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Kurshit Kathumby Agent Mohomed Ismail Sheriff Saheb Vs. Hyder Khan Sahib and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Reported inAIR1924Mad207
AppellantKurshit Kathumby Agent Mohomed Ismail Sheriff Saheb
RespondentHyder Khan Sahib and ors.
Cases ReferredAhmuddin Tamijuddin v. Amiruddin
Excerpt:
- .....family so as to make section 7 clause (4) of the court fees act apply, but alleges that he is in joint possession, the article applicable is article 17 clause (6). the present case is one of a mahomedan co-sharer who sues her other co-sharer for partition and possession of her share of her deceased father's properties and she alleges that she is in possession of some of the items as indicative of her joint possession in law with the other co-sharers of the deceased's estate. there is no case here of her being excluded from any part of that estate by her co-sharers or to put in another way her being ousted from possession of any part of it. in such a case as this the suit is one for partition and possession of one's share by one having joint possession of the estate taken as a whole. it.....
Judgment:

Krishnan, J.

1. I think the order of the lower Court cannot be supported. It has been laid down in Gill v. Varadaraghavayya [1920] 43 Mad. 396 that to a suit for partition of immoveable property when the plaintiff is not a member of a joint family so as to make Section 7 Clause (4) of the Court Fees Act apply, but alleges that he is in joint possession, the article applicable is Article 17 Clause (6). The present case is one of a Mahomedan co-sharer who sues her other co-sharer for partition and possession of her share of her deceased father's properties and she alleges that she is in possession of some of the items as indicative of her joint possession in law with the other co-sharers of the deceased's estate. There is no case here of her being excluded from any part of that estate by her co-sharers or to put in another way her being ousted from possession of any part of it. In such a case as this the suit is one for partition and possession of one's share by one having joint possession of the estate taken as a whole. It is clear from 43 Mad 393 and the cases cited there one of which, in Ahmuddin Tamijuddin v. Amiruddin 44 Ind.Cas. 216, is the case of Mahomedans, that the suit falls under Article 17 Clause (6) and not under Section 7 Clause (5).

2. The order of the lower Court is set aside and it is directed to restore the case to its file and to dispose it of according to law. Costs here will abide and follow the result.


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