1. This second appeal arises out of a suit brought by the plaintiff, a member of a Mahomedan family, for a declaration that certain alienations made by his mother, the 1st defendant, are not binding on him and for partition of the property thus alienated and other family property and the recovery of his seventwelfths share. The plaintiff compromised with all the alienees except the 11th defendant who acquired a portion of the property from the mother's vendee, the 12th defendant. The 11th defendant preferred an appeal, contending in the first place that the sale was binding on the plaintiff and, if that was to be held against, asking that the equities should be so adjusted in the partition that he should get the whole item purchased.
2. The learned Subordinate Judge after upholding the District Munsif's decision on the first point has found himself unable to accede to the latter course, the reason which he gives being that, unlike undivided coparceners of a Hindu family, Mahomedan co-heirs own their property as tenants-in-common. I do not think there is any such distinction between joint tenants and tenants in common as seems to be implied, as each species of tenant is in theory entitled to a definite share in each item of property. Indeed this objection has not been pressed here. Against the appellant's proposal, however, it is urged that, in order to adjust the equities, all the parties to the partition and all the Properties liable to be divided must be before the Court and that the plaintiff, by settling his claims against the other alienees, has rendered this condition impossible of satisfaction. I do not think there is substance in this objection. The settlements with the other alienees have had the effect that the properties held by them are no longer liable to partition since the plaintiff has lost any interest he had in them. The only parties remaining are the plaintiff himself, his mother the 1st defendant, his sister the 2nd defendant and the 11th defendant and the only properties for division are those which are in their hands. The adjustment of equities which the 11th defendant asks for need have been no concern of the other alienees, supposing the settlement had not taken place, because it would only necessarily have involved assignment to the mother of the whole of the item acquired by the 11th defendant and a proportionate reduction in the other property allotted to her. I am unable to see why this could not be done in the presence of the parties still upon the record. I accordingly allow the appeal and set aside the decree. The case will go back to the first Court with instructions that, if possible, the whole of the Item 15 should be taken as the mother's share on partition while the plaintiff should be given a seven-twelfths share out of some or all of the remaining items.
3. The appellant will get his costs of this appeal and will recover the Court-fees paid in appeal here and below.