Khazir Bhat vs Ahmad Dar and Others

K.V. Gopalakrishnan Nair, J.—The Petitioners who are Plaintiffs in a partition suit have come up in revision u/s 115 of the CPC to canvass

the correctness of the decision of the District Judge at Srinagar who, on appeal, remanded the suit to the trial court for fresh disposal in the light of

the observations made by him in his judgment and according to law.

The parties are Muslims governed by Mohammadan Law. The Plaintiffs-Petitioners brought the suit for partition in the court of the Munsiff at

Srinagar alleging that they are entitled to certain specified shares in the suit property as heirs under the Mohammadan Law. The Defendants who

are the other heirs admitted that they and the Plaintiffs are entitled to the property in suit as co-heirs, but contended that the entire property

available for partition was not shown in the plaint and that the suit was consequently incompetent, being one for partial partition. The Defendants

also specifically mentioned in their written statement the other property which the Plaintiffs ought to have included in their plaint and which also

ought to be partitioned between the parties.

The trial court as well as the appellate court (District Court) went into the question whether the contention of the Defendants that certain

additional property is held by them and the Plaintiffs as tenants in common is true or not. This they did in spite of the vigorous contention of the

Plaintiffs that the additional property alleged by the Defendants to be available for partition in fact belonged exclusively to the Plaintiffs and that the

Plaintiffs did not ask for partition or any other relief in respect of it. The District Court on the footing that the property described in the plaint did

not exhaust the entire property held by the parties as tenants in common directed the Plaintiffs to amend the plaint so as to claim partition of the

entire properties.

The Plaintiffs who are aggrieved by this order came up in revision to this Court and Ali J. set aside the order of the District Judge pointing out that

the Plaintiffs cannot be compelled to amend the plaint against their desire and that it is open to them to proceed with the plaint as it stood and take

the legal consequences of adopting that course. The case was sent back to the District Judge for disposal in the light of that observation. The

District Judge held that the suit was bad as one for partial partition and then referred to the observation of Ali J. and remanded the case to the trial

court for disposal.

He has also remitted to the trial court an application which was filed before him by the second Defendant asking to be transposed as a co-Plaintiff

so as to enable him to amend the plaint by bringing into it the additional property claimed by the Defendants to be available for partition. This

remand has aggrieved the Plaintiffs who have now come up in revision to challenge its correctness.

The only and entire basis of the decision of the learned District Judge appears to be that in his view a suit for partial partition is incompetent. He

does not, therefore, seem to have seen his way to proceed with the suit when the Plaintiffs have included in the plaint only a part of the entire

property available for partition. At the same time he appears to have been really reluctant to dismiss the suit when the Plaintiffs expressed their

stubborn unwillingness to show in the plaint any further item of property as liable to partition.

It seems to be obvious that if the court below had not thought that the suit was bad as being one for partial partition it would have adopted quite

a different course in dealing with the appeal.

The main question that falls for consideration, therefore, is whether their is substance in the contention that the suit as framed can be held to be

incompetent as seeking what is called partial partition. In dealing with this question, we have to bear in mind what I stated earlier namely, that the

parties are Mohammadans who claim to be heirs under the Mohammadan Law in respect of the property in question. The doctrine of partial

partition is applicable only to a Hindu coparcenary where the coparceners are joint in estate and not to Muslims who are only tenants in common.

Under the Mohammadan Law the heirs of a deceased Mohammedan succeed to a definite fraction of every part of his estate.

The doctrine of survivorship is not known to Mohammedan Law. The shares of heirs under the Mohammedan Law are definite and known before

actual partition, whereas under the Mitakshara Law no individual member of an undivided family can predicate of the joint family property that he

has a certain definite share. The theory of Hindu Law is that every coparcener is entitled to the entire joint family property, that is to say, every part

of it and the share of no coparcener in the undivided coparcenary can be limited to a specified item of property or to a definite share of it. This is

certainly not the case regarding the heirs under the Mohammedan Law who are only tenants in common and whose shares ate definite and

specified in law.

All that happens on partition is a division by metes and bounds and separate possession and enjoyment of specified items of property, the specific

share of each heir being already determined by the law itself. It is unnecessary to set out the other points of difference between the two systems of

law. Suffice it to say that the principle of partial partition which is applicable to a Hindu coparcenary is not applicable to co-heirs under the

Mohammedan Law.

If authorities are needed for this proposition, I may cite Vazir v. Dwarkamal AIR 1922 Sind 41 (FB). This position has been pointed out in several

other decisions, see for instance, Relumal v. Huzur Baksh AIR 1947 Sind 179. I may also refer to a Division Bench ruling of the Madras High

Court in Moideensa Rowthen v. Muhammad Kasim Rowthen 28 Ind Cas 895 : AIR 1916 Mad 248. Ayling and Tyabji JJ. pointed out in that

decision as follows:

With reference to the first point (i.e., whether a suit for partial partition was maintainable) it need only be stated that under Mohammedan Law the

estate of a deceased person devolves on his death on his heirs and each of the heirs becomes entitled to his definite fraction of every part of the

estate. It is, therefore, futile to describe a suit in which one heir claims to receive his share of the property of the deceased from another heir as a

suit for partial partition and to say that, therefore, the suit is not maintainable. Both the terminology and the principles of Hindu Law are in such a

case inapplicable.

It does not appear to be necessary to dwell upon this aspect of the case at any greater length. It is not a correct proposition of law to say that

Muslim sharers who are tenants in common are obliged to sue for partition of all the properties in which they are interested. There is nothing to

preclude one of them from seeking a partition of some of the items of the properties.

Such a suit cannot be held to be incompetent on the doctrine of partial partition which is known and applied to suits for partition of Hindu joint

family property. Banakara Basavana Gowd and Others Vs. Banakara Doddalingappa and Another, and Mulji Narotam v. Hiralal AIR 1929 Bom.

424 relied on by the learned District Judge are not relevant to the real point at issue. These decisions merely deal with the rule of Hindu Law as

applied to the particular facts; they have no application to a suit for partition by Muslim co-sharers, nor arc they apposite to the facts of a case like

the present.

Furthermore, the instant case is not one where it is common ground that the additional item of property is liable to partition. The Plaintiff claim

that item of property as their own, whereas the Defendants claim it to be property held in common by them and the Plaintiffs. To such a case, the

doctrine of partial partition cannot appropriately be applied. I do not think the law permits in a case like this to compel the Plaintiffs to give up their

stand and concede that some other item of property which they claim to be theirs exclusively is in fact common property belonging to them and the

Defendants.

It is for the Defendants to pursue such action as they may be advised to, to get it declared that the disputed property is common property which

has to be partitioned between them and the Plaintiffs. The only plea raised by the Defendants all along has been that the suit is bad for partial

partition and, therefore, it ought to fail. I have already pointed put that this plea has hardly any merit. The course of transposing one of the

contesting Defendants in this case as a co-Plaintiff so as to enable him to amend the plaint according to the contention of the Defendants will not be

proper. That would result in one co-Plaintiff fighting the other co-Plaintiff; one co-Plaintiff seeking to amend the plaint which the other co-Plaintiff

will surely resist.

Thus complication and confusion will prevail amongst the Plaintiffs themselves which certainly should not be the result of transposing a Defendant

as a co-Plaintiff. Such a course may in certain cases be adopted to effectuate a suit or a cause of action which may otherwise be defective, feeble

or doubtful. It will be extraordinary to invoke the powers of a court under Order 1, Rule 10 to create a clash between the Plaintiffs inter se and

make practically a fiasco of the claim of the original Plaintiffs.

I must not fail to point out that if the lower court considered that the suit was bad as one for partial partition, it was at liberty to say so and

follow it up by dismissing the suit, especially when the Plaintiffs deliberately refused to avail of the opportunity to amend the plaint so as to cure the

alleged defect of the claim for partial partition. But to introduce into the array of Plaintiffs a contesting Defendant whose claim is in sharp conflict

with that of the Plaintiffs is too novel and stultifying a procedure to be permitted.

It is urged that allowing the Plaintiff's to proceed with the suit as framed in respect of only a portion of the entire property available for partition

will bear harshly on the Defendants who have been fighting the litigation for so long a lime. But the other side of the picture is no less sad. The

Plaintiffs who have come to the court with a definite case cannot be compelled to give the go by to it and alter the scope and object of their suit

merely because the Defendants want it to be done. Nothing prevented the Defendants from bringing a suit for partition or for administration or for

any other relief in respect of the disputed property.

They did not think fit to do so. I do not find much justice or equity in their taking advantage or the suit launched by the Plaintiffs to compel the

Plaintiffs to submit to an adjudication which the Plaintiffs do not want. Even if the present suit is decreed for partition of only the property included

in the plaint as it stands, that will not preclude the Defendants from bringing another appropriate suit for relief in respect of the rest of the property

which, according to them, belong in common to them and the Plaintiffs.

Therefore, the position of equity or convenience appears to me to be more in favour of allowing the Plaintiffs to proceed with the suit as they have

brought rather than complicate it by introducing into it the needless embarrassment of a compulsory amendment or what is even worse, force them

to cooperate with or function through their adversary. The entire litigation would have ended long ago if only the right of the Plaintiffs to get a

decree for partition in respect of the property they have included in their plaint were recognized. All the delay and complication appears to have

been caused by thinking that in law the suit had perforce to comprehend some other property also.

In view of the foregoing, the decision of the District Judge is set aside and the case is remitted to him for disposal in the light of the observations

made in this judgment and according to law.

Both sides will bear their own costs in this Court.