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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN AND THE HONOURABLE MR.JUSTICE P.B.BALAJI
M.S.S.Jabar - Appellant
Versus
S.Sheik Ussain Rawuthar (Died) – Respondent
A.S.(MD).No.46 of 2016 and C.M.P.(MD)Nos.3206 of 2016 & 10207 of 2022
Decided on : 21-03-2024
PARTITION - MUSLIM LAW - CPC ORDER XLI, SECTION 96 - The court discussed the principles of partition under Muslim law, emphasizing the necessity of including all necessary parties in a partition suit. It highlighted that female heirs are entitled to a share in property as per Quranic provisions, and the absence of evidence supporting a custom excluding them rendered the plaintiffs' claims unsustainable. The court also addressed the issue of partial partition, ruling that the suit was flawed for not including all relevant properties, ultimately leading to the decision to set aside the trial court's decree.
Fact of the Case:
The plaintiffs filed a partition suit regarding properties originally belonging to Saiyappa Rowuthar, claiming their entitlement to shares after a partition deed in 1967. The defendants, who were minors at the time of a subsequent sale, contested the suit, asserting that an oral partition had occurred and that the plaintiffs had no rights to the properties.
Finding of the Court:
The trial court ruled in favor of the plaintiffs, granting them a preliminary decree for partition. However, the appellate court found that the plaintiffs failed to prove their claims, particularly regarding the exclusion of female heirs and the validity of the oral partition. The court concluded that the plaintiffs were not entitled to any decree for partition.
Issues: 1. Whether the plea of customary practice excluding female heirs is sustainable? 2. Whether the suit for partition is bad for partial partition and non-joinder of necessary parties? 3. Whether the plaintiffs are entitled to any share in the suit property?
Ratio Decidendi: The court held that the plaintiffs did not provide sufficient evidence to support their claim of a custom excluding female heirs from property rights. It emphasized that all necessary parties must be included in a partition suit and that the absence of female heirs rendered the suit invalid. Additionally, the court found that the plaintiffs' claim for partial partition was flawed due to the omission of other properties from the suit.
Final Decision: The appellate court set aside the trial court's decree, ruling that the plaintiffs were not entitled to any partition of the suit properties. The appeal was allowed with no order as to costs.
JUDGMENT :
RMT.TEEKAA RAMAN, P.B.BALAJI, JJ.
Prayer:- Appeal filed under Order XLI Rules 1 & 2 r/w. Section 96 of the Code of Civil Procedure, against the judgment and decree, dated 31.07.2015, made in O.S.No.38 of 2013, on the file of the Additional District and Sessions Judge, Dindigul.
The unsuccessful defendants 2 to 5, who suffered a decree in a partition suit filed by the plaintiffs 1 to 6, are the appellant before us.
2. For the sake of convenience, the parties are referred to as per their rank before the Tribunal.
3. The parties are Muslims. It is the case of the plaintiffs that the property originally belonged to one Saiyappa Rowuthar, who had two sons by name, Kader Mohaideen Rawuthar, Sheik Mohaideen Rawuthar. The son, viz., Kadher Mohaideen Rawuthar died leaving behind his only son viz., Mohamed Ibrahim Rawuthar. Sheik Mohaideen Rawuthar married one Mariyam Beevi. They were blessed with 3 sons (viz., Sheik Ussain Rawuthar (first plaintiff), S.Mohamad Abupakkar (first defendant) and Sahul Hameed (father of plaintiffs 2 to 5) and 3 daughters (viz.,Barisha Beevi, Subaitha Abdul Jack and Badhunisha. The said Sheik Mohaideen Rawuthar died leaving behind Sheik Ussain Rawuthar (first plaintiff), S.Mohamad Abupakkar (first defendant) and Sahul Hameed (father of plaintiffs 2 to 5) as legal heirs. Barisha Beevi was blessed with 4 sons (viz., defendants 2 to 5 herein) and 5 daughters. The daughters of the said Barisha Beevi have not been arrayed as parties to the suit. Similarly, the sister of plaintiffs 2 to 6, is also not arrayed as a party to the suit.
4. The case of the plaintiffs is that there was a partition in the family on 21.06.1967 under which 'A' schedule properties were allotted to Mohammed Ibrahim Rawuthar, Son of Kadher Mohaideen Rawuthar, 'B' Schedule properties were allotted to the sons of Sheik Mohaideen Rawuthar viz., Shahul Hameed Mohammed Abubakkar and Sheik Ussain and 'C' schedule properties were retained for common enjoyment between the parties. The suit has been filed in respect of 10 items of properties that were left in common and described in Schedule 'C' partition deed dated 21.06.1967. According to the plaintiffs, Mohammed Ibrahim Rowuthar pursuant to the partition deed, dated 21.06.1967 sold his undivided ½ share in 'C'' schedule property to the defendants 2 to 4, who were minors, in and by a sale deed, dated 20.10.1967. According to the plaintiffs, the other undivided ½ share in the 'C' schedule property is liable to be partitioned and since the plaintiffs came to know that the defendants 2 to 5 had created sale deeds and started dealing with the schedule property, they were constrained to approach the Court for partition and also challenged the several registered documents executed by the defendants 2 to 5 in the nature of sale deeds and release deeds. According to the plaintiffs, the first plaintiff is entitled to 1/6th share and defendants 2 to 5 are jointly entitled to 1/6th share in the suit property.
5. The first defendant filed a written statement admitting the partition deed dated 21.06.1967 and also the subsequent sale deed dated 20.10.1967. However, according to the first defendant, there was an oral partition that took place in the year 1967 in respect of only suit item No.1 and the first defendant and his 2 brothers released their shares in favour of Barisha Beevi and after her demise, the defendants 2 to 5 are inherited and enjoyed the same. However, according to the first defendant, the remaining items in 'C' schedule properties were enjoyed only in common and therefore, the first defendant did not raise any objection for a decree being passed, excluding suit item No.1.
6. The written statement filed by the fourth defendant was adopted by the defendants 2, 3 and 5. The 4th defendant has stated that the suit is liable to be dismissed on the ground of partial partition and also for improper valuation of the suit relief as the plaintiffs were not in possession of the suit schedule property. Ac
A partition deed long acted upon by all parties through possession and alienation is binding and cannot be reopened by descendants, especially when the original parties to the partition accepted the ....
The main legal point established in the judgment is that unless prior partition is established, there shall be a presumption that the property is joint family property, and a family arrangement in th....
The court upheld that evidence of prior oral partition negates subsequent claims for joint ownership and emphasizes the need for comprehensive evidence when seeking partition in familial disputes.
The presumption of joint family status in Hindu law requires clear evidence to establish prior partition; the Appellate Court allowed partition of one property acquired post-partition while dismissin....
The court clarified the interpretation of Section 23 of the Hindu Succession Act and held that it did not apply in this case, as it had been repealed and the plaintiffs had a right to seek partition ....
The heavy burden of proof upon the proponent of oral partition before it is accepted, as per the settled principle of law by the Apex Court.
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