AHMAD ABDULLA Vs. AYESHA

JUDGEMENT

(1.) THIS is an appeal under Clause 10 of the Letters Patent of this High Court and is directed against the decision of Sen J. , who considered the effect of omission to bring on record the legal representatives of one of the plaintiffs in a suit for partition at the stage of appeal where the parties were Mohammedans. The question arose after the passing of the preliminary decree by the High court in second appeal on an application submitted on behalf of the defendants dated 3012-1955 contending that the preliminary decree was null and void due to the aforesaid emission. The trial Court considered the omission to be not fatal to the decree so as to make it null and void. It consequently passed a final decree for partition. On appeal by the defendants the appellate Court upheld the defendant's contention and set aside the final decree further holding that the preliminary decree was a nullity. Sen J. , in second appeal against that decision upheld the decision and dismissed the appeal but granted leave. Present appeal is consequently filed.

(2.) MATERIAL facts are as follows: one Pirbux owned a house in Pinjarwadi Jaora. He left behind two sons noor Mohammad and Aliabux and a daughter Sakina. These three children of Pirbux died in succession. First to die was Allabux leaving behind him his widow Ayesha and no issue. Subsequent to him died noor Mohammad without leaving any widow or child. Sakina died last leaving behind her two sons Kasam and Ahmad and a daughter Nasiban. Thus on the death of all the three children of Pirbux the only persons left to claim the property in dispute were Ayesha on the one hand, Kasam, ahmad and Nasiban on the other. Ayesha made a gift of the entire house in favour of one Abdul Majid who in his turn mortgaged the same with khudabux and Wali Mohammad. Thereupon Kasam, Ahmad and Nasiban filed the present suit for partition im-pleading Ayesha as defendant No. 1 and the transferees Abdul Majid Khudabux and Walimohammad as defendants No. 2, 3 and 4. The suit was resisted by the defendants. At the hearing Kasam changed front and made a statement on 9-12-1950 supporting the defendants that the 11 Chasma house in Pinjarwadi belonged exclusively to Ayesha and that he did not want to claim any share in that house. Ahmad and Nasiban preferred appeal against this decision. Kasam did not join in this appeal. He was consequently made a co-respondent. This appeal was also dismissed. A Second appeal was thereafter taken to the Madhya Bharat High Court. Some time during the pendency of this appeal Kasam died. However neither th'e appellants nor the rest of the respondents brought this fact to the notice of the High court. The second appeal was consequently heard in the absence of legal representatives of Kasam and without their being brought on record. It was allowed and a preliminary decree was passed on 27-8-1955. After this when the case went back to the trial Court in connection with the proceedings for the final decree an application was submitted on behalt of the defendants on 30-12-1955 contending that the suit had wholly abated due to death of Kasam during the pendency of the appeal and without his legal representatives being brought on record and the preliminary decree passed against them was a nullity. Ignoring this application the trial Court (Mr. Durvey) passed final decree. The deten-dants again appealed against that decree and the appellate Court remanded the case for consideration of the application dated 30-12-1955. The trial Court held that the preliminary decree was not a nullity since there could be no total abatement for failure to implead legal representatives of a pro forma respondent. Mr. Chandnani who was then trying the case accordingly, again passed a final decree in the same terms as had been passed by Mr. Durvey. me defendants again appealed. The appellate Court, however took a contrary view and held that the suit had wholly sbated and the preliminary decree was a nullity. The final decree passed by the trial Court was consequently set aside. The plaintiffs Ahmad and Nasiban appealed. Sen ). , who heard the appeal dismissed the same. Principal ground in which Sen J. , proceeded was that a case for partition has its own peculiar features, tie observed:

(3.) THE learned Judge repelled the contention put on behalf of the plaintiffs Ahmad and Nasiban that they were not claiming anything from Kasam or his legal representatives, that the only effect of Kasam's death would be to augment their own share to a certain extent and that ttiis would not lead to inconsistent decrees. According to the learned Judge