KALLU Vs. STATE OF U P

JUDGEMENT

(1.) This is an appeal against an order of remand in partition suit.

(2.) Parties are Muslims and are governed by Mohammadan law. In the partition suit even daughters were parties. Trial Court passed a preliminary decree of partition declaring the share of Plaintiffs 3-1/9 in the suit property. In appeal the learned appellate Court, observed that the shares of, the daughters should have also been determined but if was not safe to determine their share without their written statement. No parry can be compelled to file written statement. Determination of shares of daughters was purely a question of application of law according to the proved pedigree. It appears, that at earlier stage Appellant was directed to file review application before the lower appellate Court. It is conceded that the Appellant filed review application which is still pending. It is evident that the ground of remand is unsustainable. Lower appellate Court should have itself proceeded to determine the shares of the daughters and if necessary re-detremine the share of the Plaintiff.

(3.) In the result this appeal should be allowed. The order of the lower appellate Court should be set aside and it should be further added that review Petition pending before the lower appellate Court has become infructuous.