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High Court Of Madhya Pradesh
T. P. Naik and S. P. Bhargava, JJ.
TIKAM CHAND LUNIA - Appellant
Versus
RAHIM KHAN ISHAK KHAN AND ORS. - Respondents
First Appeal 70 Of 1965
Decided On : 04/22/1970
It is well settled that a deed of partition to which a Mahommedan minor is a party represented by his mother as a de facto guardian is void and not binding on the minor irrespective of the considerations that it benefitted him or the arrangement was followed for a long period. AIR 1952 SC 358 & AIR 1954 Tr. Co. 370 relied on. [Para 11]
(2) Mahommedan Law-partition-share in the property to each person-each single property need not be divided-intrinsic value of the property not to be distroyed-duty of the Court.
On the death of a Mahomedan, his heirs become entitled to their specific shares in the estate of the deceased as tenants-in-common. What they can validly insist upon is that they must be given property equal to their share in the property left by the deceased but they cannot insist that each single property must be divided into so many as represent the shares of the heirs. It is true that every co-owner has a legal right to have the joint properties partitioned. Mere reluctance or some inconvenience of other co-owners is not by itself sufficient to take away the said right. Different considerations, however, apply where a partition is inconvenient or is destructive of the intrinsic value of the property. In such cases Court avoid actual partition as far as practicable and adopt a procedure more suitable in the circumstances of the case. The Court has the jurisdiction to allot such a property exclusively to one co-owner with suitable direction for payment of only money to the others. [Para 14]
(3) Mahommedan Law-sale by a co-owner -right of the purchaser to claim partition-equities in favour of purchaser-should be worked out-principles to be followed.
A co-owner under Mahomedan Law has a right to sell his undivided share in the estate to which he has succeeded as an heir. An alience of a specific item of the property stands in the shoes of the co-owner from whom he has purchased any specific item of property and thus, he obtains a personal right which he is entitled to enforce against the shares of his vendors. [Para 15]
The principles which apply in cases of partition among Hindus also apply in the cases of Mahommedans. The underlying principle is that a bona fide purchaser for value should not be prejudiced by reason of any subsequent suit for partition brought on behalf of the other co-sharers and that if without doing injustice between the parties the equities between the alienee and the other co-sharers can be so adjusted as to allow the purchaser the full fruits of his bargain for which he has paid full consideration, that ought to be done. AIR 1930 Bom. 40 relied on. AIR 1931 Mad. 384 dissented from. [Para 16]
However, if on consideration of the character and nature of the property to be divided and the extent of the shares of other co-owners, the house sold could not be exclusively allotted to the shares of the alienors, the sale must be construed to be the sale of much portion in that house as could justly be given to the shares of the alienors having regard to all the equities in the circumstances of the case. [Para 17]
( 1 ) THIS judgment shall govern the disposal of First Appeal No. 33 of 1965 also which arises out of Civil Suit No. 1-A of 1962 filed by respondents 1, 2 and 3 against respondents 4, 5, 6 and 7 and the appellant Tikam Chand.
( 2 ) THE present appeal arises out of Civil Suit No. 2-A of 1962 filed by the appellant against the respondents. The appellant had purchased a house situated on plot no. 17/1, Jagdalpur town, from respondents 4 and 5 Gaffar Khan and Sahadat khan on 15-4-1959 for Rs. 13000/ -. The said house belonged to one Sardar Khan who was a Sunni Mahomedan. Sardar Khan admittedly died in the year 1933. At the time of his death, he left behind his three sons Ishak Khan, Gaffar Khan (defendant No, 4 ). Sahadat Khan (defendant No. 5) and his daughter Smt. Munir bi (defendant No. 6 ). Ishak Khan died in the year 1953 leaving behind his two minor sons Rahim Khan (defendant No. 1) and Manjur Khan (defendant No. 2) and his widow Smt. Tazul Bi (defendant No. 3) as his heirs. It is not disputed that in the estate of Sardar Khan his three sons had an equal share of 2/7 each and his daughter had l/7th share and that these heirs inherited the estate of the deceas-" ed as tenants-in-common.
( 3 ) AT the time of the death of Sardar Khan in 1933, he left behind the following properties:-
(1) Four houses on plot No. 17/1 in the town of Jagdalpur. Area of the plot was 11470 sq. ft. (2) Agricultural lands 26. 79 acres in village Bhond of Jagdalpur Tahsil. (3) Agricultural land admeasuring 22. 50 acres in village Kawarawand of jagdalpur Tahsil.
In the plaints of Civil Suit No. 1-A of 1962 and Civil Suit No. 2-A of 1962 the area of agricultural land situated in village Kawarawand was stated to be 18. 44 acres but the appellant made an application before us on 9-3-1970 alleging that the said area was wrongly stated and the correct area of the said land was 22,50 acres. By our order dated 25-3-1970 we allowed the application for amendment as it was not opposed and as the error in stating the area of the said land was clearly based on a mistake.
( 4 ) THE case of the plaintiff-appellant as set out in the plaint of Civil Suit No. 2-A of 1962, was that in the lifetime of Ishak Khan in the year 1950 a partition took place orally between his sons and daughter; that in the said partition defendants Gaffar khan and Sahadat Khan were jointly allotted subplot No. 17/4 out of plot No. 17/1 referred to above and thus got in their share an area of 3762 sq. ft. with a pakka house on it and that agricultural lands in village Kawarawand were also allotted to them in their shares. The shares allotted to Ishak Khan and Smt. Munir Bi were also stated in paragraph 3 of the plaint. It was further averred that later the said oral partition was confirmed by a registered partition-deed executed on 26-51958; that Smt. Tazul Bi (defendant No. 3), mother of the minor defendants kahim Khan and Manjur Khan, represented the branch of Ishak Khan for herself and for her minor sons at the time of the execution of the said partition-deed and precisely the same properties which were previously allotted in the oral partition of 1950 were stated in the partition-deed to have fallen to the shares of the respective heirs of deceased Sardarkhan; that on 14-7-1958 Gaffar Khan and sahadat Khan (defendants 4 and 5) mortgaged the house which had fallen to their shares namely, the pakka house on plot No. 17/4, to the Firm Rajhumal Relumal of Jagdalpur for the principal amount of Rs. 5500/-and that the mortgagee firm, which was previously the tenant of the said mortgagors, continued in possession of the house paying a rent of Rs. 80/- per month to them. It was further averred that on or about 10th April 1959 Gaffar Khan and Sahadat khan (defendants 4 and 5) contracted to sell the mortgaged house after redeeming it from the mortgagee to the plaintiff for a total consideration of Rs. 13000/ -. It was alleged that defendants 4 and 5 took advance from the plaintiff, re
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