G. Ramanujam, J.
1. This appeal has been filed against the judgment and decree in O.S.No. 34 of 1975 on the file of the Sub-Court, Sivaganga, by defendants 10,16 and 18 and legal representatives of the 13th defendant and the plaintiffs and 14th defendant have filed Memorandum of Cross-Objections, questioning the judgment of the lower court, so far as it is against them.
2. The suit has been filed by respondents 1 and 2 herein for partition and separate possession of their alleged 112/960 share in the suit properties. The suit properties consisted of schedules A and B. A schedule consisted of 5 items of house properties and B schedule consisted of 25 items of lands. The plaintiff's case as set out in their plaint are as follows:
3. Their senior maternal grandfather, Kadar Baksha (herein after referred to as senior Kadar Baksha) his two brothers, Peer Mohammed (Plaintiffs' maternal grand father) and Ayyadurai Rowther, carried on a joint and common business in the fashion of Hindu families. From the profits earned therefrom, properties had been acquired in the name of senior Kadar Baksha for the benefit of the entire family. Later after the death of senior Kadar Baksha, Syed Mohammed, son of Ayyadurai Rowther had been acquiring properties in his name from and out of the income from the said joint business. The properties purchased in the name of senior Kadar Baksha and later in the name of Syed Mohammed Rowther were being enjoyed as joint properties of all the three branches. The income from 'the A and B schedule properties have always been divided between the three branches and enjoyed by every sharer. Plaintiffs and defendants 15,16 and 17 belonged to the branch of Peer Mohammed and as such are entitled to 1/3rd share in all the suit properties. Defendants 1 to 14 as one group under Senior Kadar Baksha are entitled to another 1/3rd share, and defendants 18,19 and 20 representing Ayyadurai's branch are entitled to the remaining 1/3rd share. Though patta for some of the suit properties stood in the name of senior Kadar Baksha and some in the name of Syed Mohammed Rowther, those properties have all along been treated and enjoyed as belonging to all the members of the three branches. However, the male members in the three branches have chosen to assert their exclusive right in the suit properties and to deny the right of the female members therein. The plaintiffs are therefore constrained to file the suit for partition and separate possession of their 112/960 share in the suit properties.
4. The claim of the. plaintiffs has been supported by all other female members in the three branches, except 15th defendant, who is none-else than the sister of the plaintiff. The defendants who are supporting the plaintiffs' claim are the defendants 1,2 to 5,6,7,8,17 and 19. The first defendant is the daughter of senior Kadar Baksha and she contends that all the females in the three branches are entitled to claim a share in the suit properties and that their rights have not been lost. She has prayed for partition of her share and has also paid the court-fee. Defendants 2 to 5 are the grand daughters and grandsons of senior Kadar Baksha through his daughter Ayisha Beevi and they claimed that they are entitled to shares in the common properties through their mother and that their mother's sister Muthupillai has released her right in favour of the 2nd defendant, under document dated 16.10.1971 and therefore the second defendant would get the share of Muthupillai besides his normal share. The 6th defendant (Ammer Beevi) another granddaughter of Senior Kadar Baksha claims that her mother Maimbon Beevi has got a share, that their mother's sister Ravia Beevi, who predeceased Maimbon Beevi had no right, that Ravia Beevi's children (defendants 7 and 8) did not have any right, and therefore, she has obtained the whole share of her mother Maimbon Beevi. She has also paid the Court-fee for division of her share as claimed by her. Defendants 7 and 8 have contended that their mother Ravia Beevi survived her mother, Maimbon Beevi, and therefore they have got a share equal to that of the 6th defendant. The 17th defendant, son-in-law of Peer Mohammed, contends that his wife Kathoon Beevi is entitled to a share along with the 16th defendant and the plaintiffs' mother, that his wife exercised her right as co-owner, that after her death he has inherited the said share. The 19th defendant, who is the sister of 18th defendant, claims that she is a co-heir with the 18th defendant and their mother the 20th defendant, and that they have jointly inherited the interest of the youngest brother Ayyadurai and that therefore she is entitled to claim her share, and had paid court-fee on that basis. The 16th defendant, who is the sister of the plaintiffs, contends that under a family custom, all the ladies did not inherit any share, in the immovables held by the three branches, that they have to be satisfied with the jewelleries and monies offered to them on the eve of their marriages, and that the male heirs alone are entitled to the shares.
5. The 10th defendant has filed a written statement contending that the female members are not entitled to claim any share in the suit properties, as a result of a local custom that only male members in the three branches have inherited the properties, and that himself and 13th defendant are together entitled to 1/3 share belonging to senior Khadar Baksha, as the 14th defendant, another son of senior Kadhar Baksha who was born subsequent to the death of his father, is not entitled to claim any share in the 1/3rd share belonging to the senior Kadhar Baksha's branch. As regards items 19,20 and 21 of B. Schedule properties, which are coconut thopes, the case of the 10th defendant was that those properties from the Sivaganga were acquired by his father, Mohammed Kasim (son of Senior Kadhar Baksha) 16th defendant, son of Peer Mohammed, and 18th defendant son of Ayyadurai and as such he, and defendants 13,16 and 18 alone are entitled to claim share in them and that no other member of the family is entitled to claim any share therein. The 10th defendant also calimed that the first defendant has relinquished her right in favour of Mohammed Kasim, the plaintiffs' father and the 14th defendant; and that he and his brother (13th defendant) are in separate possession and enjoyment of some of the properties including the coconut thopes.
6. Defendants 9,11,12,13 and 20 have adopted the statement filed by the 18th defendant. The 18th defendant, who is the grandson of Ayyadurai, has denied the rights of females and set up inheritance only in the males belonging to the three branches. He claims that he is in separate possession and enjoyment to the knowledge of the plaintiffs of certain specified items of the suit properties, for a very long time, that he has obtained pattas therefor and that the share of his brother Meer Mohideen has devolved on him after his death. .
7. The 16th defendant, who is the son of Peer Mohammed, has contended that the senior Kadhar Baksha and his two brothers did not run any joint business for the benefit of all the members as alleged, and that only the male members in the three branches have been in possession and enjoyment of the suit properties as absolute owners to the exclusion of the female heirs, that female heirs are not entitled to claim any right in the properties held by the three branches, as co-owners, and that the coconut thopes were got in assignment from the zamindar of Sivaganga in the year 1927 in favour of himself, 14th defendant, Mohammed Kasim and Syed Mohammed, But, later patta has been granted only in favour of himself, 14th defendant, and his brother, 18th defendant as also his brother Meera Mohaideen and therefore the other members, both male and female, cannot claim any share therein. The 16th defendant also contended that the plaintiffs' mother Rahmath Beevi has executed a release deed dated 24.10.1955, giving up all her rights in his favour and so the plaintiffs did not have any right to claim any share in the suit properties. The 16th defendant has filed an additional written statement, wherein he has contended that the senior Kadhar Baksha had two sisters by name Pappa Ammal and Kadar Pathu Beevi and that the suit is bad for nonjoinder of those two persons.
8. Defendants 21 to 23 are the alienees. The 21st defendant contends that he has purchased the 4th item in A schedule from defendants 18,19 and 20 the heirs of Ayyadurai under document dated 28.2.1968, and that the said sale is valid inasmuch as the 10th defendant's father Mohammed Kasi, the 14th defendant and the 16th defendant have attested the said deed. He also stated that he has given away the said item to a trust for the conduct of an Arabic School. The 22nd defendant, another alienee, claims that his father obtained an othi in respect of the 3rd item in A schedule under document dated 15.7.1924, that the said othi had been executed by male members of the three branches and that the said othi having been barred by time, he has acquired absolute title therein. The 23rd defendant who is also an alienee remained ex parte.
9. The 24th defendant claims that he is the absolute owner of item 24 of B schedule properties, wherein the other descendants of the three branches have no right whatsoever. He claims that he has purchased the suit properties from one Hanumanthan Chettiar under a sale deed dated 13.8.1964 and so the said property never belonged to the three branches and therefore the plaintiffs cannot calim any share therein. 14th defendant, who comes from the first branch however, has contended that all the suit properties except items 19,20 and 21 are the exclusive properties of his father and as such they are available for partition only as between defendants 10,13 and himself.
10. Taking note of the rival pleadings, the court below framed as many as ten issues. After analysing the evidence adduced by the parties with reference to each of the issues, it held that all the suit properties, except item 24 of B schedule, had been acquired by one or other member of the three branches of Kadhar Baksha, Peer Mohammed and Ayyadurai Rowther, who conducted a joint business, from and out of the joint business conducted by the said three brothers and hence the properties should also be treated as joint properties belonging to all the three branches, that the plea of the contesting defendants that the female heirs are not entitled to claim any share in the suit properties acquired from and out of the income from the joint business, in view of a local custom to that effect has not been established, and therefore, the female members in all the three branches are also entitled to claim their share in the suit properties, and that items 19,20 and 21 which are coconut thopes cannot be taken to have been acquired exclusively by defendants 10,13,16 and 18 as claimed by them, and those items are also to be treated as properties available for partition between both male and female members in the three branches. As regards item 24 of B schedule, which was claimed by the 24th defendant as having been purchased by him with his own funds, the court below held that the said item belonged to the 24th defendant and therefore, the said item is not available for partition. It upheld the validity of the sale of item 4 of A schedule in favour of 21st defendant. As regards the 22nd defendant, an alienee, who obtained an othi in respect of the 3rd item in A schedule under document dated 15.7.1924, the court below held that the redemption of the said mortgage having been barred by time, the 22nd defendant should be taken to have acquired an absolute title thereto. The court below also held that the release deed said to have been executed by plaintiffs' mother in favour of the 16th defendant is neither true nor valid and hence the plaintiffs cannot be non-suited on that ground. It also held that the non-joinder of the two sisters of Kadar Baksha and of Chinnapottu, the mother of defendants 9 to 13, cannot be said to be fatal to the suit.-
11. On the basis of the said findings, the court below should have normally ascertained the shares of all the sharers and passed a preliminary decree declaring their respective shares. However, the court below felt that in view of the complexity of apportionment of the shares on the basis of the evidence on record, ascertainment of shares is not possible and merely declared that the plaintiffs and defendants 1 to 20 are as co-owners having a right of partition in the suit properties and passed a preliminary decree to that effect, stating that there will be a further preliminary decree for ascertainment and declaration of the exact shares of the party later either at the instance of the plaintiffs or suo motu. It is against this judgment of the court below, the present appeal has been filed by defendants 10,16,18 and legal representatives of the 13th defendant. The plaintiffs and the 14th defendant have filed Memorandum of Cross-objections. The appellants in this appeal have raised the following contentions:
1. That there was no joint business between the three brothers and the properties have not been purchased from and out of the income from the joint business, so as to enable the plaintiffs and other female members from the three branches to claim a share therein.
2. That in any event the female members of the three branches are not entitled to claim any share in view of a special custom to the contrary in the locality.
3. Even assuming the female members are entitled to claim a share in the suit properties, notwithstanding the custom to the contrary, the plaintiffs' mother having executed a release deed in favour of her brother, 16th defendant, under Ex.B-12, the plaintiffs cannot maintain this suit for partition.
4. In any event items 19,20 and 21 of B schedule, which originally belonged to Sivaganga Zamindar having been acquired by the fathers of defendants 10,13,16 and 18 as a personal grant, they alone are entitled to them and others, both males and females, cannot claim any share in those items.
5. In any event the defendants 7 and 8 are to be excluded from the list of shares as their mother pre-deceased Maintain Beevi.
6. Since the 14th defendant was born after his father senior Kadar Baksha, died he is not entitled to claim any share in the suit properties as inheritance had opened long before the birth of the 14th defendant.
7. As Mohammed Meera Rowther's daughter's descendants, who were also entitled to a share, have not been included, the suit is bad for non-joinder.
8. The second wife of Peer Mohammed who represents the second branch and one Meera Mohaideen had not been joined and this also will amount to non-joinder of necessary parties.
9. Chinnapottu, the mother of defendants 9 to 13, is a necessary party to the suit and the suit is bad for her non-joinder.
12. In the memorandum of cross-objections filed by the plaintiffs they have questioned the findings of the court below as regards item 24 in B schedule and non-ascertainment of shares in the preliminary decree and relegation of that matter to further preliminary decree. In the Memorandum of Cross-objections filed by the 14th defendant, he has questioned the decision of the court below in so far as (1) it rejected his plea, that all the properties purchased in the name of senior Kadar Baksha are his exclusive properties, and therefore, the male members belonging to the other two branches are not entitled to claim any share therein and (2) it upheld the plaintiffs' claim for a share in the suit properties quite contrary to the local custom.
13. Thus, in the appeal and in the Memorandum of Cross-objections, the main and substantial points to be considered are:
1. Whether the three brothers, senior Kadar Baksha, Peer Mohammed and Ayyadurai Rowther, carried on a joint business and acquired the suit properties from and out of the income from the joint business, so that the three branches could claim both the business as well as the properties acquired as joint properties?
2. Whether the plea of the contesting defendants who are male members of the three branches that female members are not entitled to claim any share as a result of a local custom, has been duly established in this case?
3. In any event, whether items 19, 20 and 21 are divisible between the plaintiffs and defendants 1 to 20 as claimed by the plaintiffs, or whether they are divisible only between defendants 10,13,14,16 and 18 as claimed by them?
4. Whether the 14th defendant is not entitled to claim any share in the suit properties as he was born after his father's death, as alleged by defendants 10,13 16 and 18?
5. Whether the suit is bad for non-joinder of the two sisters of the three brothers, second wife of Peer Mohammed, second wife of Mohammed Kasim (Chinnapottu) who is the mother of defendants 9 to 13 and one Meera Mohideen?
6. Whetr the lower court is in error in not passing a preliminary decree determining the shares of each of the parties and in relegating that matter to a later stage?
14. We will take up for consideration the last point first. In a suit for partition once it is found that the plaintiffs are entitled to claim a share in the suit properties, the court has to determine, the plaintiffs' share and the shares of such of those defendants who want a partition decree in their favour and pass a preliminary decree leaving the parties to ask for the passing of final decree on the basis of the preliminary decree. But, in this case, the lower court has passed a preliminary decree merely declaring the plaintiffs to be co-owners having a right to partition, and stating that it is not possible to determine the shares in the state of the evidence and that matter has to be taken up later either suo motu or on the application of the parties. Such a disposal of the suit by the court below is far from satisfactory. Merely because the question of ascertainment of shares, is complex or the evidence is not quite sufficient, the court cannot refuse to perform its duty by not passing the usual preliminary decree declaring the rights to the share to which the parties are entitled to. We have not known of any other case where the court preliminary decrees the plaintiffs' suit for partition without actually determining the shares to which the parties are entitled to. If the evidence on record is not quite sufficient to enable the court to determine the shares of parties, it should have called the parties to adduce further evidence. On the ground that the evidence adduced is insufficient to enable it to determine the shares of parties, the court cannot postpone that question to a further date and pass a decree declaring the plaintiffs entitlement to a share. When a preliminary decree is to determine the shares of parties, the preliminary decree as passed by the court below, merely declaring the plaintiffs to be co-owners having a right for partition in the suit properties, is not of any use to the plaintiffs. We are, therefore, of the view that the court below has adopted a very novel procedure in this case by passing a declaratory decree instead of a preliminary decree determining the shares of parties. Thus, in any event the judgment and decree passed by the court below is liable to be set aside and the matter has to be remitted to the court below for determination of the shares of parties and to pass an effective preliminary decree.
15. Now we proceed to give our findings on the other controversial points referred to above. The first and foremost question is whether the three brothers Kadar Baksha, Peer Mohammed and Ayyadurai Rowther carried on a joint business and out of the income therefrom the suit properties were purchased. For the purpose of knowing the relationship of the parties in this suit to the three brothers, who are said to have conducted a joint business, it is necessary to set down the genealogical tree:
Ex.A-1 27.6.85 Genealogical tree of family consisting of plaintiffs and defendants
Mohammed Meera Rowther- - - - - - - - - - - - - - - - - - -| | || | |Khader Peermohamed AyyaduraiBatcha Rowther RowtherRowther (d) (d)(d) | || | || | |- - - - - - - - - - - - - - - - - - - - | | |Muthu Md.Beevi Ayseesa Mynbon Md Md. | Syed Md.Pillai (d) Beevi Beevi Kassim Meera | Rowther(d) (d) (d) (d) (d)l4) | (d) Md.| | | Batturea| | | Beevi W/o| | | Syed Md.| | | D.20| | || | - - - - - - - - - - - - - -| | | | | |(sic) | | | | | |- - - - - - - - - - - - | | Maimbon Ragumut Kader Kha-| | | | | | Beevi Beevi Batcha ttum| | | | | | (d) (d) (d.16) BeeviAyya Chick Md Abdulla | | (d)durai endar Beevi (d.5) | | Muthu Maimbon Mohammed(d.2) d.3 d.4 | | D.17 H/o Kattun Beevi| | - - - - - - - --Beevi Batcha Beevi | | | | |(d) (d) (d.16) (d) | | | | || |Muthu Maimbon Mohammed| | Md. Beevi Ibrahim- - - - - - - - - - -| | P.1 D.15 P.2| | || | | - - - - - - - - - -Ammer Beevi Rabia Beevi | | | |(d.6) |(d) | | | || | Kkader Muthu Meera| | Ibrahim Beevi Mohai-- - - - - - - - | (d.18) D.19 deen| | | (d)| | |Muthamdali Sainambu |D.7 Beevi |D.8 |- - - - - - - - - - - - - - - - - ---- - -| | | | || | | | |Khader Pitchai Jamila Noor Jahn Mohamdali D.13Beevi Mohammed Beevi D.12d.19 d.11 D.11Sd/--Advocate 27.6.75
16. As already stated, after considering the evidence, the court below held that, all the properties except items 19,20 and 21 of B schedule have been purchased in the name of Kader Baksha and Syed Mohammed son of Ayyadurai Rowther, and one item No. 24 of B Schedule has been purchased in the name of the 24th defendant, who is the son of 16th defendant. That there was a joint business between the three brothers is clear from the recitals in various sale deeds, which show that the three brothers conducted a javuli business. Even during the life time of Kader Baksha, the eldest of the three brothers, some of the items have been purchased and the sale deeds referred to a joint business conducted by the three brothers under the vilasam (sic) They refer to the said vilasam of the business as (sic) The word (sic)can only mean joint. Almost all the sale deeds refer to the vilasam of the business as (sic) and hence it has to be taken that it is the joint business of all the three brothers. If really the business is not joint and it was conducted only by Kader Baksha and out of the income therefrom the properties were purchased only by him as contended by the 14th defendant, then the word (sic) used in most of the documents will be meaningless. The fact that the defendants 10 and 13 have no objection for the sharing of the properties acquired in the name of Kader Baksha along with other male heirs such as defendants 16 and 18 belonging to other two branches, will in a way indicate that the properties have been acquired by Kader Baksha from and out of the income of the joint business. The consideration, referred to in some of the sale deeds under which the properties have been purchased by Kader Baksha and later by Syed Mohammed Rowther, father of the 18th defendant, partly consisted of amounts due by the vendors to the (sic) javuli business. These recitals can therefore be taken to probablise the case of the plaintiff that the properties, purchased by Kader Baksha initially and later by Syed Mohammed Rowther son of Ayyadurai Rowther, were properties purchased from and out of the income from the joint javuli business which was carried on by the three brothers.
17. Though the 14th defendant has come forward with a case that all the properties purchased in the same of Kader Baksha belonged to him exclusively and it is only Kader Baksha's heirs who can claim share in those properties, he is not able to show convincing material to show that Kader Baksha's separate funds have been utilised for the purchase of the properties in his name. Until it is established that the purchase of the properties in his name was from Kader Baksha's own funds, it can be assumed that the properties had been purchased in his name only from and out of the income from the joint business. The fact that defendants 10 and 13 who belonged to the same branch as that of the 14th defendant, are agreeable for division of the properties standing in the name of their grandfather Kadar Baksha along with the male members belonging to other branches, would probabilise that the properties standing in the name of Kadar Baksha had been acquired from and out of the income from the joint business and therefore it should take the same character as joint business. Besides, the properties acquired by the son of Ayyadurai Rowther after the death of Kadar Baksha, can also be taken to have been purchased from and out of the income from the joint business and it is found that Ayyadurai's son carried on the business on behalf of all the three branches and later purchased the properties with the income therefrom. The fact that the 18th defendant is willing to share the properties purchased in his father's name along with other male members belonging to other branches, would also indicate that the purchase in the name of Syed Mohammed son of Ayyadurai, had been made from and out of the income from the joint business. The court below had dealt with this question under issues 1,4,5 and 6.
18. The 16th defendant had claimed that the cloth shop carried on under the style (sic) was started not by his father and his two brothers, but, by himself jointly with defendants 14 and 18. The lower court had no hesitation in rejecting that claim as the documents Exs.A-10 B-43, B-44 and B-46 had clearly indicated that even during the lifetime of Beer Mohammed (father of the 16th defendant) the business under the style (sic) was being carried on. In Ex.A-10, the vendee, Kadar Baksha (senior) the eldest brother, has been referred to as (sic) Kadar Baksha and he is said to have been carrying on a business.
19. In view of those documents, the lower court appears to be right in holding that the business under the vilasam (sic) was started by (sic) Kadar Baksha, the eldest of the three brothers during his lifetime on behalf of all the three brothers and that business was carried on as a joint business of the three brothers. It is true that the 14th defendant has come forward with a case that it was Kadar Baksha's private and exclusive business in which the other two brothers had no interest, but this plea has not been substantiated. If really the business was an exclusive business of Kader Baksha, it is not known how after Kader Baksha's death, Ayyadurai's son juniormost of the three brothers, carried on the said business and acquired the properties from the income therefrom. It is seen that the business under the Vilasam (sic) was carried on both at Tiruppattur and Karai-kudi. It is not in dispute that all the three brothers, Kadar Baksha, Peer Mohammed and Ayyadurai lived jointly. Except the 14th defendant, the other defendants proceeded on the basis that there was a joint business between the three brothers, Kader Baksha, Peer Mohammed and Ayyadurai. The 14th defendant who has chosen to put forward a claim that the business was exclusively that of Kadar Baksha, has miserably failed to establish his claim.
20. The finding of the court below is that the javuli business carried on under the vilasam (sic) both at Tirupattur and Karaikudi was the joint business of the three brothers and that most of the suit properties except item 24 of A schedule had been purchased out of the income from the joint business. So far as items 19,20 and 21 are concerned, admittedly, those items belonged to Sivaganga Zamin as pannai lands and by paying Nazar of Rs. 400/- the five persons obtained a Cowle patta, Ex.B-11 from the Sivaganga Zamin and the said five persons admittedly represent the members of the three branches. However, subsequently as patta has been granted in the name of three persons, namely father of D-10, and defendants 16 and 18. Taking advantage of the fact that pattas stand in the name of the said three persons under Ex.A-28, defendants 10,13 16 and 18 claimed exclusive title in those items. However, Cowle patta, Ex.B-11 is said to have been granted in favour of 5 persons, that is, father of the 10th defendant, defendants 14,16 18 and the brother of 18th defendant. When the original Cowle patta, Ex.B-11 is in the name of 5 persons how patta under Ex.A-28 came to be given in favour of three persons alone, is not clear. However having regard to the fact that the three persons referred to in Ex.A-28 represent the branches of the three brothers, Kadar Baksha, Peer Mohammed and Ayyadurai, it may be that the three persons in whose name the patta has been granted represented their branches.
21. The learned Counsel for the appellants contends that patta Ex.A-28 granted by the settlement authorities should be taken as the basis for determining the title to the properties covered thereby, and therefore items 19,20 and 21, properties covered by patta Ex.A-28, should be taken as belonging to defendants 10,13,16 and 18. As already pointed out the names of the 14th defendant and that of the brother of the 18th defendant found a place in Ex.B-11. Therefore, it is not possible to uphold the exclusive claim put forward by defendants 10,13 16 and 18 to the items in question. But one of the questions to be considered is whether the plaintiffs and other female members are entitled to claim a share in these items. That such claim is possible only if it is shown that the sum of Rs. 400/- paid as nazar, came from the joint business. In this case, the evidence on record does not indicate as to wherefrotn the said sum of Rs. 400/-came. Though the 16th defendant as D.W.7 has stated that the sum of Rs. 400/- was paid on behalf of the three branches, he does not say that it came from the joint business. As it is there is no material indicating that the sum of Rs. 400/- came from the joint business carried on by the three brothers. Hence the matter requires further investigation as to whether the sum of Rs. 400/- came from the joint business.
22. Coining to the question as to whether the female heirs are debarred from claiming their shares in the properties acquired from and out of the income from the joint business, the contesting defendants who are male members, claimed that there is a custom in Thiruppattur where they live, to the effect that female members cannot claim any share in the immovable properties, and the court below has held that there is no evidence of any such custom either in jTiruppattur or in the locality. Some of the witnesses examined on the side of the contesting defendants have stated that they have not given any share to their daughters in the immovable properties. That cannot establish a custom. For, a custom to have the force of law should be ancient and specific, and in this case such a custom has not been established by the contesting defendants. Even assuming that such a custom has been estabilished in this case, we are of the view that such a custom cannot be recognised as valid in law after passing of Shariat Act, 1937.
23. The Shariat Act, 1937 came into force on 7.10.1937. Section 2 of the said Act provides:
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal Law... the rule of decision in case where the parties are Muslims shall be the Muslim Personal Law (Shariat).
24. Under the Muslim Personal Law, the female heirs are entitled to claim a specified share from the properties left by an ancestor or a collateral. Apart from this, it is' enacted in Section 16 of the Madras Civil Courts Act, 1873, that a question regarding succession, inheritance, marriage, or caste, or any religious usage or institution, shall be decided in cases where the parties are Muhamedans by the Muhammadan law or by custom Having the force of law and in cases where no specific rule exists, the court shall act according to justice, equity and good conscience. But this provision in the Madras Civil Courts Act (1873) has to give place to the Shariat Act 1937 which specifically says, as already stated that in matters regarding intestate succession, Muslim Personal Law shall apply, notwithstanding, any custom or usage to the contrary.
25. In view of the above provision even if custom as pleaded by the contesting defendants is established, the said custom has to give place to the Muslim Personal Law. In this view, we have upheld the finding of the court below that the plaintiffs and the other female heirs are entitled to get their shares in the properties purchased out of the income from the joint business.
26. As regards item 24 of B Schedule, the 24th claimant (defendant) has claimed it as his exclusive property, it having been purchased by him with his exclusive funds. This claim has been upheld by the lower court. On the materials on record, we are inclined to agree with the lower court that the 24th defendant has purchased item 24 of the B schedule out of his own funds and therefore in that item the other parties have no claim. It has not been shown by the plaintiffs or other defendants that the purchase of the said item has been made with the funds from the joint business. The court below has also held that the alienation in favour of the 21st defendant and the othi in favour of the 22nd defendant are valid and binding on the J plaintiffs, and other sharers and, therefore, those items are not available for partition. The alienation of item 4 of A schedule has been made in favour of 21st defendant under Ex.A-4 dated 28.2.1968 for a sum of Rs. 3000/- and the said alienation has not been attacked by the plaintiffs as not binding on them or other sharers. It has not also been shown that the consideration paid under the document has been utilised exclusively by the vendors. The sale, therefore should be taken to be for the benefit of all the three branches.
27. The othi in favour of 22nd defendant is under Ex.A-2 dated 15.7.1924 of item 3 of A schedule and the period of redemption of the said othi had already expired. Therefore, items 3 and 4 of A schedule cannot be taken to be available for partition.
28. Thus, the plaintiffs are entitled to claim a share in all the suit properties except items 3,4 and 19, 20 and 21 of A schedule and item 24 of B schedule. In respect of items 19,20, and 21 of A schedule the finding of the lower court has been set aside and the matter is directed to be considered afresh.
29. Coming to the question as to whether the plaintiffs' mother had released her right in the suit properties under Ex.B-12 in favour of 16th defendant, as alleged by the contesting defendants, it is seen that Ex.B-12 is an unregistered document. Such an unregistered document cannot be taken to convey any title to the releasee. Further a perusal of Ex.B-12 indicates that the thumb impressions contained therein may not be that of the executant. A look at the thumb impression contained in Ex.B-12 shows that it has been purposely smudged to such an extent that the thumb impression cannot be identified. In this case, the lower court had compared the thumb impression of the executant with her admitted thumb impression in Ex.A-8 and held that the thumb impression in Ex.B-12 cannot be that of the executant in Ex.A-8. However, we are of the view that the thumb impression in Ex.B-12 is such that it cannot be compared with the admitted thumb impression in Ex.A-8, and that means Ex.B-12 has not been proved to have been executed by the alleged executant. In this view, we have to agree with the finding of the court below that the plaintiffs cannot be non-suited on the basis that their mother had released her right in favour of the 16th defendant.
30. Then we come to the complaint of the appellants that the other sharers who are entitled to partition, have not been impleaded in this suit, and therefore the suit is bad for non-joinder. We have already referred to the contention of the appellants' learned Counsel as to who are the parties entitled to claim a share and who are the persons who had not been impleaded in this suit. According to the learned Counsel, if those persons had been impleaded the shares of the parties will vary and that in the absence of those persons a proper determination of the shares cannot be made. Since we are remitting the matter to the court below for passing a complete and effective preliminary decree after determining the shares of all the parties entitled to share in the suit properties. We are giving liberty to the parties to implead such of those persons who according to them are entitled to claim shares in the suit properties and who have not so far been impleaded, so that an effective adjudication can take place in this suit. Hence, we are not going into the question of non-joinder in detail and are leaving the matter for a detailed and fuller consideration by the court below.
31. Thus, the finding of the court below that the suit properties are joint properties and that female heirs are also entitled to seek partition, is upheld except as regards items 3,4,19,20 and 21 of A schedule and item 24 of B schedule. The finding of the court below as regards items 19,20 and 21 of B schedule is set aside and the question whether those items are available for partition and who are the parties entitled to share those items, will be considered afresh by the court below as per the observations contained in this judgment. The finding of the court below that the release deed said to have been executed by the plaintiffs' mother is neither true nor valid, is also upheld and the alienations made in favour of defendants 21 and 22 as also the claim made by defendant 24 is also upheld.
32. As regards the contention that the 14th defendant having been born after the death of his father is not entitled to claim any share in the suit properties, it has been claimed by the 14th defendant that he was born two years before the death of his father. Whether that statement is established or not, the fact remains that he is the son of senior Kader Baksha. Though the appellants have stated that the 14th defendant was born after the death of his father, Kader Baksha, they have not denied his paternity. Once the appellants proceeded on the basis that the 14th defendant is the son of Kadar Baksha, it is patent that he should have been in the womb of his mother when Kadar Baksha died. It is well established that under the Mohammadan Law, even a person in the womb is entitled to succeed to the parents' properties. Tyabji on his treatise on Muslim Law dealing with Law of Inheritance has stated that,
A child in the womb of its mother is competent to inherit, provided that it is born alive.
As already stated the paternity of the 14th defendant has not been challenged and the appellants proceeded on the only basis that the 14th defendant was an after-born son. Once it is conceded that the 14th defendant is an after - born son, it can be definitely taken that he was a child in the womb of his mother when the father died. If that will be the factual position, then the claim for partition by the 14th defendant cannot be defeated. We have therefore to uphold his claim for the partition of his share in the suit properties.
33. As a result of the above discussion, the appeal is allowed in part to the extent indicated above. The lower court is directed to determine the shares of each of the parties after impleading all the necessary and proper parties, who may be brought in as sharers and pass an effective preliminary decree in the suit.
34. It appears that pending the appeal an interim order has been passed by his court directing; the appellants to deposit a sum of Rs. 2500/- per year. The appellants will continue to deposit the said sum till the disposal of. the suit. The amount deposited will remain in court till the determination of the shares. It is said that the 14th defendant is also in possession of some of the suit properties. If that is so, it is open to the plaintiffs and 6th defendant to move the lower court for suitable directions.
35. The appeal and cross objections as against defendants 21,22 and 24 will stand dismissed. The cross-objections filed by the plaintiffs are partly allowed and cross-objections filed by the 14th defendant is however dismissed. There will however be no order as to costs.
36. If any amount has already been withdrawn by the plaintiffs, that will have to be adjusted as against their shares as and when the shares are determined.