MAIMOON BIVI Vs. O A KHAJEE MOHIDEEN

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent from the judgment of our learned brother Kailasam J. in a regular first appeal. The suit is one for partition of the properties of a deceased Muhammad Ahmed Meeran who in March 1943, leaving as his heirs his widow Maimoon Bivi, minor son Khaja Mohideen and minor daughter Mohideen Batharomal, filed by Khaja Mohideen after becoming a major, the widow, the chief contestant in the suit, is the first defendant. The minor daughter of the deceased represented by her husband as guardian is the third defendant. She became a major pendente lite. The suit properties comprise the plaint first and second schedule properties. The first schedule properties were secured as the two-third share of the deceased Ahmed Meeran in his father's estate under the decree in O. S. No. 329 of 1943 on the file of the District Munsif court, Tirunelveli. The second schedule property stands in the name of the widow the first defendant, under a purchase as per the original of Exhibit A-13, 13-31955. It is the case of the plaintiff that the second schedule property, though standing in the name of the first defendant, has to be partitioned among the heirs of the deceased Ahmed Meeran, as the property was purchased in the name of the first defendant with the surplus income from the first schedule properties for the benefit of all the heirs, There is no dispute as regards the first schedule properties and the shares the parties are entitled to therein--the plaintiff to 14/24th share, the first defendant to a 3/24th share and the daughter the third defendant to the remaining 7/24th share. The contest is only in respect of the second schedule property which the first defendant claims to be an acquisition made by her for herself. The learned Subordinate Judge upheld the first defendant's exclusive right to the second schedule property and granted a preliminary decree for partition of the first schedule properties except item 9. On appeal to this Court, our learned brother, Kailasam J. , allowed the appeal upholding the plaintiffs claim for partition of the second schedule property also. The Letters Patent Appeal is directed against the variation of the decree in respect of the second schedule property.

(2.) THE short question for consideration is whether the second schedule property was acquired with the income from the first schedule properties as an accretion to the common estate as pleaded by the plaintiff. The common case of the parties is that, after the death of her husband, the first defendant along with her children was living in her father's house and that her father was looking after the first schedule properties, He was spending out of the income from the properties for the maintenance of the first defendant and her children as well as for education of the children. It is an admitted fact that he was a well-to-do person. He died on 310-1955. It is the plaintiff's case that the maternal grandfather purchased the second schedule property with the surplus income from the first schedule properties. The first defendant would contend that she had funds of her own, that she used to earn by doing yarn-winding, stitching and embroidery work, that her father also used to give her moneys, that she lent out the moneys and after realising moneys lent, she purchased the secona schedule property.

(3.) TO start with, certain principles have to be borne in mind while considering the claims made in this case and examining the evidence on record in relation thereto. We are here concerned with a property acquired by a Muslim woman at a time when her husband's estate was owned in common by her along with other heirs, her children. Another important feature is that the common properties were in the management of her father, She was an adult and the other co-heirs were minors. Under the Muham-madan Law, she was not the property guardian of the minors. Nor was the maternal grandfather who was actually in management of the properties, guardian of the minors. He had assumed management of the family properties, no doubt, for the benefit of the co-heirs. It is well established that, even in the case of a joint Hindu family where there is sufficient nucleus, there is no presumption that property standing in the name of a female member of the family is joint family property. As pointed out in Abdul Samad Khan v. Bibi-Jan, 49 mad LJ 675 = (AIR 1925 Mad 1149), there is no provision in Muham-madan Law that the acquisitions of the several members of a family are made for the benefit of the family jointly; and the principles and presumptions applicable to the case of a Joint Hindu family are not applicable to a Muhammadan family. At the moment of his death, the estate of a deceased Muhammadan devolves on his heirs and they take the estate as tenants-in-common in specific shares. The theory of representation is not recognised under the Muhammadan Law and the interest of each heir is separate and distinct, As observed in Abdul Huck v. Seethamsetti Taya rao, 106 Ind Cas 76 = (AIR 1928 Mad 14), children in a Muhammadan family are not co-owners in the sense that what is pur--chased by one person enures for the benefit of another. In that case, the children of a deceased Muhammadan were minors at the time of his death and their paternal uncle who managed the properties on their behalf purchased some property in the name of one of the minors. The contention that inasmuch as the property was purchased in the name of a minor it must be taken to have been purchased for the benefit of the whole family, was rejected. But, as there was evidence that some cash left by the deceased was utilised for the purchase, it was held that to the extent the amount was taken for the purchase from the general estate of the minor in whose name the property was purchased had to give credit to the estate for the amount. It was said that when accounts were taken the family would be entitled to debit against the per-son in whose name the property was purchased the amounts utilised for the purchase, and that the fact that the property was purchased by him with money taken from the father's estate would not make the property the common property of the family. We may here usefully refer the following observations of ours in Venkatasubramania v. Eswara Iyer: