1. This is an appeal from the judgment of the learned Officiating Chief Justice in S.A. No. 940 of the 1921 which was in turn an appeal from the Second Additional Subordinate Judge's Court of Tanjore.
2. The matter came before us sometime before the vacation when we heard arguments at considerable length. We, however, deferred giving judgment in view of representations that were made to us that there was a strong probability of the parties coming to terms. We were informed just before the beginning of the vacation that these negotiations had broken down and we, therefore, posted the casefor fresh argument after the vacation.
3. The litigants are Muhammadans the plaintiffs Nos. 1 and 2 being the children and the 3rd plaintiff the wife of one Sheik Muhammad' Rowther. The defendant is the brother of Sheik Muhammad Rowther uncle of the present male plaintiff. The subject of the litigation is certain property and this has been a fruitful subject of controversy between the parties or their ancestors in the past. In O.S. ,No. 15 of 1905 Sheik Muhammad Rowther through whom the plaintiffs claim filed a suit against the present defendant his brother for disturbance of his possession of the suit property. The defendant pleaded that the property was not the exclusive property of the plaintiff but belonged to the whole family, the plaintiff being entitled only to a quarter share. The plaintiff put the defendant on his oath which defendant took and the suit was thereupon dismissed without trial. Ten years afterwards in O.S. No. 38 of 1915 one of the daughters of a sister of the family sued her uncles and aunts for a partition of her share. The present plaintiff was the 5th defendant in that suit and the present defendant was the 6th defendant. The plaintiff contended that he was the owner of the property as did also the 6th defendant, but the Court finding that the property belonged to the 5th defendant who is the present plaintiff, the suit was dismissed.
4. Now the present suit is O.S. No. 502 of 1918 and this is a suit, to use a neutral term for the present, for recovering the three quarters share belonging to the plaintiffs. The plaint recognises that owing to the litigation in O.S. No. 15 of 1905 the plaintiff cannot now say that he is entitled to the whole property and the question before us has been first, whether the plaint is in fact one for partition of his property and or whether the suit is barred by reason of O.S. No. 15 of 1905. There is no doubt that the suit of 1905 was based on ownership and Mr. K.V. Krishnaswami Iyer's argument for the respondant in this case is that the suit is also based on ownership. The plaintiff failed in the suit of 1905 because he failed to prove that the whole of the property was his or that the property was entirely his. The learned Officiating Chief Justice in his judgment observes that the suit does not purport to be a suit for partition of property between co-owners. I think what the learned Chief Justice means is that the plaint is practically a plaint for the recovery of the property (minus a certain proportion) on the score of ownership residing in the plaintiff. On a careful consideration of the matter which speaking for myself has caused some difficulty, I am not prepared to say that the learned Officiating Chief Justice was wrong. If that is so, i.e, if the suit of 1905 in which the plaintiff claimed the whole and if the present suit of 1918 in which without claiming the whole he still bases his claim on his ownership are so regarded, there can be no doubt that the suit of 1905 bars the plaintiff's claim in the present suit. This seems to have been the opinion of the learned Officiating Chief Justice basing his judgment on Naina Muhammad Rowther v. Abdul Rahaman Rowther 17 L.W. 188 : 32 M.L.T. 82 . He thought, however, that on the plain admission, by the appellants that a suit for partition, if properly constituted, would lie, the proper course to take was to allow an amendment of the plaint and for the plaintiffs to be allowed to rectify the mistaken course on which they have, I think, plainly embarked. I do not disguise that my first feeling was that a proper decision had been come to by the learned District Munsif, and Subordinate Judge. The judgment of the District Munsif particularly strikes me as luminous and exhaustive. But I see the difficulty and inconvenience which even if the state of the pleadings allowed it this course would have entailed. It seems no doubt that there are ladies in this family who are entitled to shares and who are now at present on the record and if we divided this property now among the plaintiff and the defendant in whatever proportions, it is extremely likely that we should be embarrassing these ladies in the recovery of their proper shares. I think, therefore, if I may say so with respect, that the proper course was followed by the Officiating Chief Justice and that this Letters Patent appeal must be dismissed with costs.
Madhavan. Naif, J.
5. I agree. The facts of the case are somewhat complicated but for the purpose of this Letters Patent appeal the real question requiring consideration is whether the plaint in the case is one for partition of the suit property between the plaintiff and the defendant as co owners thereof. The parties are Muhammadans. The plaintiff's case is that the property is absolutely his own and that, since the defendant asked for two-eighths of that property in O.S. No, 15 1905, he is willing to let him have that portion, with the result that according to him he is now entitled to claim six-eighths, i.e., the remainder of the suit property. A perusal of the plaint clearly shows that the plaintiff has based his title on his exclusive ownership, then the allegations in the plaint would certainly be different; the plaintiff will not allege that the property is exclusively his own. A suit for partition based upon plaintiff's exclusive ownership of the property is admittedly barred in view of the decision in O.S. No. 15 of 1905. However, it is conceded that the plaintiff has a cause of action for asking for partition on the ground of co-ownership. The learned Officiating Chief Justice has, therefore, allowed an amendment of the plaint. In this view, it becomes necessary that the sisters of the plaintiff who are alive and their children, if any, will have to be made parties to the suit. The learned Officiating Chief Justice has given specific directions that this should be done and that the defendant should be allowed to alter his written statement in whichever way he pleases. In my opinion, the course adopted by the learned Officiating Chief Justice, if I may say so respectfully, is certainly right. The Letters Patent appeal must, therefore, be dismissed with costs.