ' A ' (which most likely stood for Alliyar). Another event which happened in 1926 may be. now mentioned--an event which probably was the immediate cause of the change in the vilasam. S.M. Muhammad, the step-son of Alliyar, brought a suit in the High Court of Judicature at Rangoon (Civil Regular No. 102 of 1926), against Sheik Uduman, Ghosu Muhammad and Ahamad Ali, the son of Syed Ahamad, for a dissolution of a partnership and claiming Rs. 75,000 as the sole heir of Nagoor Meeral. The defence appears to have been raised that Alliyar himself was not the son of Pakkiri and it was also pleaded that Muhammad himself was not the son of Nagoor Meeral. Both the pleas were false, evidently put forward to defeat the claims of S.M. Muhammad at any cost. It is in evidence that the plaintiff himself was entrusted with the conduct of the suit and was evidently also interested in defeating S.M. Muhammad's claims. The suit, however, was compromised and Muhammad's claims were settled at a sum of Rs. 19,000.
6. Apparently the affairs of the firm were not very satisfactory in the year 1931. On 18th June, 1931, a document (Ex. P-20) called a partition agreement, was executed by (1) Sheik Uduman, (2) Ghosu Muhammad, (3) Ahamad Ali, and (4) S.S. Abdul Rahiman, (3) and (4) being the sons of Syed Aharnad. The recitals in this document are important and have been relied on by both sides. The document starts by saying that the individuals (1) and (2) and their brother the late Syed Aharnad, the father of individuals (3) and (4) jointly started a business at Cuddalore and Rangoon, etc., under the common vilasam of S.P.A. Sheik Uduman and Brothers which was since changed into the common vilasam of S.P. Sheik Uduman and Brothers in 1926, and that with the income derived by the said business, properties were purchased originally in the names of the three brothers and after the death of Syed Ahamad in the names of the four executants and also solely in the name of the first executant. Then we have the statement,
We have been enjoying them in common as members of a joint family and as properties of the joint family.
It is then recited that the Melapalayam accounts were settled up to the end of 16th December, 1930, and the Rangoon and Cuddalore accounts up to the 31st December, 1930. The business carried on in Rangoon and Cuddalore was not disturbed and the only arrangement made was that the total capital of the firm was divided into three shares and entered in favour of the respective sharers separately. Paragraph 3 of the deed reads as follows:
In this circumstance, we intended to divide and get separate possession of the other immoveable and moveable properties, etc., belonging to us, exclusive of the joint business carried on amongst us and the immoveable and moveable properties pertaining to it, and accordingly and in pursuance of the agreement regarding partition, we amicably effected a partition amongst us of all the moveable properties and cattle, and each of us has been enjoying those which have fallen to his respective share.
In paragraph 4 reference is made to the debts payable in the common account of Melapalayam and to an arrangement between the parties by which the respective sharers had separately executed documents. There is a provision for the distribution of the Melapalayam outstandings and the document finally recites that the moveable properties and cattle have already been partitioned. The schedule sets out the immoveable properties and outstandings which have to be partitioned. It is in the immoveable properties which form the subject-matter of this partition agreement that the plaintiff claims his share, though it is clear that this transaction does not recognise any claim in the plaintiff.
7. The Rangoon business eventually ended in a failure and the partners were adjudged insolvents in 1936. It appears that a composition scheme among the creditors was approved by Court and a decree was obtained subsequently in pursuance of that scheme by the Official Assignee of Rangoon.
8. The plaintiff claims a share as the heir of his wife Mukkuthi and the suit is framed as if it was a suit for partition of properties belonging to the co-sharers consisting of plaintiff and defendants 1 to 13. But as the claim includes within its scope a share to properties acquired after the death of Alliyar, Syed Ahamad, Nagoor Meeral and Mukkuthi, the plaintiff is compelled to make allegations of fact and law to support such a claim. These allegations, however, are so vague, indefinite and inconsistent that it is difficult to discover any one logical and legal basis. It is therefore necessary to examine in some detail the several allegations in the plaint.
9. In paragraph 6 of the plaint the plaintiff states that at the time of the death of Alliyar, his children were minors and hence the three brothers of Alliyar were looking after them and their mother Nagoor Meeral and were also in common management of the entire properties of the family and carrying on the family trade. Then occur the following averments which are important:
Even though they were Mahomedans, they were following the principles, manners and customs similar to those of the members of a Hindu family, and further, the trade also was being carried on in the same manner, as if it was for the benefit of all the sharers. Even though the heirs of Alliyar are not entitled to lay any claim to the aforesaid trade as shareholders (partners?) therein, it is necessary, in consideration of the usage, law and equity, to give to the heirs of Alliyar one-fourth share in the properties subsequently purchased from out of the aforesaid assets, inasmuch as the subsequent trade was conducted by making use of the assets of the previous trade and of the security and facilities of the common property. The aforesaid trade was being conducted for the said persons also.
It is impossible to imagine a pleading more confused and jumbled than this. Totally different legal principles are relied on though they are not kept separate. Firstly, there is he plea that though they are Mahomedans there is a special custom or usage according to which they are governed by the principles of Hindu Law. Secondly, there is the plea that the business was carried on by some of the co-sharers for the benefit of all the sharers. Thirdly, though it is admitted that the heirs of Alliyar were not partners in the business, it is said that according to law and equity and the usage, they are entitled to a quarter share. But this plea is mixed up with what looks like a plea based on Section 37 of the Partnership Act and Section 88 of the Trusts Act.
10. In subsequent paragraphs of the plaint, we find what appear like additional pleas. In paragraph 9, the plaintiff alleges that after the institution of the suit by S.M. Muhammad in Rangoon, Sheik Uduman and others assured him that he would be paid a certain amount by way of salary and he would also be paid a share of two annas in the profits besides being given a share in the properties in India. He says that he also entertained the belief that he would be getting a share in his capacity as a shareholder in the partnership also. In paragraph 10 referring to defendants 2 and 3 and 11 and 12, the children of Syed Ahamad, the plaintiff makes the following averment:
The aforesaid heirs did not get their shares divided and receive them, but with views similar to those of the Hindus, they remained under the family management of their senior paternal uncle.
In paragraph 12, an express agreement is pleaded, namely, that the father of the first defendant and others promised him that so far as his share was concerned, since he had some connection with the trade, what was due to him (plaintiff) would be ' set apart through the same,' after ascertainment thereof and on settlement of account as between the shareholders. This statement is followed up in paragraph 13 by the statement that they gave him (plaintiff) some amounts from the assets of the trade.
11. Paragraph 14 contains an attack on the partition of 1931. Therein also he repudiates liability for any debts payable by the firm as according to him the assets of the trade were more than sufficient for them. There are also allegations which suggest that from 1931 at any rate, he is not interested either in the profits or loss or in the debts or capital pertaining to the business conducted subsequently. He winds up by saying that only in the immoveable properties mentioned in the partition deed as well as in the plaint the plaintiff has to get his share after partition. In paragraph 15, the plaintiff says that he is in constructive possession along with defendants 1 to 5. The cause of action is given as February-March, 1942, when the defendants refused the plaintiff's demand for partition. The prayer is for a decree declaring the plaintiff's 19/240th share in the scheduled properties and directing partition thereof and delivery of separate possession of his share to him together with mesne profits from the date of plaint to the date of possession.
12. The main difficulty in deciding the case is due to the confused and mixed up pleadings in the plaint. The plaintiff's allegations were all denied in the written statements of defendants 1 to 3 and others. The issues however, as happens very often, do not serve to bring out the material questions of law and fact.
13. Prima facie the plaint as framed is for partition by a sharer against his co-sharers in respect of joint undivided property. The basis of the plaintiff's claim is his heirship to his deceased wife Mukkuthi and if his claim were only to a share in the properties left by Mukkuthi, there would not be much difficulty except perhaps on account of a possible plea of limitation. But as the plaintiff's claim comprises properties acquired long after the death of Mukkuthi, the plaintiff is compelled to resort to other grounds to sustain his claim. It is better in the interests of clarity, that his several pleas are taken up and considered separately.
14. There is no doubt that if the parties had been governed by the Hindu Law according to Mitakshara and had constituted a joint Hindu family, and the business that the members of the family were carrying on had been an ancestral business and the properties in suit had been acquired in the course of and from and out of the profits of the business, then the properties would become the assets of the joint family in which every member of the joint family would have a share. But it is now well established that the Mahomedan law by which prima facie the parties in this case are governed, does not recognise such a system of holding property and the principle on which that system is founded cannot be applied to the determination of questions relating to the tenure and devolution of property among Mahomedans. Mahomedan heirs take their shares in severalty and they are deemed to be tenants in common without any right of survivorship. The Mahomedan law does not recognise a joint family as a legal entity. In fact, according to the rules of the Mahomedan Law of Succession, heirship does not necessarily go with membership of the family. There are several males and females who have no interest in the heritage but may be members of the family. On the other hand, there are several heirs like, for example, married daughters of a deceased male owner who take an interest in the estate but form no part of the family. (Vide Abdul Khader v. Chidambaram Chettiar I.L.R. (1908) Mad. 276 and Shakrullah v. Zohra Bibi I.L.R. (1932) All. 916.
15. It is also well established that in any particular case it can be proved that a Mahomedan family has adopted by custom having the force of law the joint family mode of holding property ; but such a custom must be definitely alleged and established. In this case we consider that no such custom has been pleaded with any definiteness. It has not been alleged that any particular rule of Hindu law has been adopted by custom or usage by the family of the plaintiff and defendants 1 to 13. Nor has it been alleged that there is a general custom or usage in the locality. There is no issue on this question and no evidence led in respect of it. The loose omnibus averment in paragraph 6 of the plaint, namely, ' even though they were Mahomedans, they were following the principles, manners and custom similar to those of the members of a Hindu family ' cannot be adequate as a plea of a custom at variance with the law. We may also mention that it is very unsafe to infer from the fact that certain Mahomedan families follow the social manners and habits of the Hindus that they also are governed by the rules of Hindu law. We are therefore clearly of opinion that this plea does not avail the plaintiff.
16. The plaintiff must then be able to support his claim by relying on some known principles of general law. There are scattered in the several paragraphs of the plaint allegations which may be used to support a case founded on the law of partnership and the law relating to constructive trust. Taking partnership first, it is clear that the plaintiff does not found his case on a claim to be a partner along with defendants 1 to 3 and their deceased predecessors. There is further a specific averment in paragraph 6 that the heirs of Alliyar are not entitled to lay any claim to the trade as shareholders therein. It follows that if there is any plea which falls within the sphere of partnership law, it must be based on the principle enunciated now in Section 37 of the Partnership Act. Alliyar, according to the plaintiff, was one of the partners along with his three brothers. When he died there was no settlement of account but the surviving brothers continued the trade retaining the share of Alliyar in the assets of the firm and presumably making use of such share in the subsequent conduct of their business. Section 37 of the Partnership Act is as follows:
Where any member of a firm has died or otherwise ceased to be a partner, and the surviving or continuing partners carry on the business of the firm with the property of the firm without any final settlement of accounts as between them and the outgoing partner or his estate, then, in the absence of a contract to the contrary, the outgoing partner or his estate is entitled at the option of himself or his representatives to such share of the profits made since he ceased to be a partner as may be attributable to the use of his share of the property of the firm or to interest at the rate of six per cent, per annum on the amount of his share in the property of the firm.
(The proviso is not material in this case).
17. The implication of illustration (f) to Section 88 of the Trusts Act is similar in effect. It is as follows:
A and B are partners. A dies. B instead of winding up the affairs of the partnership retains all the assets in the business. B must account to A's legal representative for the profit arising from A's share of the capital.
The plaintiff does say in paragraph 6 that the subsequent trade was conducted by making use of the assets of the previous trade and with the security and facilities of the common property.
18. In our opinion there is a fatal objection to this plea. It is clear that the claim of a legal representative of a deceased partner against a surviving partner or partners under Section 37 of the Partnership Act is either a claim for an account or a claim for a specific amount representing the deceased partner's share together with interest thereon. The option is given to the legal representative because the subsequent business might not have ended in profit in which case the legal representative can claim the value of the share with interest. If, on the other hand, profit has been made, the legal representative can claim such share of the profit which he can attribute to the use of the share of the deceased partner. The present suit as framed is not for an account. The prayer is definitely for a partition of specific immoveable properties and there are even allegations here and there which completely negative the possibility of construing the plaint as containing a prayer for an account. What the plaintiff claims is a share in some of the assets of the business assuming that all the properties were acquired with the moneys of the partnership but the plaintiff does not admit that he is bound by the liabilities of the firm. What Section 37 speaks of is a share of the profits made and not a share of the assets only, completely leaving the liabilities out of account. The plaintiff by claiming a partition only of the assets, cannot support such a claim on the provisions of Section 37 of the Partnership Act. According to the plaintiff it was the trade which was carried on in Rangoon and Cuddalore that was the source of the money which went to the purchase of the properties now in suit. There is ample evidence to indicate that the business eventually ended in a loss and there were considerable debts payable by the partnership which ultimately led to an insolvency. The plaintiff cannot simply claim a share of the immoveable properties which only represent the assets of the partnership without reference to the liabilities. It may be, on a proper taking of account, the partnership did not end in a profit in which case the plaintiff would not be entitled to anything on this footing. In any event whatever be the motive of the plaintiff in pursuing the present course, his claim to a share of the immoveable properties alone is unsustainale if the claim is based under Section 37 of the Partnership Act. He should have prayed for an account after exercising the option given to a representative under Section 37 of the Partnership Act. This he has not done.
19. The learned Advocate-General strongly urged that the suit is barred by limitation because Article 106 of schedule I to the Indian Limitation Act gives only a period of three years from the date of dissolution to sue for an account and share of the profits of a dissolved partnership. We do not think it necessary to deal with this aspect of the case because the suit as framed is not for an account of a dissolved partnership. It may be, that the plaintiff framed his plaint in this manner because he was afraid that he would be met by the plea of limitation. We do not think it necessary to examine the hypothetical question, viz., whether the suit would not have been barred if the plaintiff had framed the suit properly.
20. Besides the contention based on Section 37 of the Partnership Act, there is also a contention based on Section 88 of the Trusts Act. The class of persons affected with the constructive trust declared in that section takes in trustees, executors, partners, agents, directors of a company, legal advisers or other persons bound in a fiduciary character to protect the interests of another person. We have already dealt with this case of partnership. The brothers of Alliyar and their sons who were carrying on the business do not fall within the category of persons specifically mentioned in Section 88 of the Trusts Act. The question therefor is whether they are persons bound in a fiduciary character to protect the interests of another person or other persons. No doubt they are co-sharers along with the children of Alliyar and subsequently with the plaintiff. But it has been held that there is no fiduciary relationship between co-heirs or co-owners under the Mahomedan law as such vide Abdul Samad Khan Khiladar v. Bibijan : AIR1925Mad1149 and Abdul Khader v. Chidambaram Chettiar I.L.R. (1908) Mad. 276. The only other way of spelling out a fiduciary relationship is by relying on the allegation that when Alliyar died, his children were minors and hence the other three brothers were keeping in their own family the aforesaid persons and their mother, were maintaining them and were carrying on the trade for their benefit also. There is authority for inferring a fiduciary relation in such circumstances. In Kathoom Bi v. Abdul Wahab Sahib : AIR1939Mad313 the principle of Section 88 of the Trusts Act was invoked in aid of the daughte of a deceased Mahomdan who left behind him a prosperous business which was continued by his three brothers after his death. The daughter was a minor when her father died and she was entitled to a half share in her father's estate. The father's brothers took charge of all the assets of the business and continued to carry it on. Several properties were acquired with the profits thereof. The daughter claimed a half share in the profits made out of the business after her father's death. The learned Chief Justice and Abdur Rahman, J., held that the father's brothers stood in a fiduciary position to the daughter because she was a minor living with them under their care and control and they even claimed to be her legal guardians. They were therefore pound to account in full. The fact that they were co-owners of the estate of the deceased did not affect their liability as guardian. The facts however of the present case do not permit the application of Section 88 of the Trusts Act to support the claim of the plaintiff in its entirety. Mukkuthi was married to the plaintiff in 1913 and from that date she cannot be said to be under the guardianship and control of her father's brothers. Further, she herself died in 1918. Syed Ahamad, the son of Alliyar, was no doubt a minor on the date of his father's death but apparently he attained majority before he died in 1915. In any event, after 1918, there was no person in existence in Alliyar's branch in respect of whom Shaik Uduman and his brothers and their sons could be said to have occupied a fiduciary position. The plaintiff was a major and certainly was not under their care and protection. It may be that as persons occupying fiduciary position they would be under a liability o account for their management till 198 at the latest, when Mukkuthi died. But thereafter there would be no fiduciary relationship between them and the plaintiff and taking a view most favourable o the plaintiff it may be said that the plaintiff, as the heir and representative of his wife, could claim to be entitled to be treated as a creditor only as regards the share which Mukkuthi could have claimed against them.
21. There is however a more formidable objection to the plaintiff's claim on this basis, an objection similar to that alread dealt with under Section 37 of the Partnership Act, that is, that even applying Section 88 of the Trusts Act to the facts of the case what the plaintiff would be entitled is to claim a full account of the management of Sheik Uduman and others. This, the plaintiff has not chosen to do. It must also be mentioned that so far as the appeal itself is concerned, the items which the appellants seek to exclude from any liability for partition are all items acquired after the death of the plaintiff's wife in 1918, that is to say, items acquired at a time when there was no fiduciary relationship between the plaintiff and the surviving brothers of Alliyar and their sons.
22. As we consider that the plaintiff has not framed the suit properly by praying for an account, it is unnecessary to go into the question raised on behalf of the appellants by the learned Advocate-General that a suit for an account would be barred under Article 120 of schedule I of the Indian Limitation Act as it has been filed more than six years after the right to sue accrued to the plaintiff and the plaintiff's rights were denied. The learned Advocate-General suggested 1926, the date of S.M. Muhammad's suit, and 1931, the date of the partition agreement Ex. P-20 as plausible dates for the starting point under that Article. On the other band, Mr. T.V. Muthukrishna Aiyar for the plaintiff-respondent, relied on the ruling of the Judicial Committee in Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar (1930) 60 M.L.J. 1 : L.R. 58 IndAp 1 : I.L.R. 8 Rang. 645 (P.C.) and contended that it is for the defendants to specify a particular date on which they denied the plaintiff's right to an account and as the defendants are not in a position to specify the particular date, the claim must be deemed to be in time. As already stated, it is unnecessary for us to decide this hypothetical question which does not arise in the plaint as framed.
23. We finally come to a plea which is based neither on partnership law nor on the law of constructive trust, but rests on some kind of implied agreement between all the members of the family that the members carrying on the business should carry it on for the benefit of all the members and on the understanding that all the sharers shall be entitled to the properties acquired in the business according to their shares under the Mahomedan law. The learned Subordinate Judge apparently found in favour of the plaintiff on this plea.
24. Considerable support for this plea is sought from two decisions of this Court and it is necessary to deal with them. The earlier of the decisions is reported in Hussain Sahib v. Hassan Sahib (1917) 5 L.W. 835. In that case the parties were Mahmadans and the descendants of one Abdul Razack. He had four sons who partitioned in 1818. Two of the sons started a business in South Kanara which was carried on down to the date of the suit by the two brothers and their descendants. Various properties were acquired in the name of one or other of the senior members of the family and all the members of the family were maintained out of the income of the family and the profits of the business. The accounts were being kept in the names of the representatives of the senior and junior branches. For a period of 60 years there was evidence of a uniform course of conduct pursued by both the branches. There was no direct evidence of any specific agreement as to the terms on which they were to carry on the business. The question was what was the appropriate inference to be drawn from the conduct as disclosed by the evidence. The case originally was heard by Sadasiva Aiyar, J., and Tyabji, J., who differ d and the Letters Patent Appeal was heard by a Bench consisting of Sir John Wallis, C.J., Oldfield and Seshagiri Aiyar, JJ. The learned Judges held that for a long series of years the two branches lived and traded of the footing that they were entitled to equal shares in all the properties as well as in the business. The learned Judges make it clear that the family being a Mahomedan family was in no way bound by the rules of Hindu law but they took into account with the rest of the evidence the fact that the parties belonged to the class of ' Navayats ' who conformed to Hindu custom and manners to a very great extent. We consider that there is no general legal principle which can be deduced from this decision which can apply to the facts of the present case. After all, as the learned Chief Justice in that case observed at page 833 'Every case, however, must stand on its own circumstances.' There is nothing in this case similar to the large bod of evidence adduced in that case of a uniform course of conduct pursued for over 60 years by the descendants of the two branches. Because on the evidence before them, the learned Judges in that case drew a particular inference the plaintiff in this case cannot ask us to draw a similar inference from evidence which differs considerably from the evidence before the learned Judges in that case. In the present case there is no evidence of any recognition of the rights of the plaintiff at any time. No doubt the plaintiff Speaks about assurances and promises but we have only his word for them. The documentary evidence entirely negatives any recognition of his right. On the evidence placed before us it is impossible to hold that Sheik Uduman and his brothers were carrying on the business not only for themselves but also for the heirs of their deceased brother Alliyar.
25. The next case is Abdul Rahim v. Abdul Hakim (1930) 61 M.L.J. 139 : I.L.R. 54 Mad. 543. It was there held by Wallace and Krishnan Pandalai, JJ., that the adult heirs of a deceased Mahomedan who founded a trade may carry on the same as a family trade for the benefit of all the members of the family including minors and females. In such a case the Court will not import into it all the legal consequences which would follow from such a family trade when it is conducted by a Hindu joint family or all the legal consequences of a lawful partnership. It is a question of fact in each case whether the relationship between such adult heirs and the rest of the family is one of debtor and creditor, or one of co-ownership, or one of trustee and cestui que trust. There was a large volume of evidence in that case and in our opinion every one of the findings of the learned Judges must really be deemed to be a finding of fact and not of law.
26. For instance at page 551, Wallace, J., observes as follows:
Here again it is a question not of law but of fact, and to our minds it is quite clear from the facts we have set out that the first defendant was assuming a position much more of trust than of a mere co-owner, and that he came into possession of the assets of the other members, not because of his co-ownership but because of the fiduciary relationship he adopted towards them, into which he entered on their behalf.
There are two things about this case which are not without significance: (1) that the suit out of which the appeal before the learned Judges arose was for an account and a division of the profits of the trade carried on by the first and second defendants ; and (2) the learned Judges, after dealing with the evidence, held that till a particular date , i.e., 1915, the first and second defendants must be deemed to have carried on the business as a family trade but thereafter the relationship between them and the other members of the family was not a fiduciary one and that the use by them of the share due to their mother in the trade could only be as capital lent for which they were liable to pay interest. In the present case, the plaintiff has not done the aright thing by asking for an account and whatever might be said about the position of affairs till the death of Mukkuthi, after that date the brothers of Alliyar could not be deemed to be carrying on the business on behalf of the plaintiff.
27. The decision of a Division Bench of the Allahabad High Court in Shukrullah v. Zohra Bibi I.L.R. (1932) All. 916 was also relied on by the learned advocate for the plaintiff-first respondent. So far as the general propositions of law are concerned, this case does not take us further than the decisions of our Court. We may however mention in passing that surprisingly the learned Judges referred to the differing judgment of Sadasiva Aiyar, J., in the appeal but did not make any reference whatever to the judgment of the three learned Judges in the Letters Patent Appeal in Hussain Sahib v. Hassan Sahib(1917) 5 L.W. 835. The learned Judges held that for the determination of the rights of members of a Mahomedan family, any analogy drawn from the Hindu joint family system is misleading. There is a comprehensive statement of the law at pages 930 and 931:
It is only in a loose sense that property is said to belong to a joint Mahomedan family. The law does not recognise a Mahomedan joint family as a legal entity, and has not provided rules applicable to the family as such. The rights of its individual members both as regards the original joint property and its subsequent enlargements, must be determined by an appeal to general law. In the generality of cases in which Mahomedans belonging to the same family live in commensality, own property as tenants in common, carry on business jointly and make fresh acquisitions, their rights and those of their heirs can be determined with reference to express or implied agreement, relation of principal and agent, partnership, constructive trust, or the like....Mere a priori conclusions based on the analogy derived from the law applicable to joint Hindu families, if they cannot be shown to be in conformity with a definite rule applicable to Mahomedans cannot be accepted.
We respectfully agree with these observations. But the decision in so far as it depended on the facts peculiar to that case cannot obviously apply to the present case. For the learned Judges observe at page 931 as follows:
The fact that all the male descendants of Hingan had joint residence, mess, property and business for several generations and made acquisitions from time to time with joint funds is hot conclusive as regards the right of every heir to every propositus, however high, in the properties subsequently acquired by the surviving male members with the aid of the profits of the property left by the ancestor. There may be circumstances which entitle an heir to no more than his share of the property as it was at the time of his ancestor's death.
We must also point out that though the plaintiff may be the heir of his wife and therefore a co-sharer in property available for division between all the heirs of the four sons of Pakkiri he is in no sense a member of the family of Pakkiri.
28. We disagree therefore with the conclusion arrived at by the learned Subordinate Judge that the plaintiff is entitled to a share in the business carried on by Sheik Uduman and others after 1918 and properties acquired in the course of such business. This conclusion of ours is sufficient for the appellants in this case who only desire to exclude the properties which form the subject-matter of the appeal from a division, because they were acquired after 1918, i.e., after the death of plaintiff's wife. In the trial Court the defendant appears to have conceded that Mukkuthi, the plaintiff's wife, was entitled to her share in the properties purchased before 1913 and standing in the name of Alliyar and his son Syed Ahamad. This Concession will not however affect the appellant's case as regards the items in appeal. Clearly, in our opinion, the plaintiff can in no sense be deemed to be a co-owner with the defendants in the items in appeal.
29. We are now faced with an objection based on the omission by the appellants to add as parties to the appeal all the co-sharers. Only the plaintiff and defendants 5 and 13 have been made respondents. The other members of the family have not appealed against the decree for partition made against them. It was mentioned to us that they have entered into a compromise with the plaintiff.
30. But the question is whether the appellants can be given any relief in the absence of the other co-sharers. No doubt both in a suit for partition of a joint family and a suit for a partition of undivided property among tenants in common as well as in an appeal from the decrees in such suits, all the coparceners or tenants in common should be made parties. Otherwise there would be difficulties in adjusting the equities between the parties. We consider, however, that the objection is not so formidable in a case like the present. What the appellants now claim is that certain properties in their possession ought to be excluded from the operation of the decree for partition in favour of the plaintiff. Moreover, in this case there is no decree for a general partition among all the co-sharers. The decree only directs that the plaintiff may be awarded 19/240th share of the properties in the plaint schedules after excluding certain items in the possession of alienees. The result of the success of the appellants would be that the plaintiff would be entitled to a decree for partition in properties other than the items which are the subject-matter of the appeal. It may be that the result of the appellant's success in the appeal will necessitate an adjustment inter se between them and the other sharers. But that is not a matter which calls for a decision in this case.
31. There is also the further question whether in the view we have taken that the proper course for the plaintiff was to have claimed an account and the suit as framed was not maintainable, the decree in favour of the plaintiff should be allowed to stand in respect of properties not covered by the appeal. The other defendants have not preferred any appeal; they appear to have accepted the decree of the lower Court and entered into a compromise. We do not, in the circumstances, therefore, consider that we should set aside the decree in so far as it has become final between the plaintiff and the defendants who are not before us. As already mentioned above, in the trial Court it appears to have been even conceded that the plaintiff would be entitled to a partition of properties left by Pakkiri and Alliyar and the properties standing in the joint name of the three surviving sons of Pakkiri and Alliyar's son Syed Ahamad.
32. We therefore allow the appeal and modify the decree of the trial Court by excluding therefrom the items in appeal. The appellants will be entitled to their costs from the first respondent in this Court.
33. Appeal NO. 85 of 1945: Judgment.--This appeal which arises out of the same suit as that out of which Appeal No. 21 of 1945 arose, is by defendants 19, 28 and 32. They are alienees of certain items of schedules II and III to the plaint. The plaintiff is the contesting first respondent. The facts which led up to the suit have been fully set out in our judgment in Appeal No. 21 of 1945, delivered on the 12th September, 1946.
34. The 19th defendant purchased item 2 of schedule II from the two sons of Syed Ahmed, the third son of Pakkiri, on 29th July, 1935, under Ex. D-10 and items 21 to 24, 38, 42 and 45 of schedule III from Sheik Uduman, the second son of Pakkiri on 29th September, 1935, under Ex. D-q. Out of these items, item 24 of schedule III was purchased originally on 28th June, 1928, under Ex. D-9 (b) by Sheik Uduman, Ghosu Mohamed and the two sons of Syed Ahmed. Hems 21, 22 and 42 of schedule III were purchased under Ex. D-9 (mm) on 22nd July, 1916, by Sheik Uduman, Syed Ahmed, and Ghosu Mohamed. So far as these four items are concerned, the plaintiff's suit must fail according to the judgment delivered by us in Appeal No. 21 of 1945. These are not items purchased either during the time of Alliyar or of his son Syed Ahmed but after their death and long after Mukkuthi married the plaintiff. Any claim by the plaintiff to those items can be supported only under Section 37 of the Partnership Act or under Section 88 of the Trusts Act. In either case the relief which the plaintiff would be entitled to is an account of the management by the three surviving brothers of Alliyar and their sons and not partition simpliciter. The suit is not maintainable so far as these items are concerned and the appeal must succeed to that extent.
35. There is no evidence when item 2 of schedule II was purchased. The only evidence on record in respect of this item is a patta in 1908 which stood in the joint names of Alliyar, Sheik Uduman and Syed Ahmed. No subsequent patta or other document of title is available for this item.
36. Items 23 and 38 of schedule III were purchased under Ex. D-9 (y) on 3rd March, 1909, by Sheik Uduman, Syed Ahmed, Ghosu Mohamed and Alliyar's son Syed Ahmed. Item 45 of schedule III was purchased by the same persons on 22nd June, 1911, under Ex. D-9 (z). All these three items are found along with others in a patta dated 1st June, 1916, in favour of the said four persons, i.e., including Alliyar's son, Syed Ahmed. In 1917, however the patta contains only the names of Sheik Uduman, Syed Ahmed, Ghosu Mohamed. Syed Ahmed, the son of Alliyar, had died in the meanwhile but his heirs are not mentioned (Ex. P-5-g). In 1923, the jamabandi chitta in respect of these items is in favour of Sheik Uduman, Ghosu Mohamed, the two sons of Syed Ahmed and two female members of the family Mariam Bivi and Muhammad Bathummal. All these four items, i.e., item 2 of schedule II and items 23, 38 and 45 of schedule III were dealt with in the partition of 1931 as belonging exclusively to Sheik Uduman, Ghosu Mohamed and the two sons of Syed Ahmed. Item 2 of schedule II was allotted to the share of the two sons of Syed Ahmed while the other items were allotted to Shiek Uduman.
37. So far as these four items are concerned, prima facie the plaintiff would be entitled to his share in them as the heir of Mukkuthi. The 19th defendant in answer to the plaintiff's claim relies on the provisions of Section 41 of the Transfer of Property Act. This section embodies the well-known equitable doctrine of holding out which was laid down as follows by the Privy Council in Ram Coomar Koondoo v. McQueen (1872) I.A. Supp. 40 .:
It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice or something which amounts to construstive notice of the real title or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it.
It is clear that before the transferee can get the benefit of this section, he should establish (1) that the transferor was the ostensible owner of the property; (2) that the ostensible owner should be holding the property with the consent, express or implied, of the real owner ; and (3) the transferee should have paid consideration and acted in good faith after reasonably careful enquiry. In this case we find it difficult to hold that the documentary evidence is enough to satisfy the first condition that the transferors were the ostensible owners of the entire property. The original title deeds in respect of three of the items stand also in the name of Alliyar's son Syed Ahmed and in respect of item 2 of schedule II, the only document available contains also the name of Alliyar as owner. The fact that subsequently the names of some only of the co-owners were entered in the pattas does not necessarily mean that the other co-owners have lost their title. The patta itself does not confer any title on the grantees. No doubt in the partition of 1931 the title was assumed to vest in the parties thereto.
38 It is not necessary to say what would have been the legal position if the only evidence available were the documents referred to above. We have, however, the positive evidence of the 19th defendant and his clerks D.Ws. 10 and n, which, must really form the basis of a decision of the question raised under Section 41 of the Transfer of Property Act. One of the primary factors for consideration is the good faith of the purchaser and the care with which he made his enquiries into title. The 19th defendant admits that some of the title deeds showed purchases by Alliyar and his son. So he was put on notice of the title of Alliyar's heirs. His definite case is that he made enquiries of the plaintiff. In cross-examination he says that he did not ask the plaintiff if any heirs of Alliyar were alive and that he did not enquire if the daughters of Alliyar were married as he did not think it necessary. He says that he also made enquiries of one Saibu and one Sadayandi Aiyar neither of whom has been examined. It is significant that when the plaintiff was in the box he was not asked whether he was consulted by the 19th defendant before he made the purchase. His entire evidence and the evidence of his clerk D. W. 11 clearly leave on us the impression that the 19th defendant was well aware of the existence of the plaintiff as a person having possibly an interest in the property. We do not believe the story that the 19th defendant ever consulted the plaintiff and that the plaintiff did not put forward any claim to the properties or that he gave false information about Alliyar's heirs. It is not as if the 19th defendant's case is that he was never aware of the existence of the plaintiff and that according to his best enquiries his transferors were the only persons entitled to the properties. Nor is it his case that he was entirely guided by the documents. On the other hand his case is that he made an enquiry. We have no hesitation in holding that this enquiry was hopelessly inadequate and does not establish good faith. The 19th defendant would not therefore be entitled to the benefit of Section 41 of the Transfer of Property Act and the appeal must fail in respect of these items.
39. Defendants 28, 29 and 32 claim under a settlement deed executed by the 35th defendant, who purchased items 3 to 6 of schedule II and item 51 of schedule III under Ex. D-15, from the two sons of Syed Ahamad on 17th July, 1935. Of these items, there is no documentary evidence whatsoever available in respect of item 5 of schedule II before 1931 when it was included in the partition Ex. P-20. On this material, we must hold that the plaintiff has not been able to establish the title of Mukkuthi to this item and his claim must therefore fail.
40. Item 3 of schedule II was purchased by the three brothers of Alliyar and his son Syed Ahamad on 11th May, 1912 (Ex. D-g-r). Items 4 and 6 of schedule II were purchased on the same date by the same persons under Ex. D-9 (p). Item 51 of schedule III was purchased by the same persons under two sale deeds Ex. D-9 (q) dated 13th July, 1909, and Ex. D-g (r) dated 11th May, 1912. This last item No. 51 was entered in 1916 in the patta granted to all the said four persons but in 1917 the patta contained only the names of the three brothers, Sheik Uduman, Ghosu Mohamed and Syed Ahamad and in 1923 the patta contained the names of Sheik Uduman, Ghosu Mohamed and the two sons of Syed Ahamad and two other female sharers. All these items were included in the partition deed in 1931 and were allotted to the share of the son of Syed Ahamad.
41. The 29th defendant gave evidence as D. W. 12. He admitted that some of the title deeds contained also the name of Alliyar's son. According to him the only person of whom any enquiry was made was Sadayandi Aiyar, a clerk of the family but Sadayandi Aiyar has not been examined. In cross-examination he confessed that he did not enquire if Alliyar left any daughter behind him or when Alliyar's son died. On this evidence, it is impossible to hold that defendants 28, 29 and 32 have discharged the burden of proving good faith and a prudent enquiry. We are also inclined to hold that in respect of items 3, 4 and 6, it cannot be said that the transferors were the ostensible owners. No doubt in respect of item 51, the later pattas did not contain the names of Alliyar's heirs, but that circumstance alone cannot help the purchaser.
42. It may be mentioned that both as regards defendant 19 as well as defendant 35 under whom defendants 28, 29 and 32 claim, there is one fact not without significance and that is that they were Mahomedans and residents of the same village in which Sheik Uduman and others were living.
43. The result is that the appeal is allowed in respect of items 21, 22, 24 and 42 of schedule III and item 5 of schedule II and dismissed otherwise. The parties will pay and receive proportionate costs.
44. The learned advocate for the appellants wanted us to give a direction that the items in respect of which they have failed may be allotted to the share of their transferors in the partition to be made by Court. The learned Subordinate Judge in paragraph 62 of his judgment had already decided to leave this question for decision in final decree proceedings. In the absence of all the parties in the appeal we cannot make any further order in this matter.