Under Mohammedan Law, co-owners are only tenants in common, and the heirs of a deceased Mohammedan being in possession of the whole estate will be deemed to be in possession on behalf of the other co-heirs also.

JUDGMENT

(Prayer: The Second Appeal is filed under Section 100 of CPC, against the judgment and decree dated 27.04.2001 passed in A.S.No.188 of 1990, on the file of the Additional District Court, Cuddalore confirming the judgment and decree dated 30.03.1990 passed in O.S.No.22 of 1989 on the file of the Additional Sub-Court, Cuddalore.)

1. The 4th and 5th defendants in O.S.No.22 of 1989 on the file of the Sub-Court at Cuddalore, are the appellants herein. The suit in O.S.No.22 of 1989 has been filed seeking a preliminary decree for partition and separate possession of the plaintiffs' 17/24th share in the suit property and for division of the property accordingly and also for costs of the suit.

2. The suit property is situated at Grama Natham, survey No.1/25 measuring 10 cents in Thaikkaal Street, Madura Thulukkam Palayam Village, Cuddalore District.

3. By judgment dated 30.03.1990, the learned Sub Judge, Cuddalore, had decreed the suit. Aggrieved by such judgment, the first, fourth and fifth defendants filed A.S.No.188/1990 before the Additional District Court/Chief Judicial Magistrate, Cuddalore. By judgment dated 27.04.2001, the appeal suit was dismissed and the judgment and decree of the trial Court in O.S.No.22 of 1989 was confirmed. Since the first defendant died, the fourth and fifth defendants had filed the present second appeal.

4. The second appeal had been admitted on the following substantial question of law:

“ Whether the purchase in the name of one member of the family can be construed as joint family property as joint family is unknown to Mohamedan Law?”

During the course of arguments, that substantial question of law was deleted and the following substantial question of law had been framed.

“Whether a property allotted to a Musilm male in a partition deed is taken by him absolutely or whether as a tenant in common along with his minor brothers?”

5. Pending the appeal, the first, second and third respondents died and their legal representatives were brought on record as 6th to 12th respondents.

6. It had been stated in the plaint in O.S.No.22 of 1989 that the suit property consisting of a house and a vacant site adjoining each other originally belonged to one Sayabu Kandu Rawuthar. He had two sons Sheikh Mohideen and Abdul Rahman and one daughter Sarambi. They inherited his property. The sons took two shares and the daughter took one share. Sheikh Mohideen died leaving his widow Ameerbi and one son and two daughters. The son predeceased his mother Sarambi died in 1925. Her husband and her son predeceased her. Her share was inherited by her brother Abdul Rahman. The two daughters of Ameerbi pre deceased their mother. Ameerbi sold her share in the property with specific boundaries to the third plaintiff who was the wife of the first plaintiff on 16.05.1962. Later, Ameerbi's granddaughter made some claim to the property and therefore, a release deed was obtained on 11.12.1970. This deed was registered. The plaintiff put up a building in the property purchased. After the death of Abdul Rahman, there was a dispute between his legal heirs on one hand and Ameerbi, the wife of his brother Sheikh Mohideen Rawvuthar. This dispute was resolved and a partition deed dated 24.10.1936 was entered into by Mohammed Ismail the eldest member of the family representing Abdul Rahman's branch who also represented his younger minor brothers.

7.The A schedule property was given to Mohamed Ismail. The B schedule property was given to Ameerbi. The A schedule property was enjoyed by Mohamed Ismail and the plaintiffs and was enjoyed in common. In 1947, the first and second plaintiffs constructed the building. Mohamed Ismail died leaving behind the first defendant, his widow and the second and third defendants, his sons and the fourth and fifth defendants, his daughters as his legal heirs. On the death of Abdul Rahman, his widow Ayshamma and his three sons, Mohamed Ismail and the plaintiffs and Rohiabi inherited the property. On