Partition suit remanded for impleading all legal heirs under Mohammedan Law and CPC O.1 R.10 to avoid multiplicity.

(Judgment of the Court was made by G.R.Swaminathan J.)

The plaintiffs in O.S No.20 of 2013 on the file of the IV Additional District Judge, Tirunelveli are the appellants herein. The appeal arises out of a suit for partition. The parties are Mohammedans.

2.The suit was instituted by one Mytheen Pathu against one Shakila Banu seeking half share in the suit property. The case of Mytheen Pathu was that she and one Kalwath Beevi were born to one Sheik Peer Mohideen. Sheik Peer Mohideen had begotten a son, namely, Meeran Mohideen, and two daughters, namely, Kalwath Beevi and Mytheen Pathu. Meeran Mohideen predeceased his sisters. Kalwath Beevi died leaving behind the defendant Shakila Banu, who is her daughter. As per Mohammedan’s Law, daughter is entitled to half share in the property if there is no son. The parties belong to the Sunni School of Islamic law.

3.The defendant resisted the suit on the ground that Mytheen Pathu was not the full sister of Kalwath Beevi but only a consanguineous sister. In other words, according to the defendant, Sheik Peer Mohideen married three persons successively. Through his first wife Mohammed Fathima, four children including Mytheen Pathu were born. The defendant / Shakila Banu firmly contended that Kalwath Beevi and Mytheen Pathu were not full sisters.

4.Based on the rival pleadings, the Court below framed the following issues :

1) Whether the plaintiff is the legal heir of the Kalwath Beevi?

2) Whether the suit is bad for non-joinder of necessary parties?

3) Whether the plaintiff is entitled ½ share of the suit schedule properties?

4) What other relief the plaintiff is entitled to?

5.During the pendency of the suit, Mytheen Pathu passed away and her legal heirs were brought on record. Prior to her demise, Mytheen Pathu examined herself as PW.1. Four other witnesses were also examined on the side of the plaintiffs. Exs.A1 to A9 were marked.

Shakila Banu examined herself as DW1 and marked Exs.B1 to B5. After considering the entire evidence on record, the Court below dismissed the suit vide judgment and decree dated 21.12.2016. Challenging the same, this appeal came to be filed. The learned counsel on either side reiterated their respective contentions.

6.The points that arises for determination are whether the Court below was justified in non-suiting the plaintiffs on the ground of non- joinder of necessary parties and whether the plaintiff was the full sister of Mytheen Pathu / Kalwath Beevi.

7.The oral evidence adduced by Mytheen Pathu speaks for itself.

During cross-examination, Mytheen Pathu fairly admitted that her mother was Mohamed Fathima whereas Kalwath Beevi’s mother was Fathima. Mytheen Pathu did not produce any legal heir certificate. There is no documentary evidence to show that she was the full sister of Kalwath Beevi. Therefore, the Court below rightly held that the suit was bad for non-joinder of necessary parties. Mytheen Pathu ought to have impleaded her siblings and other legal heirs. It is relevant to note that after the demise of Mohammad Fathima and Fathima, the first and second wives, Sheik Peer Mohideen married one Jameela Beevi and through the third wife, three children were born, namely Jinna, Fathima and Rasul. This is the admitted case of Mytheen Pathu herself. Therefore, the legal heirs of the third branch also ought to have been impleaded.

8.This is a partition suit. Instead of driving the parties to file one more partition suit, we deem it fit and appropriate to remand the matter to the file of the Court below so that the plaintiffs can implead all the other legal heirs also. Such an approach was