Korumbakkat Parkum Vengalasheri Moidin Kutti v. Thuniyilandiyil Mariam Umma

The facts of the case may be briefly stated. Defendants 4, 5 and 6 are Muhammadan brothers. The 7th defendant is their sister. The suit property belonged in jenm to their father who demised it on kanom to 1st defendant on 4th June 1903—Ex. C being the marupat. The defendants 4 and 5 granted a, melcharth of the property to plaintiff by Ex. B, (dated 20th February 1915) and on its footing the plaintiff brought a suit for redemption on the kanom O. S. No. 616 of 1915. That suit was dismissed on the ground that Ex. B was valid only as regards the 4/7th share of defendants 4 and 5 and was not binding on defendants 6 and 7 and the suit could not be converted into a suit for partition without the consent of the defendants. See Mamu v. Kuttu(1). The present suit is for partition and recovery of the 4/7th share. It may be mentioned that, meanwhile the kanom in favour of 1st defendant had expired, and the 1st defendant had obtained a renewal under Ex. I from the 6th defendant. The Lower Courts found that Ex. I is valid only in respect of the 2/7th share of the 6th defendant.

The 1st, 6th and 7th defendants contended that the suit was not maintainable, being one for partial partition. The Munsif allowed this contention; but the Subordinate Judge reversed his finding and remanded the appeal for disposal according to law. This appeal against the order of the Subordinate Judge has been filed only by the 1st defendant who repeated the contention before us. If this were a case of Hindu Law, the objection would certainly hold good. [Vide Sundara Aiyar v. Krishnamurthi Aiyar(2), Manjaya v. Shanmuga(3).] But the objection can be raised only by the members of the family and not by strangers. See Iburamsa Rowthan v. Theruvenkatasami Naick(4), where it is said that a stranger cannot enforce partition against the will of the other members without suing for a general partition. It follows that the objection may be waived by them and this can be done at any stage.

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. If the property, is not joint family property and the parties are not co-parcencers 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, [see Radhakanta Shaha v. Biprodas Roy] Syed Habibur Rasul Abul Faiz v. Ashita Mohan Ghosh and Uma Sundari Debi v. Benode Lal Pakrash and A.S Nos. 133 and 184 of 1907. It is then merely a rule of processual law.

In the case of Muhammadans, 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 Muhammadans only in the manner it applies to tenants in common among Hindus, and I understand the case in Mahomed Fazlur Rahman Chowdri v. Mohammad Fazzur Rahman Chowdhri in which the parties were Muhammadans [distinguished though not disapproved in Hem Chandra Choudhri v. Hemanta Kumari Debi(5)] only to lay down that it is not desirable to allow a suit for partial partition among co-heirs, if it causes much inconvenience to the defendants who are co-heirs because such suits lead to a multiplicity of suits and to endless litigation that the scope of the rule as applicable to Muhammadans cannot be extended beyond this is clear from the observations of Ayling and Tyabji, JJ., in Moideensa Rowthen v. Mohammad Kasim Rowthen(6).

For the proper disposal of the appellant's contention, if necessary we would have to call for a finding on that point. We asked the plaintiff's counsel to ascertain from his client if he is willing to have joint possession with 1st defendant or, otherwise, so amend the plaint as to avoid the objection. The respondents' counsel has now stated that he is content with a decree for the redemption of a 4-7th share and joint possession. [See Plott Chandu v. Kolathum Karammal(7)].

The case will be remanded to the District Munsif for disposing of any other points that remain to be decided, such as the value of improvements and for passing a decree for redemption and for joint possession of 4-7th share each party is to bear its own costs in this appeal.

K.V.SAppeal allowed: Case remanded.

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