( 1 ) THIS is an appeal by the original defendants Nos. 1 to 1 (4) and the defendant No. 3 of the regular civil suit no. 87 of 1973 filed by the respondent No. 1 Ibrahim Kasambhai for partition of the properties of one Keshar Ahmed the common predecessor of the parties. The learned trial Judge passed the following order:" It is hereby declared that the pltf. and deft. No. 5 Ismail Kasam each has share of 5. 21 ps. in a rupee in the suit S. Nos. 254/1 and 254/2. She branch of Ali Amad (i. e. present deft. Nos. 1a to 1d collectively) has a share of 50 ps. in a rupee in the suit S. Nos. It is further declared that deceased deft. No. 2 Khatija has a share of 8. 59 ps. in a rupee in the suit sec. Nos. It is further declared that Aba Keshar deft. No. 3 has share of 14. 59 ps. in a rupee in the suit sec. Nos. and also that deft. 6 Noorbai and Deceased Mariam the mother of deft. No. 7 each gets 7. 29 ps. in a rupee as their respective shares in the suit S. Nos. Ashabai the mother of the plaintiff has also a share of 1. 83 ps. in a rupee in the suit sec. Nos. As the suit lands are agricultural lands the Collector Junagadh District Junagadh be appointed to effect partition of the suit sec. Nos. as per the respective shares of the aforesaid parties. The Collector is directed that as far as possible 32 gunthas of land which are sold to deft. No. 4 be given into the share of the heirs of Ali Amad Aba Keshar and Khatija deceased defendant No 2. A true copy of the decree be sent to the Collector Junagadh. "it is to be noted that Ashabai who has been declared to have 1. 83 ps. in a rupee in the suit agricultural lands was never made a party to this litigation.

( 2 ) BEING aggrieved by the aforesaid preliminary decree these appellants had preferred the civil appeal No. 51 of 1977 in the District Court Junagadh. The learned appellate Judge allowed that appeal only nationally and/or nominally. The order reads as follows :". . . . . . REGULAR civil appeal No. 51/77 would partly stand allowed. The order of the learned Civil Judge directing the original defendant No. 4 appellant of civil appeal No. 51/77 to render accounts is set aside. " I say nominally because that has nothing to do with the present appeal.

( 3 ) MR. Vyas the learned advocate appearing for the appellants before me has canvassed the following points of law: (1) A suit for partition in respect of shares in a Muslims Properties is not maintainable and the only suit that could be filed is the one for administration; (2) A suit was not maintainable because one of the sharers namely Ashaben whose share has been declared to be 1. 83 ps. in a rupee was never made a party to this suit for partition; (3) There cannot be a share for a woman who has remarried namely Ashaben; at the time of the hearing of this second appeal before me only the point No. 2 was passed and as I uphold that point other points were not pressed into service.

( 4 ) THE short question that falls for determination is whether in a suit for partition all the cosharers or coheirs are necessary parties or not. Incidentally the question to be decided is that if such a necessary party is not impleaded whether that non-impleading will go to the root of the suit making it liable to be dismissed on that technical score.

( 5 ) MR. Vyas invited my pointed attention to the judgment of the Supreme Court in the case of KANAKARATHANAMMAL V. V. S. LOGANATHA MUDALIAR and ANR. A. I. R. 1965 S. C. 271. In paragraph 9 of the said reported judgment the point in question has been dealt with. It was a common ground that the appellant there had brothers alive and even in the trial court the respondents Nos. 1 and 2 had taken an alternative plea that if the property was found to be belonging to the appellants mother under the relevant Mysore law the appellant and her brothers would be entitled to succeed to that property and the nonjoinder of the brothers was therefore fatal to the suit. As a matter of fact the trial court had d