Ansarul Molla & Ors vs Rahul Amin Molla & Ors

Bibek Chaudhuri, J

This is defendant's appeal assailing the judgment and decree in preliminary form in a suit for partition passed by the learned Additional District Judge, Basirhat, North 24 Parganas in Title Appeal No. 43 of 2009 on 24th April, 2009.

The respondents as plaintiffs filed Title Suit No. 37 of 2007 against the appellants praying for partition of the properties described in the schedule of the plaint stating, inter alia, that he, predecessor-in-interest of the defendants and their mother, since deceased were the joint owners of the suit properties. After the death of their father, the defendants No. 1 and 2 and their mother (defendants No. 3) inherited the suit property according to their share. The defendants allegedly disturbed the plaintiff in his peaceful possession of his share in the suit property. The plaintiff therefore, requested them for amicable partition. But the defendants refused. Hence the suit.

The defendants No. 1 and 2 contested the suit by filing written statement denying all material allegations made out against them in the plaint. It was the specific case of the defendants that the suit was bad for defect of parties. The plaintiffs failed to include all the properties jointly held and possessed by the parties in the hotchpot and accordingly, the suit is bad for partial possession. It was further contended that the joint property of the parties was amicably partitioned between the plaintiff and predecessor-in-interest of the defendants No. 1 and 2, they are possessing their respective portions in the suit property exclusively. The defendants developed the portion of the suit property exclusively by cultivation and plantation of various fruit bearing trees. Therefore, they prayed for dismissed of the suit.

On the pleadings of the parties, learned trial judge framed the following issues:-

Is the suit maintainable?

Has the plaintiff any cause of action to file the suit?

Is the suit barred u/s. 34 of S.R Act?

Is the description of the property vague and indefinite?

Is the suit bad for partial partition?

Is the plaintiff entitled to get any relief as prayed for?

To what other relief/s if any, the plaintiff entitled to get?

Parties led evidence. On the basis of the evidence on record, the learned trial judge dismissed the suit on contest on the grounds that the suit is bad for defect of parties. Secondly, the plaintiff cannot claim half annas share in the suit property as it was admitted by him that he had sold out some land to third persons from the joint property and thirdly, the parties to the suit jointly own and possess land besides the properties mentioned in the schedule of the plaint. The said properties not being included in the suit for partition, the said suit is not maintainable.

The judgment and decree of dismissal passed by the learned trial court in Title Suit No. 37 of 2007 was reversed in appeal and preliminary decree for partition was passed in favour of the plaintiffs.

The defendants have challenged the judgment and decree passed in Title Appeal No. 43 of 2009 in the instant second appeal.

It is ascertained from the record that vide order dated 31st August, 2009, the Division Bench of this Court admitted the appeal for hearing on the following substantial questions of law:

1) Whether the Learned First Appellate Court committed substantial error of law in not appreciating that the plaintiff cannot get 8 annas share in the suit plot?

2) Whether the Learned First Appellate Court committed substantial error of law in not holding that the suit is bad for defect of parties?

Mr. Anirban Mitra, learned Advocate for the appellants submits that in a suit for partition the plaintiffs are required to include all the properties owned and possessed by them jointly with the respondents in the hotchpot. The defendants/appellants specifically pleaded in their written statement that parties to the suit owned and possessed properties jointly other than the properties mentioned in the schedule of the plaint for which the partition was claimed. According to the learned Advocate for the appellants, the learned trial court rightly dismissed the suit because the plaintiffs failed to include all the properties owned and possessed jointly by the parties to the suit in the suit for partition. In support of his contention, he refers to an unreported judgment of the Hon'ble Supreme Court of India in the case of R. Mahalakshmi vs. A. Kanchana and Ors in Civil Appeal Nos.9153 of 2016 and 9156 of 2016. Paragraph 8 and 9 of the said judgment are relevant for the purpose of the instant appeal and accordingly quoted below:-

"8. The only point to be decided in this case is whether the High Court was right in interfering with the judgment of the Lower Appellate Court by which the suit was remanded to the Trial Court. As stated earlier, this Court in its judgment dated 03.08.2009 in Civil Appeal No.5053 of 2009 has categorically held that all the properties that were inherited by Sri A.V. Venkataraman by virtue of a registered deed of partition dated 27.04.1954 have not been included in the suit schedule. This Court clearly held in the said judgment that another ground for remand was that the Appellant has taken a consistent stand from the beginning that the suit for partial partition was bad in law. In our view, the First Appellate Court was right in remitting the matter to the Trial Court to take into account the other properties which were inherited by the Appellant's father, Sri A. V. Venkataraman, by virtue of the registered deed of partition dated 27.04.1954. The High Court committed an error in holding that there was no direction given by this Court for including the other properties in the suit schedule. The High Court held that the only direction given by this Court while remitting back to the Trial Court was to give an opportunity to the parties to amend their respective pleadings, file additional documents and to lead further evidence in support of the amended pleadings. The High Court was wrong in ignoring paragraph 33 of the judgment in which it was clearly held by this Court that the remand was warranted in view of the grounds mentioned therein. One of the grounds was that all the properties that were inherited by the Appellant's father, Sri A.V. Venkataraman, were not included in the suit schedule.

As we have held that the High Court mis-interpreted the judgment of this Court in Civil Appeal No.5053 of 2009, we set aside the judgment of the High Court and uphold the judgment of the First Appellate Court in A. S. No.3 of 2011 and 9 of 2013. The Trial Court is directed to consider the matter strictly in accordance with the directions of this Court in Civil Appeal No.5053 of 2009 and decide expeditiously in view of the suit being of the year 2001."

He also refers to another decision of the Hon'ble Supreme Court in the case of Mohammad Mustafa vs. Sri Abu Bakar and Ors. reported in AIR 1971 SC 361 wherein the Hon'ble Supreme Court held that a suit for partition of joint property held by Mahommedans is also bad for partial partition.

It is further submitted by Mr. Mitra that the plaintiff in his cross examination has admitted that he sold out certain portions of the property jointly owned and possessed by him with the defendants in favour of some third persons. The said third persons, according to Mr. Mitra are necessary parties in the suit. As they were not impleaded in the suit, the suit was bad for non-joinder of necessary parties. At this score also the judgment and decree passed by the Lower Appellate Court is liable to be set aside.

Learned Advocate for the respondents on the other hand, submits that under Mahommedans Law partial partition of only some items of the family property is permissible. A suit for partition will not fail even if the plaintiff fails to bring in the hotchpot for partition several properties, movable and immovable belonging to the plaintiff and the defendants. A suit for partition of even one item of the property is maintainable as the concept of joint ownership in coparcenary property is not applicable to the Mahommedans and they hold and possess joint property as tenants in common.

It is further submitted by the learned Advocate for the respondents that the plaintiffs/respondents prayed for partition in respect of three numbers of plots of land described in the schedule of the plaint. It was the case of the defendants that the plaintiff had sold out certain portions of the land mentioned in the schedule of the plaint. But, the fact remains that both the plaintiffs and defendants transferred some portions of land in favour of third persons in respect of the properties other than those mentioned in the schedule of the plaint.

In view of such legal principle applicable in partition of joint properties belonging to Mahommedans, the suit cannot be held to be bad for defect of parties and the plaintiff/respondent is entitled to get 8 anna shares in respect of the properties mentioned in the schedule of the plaint.

The Mahommedans have no personal law of their own for the separation of joint ownership. Among them, joint ownership is often found as a result of several persons- male and female - jointly inheriting the estate of a deceased relative. The heirs succeed to specific shares, while the interest which the female heirs take is in no sense different from the interest of their mail co-sharers. If, under these circumstances, any share in the corpus shows to have some portion of the corpus meted out to him as representing his interest, he is entitled to maintain a suit for partition.

It has been accordingly held that the doctrine of partial partition is applicable amongst the Mahommedans. Under the Mahommedans Law the heirs of deceased Muslim succeed to a definite fraction of every part of his estate. Muslim co-sharers are not obliged to file a general suit for partition of all the properties in which they are interested and there is nothing to preclude one of them from seeking a portion of some of the items of the property. A suit for partition of a Muslim co-sharer cannot be dismissed on the ground that the plaintiff has failed to bring all the properties held by him in tenancy-in-common with his other co-sharers.

Where a co-sharer (in the instant case the plaintiff) alienates a part only of the joint properties without authority from other co-sharers, the purchaser is not entitled to adjustment of equities in respect of other properties held as tenants in common by such Muslim co-sharers and which have not been alienated to a third person. If, however, the co-sharer who has alienated specific property without the consent of the other co-sharer files a suit for general partition, the question of adjacent of equities between the purchaser and co-sharer may arise. The following decisions may be relied on in support of the above observation:-

i) Mt. Haliman and others vs. Md. Manir and others : AIR 1971 Patna 385.

ii) Shumanmal vs. Faiz Mohammad : AIR 1948 Sind 83.

iii) Abdul Rahman and Anr. vs. Hamid Ali Shah & Ors.: AIR 1959 MP 190.

In view of the settled proposition of law, I have no other alternative but to hold that the learned First Court of Appeal correctly held that partial partition is permissible amongst the Muhammedans and a suit for partition in respect of some of the items of the joint properties is also maintainable. The decision of R. Mahalakshmi (supra) is not applicable under the facts and circumstances of the case because the law relating to partition amongst the Hindus is not applicable to the Mahommedans. Similarly, the decision of the case of Mohammad Mustafa (supra) is also not applicable under the facts and circumstances of the case as in the said reported decision, it was contended by the plaintiff that three pharmacies were under joint possession of the co-sharers by virtue of inheritance from their father. The defendant/appellant, on the other hand, pleaded that he was the sole owner of one of the pharmacies by virtue of the deed of gift executed by her father before his death.

Under such facts and circumstances Hon'ble Supreme Court held that the said suit was bad for partial partition. In my humble opinion Mohammad Mustafa (supra) did not lay down a law declaring a suit for partial partition by a Mohammedan against his co-sharer is bad and cannot be entertained.

It is also found that the respondent did not transfer any portion of the property mentioned in the suit of the plaint for which partition was claimed in favour of any third persons.

Substantial questions of law are accordingly decided against the appellants and in favour of the respondents. As a result, the instant appeal be and the same is dismissed on contest, without cost.

The judgment and decree passed by the learned First Court of Appeal is hereby affirmed.

Lower Court record be transmitted to the court below forthwith.

Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.