Moideensa Rowthen v. Mahammad Kasim Rowthen

1. The only point argued before us is that in the suit, out of which the present appeal arises, all the property of the deceased Shaik Farid should be partitioned and that, therefore, the 1st and 2nd defendants (who are the appellants before us) should be given a share in the properties belonging to Shaik Farid in the hands of the 3rd defendant. This point was, however, not taken in the lower Courts. What the appellants contended there was that the suit should be dismissed altogether, on the ground that the plaintiff prayed for what has been referred to as partial partition. That expression, when applied to parties governed by Muhammadan Law, is misleading. In the case of Mussalmans what would be a partition suit, if the parties were Hindus, ought often to take the form of a suit for the administration of the estate of a deceased person. In the present case the suit would undoubtedly have been better framed, had it asked for administration; and had the appellants asked the lower Court, as they now ask, that the plaintiff's suit should be treated as such and that consequently one of the questions to be decided was what estate was left by the deceased, our decision might have been different or based on different grounds. But in the state of circumstances with which we have to deal we must only consider.

(1) Whether the suit as framed by the plaintiff was maintainable.

(2) Whether the appellant's contention taken in second appeal for the first time ought to prevail, or whether the balance of convenience points against the appellants.

2. With reference to the first point, it need only be stated that under Muhammadan 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.

3. It is, therefore, futile to discrible 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 the Hindu Law are in such a case inapplicable. This point must be kept distinct from the questions that may arise when an heir claims his share of the property of the deceased, and when he in reality ought to institute a suit for administration he asks for what is styled ‘partial partition.’ In such a case it would be a question for the Court whether in order to avoid multiplicity of suits the plea of any defendants ought not to be given effect to in order that the whole estate of the deceased should be administered and in due administration should be partitioned for once. But the question cannot permit of a hard and fast rule to govern all circumstances. It is enough for the present purposes to say that the suit as field was maintainable and that there was no consideration put forward by the 1st and 2nd defendants in the lower Courts which the lower Courts decided wrongly.

4. On the second point also we think the decision must be against the appellants. The stage at which they have taken up the only contention which they could take up with any reason, makes it necessary to consider whether there would be any useful purpose served in allowing matters in dispute to be raised and determined in the present proceedings, turning them into a number of suits of the same nature as the suits instituted by the plaintiff, or whether the 1st and 2nd defendants should be referred to a fresh suit in which the estate of the deceased should be completely administered. We are of opinion that the latter alternative would be more suitable.

5. The appeal is dismissed with costs.

S.N/R.K

6. Appeal dismissed.