HAFEEZ ULLAH Vs. KHATOON BIBI

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 it 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.) APPEAL is allowed The order of the learned lower court remanding the suit is set aside. Learned lower court is directed to treat the review application as infructuous and proceed to determine the shares of the daughters on the material before the learned lower court. The stay order passed on 29-8-88 is vacated. It will have no consequence whatsoever. So far as this appeal is concerned, parties shall bear their own costs. Learned lower court shall dispose of the appeal without further delay.