BHARGAVA, J. - (1.) -
(2.) THIS is an appeal from the judgment and decree dated 10th December, 1958, of the District Judge, Kota. Rahim Bux and Mohammed Subhan originally instituted the suit for partition of immovable properties mentioned in para 4 (1), (2) and (3) in the plaint situated in the city of Kota. Mohammed Subhan's name was subsequently removed from the array of plaintiffs and the suit continued at the instance of Rahim Bux alone. During the pendency of this appeal, Rahimbux died and Mohammed Subhan was substituted as his legal representative vide order of this Court dated 21st January, 1965. Plaintiff's case is that his ancestor Ibrahim had seven sons and the suit properties were acquired by them with their joint earnings. It is alleged that the parties were subsequently converted to Muslim religion, but a custom still prevails among them that a female does not get any share in the property of the deceased. It is alleged that Yasin one of the sons of Ibrahim died issueless, Gulab Mohammed died issueless and Ilias and Gendaji died without leaving any male issue. Plaintiff, therefore, claimed half share in the entire property. Defendants were alleged to have the remaining half share in the property in the proportion that Shaffiuddin defendant No. 1 and Abdulla defendant No. 2 had 9/40th share each and Chhotia, Azimulla Allahnoor defendants Nos. 3, 4 and 5 respectively l/60th share each. It was alleged that parties had been in joint possession of the suit property and have been sharing its profits, but for some time the defendants had denied the plaintiff's right in the property and discontinued giving him the share of profits and so the suit is instituted. As stated earlier, the suit was originally instituted against five defendants who are all in the line of Ahmedji, one of the sons of Ibrahim. Descendants of Mohammadji Ilyas Quadir and Gendaji and some of the descendants of Ahmedji were not impleaded in the suit for the reason that by custom the females were excluded from inheritance. Descendants of Mohammedji, who was described as Gulab Mohammed in the plaint, were not impleaded as party on the ground that he had died issueless. During the suit, Azimulla defendant No. 4 died and his son Abdul Samand and Mst. Bafati, his wife, were brought on record as his legal representatives. Allahanoor defendant admitted the plaintiff's claim but the other defendants contested the suit and they submitted a pedigree table of all the descendants of Ibrahim which the lower court after trial has found to be the correct one. The contesting defendants denied that the plaintiff had any share in the suit property. It was stated that the properties had been acquired after the death of Quasim that is the grandfather of Rahim Bux and so the plaintiff did not have any share in the properties. Existence of custom by which females were excluded from inheritance was also denied. It was stated that all the descendants of Mohammedji, Ahmedji Ilyas Quadir and Genda, both male and female, whose names had been shown in the pedigree-table, were necessary parties to the suit. It was also stated that the contesting defendants were in exclusive possession of the suit properties and in regard to property No. 1 and 3 of para 4 it was stated that the contesting defendants had become their full owners because of certain transfers made in their, favour by the other co-sharers. No case was set up in the written statement that any other descendants of the sons of Ibrahim other than the contesting defendants was in possession of the suit properties. Issues were framed in the case on 9-11-1948 and then the following issues were framed on 20th July, 1954 - (1) Whether the plaintiff has half share in the suit property? (2) What is the property liable to be partitioned? (3) Whether the suit is within limitation? (4) Whether the suit property was acquired by all the sons of Ibrahim and they purchased it by their own earnings? (5) Whether there is a custom among the Muslim Luhars of Ajmer Merwara and Rajputana, who became Muslim Luhars converts from Hindu Rajputs and of whom the parties are, that a woman whether she be daughter, widow, sister, mother or any other, does not inherit a man's property and she does not get any share according to Muslim Law (Shariyat)? (6) Whether the present suit suffers from the defect of non-joinder of necessary parties? (7) Whether the defendants' possession over the suit property is adverse? (8) Whether the plaintiff has no right in that suit property, which was acquired after the death of Kasimji? (9) Whether the value of the suit property is about one lac rupees and hence deficient court fees had been paid on the plaint? (10) Whether the plaintiff is estopped from pleading the custom, mentioned in the plaint? (11) What will be the relief? Both parties led evidence in support of the above issues and the court after holding that it had jurisdiction to hear and determine the suit came to the finding on the main issue that though it had not been definitely proved as to when the suit property was acquired that is after the death of Quasimji, the grand-father of Rahimbux or before that, yet the plaintiff had been admitted a co-sharer in the property and could claim share. The lower court did not determine the extent of the plaintiff's share. Issue No. 5 about the exclusion of females from inheritance on account of custom among the Muslim Luhars in Ajmer Merwara and Rajputana was decided against the plaintiff. Having come to the finding on issue No. 5, the court held that female descendants of Kadar, Iliyas, Yasin, Mohammed and Gendaji and their sons and grandsons who were alive and who could claim share according to Mohammedan Law in the suit property were all necessary parties to the suit. Issue No. 7 was decided against the defendants and it was held that they had failed to prove their adverse possession against the plaintiff. Issue of limitation was also decided in favour of the plaintiff. On the finding that necessary parties had not been joined in the suit, it was dismissed but the parties were left to bear their own costs. On 3rd November, 1969, and then again on 4th November, 1969, applications were made on behalf of the appellant to add 33 persons named in the applications as party-defendants and respondents in the appeal. Of these Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 24a, 24b and 29 as correctly described in the application dated 4-11-1969 put in appearance through their counsel and raised no objection to their being impleaded as parties to the case. They also made no request for a fresh trial against them. Later on, persons mentioned at Nos. 17, 20 and 21 submitted their objection to being made parties at this stage as the suit had become barred by time. Then again on behalf of Babu and Kuma mentioned at Nos. 20 and 21 of the application dated 3rd November, 1969, affidavits were filed duly verified before a Magistrate saying that they had not preferred any objection to their being made a party and that they may be allotted their share without remanding the case for a fresh trial. Similarly, an affidavit was filed on behalf of Mst. Subran mentioned at No. 17 of the application. Persons named at No. 10, 25, 26, 28, 30, 31, 32 and 33 submitted their objection to being made a party at this stage as the suit had become barred by limitation and also because a fresh trial will have to be made against them. Persons mentioned at No. 11 and 27 did not put in appearance. When the appeal came up for hearing learned counsel for the parties agreed that arguments may be heard on issue No. 6, namely, whether the suit suffers from non-joinder of necessary parties. Contention of learned counsel for the appellant in this connection is that it is not the case of either the plaintiff or the contesting defendants in the pleadings that any other descendants of the sons of Ibrahim are in possession of the suit property. It is contended that on the death of a Muslim, the property devolves upon his heirs in definite shares and one of the heirs can institute a suit for partition claiming his own share from those who are in possession of the property without impleading the other heirs On the other hand, it is urged on behalf of the respondents that in a suit for partition all the co-sharers are necessary parties and the suit must fail if some co-sharers have not joined in spite of the objection in the lower court. Order 1, R. 10 C. P. C. makes out a distinction between persons who ought to have been joined as plaintiffs or defendants and those without whose presence the question in the suit cannot be completely decided. In the former case, they are necessary parties to the suit and in the latter, they are only proper parties. Although in a suit for partition under the Mitakshara law, all the persons interested in the property are necessary parties, because in such a case it cannot be predicated what share an individual member has in the undivided coparcenary, but this is not the case under the Mohammedan Law where the heirs are only tenants-in-common and whose shares are definite and specified in law. But in the case of Muslims where an heir claims more than what he is entitled to under the Mohammedan Law to the exclusion of the share of other persons who are so entitled under that law, it is necessary that the persons whose exclusion is sought must be joined in that suit because any decision given in their absence would not be binding upon them and would be ineffectual. In the suit as framed, the plaintiff did not claim only that much share to which he would have been entitled under the Mohammedan Law but claimed more than his share on the ground that the female heirs of other sons of Ibrahim were under the custom prevalent amongst the Lohars in Ajmer Merwara and Rajputana excluded from inheritance. The determination of the plaintiff's share necessarily involved the decision of this question whether under the alleged custom female heirs got any share in the property of the deceased or not and for the decision of that question, presence of those heirs was necessary. Faced with this situation, learned counsel for the appellant made an application before this Court confining plaintiff's claim to l/7th share only and abandoned the remaining part of his claim. It is pointed out that the plaintiff would, in any case, be entitled to 1 /7th share in the suit property because it is alleged to have been acquired with the joint earnings of all the sons of Ibrahim. Notice of this application has been given to the respondents. It is certainly open to the plaintiff to abandon the whole or any part of his claim at any stage of the suit and so as a result of this application/plaintiff's claim is confined only to 1 /7th share in the suit property provided he is proved to have that much share in it. The question of joinder of parties shall now therefore be considered in the light of this application by which the plaintiff has abandoned his claim beyond l/7th share. In Moideensa Rowthen vs. Md. Kasim Rowthen (l) it was held: "under Mohammedan Law the estate of a deceased person devolves on his death on his heirs, each of whom becomes entitled to his definite fraction of every part of the estate. Therefore a suit in which one heir claims to receive his share of the property of the deceased from another heir is not a suit for "partial partition", as understood in Hindu Law. Such a suit is legally maintainable though it ought, as a rule, to take the form of a suit for the administration of the estate of the deceased. " In Mt. Zabaishi Begam vs. Naziruddin Khan (2) which was also a case of Muslims, it was held that: "when the interest of the person not made party to the suit is distinct from the interests of the person who are parties to the suit, there is no justification for not dealing with the matter in controversy so far as the rights and interest of the parties actually before the court are concerned. Hence where a Mohammedan heir who is out of possession brings a suit for possession against his co-heirs and omits to implead one of the co-heirs, there is no reason why he should not be granted a decree for so much of his share as is in possession of the heirs who are made parties to the suit, as the interest acquired by the heirs of a deceased Mohammedan in his property are always definite, distinct and ascertained, and as such the absence of one of the co-heirs from a suit brought by another co-heir for possession of his share cannot be a ground for dismissing the suit. " In this case, the learned Judges after pointing out the provisions of O. 1 R. 9 C. P. C. and of other rules in O. 1 observed that: "it is manifest from these provisions that the non-joinder of a necessary party cannot by itself be a ground for dismissing the suit, and that the Court is bound to adjudicate on the rights of the parties actually before it. " Then they further observed that: "there is however another well recognised rule which, so to say, constitutes an exception to the general rule noted above. That rule is that a Court will refrain from passing a decree which would be ineffective and infructuous, and the reason for this rule is obvious. It would be idle for a Court to pass a decree which would be of no practical utility to the plaintiff and be a waste paper in the sense that the relief that it purports to grant to the plaintiff cannot be vouchsafed to him because of the objection of some person who is not bound by that decree. But this rule has no application to cases in which notwithstanding the fact that some of the persons interested in the subject matter of the suit are not parties to the suit, the Court is in a position to pass a decree that is capable of execution and cannot be rendered nugatory at the instance of persons not made parties to the suit.
(3.) IN Muhammad Afzal Khan vs. Kariman Bibi (3) it was held that; "where one of the several heirs of a deceased Mohammedan brings a suit to recover her share in the property left by the deceased, the other heirs are not necessary parties to the suit. " In Wajihunnissa vs. Bankebehari Singh (4) where the persons who had not been joined were not in possession, it was held that the suit was not bad for non-joinder of parties and the persons not joined in the suit could certainly assert their rights in a properly constituted suit, and that the partition suit was maintainable. These decisions no doubt support the contention of learned counsel for the appellant. Argument of learned counsel for the respondents is two fold: (1) that even where the plaintiff claims only that share to which he is entitled under the Mohammedan Law in a suit for partition all the co-sharers whether they are in possession or not are necessary parties, and 2) that the present case is not where the plaintiff or his ancestors got any defined share in inheritance but here the allegation is that the property was acquired by seven brothers jointly and so he being the descendant of one of the sons has got l/7th share. It is argued that there is no proof on the record that the plaintiff has got any share at all in the suit property. For the first argument, reliance is placed on Md. Ahmad vs. Ansar Mohammad (5), Noor Mohammad vs. Zainul Abdin (6), Fazal Mohammad vs. Ali Mohammad (7), Nathuram vs. Abdul Latif (8), Munshi Ram vs. Abdul Aziz (9), Churaman Mahto vs. Bhatu Mahto (10) and Kanakarathanammal vs. Loganatha (11) These cases are however distinguishable. The head note in Md. Ahmad vs. Ansar Mohammad (supra) no doubt lays that: "in a suit for partition it is necessary that all interested parties should be joined either as plaintiffs or as defendants. A suit by one of several heirs of a deceased Mohammedan to recover his share in the estate left by the deceased is practically a suit for partition, and all the other heirs of the deceased must be impleaded as parties to the suit. If some of the heirs are not joined, the suit cannot proceed. Where their joinder becomes impossible, the suit must be dismissed. " But in this case it would appear that the suit was filed against one heir who was alleged to have 9/6/annas share in the property, the other heir having -/6/6 annas share was not impleaded as a party. The property was still undivided and the court, therefore, held that in such a situation the plaintiffs cannot maintain that the defendants are solely in possession of the property to which claim is laid. On the facts as stated, it is clear that no partition by metes and bounds having been made, the legal position is that Anwar Mohammad and his mother are also in joint possession with defendants 1 to 4. " So it is a case where relief was sought against those persons who had only-/9/6 annas share in the undivided property and the claim was not for joint possession but for separate and exclusive possession of certain share in the property. No effective decree for possession could therefore be given in that case in the absence of the other persons who had share in that property. In Noor Mohammad vs. Zainul Abdin (supra), the plaintiffs had claimed 72-1/2 shares on the basis of their title by descent from the common ancestor. The remaining 43-1/2 shares were claimed under the arrangement by Khairu-un-nisa one of the plaintiffs with her husband in respect of dower and in such a way that if she was right, the interests not only of the plaintiffs and the defendants to the suit were to be affected but also of the heirs of the third brother Abdul Rahman who were not and never had been parties to those proceedings. In these circumstances, the learned Judge observed that "the finding at which the learned Munsiff arrived in respect of 43-1/2 shares was one arrived at in a suit which, so far as the heirs of Abdul Rahman were concerned, was wholly ex parte," because they were the people who were interested to resist Mt. Khair-un-nissa's claim and they were never before the court. It would, therefore, appear that it was only in respect of 13-1/2 shares that it was held that the heirs of Abdul Rahman were necessary parties. ;