KORUMBAKKAT PARKUM VENGAALASHERI MOIDIN KUTTI Vs. THUNIYILANDIYIL MARIAMUMMA

JUDGEMENT

(1.) The facts of the case may be briefly stated. Defendants 4, 5 and 6 are Muhammadan brothers. The 7 defendant is their sister. The suit property belonged in jenm to their father who demised it on kanom to 1 defendant on 4 June 1903, Ex. C being the marupat. The defendants 4. and 5 granted a melcharth of the property to plaintiff by Ex. B (dated 20th February 1915) and on its footing the plaintiff brought a suit for redemption of the kanom (O: Section No. 616 of 1915). That suit was dismissed on the ground that Ex. B. was valid only as regards the 4/7 share of defendants 4 and 5 and was not binding on defendants 6 and 7 and the suit could not be converted into a suit for partition without the consent of the defendants. See Mamu V/s. Kuttu (1882) I.L.R. 6 Mad. 61. The present suit is for partition and recovery of the 4/7 share. It may be mentioned that meanwhile the kanom in favour of 1 defendant had expired and the 1 defendant had a renewal under Ex. I from the 6 defendant. The Lower courts found that Ex. I is valid only in respect of the 2/7 share of the 6 defendant.

(2.) The 1st, 6 and 7 defendants contended that the suit was not maintainable, being one for partial partition. The Munsif allowed this contention ; but the Subordinate Judge reversed his finding and remanded the appeal for disposal according to law. This appeal against the order of the Subordinate Judge has been filed only by the 1 defendant who repeated the contention before us. If this were a case of Hindu Law the objection would certainly hold good - Vide Sundara Iyer V/s. Krishna-moorthi Iyer and Manjaya V/s. Shunmuga (1913) I.L.R. 38 Mad. 684: 26 M.L.J. 576. But the objection can be raised only by the members of the family and not by strangers. See Ibranisa Rowthan V/s. Thiruvenkataswami Naick (1910) I.L.R. 34 Mad. 269 at pages 274-5: 20 M.L.J. 743 where it is said that a stranger cannot enforce partition against the will of the other members without suing for a general partition. It follows that the objection may be waived by them and this can be done at any stage.

(3.) Again even as a rule of Hindu Law, it is a rigid rule only so far as joint family property is concerned being a substantial rule of Hindu Law-See Bakewell, J in Manjaya V/s. Shanmuga (1913) I.L.R. 38 Mad. 684: 26 M.L.J. 576. If the property is not joint family property and the parties are not co-parceners but only co-owners or tenants-in-common the rule is not so rigid and partial partition may be allowed if there is not much inconvenience to the other sharers and if the plaintiff will otherwise be left without a remedy--See Radha-kanta Shah V/s. Bipro Das Roy (1904) 1 C.L.J. 40, and Syed Habibur Rasul Abdul Faiz V/s. Ashitu Mohan Ghosh 12 C. 34 C.W.N. 640 and Uma Sundari Debi V/s. Benode lal Pakrashi (1907) I.L.R. 34 Cal. 1026 and A.S. No. 133 and 184 of 1907. It is then merely a rule of processual law.