The court affirmed that under Muslim law, inheritance is automatic upon death, and plaintiffs failed to prove joint ownership beyond the established share in the one property.

JUDGMENT :

FARJAND ALI, J.

Greivance of the case-

1. By way of filing this Civil First Appeal under Section 96 CPC, the appellants seek to challenge the judgment and decree dated 28.10.2004 passed by the learned Additional District Judge (Fast Track) No. 2, Jodhpur in Civil Original Suit No. 85/2003 (Old No. 35/1997), titled Mehrunisa & Others vs. Rahmat & Others, whereby the learned Trial Court has partly dismissed the suit filed by the plaintiffs.

Facts of the case-

2. The breif facts of present case is that the respondents–plaintiffs instituted a suit on 21.05.1997 before the trial court seeking accounts, rendition of accounts, recovery of rent and a decree of permanent injunction, asserting that both the plaintiffs and defendants Nos. 1 to 4 are the legal heirs of deceased Nyaz Mohammad and that, as per para 4 of the plaint, the brief particulars of the said properties, according to the plaintiffs/appellants, are as follows:

(A) Property No. 01 – “Nyaz Building” Nai Sadak, Jodhpur, comprising House No. 04 along with the adjoining open land and Shop Nos. 09, 10 and 11. According to the plaintiffs/appellants, as stated in paragraph 4 of the plaint, a dispute relating to partition among the legal heirs of late Hussain Bux had earlier arisen with respect to this property, being registered as Civil Suit No. 138/1992. It is averred that the parties ultimately effected an oral partition of the estate of late Hussain Bux outside the court, and a Memorandum of Partition dated 05.04.1991 was thereafter drawn to record the terms of such oral settlement. As per the said oral partition, the plaintiffs/appellants have asserted that Property No. 01 fell to the share of late Nyaz Mohammad.

(B) Property No. 02 – House No. 21-B, Pink House, Shiv Road, Ratanada, Jodhpur.

(C) Property No. 03 – Plot Nos. 09, 10, 38 and 39 situated at Raikabagh, Jodhpur, which have been stated by the plaintiffs/appellants to be joint properties of the parties.

3. That apart from these immovable properties, deceased Nyaz Mohammad also left other movable assets including the partnership firm Nyaz & Company, with respect to which no accounts were ever furnished, though the plaintiffs are entitled to their share; further, the plaintiffs claimed entitlement to half share in the business assets and profits of Quality Dyeing & Chemical Store, presently run by Mansoor Ahmed and his sons under the name “Quality Shoes,” for which accounts should also be rendered.

4. The plaintiffs asserted that despite repeated requests for partition of Nyaz Mohammad’s share in the ancestral/joint estate, the defendants refused and were threatening to mortgage or sell the properties; hence the suit for accounts, partition, and permanent injunction.

5. Defendants Nos. 1, 2 and 4, in their written statement, denied the suit as not maintainable, contending that the alleged memorandum of partition was unregistered and unstamped and hence could not affect immovable property, and that all legal heirs of late Hussain Bakhsh were necessary parties; that four plots in Raikabagh had already been sold by registered sale deeds and possession handed over; that the father of the plaintiffs had started his separate firm “Hussain & Company” in 1987 and raised no objection regarding accounts of Nyaz & Company during his lifetime till his death on 29.11.1993, therefore the plaintiffs had no right to seek such accounts; and that the plaintiffs had knowledge that Nyaz Mohammad had already executed and registered a Will on 09.03.1987 bequeathing all his movable and immovable as