ABDUL RAHMAN Vs. HAMID ALI SHAH

JUDGEMENT

(1.) THE appellants are the plaintiffs. They had purchased house No. 588 situate in jawaharganj ward of the Jabalpur town from Hamid Ali Shah (defendant No. 1)and Ahmad Ali Shah (defendant No. 2), sons of Mohammad Ali Shah, by a registered sale deed dated 2-6-1945. In pursuance of the aforesaid sale, they also entered into its possession. The house in suit belonged to Mohamma Ali Shah, and the vendors, defendants Nos. 1 and 2, were only two of the heirs of the deceased mohammad Ali Shah. In the year 1945 the other heirs of Mohammad Ali Shah, defendants Nos. 4 to 9 (respondents Nos. 4 to 9) filed a civil suit, No. 68-A of 1945, in the Court of the additional Civil Judge, Class II, Jabalpur, against the plaintiffs only, claiming their share in this house No. 588 on the ground that Hamid Ali Shah and Ahmad Ali shah, two of the heirs of the deceased Mohammad Ali Shah, had no right to alienate the shares of defendants 4 to 9 in the suit property. The appellants who were the defendants in that case objected to the suit on the ground that a claim for partial partition was incompetent and that the entire property of the deceased Mohammad Ali Shah should have been made available for general partition so that the equities between the parties could be adjusted. This objection was disallowed by the Court in that suit by an order dated 9-91946.

(2.) THEREUPON the appellants filed the present suit seeking to have a general partition effected of all the properties of the deceased Mohammad Ali Shah so that the equities between the parties may be worked out fully by allotting the (sic)use in suit to the vendors of the plaintiffs, namely, Hamid Ali Shah and Ahmad Ali shah if this could be done without injustice to the non-alienating heirs of muhammad Shab. The respondents resisted the present suit on the ground that the plaintiffs had no right to sue inasmuch as they had no right to the properties of which they sought a general partition.

(3.) THE suit was dismissed by the trial Court and this dismissal was confirmed by the lower appellate Court. The Courts below held that under the Mahomedan law a vendee of a specific property from some of the heirs could not ask for a general partition in order to have the equities adjusted by allotting the property alienated to him by some of the heirs to their share while effecting a general partition of the whole property.