No marriage of a Muslim can be solemnised with an idolatress or a worshipper.

1. Defendant in O.S.No.17 of 1985 on the file of the Additional District Judge, Pondicherry at Karaiakal is the appellant herein. The plaintiffs/respondents herein filed the said suit for a preliminary decree declaring that the plaintiffs and defendant are entitled to 3,7 and 14 shares in the estate of the deceased Abdul Gafoor. The learned Additional District Judge, Pondicherry at Karaikal on the basis of the oral and documentary evidence, decreed the suit; hence the present appeal by the defendant.

2. The case of the plaintiffs/respondents is briefly stated hereunder:- The first plaintiff is the wife of the deceased Abdul Gafoor, son of Abdul Gani Rawthar. The 2nd plaintiff is the daughter of the first plaintiff and the deceased Abdul Gafoor. The defendant is the son of the said deceased Abdul Gafoor. The said Abdul Gafoor died intestate at Bombay on 9.10.80. On the death of Abdul Gafoor, as his only legal heirs, the plaintiffs and the defendant are entitled to inherit the estate of the deceased as per the Mahomedan Law of succession. At the time of filing of the suit, the defendant was residing in France and the property at Ambagarathur and Nallazhundur are in the possession and enjoyment of the plaintiffs and defendant as tenants in common. The income from the estate of the deceased are enjoyed by third parties at the instance of the defendant. Therefore, the plaintiffs want partition of their shares in the estate. On 25.3.85 the plaintiffs caused a notice to the defendant for an amicable partition and separate possession by metes and bounds of the suit schedule properties. But there was no reply from the defendant. As per Mahomedan Law of Inheritance, the estate of the deceased Abdul Gafoor is liable to be divided into 24 shares and in which the plaintiffs and the defendant are respectively entitled to 3, 7 and 14 shares, and, therefore, the suit A and B schedule properties may be divided accordingly and the plaintiffs may be allotted their share.

3. The defendant filed a written statement wherein it is contended that the suit is bad for non-joinder of necessary parties. The plaintiffs have not included all persons who have a right to partition to the suit. Apart from the first plaintiff, widow of the deceased, Abdul Gafoor had married a second wife while he was in Saigon. The name of the second wife is NGO - THI- TINH. Out of that marriage, he had 11 children and all of them are alive. The plaintiffs are fully aware of these facts. Under Muslim Law, the wives, sons and daughters are entitled to inherit the estate of the deceased as Koranic heirs and residuary heirs. The plaintiffs have fraudulently suppressed these facts thinking that the first plaintiff is the only widow and the second plaintiff and the defendant are the only children of the deceased Abdul Gafoor. Further, the deceased Abdul Gafoor had already made an oral gift of the A schedule property in favour of the defendant and the gift was accepted by the donee namely the defendant and therefore, A schedule property is not available for partition. The oral gift was subsequently confirmed under a written gift and a document was executed. The donation deed has already come into existence and the property was accepted and, therefore, A schedule property is not available for partition. The defendant has no objection for partition of B schedule property among all heirs not only between the plaintiffs and the defendant.

4. With the above pleadings, the second plaintiff was examined as P.W.3 and two more witnesses were examined as P.Ws.l and 2 and Exs. A-1 to A-7 marked in support of their claim for partition. On the other hand, the defendant was examined as D.W.I and 3 more witnesses were examined as D.Ws.2 to 4, besides marking Exs. B-1 to B-15 in support of their defence. Ex.C-1, income tax certificate and Ex. C-2, special power by Abdul Gafoor were marked as Court documents. The learned Additional District Judge, after framing necessary issues and after