NOOR MOHAMMAD Vs. ZAINUL ABDIN

JUDGEMENT

(1.) This is a second appeal involving a matter of very small value. The suit was a partition suit. It is important to observe that. The pedigree by which the interests of the contesting parties is traced is a complicated one and I do not propose to set it out in every detail. To put the matter as shortly as it can be put, there was a property which many years ago was in the ownership of a common ancestor named Hayatan. Hayatan had three sons, Abdul Rahman, Suleman and Ibrahim, the first-named by his first wife and the two last-named by a second wife. The property in question which is sought to be partitioned in this suit was, it is said in the joint ownership of Suleman and Ibrahim. The plaintiffs who are three in number trace their title through Ibrahim and the defendants trace their title through Suleman. Defendant 6 is a formal party. The half-share of the property which devolved upon the death of Ibrahim together with a further 20 out of 192 shares devolved, according to the plaintiff's story, as to an aggregate of 58 shares, upon a lady named Fatima and as to the remaining 58 shares upon one Ali Ahmad, the deceased husband of plaintiff 3, Mt. Khair-un-nisa. On the death of Fatima no difficulty arises because her 58 shares admittedly devolved upon the plaintiffs. As to the 58 shares, however, of Ali Ahmad, the husband of Mt. Khair- un-nisa, the matter is not quite so easy.

(2.) According to the plaintiffs version, as set out in para. 4 of their plaint, Mt. Khair-un-nisa acquired not only 14&farac 12; such shares in her own right upon the death of her husband but also the remaining 43&farac12; shares in lieu of her dower which, it is alleged, was at that date unpaid. It is important to observe, therefore, that while the plaintiffs traced their title to 72&farac12; out of the 116 shares which they claim by devolution from Ibrahim the-remaining 43&farac12;| shares are claimed by Mt. Khair-un-nisa as having been acquired and taken possession of by her in lieu of her dower to which she was entitled from-her husband. The relevance of this question is that if this allegation on the part of Mt. Khair-un-nisa relating to these 43|&farac12; shares-is not correct, they would have devolved in part, at any rate, under the ordinary Mahomedan law of inheritance, upon the other branch of the common family altogether, that is to say, the branch of Abdul Rahman.-It comes to this that while as to 72&farac 12; shares-the plaintiffs have traced their title by descent from the common ancestor, as to the remaining 43&farac 12; shares one of them claims under the arrangement with her husband in respect of dower and in such a way that if she is right the interests not only of the plaintiffs and the defendants to this suit will be affected but also of the heirs of the third brother Abdul Rahman who are not and never have been parties to these proceedings. In the written statement the defendants in paragraph 15 deny that Mt. Khair-un-nisa was entitled to anything in respect of dower and they allege that 1f she was, her dower was only a trifling amount of some Rs. 150. They dispute that she ever took possession of these 43&farac 12; shares in lieu of dower. And, accordingly, as between themselves and the plaintiffs, at any rate, they put at once in issue the destination of the 43&farac12; shares in question.

(3.) Now at that point it is necessary for me to draw attention once again to the fact that this is a partition suit. There is no mystery about a partition suit. It is simply a suit in which persons who are jointly entitled to an undivided property set in motion the processes of the Court to obtain a division of it in severalty among themselves. There is accordingly in Order 20, Rule 18 precise machinery provided for the Court to do what is necessary to be done. And it is carefully provided what the Court's decree is to contain and what is the order to be carried out. It is obvious that when a property is to be divided not merely into undivided shares but by a physical partition the first thing to be done is to ascertain who are exactly the people entitled to share in the division. Bach of them is interested in seeing that what is done is rightly done, and for that reason we find that in Order 20, Rule 18, which in this respect has not been materially amended by our own rules, the first thing that the Court has got to do by the decree it makes is to "declare the rights of the several parties interested in the property." The Court has therefore first to ascertain judicially who all the persons are who are interested in the land to be partitioned and then in its decree it has to declare who they are and also what their rights are. It then goes on to make provision for giving practical effect to the partition and for separate possession to the various participants. It goes to the whole root of the matter that at the outset the entire interests in the property should be ascertained and fixed. That is why the Code is careful to require the decree to be in this form.