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Korumbakkatparkum Vengalasheri Moideen Kutti Vs. Thunivilandiyal Mariamumma and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in70Ind.Cas.113
AppellantKorumbakkatparkum Vengalasheri Moideen Kutti
RespondentThunivilandiyal Mariamumma and ors.
Cases ReferredSee Palott Chandu v. Kolathum Karammil
Excerpt:
muhammadan law - succession--co-heirs--partial partition--hindu law. - - if this were a case of hindu law the objection would certainly hold good. 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 mahomed fazlur. 677 in which the parties were muhammadans distinguished, though not disapproved, in hem chandra choudhri v......nos. 4, 5 and 6 are muhammadan brothers. the seventh defendant is their sister. the suit property belonged in jenm to their father who demised it on kanom to, first defendant, on 4th june 1903, exhibit c being the marupat. the defendants nos. 4 and 5 granted a melcharth of the property to plaintiff by exhibit b (dated 20th february 1915) and on its footing the plaintiff brought a suit for redemption of the kanom (original suit no. 616 of 1915). that suit was dismissed on the ground that exhibit b was valid only as regards the 4/7th share of defendants nos. 4 and 5 and was not binding on defendants nos. 6 and 7 and the suit could not be converted into a suit for partition without the consent of the defendants. see marakar akath kondarakayil mamu v. punjapatath kuttu 6 m. 61.....
Judgment:

1. The facts of the case may be briefly stated,--Defendants Nos. 4, 5 and 6 are Muhammadan brothers. The seventh defendant is their sister. The suit property belonged in jenm to their father who demised it on kanom to, first defendant, on 4th june 1903, Exhibit C being the marupat. The defendants Nos. 4 and 5 granted a melcharth of the property to plaintiff by Exhibit B (dated 20th February 1915) and on its footing the plaintiff brought a suit for redemption of the kanom (Original Suit No. 616 of 1915). That suit was dismissed on the ground that Exhibit B was valid only as regards the 4/7th share of defendants Nos. 4 and 5 and was not binding on defendants Nos. 6 and 7 and the suit could not be converted into a suit for partition without the consent of the defendants. See Marakar Akath Kondarakayil Mamu v. Punjapatath Kuttu 6 M. 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 first defendant had expired and the first defendant had obtained a renewal under Exhibit I from the sixth defendant. The lower Courts found that Exhibit I is valid only in respect of the 2/7th share of the sixth defendant. The first, sixth, and seventh 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 first defendant who repeated the contention before us. If this were a case of Hindu Law the objection would certainly hold good. Vide Sundaresa Aiyar v. Krishnamoorthy Aiyar 35 Ind. Cas. 677 : and Nanjaya Mudali v. Shanmuga Mudali 22 Ind. Cas. 555 . But the objection can be raised only by the members of the family and not by strangers. See Iburamsa Rowthan v. Thiruvenkata sami Naick 7 Ind. Cas. 559 . 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.

2. 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 Nanjaya Mudali v. Shanmuga Mudali 22 Ind. Cas. 555 . 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 Shaha v. Bipro Das Roy 1 C.L.J. 40 and Syed Habibur Rasul Abul Faiz v. Ashita Mohan Ghosh 12 C.W.N. 640 and Uma Sundari Dcbi v. Benode Lal 34 C. 1026 and Appeals Suits Nos. 133 and 184 of 1907. It is then merely a rule of processual law.

3. In the case of Muhammadans, the coheirs 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 Mahomed Fazlur. Rahman Chowdhri v. Mahomed Fayzur Rahman Chowdhri 15 C.W.N. 677 in which the parties were Muhammadans distinguished, though not disapproved, in Hem Chandra Choudhri v. Hemanta Kumari Debt 19 C.W.N. 356 only to lay down that it is no desirable to allow a suit for partial partition among co-heirs, if it causes such 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 Tyabii, JJ. in Moideensa Rowthen v. Mahammad Kasim Rowthen 28 Ind. Cas. 895.

4. 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 first defendant or, otherwise, so amend the plaint as to void the objection. The respondent's Counsel has now stated that he will be content with a decree for redemption of 4/7th share and joint possession. See Palott Chandu v. Kolathum Karammil 28 Ind. Cas. 248 .

5. 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 as decree for redemption and for joint possession of 4/7th share. Each party will bear its own costs in this appeal.


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