Ramratana Singh, J.@mdashThis appeal arises out of a suit for partition in respect of plot No. 1301, measuring 1.01 acres, which along with other properties belonged to one Sh. Tejarat, son of Sh. Joga. Tejarat had two brothers who predeceased him. Tejarat left behind, him as his heirs, a daughter named Adulan (defendant No. 9) and three nephews, namely, Sahid (plaintiff) and Zahiruddin (defendant No.1) sons of one brother, and Khalilpur Rahman, the only son of the third brother. Defendants 3 to 8 are the sons of Khalilur Rahman deceased. There was another nephew of Tejarat named San, who was the brother of the plaintiff. But, according to the plaintiffs, he predeceased Tejarat, while according to the contesting defendant No. 2, he was still alive. Under the Mohammadan law, the daughter Adulan had eight annas share in inheritance, while the nephews together inherited the remaining eight annas share, that is, each of the nephews had two annas and eight pies share. Adulan executed a registered sale-deed on the 17th August, 1939, that is, sometime after the death of Tejarat in respect of the whole of plot No. 1301 in favour of Bibi Hamidan, defendant No. 2.
2. Defendant No. 9, Adulan, did not appear; and the other heirs of Tejarat supported the case of the plaintiff. Defendant No. 2, however, contested the claim for partition and said that Tejarat in his life-time had partitioned all these properties amongst his heirs, and by this partition the whole of plot No. 1301 was given exclusively to Adulan, while the remaining plots of land were given to the nephews. Accordingly, Adulan was exclusively in possession of the suit plot, and since the 17th August, 1939, this defendant has been in exclusive possession over the entire plot on the basis of the sale-deed of the date. In the alternative, she claimed title by adverse possession, the last contention was that the suit for partition, for only one item of the properties left by Tejarat was not maintainable.
3. The learned Munsif of Patna, who tried the suit accepted the case of the plaintiff on all the points and decreed the suit. Then, defendant No. 2, Bibi Hamidan preferred an appeal, but during the pendency of the appeal she died. A petition for substitution was filed in the first appeal on behalf of her two sons, named, Abdus Samad and Abdul Wahab, who were substituted as the appellants and are also the appellants in this Court. The respondents raised an objection to the effect that Bibi Hamidan had left one more son named Abdul Rahman alias Gunga by her first husband and that he was also in possession of the inheritance left by Mt. Bibi Hamidan, being one of her heirs. Evidence was led before the Additional Subordinate Judge, who heard the appeal, on this point; and ultimately he decided by a separate order dated the 5th September, 1957, that Abdul Rahman alias Ganga was also one of the heirs and, as he was not substituted in time, the appeal abated to the extent of his share, that is, 1/3rd out of the share of Bibi Hamidan in plot No. 1301. On the same date, the learned Additional Subordinate Judge dismissed the first appeal also.
4. The concurrent findings of the Courts below were that the properties of Tejarat had not been partitioned either in his life-time or after his death, and neither Bibi Adulan nor Bibi Hamidan was even in exclusive possession of plot No. 1301 nor Bibi Hamidan was in exclusive possession thereof; Safi predeceased Tejarat and, therefore, the suit was not Bad for defect of parties; and the suit for partition of only one property left by Tejarat was not bad. As a result of these findings, the trial Court ordered partition of the plot according to the shares alleged by the plaintiff; and, consequently, defendant No. 2 was given -/8/- share in the plot. The learned Additional Subordinate Judge confirmed the judgment and the decree of the trial Court, subject to the further finding that the appeal had abated in respect of 1/3rd share out of -/8/- share of Bibi Hamidan. The appellants before this Court, that is, the two admitted sons of Bibi Hamidan filed Civil Revision No. 17 of 1958 against the order of abatement and Second Appeal No. 1430 of 1957 against the judgment and decree of the first appellate Court.
5. Mr. J. C. Sinha, who appeared for the appellants, challenged only two findings on the merits namely, that the suit for partition of only one plot left by Tejarat was not bad and that the suit was not bad for defect of parties on account of non-joinder of Safi. He also challenged the finding regarding abatement.
6. His first contention was that the order of abatement was wrong. It is admitted that Bibi Hamidan (defendant No. 2) had preferred the appeal before the Court below on the 4th May, 1955, and she died on the 4th December, 1956. The two appellants, that is, Abdus Samad and Abdul Wahab, filed a petition on the 4th January, 1957, alleging that they were the only heirs of Bib Hamidan, and, therefore, they prayed for substitution of their names in place of the lady. On the 12th January, 1957, the plaintiff-respondent filed a petition alleging that Hamidan had left another son named Abdul Rahman alias Gunga who was deaf and dumb, and he was also in possession of the inheritance left by Hamidan, Gunga being her son through her first husband named Md. Yusuf of village Kolawan, and Abdus Samad and Abdul Wahab being her sons through her second husband named Shamshul Huda.
On the 7th February, 1957, the two appellants said in a petition that there was no person of the name of Abdul Rahman alias Gunga and that, if any such person existed, Shri Manzoor Hussain, pleader for the respondents, be directed to produce him in Court. On the 26th March, 1957 a petition purporting to be on behalf of one Abdul Rahman son of Md. Ishaque and Mst. Basra was filed alleging that he was neither the son nor heir of Bibi Hamidan. In reply to this, the respondents filed a petition on the 4th April, 1957 alleging that the petition dated the the 26th March, 1957, was not on behalf of the person on whose behalf it purported to be. On the 26th March, 1957, the respondents had also filed a petition asserting that, inasmuch as Abdul Rahman alias Gunga had not been substituted within ninety days of the death of Bibi Hamidan, the appeal had abated. On the 4th June, 1957, a petition was filed on behalf of Abdus Samad and Abdul Wahab alleging that Bibi Hamidan bad partitioned the properties in her life-time amongst her two sons, and the entire suit plot had fallen to the share of Abdus Samad alone; and after the death of Hamidan these two sons had again formerly partitioned the properties left by Hamidan in accordance with the partition effected by her in her life-time and a prayer was made that the substitution may be made in place of Hamidan accordingly. On the 14th August, 1957, a petition purporting to be on behalf of Abdua Samad and Abdul Wahab was again filed to the effect that Bibi Hamidan had not left any heir of the name of Abdul Rahman alias Gunga, but if there be any such person, he may be added as a pro forma respondent, and the respondents may be directed to take necessary steps for the service of notice on this man.
On the 20th August, 1957, the Court below ordered substitution of Wahab and Samad as appellants in place of the deceased appellant Hamidan. The abatement matter as well as the first appeal were heard on the 21st August, 1957. On the 24th August, 1957, two petitions were filed an behalf of Samad and Wahab, and one petition on behalf of the respondents. In one of their petitions, the appellants again requested the Court to set aside the abatement, if it be found that the appeal had abated and to make the fictitious person, Abdul Rahman alias Gunga, a respondent.
The father of the two appellants was originally a resident of village (sic) Doma Shekhpura, but subsequently he settled at his Sasurali village Jethuli. The alleged first husband of Bibi Hamidan was a resident of village Kolawan. No witness was examined from any of these villages on behalf of the appellants, while the respondents examined witnesses from all the three villages, who supported the case of the respondents. The learned Subordinate Judge discussed the oral evidence as well as the documentary evidence and accepted the case of the respondents.
Mr. J. C. Sinha submitted that the witnesses examined on behalf of the respondents were not competent inasmuch as they did not possess the qualifications required by Section 50 of the Indian Evidence Act regarding competency of witnesses to prove relationship. But the learned Advocate for the respondents rightly submitted that, inasmuch as the oral evidence had not been printed and copies thereof had not been supplied, it was not possible for him to meet this argument, and under Rule 18 of. Chapter IX, Part II of the Patna High Court Rules, the Court cannot consider this argument in absence of the entire evidence of these witnesses.
7. Then, Mr. Sinha submitted that, even assuming that Bibi Hamidan left a son named Abdul Rahman Alias Gunga, there could be no abatement in this case on account of the fact that the respondents'' petition dated the 12th January, 1957, was substantially a petition for substitution of this man as one of the appellants in place of Bibi Hamidan as also the fact that in their petition dated the 14th August, 1957, the present appellants accepted that position when they said that the name of Abdul Rahman alias Gunga may be added as a pro forma respondent. It was argued that in such a case the Court below ought to have set aside the abatement and impleaded Abdul Rahman alias Gunga as a pro forma respondent. But this petition of the appellants was filed after a little over eight months of the death of Bibi Hamidan, and even then the prayer for setting aside the abatement was made three days after the hearing of the first appeal, that is, on the 24th August, 1957. The learned Subordinate Judge refused to set aside the abatement on the ground that, in view of the different kinds of prayer in the different petitions of Samad and Wahab, they had not come to Court with clean hands. In the circumstances of the case, the Court below was perfectly justified in refusing to set aside the abatement and holding that the appeal had abated to the extent of 1/3rd share of Abdul Rahman alias Gunga.
8. An objection was taken on behalf of the respondents that a civil revision does not lie against an order of abatement. Mr. J. C. Sinha, accepted this position; but he submitted that the Court may treat civil revision as a miscellaneous appeal against the order of abatement. In the alternative, he submitted that, inasmuch as the appeal before the Court below was disposed of on the same date as the order of abatement and, in paragraph 5 of the judgment under appeal, a reference has been made to the order of abatement, this order shall be deemed to have, been incorporated in the judgment, and, therefore, the appellants could challenge the order of abatement even in second Appeal No. 1430. It is remarkable, however, that paragraph 5 of the judgment does not contain any finding regarding abatement, and it states only the fact that, by a separate-order, it had been held that the appeal abated to the extent of the share of Abdul Rahman alias Gunga.
9. In this connection, it is necessary to refer to some petitions filed by the parties in the second appeal for taking additional evidence. On the 10th July, 1961 the respondents filed a petition to accept an additional documentary evidence regarding the existence or otherwise of Md. Safi, the nephew of Tejarat. The appellants then filed a counter-petition on the 28th July, 1961, controverting certain facts mentioned in the petition of the respondents and requesting the Court to take additional evidence regarding the existence or otherwise of Abdul Rahman alias Gunga.
With the consent of the learned Counsel for both the parties, these documents were admitted in evidence. It appears that about four years after the institution of the present suit, appellant. Abdus Samad instituted Title suit No. 67 of 1957 for partition of all the properties left by Sheikh. Tejarat and impleaded as defendants, among others, Safi. (brother of the plaintiff of the present suit) and Abdul Rahim, the alleged son of Bibi Hamidan through her first husband. The suit was dismissed by the trial Court, and an appeal against that decision was dismissed for default on the 14th June, 1961. But the appeal was subsequently restored and is pending for hearing. The relevant document regarding the existence of Abdul Rahman is a warrant for arrest in a criminal case u/s 468 read with section 474 of the Indian Penal Code against him. This warrant was issued on the 24th September, 1960, and forwarded to the Officer-in-charge, Fatwa Police Station within whose jurisdiction village Jethuli lies. There is a report of the Assistant Sub-Inspector of Police dated the 6th November, 1960, that no person named Abdul Rahman alias Gunga was found in village Jethuli in spite of search, and it transpired on enquiry from the villagers that'' no such person lived there. But it is not proper to act on this report, because it is not known as to who made the search and, in absence of the evidence of the Assistant Sub-Inspector of Police or any other person who made the alleged search, this report has no evidentiary value. There is, therefore, no reason to disturb the findings of the-Court below that Abdul Rahman alias Gunga is one of the sons and heirs of Bibi Hamidan and that, on account of the non-substitution of his name as one of the heirs in time, the appeal abated in respect of his 1/3rd share out of Hamidan''s share. Hence, the miscellaneous appeal fails.
10. Mr. J. C. Sinha, relied on the decision of this Court in
It will be noticed that the facts of that case were completely different from those of the instant case inasmuch as in the instant case the substituted appellants did not make any application for the substitution of Abdul Rahman alias Gunga within ninety days of the application of the respondents that he was the first son of Hamidan through her first husband and instead the appellants continued disputing his existence for several months, and ultimately, the Court below accepted the case of the respondents. It is true that a few days after the hearing of the first appeal, the appellants made a prayer for setting aside abatement; but, in the circumstances, it was rightly rejected by the Court below. It is also true that, on the 14th August, 1957, the appellants had filed a conditional application for the substitution of Abdul Rahman alias Gunga, the condition being that if there be any such person in existence. This application was also filed about seven months after the death of Hamidan. Hence, the aforesaid decision in the case of
11. The next contention of Mr. Sinha was that the suit, being for partition of only one plot out of several plots of land left by Tejarat was not maintainable. The ordinary rule that a suit for, partial partition of the properties owned by the parties to the suit is not maintainable does not however, apply to the case of co-owners who hold land as tenants-in-common as distinguished from the co-sharers holding land as joint tenants. In the case of tenancy-in-common, each co-owner, has got interest in each item of the property held as tenancy-in-common, and he is entitled to claim partition in respect of even one of these items without seeking for partition of the other items, provided that there is no inconvenience in the circumstances of a particular case. This view is supported by the decision cited at the bar on behalf of the parties.
12. In the case of Ram Mohan Lal v. Mulchand, ILR 28 All 39, the appellant bought 5/6th share in two shops that belonged to a joint Hindu family, and he sued for the partition of one of the shops; and their Lordships said:
"The plaintiff is admittedly not a member of a joint family. Therefore, the property sought to be partitioned is property held by certain persons who can only be deemed to be joint owners of it. There is nothing to preclude one of joint owners of several items of property from seeking partition of one of such items of property,"
13. In Aiyyagari Venkataramayya v. Aiyyagari Ramayya ILR 25 Mad 690 the facts were these :
Plaintiff purchased 2 acres and 26 cents of land from Virrazu, being Virrazu''s undivided moiety in two plots of land measuring 4 acres and 52 cents, which formed part of the joint property of an undivided Hindu family consisting of Virrazu and his two nephews (brother''s sons), Virrazu subsequently died, leaving his two nephews behind him surviving. After Virrazu''s decease, plaintiff instituted the present suit against the nephews, in which he claimed partition of the whole of the family property and sought thereby to recover out of the half share which might fall to his vendor, Virrazu (now deceased), the specific 2 acres and 26 cents which he bought from Virrazu or land of similar size and quality.
It was held by a Full Bench of the Madras High Court that the suit was maintainable. Mr. J. C. Sinha, laid stress on the following observation of Bhashyam Ayyangar, J., one of the Judges constituting the Full Bench:
"But if the transfer relates to any specified portion of the family property, there is the risk that it may turn out that in a partition of the whole property it is impracticable or inequitable to allocate either the whole or a part of such specified portion to the share of the transferor. If it be found impracticable or inequitable to allot to the transferor''s share the whole or any specified portion of the specified property transferred, the transfer will become inoperative either in whole or in part, as the case may be, and in that case the transferee can only have an equitable claim for compensation against the alienor." But this observation merely means that the interest acquired by the transferee is subject to the equities as between the transferring co-owner and the other co-owners.
14. In Jagannath v. Diccession Corporation ILR 29 Pat 1065, a bench of this Court discussed a large number of decisions of the Bombay, Calcutta, Madras, Allahabad and Patna High Courts also some decisions of the Privy Council; and the principles laid down by their Lordships are correctly summarised in the placitum as follows:
"But if a partition is sought through the intervention of the Court the general rule is that the entire joint property owned by the co-owners, whether as joint tenants or tenants-in-common, must be brought into hotchpot for division by the Court. The rule is, however, subject to certain qualifications, as for instance, where different portions of the joint property lie in different jurisdictions, or where a portion is not available for actual partition as being in the possession of a mortgagee, or if the property is situated outside India, or the portion extended is impartible or is held jointly with strangers who have no interest in the property sought to be partitioned. These qualifications are based partly on rules of procedure, partly on rules of convenience and partly on rules of justice and equity.
It is equally a well-established rule of law that the plaint in a suit for partition must embrace only such property in which the plaintiff has community of interest and unity of possession. Where a purchaser acquires an interest in the coparcenary property, the transfer really effects a severance of joint status in respect of the property transferred, and he becomes a tenant-in-common in respect of such property with his vendor and his coparcener .........
Therefore, a suit for partition of specific items of family property at the instance of a transferee from, one of two branches of family holding a definite share in the common property, cannot be defeated simply on the ground that it does not embrace properties of which the co-sharers are in joint possession but in which the alienee has no interest at all."
15. In
16. In
"Most of the decisions which prohibit partial partition are passed in cases in which partition of joint family property was desired. There is a good reason for refusing partial partition in such cases, for partition has the effect of breaking up a joint Hindu family. If such a family is disrupted, it stands to reason that the family should break up completely and the whole family property should be divided. But there is no such reason why the property of co-owners should not be partially divided, as is done in the case of a revenue-paying estate. For the reasons assigned in ILR All 39, we think the property in this case may be divided. The only case against this view is that of Parbati Churn v. Ainuddeen ILR Cal 577. But as pointed out in Kadhakanta Saha v. Biprodas Roy 1 CLJ 40 there the plaintiff was the owner of a fractional share of a small piece of land, namely, 2 drones in an estate which consisted of 100 drones. One of the questions raised was whether the plaintiff was entitled to a partition of 2 drones. The suit was dismissed, namely, on the ground that the zemindars were not made parties ............ So far, however, as we understand the judgment, the question was one of convenience and inconvenience; and it was not laid down as a matter of law that a partition of a portion of a revenue-paying estate, when that portion is capable of partition without much inconvenience to other shares, is absolutely barred by law.''''
17. In
"The real objection to the suit is one which seems common to both classes of cases, namely, that it is inexpedient to allow suits for partition of a portion of the properties, because it would lead to a multiplicity of suits and to endless litigation between the parties who are jointly entitled to the properties."
18. In the case of
"Again, even as a rule of Hindu Law, it is a rigid rule only so far as joint family property is concerned being a substantial rule of Hindu Law -- See Bakewell, J., in Manjaya v. Shanmuga ILR Mad 684. If the property is not joint family property and the parties are not coparceners but only co-owners or tenants-in-common the rule is not so rigid and partial partition may be allowed if there is not much inconvenience to the other sharers and if the plaintiff will otherwise be left without a remedy ............ It is then merely a rule of processual law.
In the case of Muhamraadans, the co-heirs are only tenants-in-common, and there is no joint family in the Hindu Law sense of the term. The rule can at best apply to the Muhammadans only in the manner it applies to tenants-in-common among Hindus, and we understand the case in
19. In the case of Vazir v. Dwarkamal AIR 1922 Sin 41, a Full Bench of the then Sind Judicial Commissioner''s Court discussed large number of decisions of different High Courts, including some of the aforesaid decisions; and the propositions laid down by the Full Bench is correctly summarised in the placitum as follows:
"Mahomedans are never joint in estate but only tenants-in-common whether they live together or not. Therefore, to try and decide the question" of Musalman law in the light of decisions in suits between Hindu coparceners is not only to waste time but to risk error. Tenants-in-common are not obliged to sue for a partition of all other properties in which they are interested. There is nothing to preclude one of the joint owners of several items of property from seeking a partition of one of such items of property. Under Mahomedan 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 case inapplicable." I (20) From the foregoing discussions, it appears to be well-settled that --I (1) the rule that the suit for partition must [cover the entire property held jointly by the parties is merely a rule of equity and convenience;
(2) a suit for partition must embrace only the property in which the parties have community of interest and unity of possession;
(3) there is substantially no difference in respect of the subject-matter of a suit for partition amongst Muslim co-owners or Hindu co-owners, where they hold property as tenants-in-common; and
(4) a suit for partition of even one item of such property is maintainable, provided that the partition can be effected without much inconvenience to the other co-owners. In other words, in the case of tenants-in-common, whether such tenants are Moharnmadans or Hindus, one of them is not obliged to sue for the partition of all the items of the property in which they are interested, inasmuch as each of them is entitled to his definite share in every item of the property, unless the partition sought for results in inconvenience to the other tenants-in-common.
21. In the instant case, all the parties to the suit were interested in the suit plot and Bibi Hamidan was not interested in the other properties left by Tejarat. There could be no inconvenience to Hamidan on account of the omission of the other properties of Tejarat from the suit, because she purchased only the suit plot from Bibi Adulan, daughter of Tejarat, with her eyes open and she failed to prove that Adulan was in exclusive possession of the suit plot.
Incidentally, Mr. Sinha referred to the oral evidence of the plaintiff (a copy of which was supplied to the Advocate for respondents) in which he said that after the death of Tejarat, all his lands including the suit land, were divided among the heirs and they were in cultivating possession of separate parcels of land and that separate portions of even the suit plot were in possession of different co-sharers. But this statement does not speak of partition by metes and bounds. The case of the plaintiff and other respondents has throughout been that the co-sharers were in separate cultivating possession for the sake of convenience. The Courts below have accepted this case; and this finding of fact cannot be challenged in a second appeal. It could not, therefore, be fairly contended on her behalf or on behalf of her heirs that, if all the properties of Tejarat had been included in the suit for partition, she could claim compensation for eight annas share in the suit plot from any other land of Tejarat which with (sic) be allotted to Adulan. The equitable principle of "feeding the estoppel" embodied in Section 43 of the Transfer of Property Act cannot apply to the instant case, as there is no case of fraudulent or erroneous representation of Adulan to Hamidan. These observations will not, however, affect any suit by Hamidan''s heirs for compensation against Adulan or her heirs. But in view of what has been stated above, the present suit is not bad for partial partition.
22. Mr. J. C. Sinha then contended that the suit was bad for non-joinder of Safi, a brother of the plaintiff. Both the Courts below have found that Safi died in the life-time of Sheikh Tejarat. But Mr. Sinha relied on the additional evidence admitted in this Court, namely, the decree of Title Suit No 67 of 1957 in which Safi is mentioned as defendant No. 3; but the names of the parties appear in the decree according to the plaint of that suit filed by the present appellant Samad and so it cannot be used against the respondents. Further, it appears from an additional evidence, namely, the notice to respondents in the appeal arising out of Title Suit No. 67 that Safi was respondent No. 3 and from another evidence, namely, order No. 21 dated the 3ist March, 1959. of that appeal that the name of respondent No. 3 was expunged with the consent of the parties. Hence, the additional evidence does not affect the finding of the Court below; and Mr. Sinha''s contention fails.
23. In conclusion, it must be held that the suit for partition of plot No. 1301 is maintainable, and the plaintiff-respondent is entitled to get his share partitioned by metes and bounds, and, therefore, the findings of the Court below to that effect must be upheld. But it is for consideration what will be the effect of the abtement in respect of 1/3rd share of Abdul Rahman alias Gunga in -/8/- share of Bibi Hamidan which she acquired from Bibi Adulan on the decree passed by the trial Court which has been affirmed by the first appellate Court. It is obvious that in the absence of Abdul Rahman alias Gunga from the category of the parties to the suit or appeal, it will not be possible to make the partition amongst the defendants of the suit and the substituted heirs of Bibi Hamidan in respect of the remaining share after excluding the share of the plaintiff in plot No. 1301. Hence, the decree of the trial Court, which also directed the partition of the shares of the parties other than the plaintiff, will be modified to the extent that there will be no partition of their shares and only the share of the plaintiff shall be partitioned by metes and bounds.
24. In the result, the second appeal as well as the miscellaneous appeal must be dismissed with cost; but the decree of the trial Court, which was upheld by the first appellate Court, shall be modified to the extent indicated above.
Kanhaiya Singh, J.
25. I agree.
