HAJI MOHAMED ABDULLAH Vs. C ABDUL RAHIMAN

JUDGEMENT

(1.) THIS second appeal by some of the defendants is directed against a concurring judgment arising out of a suit for declaration of the plaintiffs' share, and partition and separate possession thereof. To the suit, were impleaded some of the heirs of the original owner as defendants. One of the objections to the maintainability of the suit was that the rest of the heirs of the original owner had not been impleaded in the suit. Both the courts below were agreed that this objection could not be upheld. The aggrieved defendants have appealed to this court. Unlike the case of coparcenary under the Hindu law, the Muhammadan heirs inherit their shares in definite fractions. When there are several such heirs and each of them owns a definite fraction, they are all joint co-owners or tenants-incommon. Where a Hindu sues for partition and separate possession of his share in the joint family properties, he cannot ask for partial partition and separate possession of his share alone. That is peculiar to the nature and incidents of coparcenary law which cannot, with justification, be extended to the case of mohammadan heir suing for partition of his share alone. This principle appears to be well settled so far as this court is concerned. Moideen rowthen v. Mahammad Kasim Rowthen, 28 Ind Cas 895, (AIR 1916 Mad 248), has held that when under Muhammadan law the estate of a deceased person devolves on his heirs, each of them becomes entitled to his definite fraction of every part of the estate and therefore a suit in which one heir claims to receive his share of the property of the deceased from another heir is not a suit for "partial" partition, as understood in Hindu law. To the same effect is the decision in Moideen Kutti v. Mariamumma, 41 Mad LJ 457 : (AIR 1921 Mad 404 ). In that case too it was pointed out that in the case of mahomedans, the co-heirs were only tenants-in-common, there being no joint family in the Hindu law sense. No doubt it was observed in that case that partial partition1 might be allowed in such cases if there was not much inconvenience to the other sharers and if the plaintiff would otherwise be left without a remedy. It is contended that the non-impleading of some of the heirs will result in multiplicity of proceedings and inconvenience. No circumstances have been established in support of this contention.

(2.) THE second appeal is dismissed with costs. No leave.