This Court again in Kasambhai Sheikh v. Abdulla Kasambhai Sheikh (2004)
13 SCC 385 has held that succession in Mohammedan Law is in specific shares as
tenants in common.
52. It was observed in Ram Awalamb v. Jata Shankar AIR 1969 All. 526 that a
joint tenancy connotes unity of title, possession, interest and commencement of
title; in tenancy in common there may be unity of possession and commencement
of title but the other two features as to unity of title and interest are missing.
53. In Mansab Ali Khan v. Mt. Nabiunnisa & Ors. AIR 1934 All 702, a suit was
filed by the plaintiffs who had acquired rights in 12/24 sihams in the property in
dispute. They claimed possession over the share of the whole property on the
ground that one of the defendant-respondents, Mt. Nabiunnissa, had sold certain
property to the defendant-respondents Nos.2 and 3. There was an agreement that
Mt. Nabiunnisa should remain in possession on the condition that she became
liable to pay all the debts due from the deceased. Though the agreement was not
proved, the trial court found that certain debts were paid by Mt. Nabiunnisa. It was
held that one of the heirs of a deceased Mohamedan was perfectly entitled to
alienate his share of the property without getting it partitioned provided he had
paid the proportionate share of debt on assessment of property.
54. Muhammadan Law does not recognize the right of any one of the
shareholders being tenants-in-common, for acting on behalf of co-heirs as laid
down in Abdul Majeeth Khan Sahib v. C .Krishnamachariar AIR 1918 Mad 1049
(FB). It has been laid down that one heir has no authority in law to deal with the
share of his co-heirs. Relevant portion is extracted hereunder :
“This is absolutely clear authority in proof of the position that one heir
has no authority, in law, to deal with the shares of his co-heirs. In face
of it, it is not necessary to refer to other original text-books. It is
stated, however, in Pathummabi v. Vittil Ummachabi I.L.R. 26 Mad.
734 that, "if the creditor of the deceased can seek his relief against one
of several co-heirs in a case where all the effects of the deceased are
in the hands of that heir, it can make no difference whether the heir
meets the demand by a bona fide voluntary sale, or the property is
brought to sale in execution of a decree obtained against him." To the
same effect is a decision of the Allahabad High Court in Hasan Ali v.
Medhi Husain I.L.R. 1 All. 533. The statement in Pathummabi v. Vittil
Ummachabi I.L.R. (supra) was purely by way of obiter dictum and
with all respect to the learned Judges, they failed to bear in mind that,
the provision of the Muhammadan Law, that a decree against one heir
in possession of all the effects of the deceased, is binding on all if
obtained after contest, is part of the processual law of that system and
is not based on the ground that a single heir, if he happens to be in
possession of the estate of the deceased, represents the rest of the heirs
for the purposes of administration generally. The ground on which a
decree against one of the heirs, in such circumstances, is treated as res
judicata is, as stated in the books, that the decree in such cases is, in
law, against the deceased and not against the particular heir who is
made defendant in the suit.
xxx xxx xxx
So far as voluntary alienations are concerned, which alone form the
subject-matter of reference, the Muhammadan Law is clear that one of
the heirs of a deceased person is not competent to bind the other heirs
by his acts,
Spencer, J. -- I agree with the judgment of Mr. Justice Abdur Rahim
just now pronounced.
Srinivasa Aiyangar, J.-- I agree. In the absence of any right in one of
the heirs to represent the co-heirs, one of several co-heirs can only
deal with his or her interest in the ancestor's property inherited by
them. My learned brother has shown that there is nothing in the
Muhammadan Law giving such a right to one of the co-heirs who may
happen to be in actual possession of the whole of the ancestor's estate;
such possession, it must be remembered, is presumably on behalf of
all the co-heirs. He is not constituted the representative of the
deceased and cannot administer his property even for the limited
purpose of paying off his debts. In Khiarajmal v. Daim L.R., 32 Ind.
App., 23, Lord Davey referring to a sale by one of the heirs of a
Muhammadan for discharging the debt due by the ancestor said
"prima facie his conveyance would pass only his share", See. p.37.
Representation in a suit may conceivably stand on a different footing
for as stated by their Lordships in the same judgment at page 35, "The
Indian Courts have exercised a wide discretion in allowing the estate
of a deceased debtor to be represented by one member of the family,
and in refusing to disturb judicial sales on the mere ground that some
members of the family, who were minors, were not made parties to the
proceedings, if it appears that there was a debt justly due from the
deceased, and no prejudice is shown to the absent minors. But these
are usually cases where the person named as defendant is de facto
manager of a Hindu family property, or has the assets out of which the
decree is to be satisfied under his control;" and they applied this
principle in that very case to the estate of Nabibaksh. However, that is
not the question here.”
55. In Mohammad Afzal Khan, Haji v. Abdul Rahman, Malik & Ors. AIR 1932
PC 235, the Privy Council has held that in case one of two or more co-sharers had
mortgaged an undivided share, the mortgagee takes the security subject to rights of
other co-sharers, and the partition if effected, the mortgaged properties are allotted
to the other co-sharers, they take those properties in the absence of fraud, free from
the mortgage and the mortgagee can proceed only against the properties allotted to
the mortgagor in substitution of his undivided share. The principle that emanates
from the aforesaid decision is that co-sharer can bind his property and cannot
create charge on the property of other co-sharers. The Privy Council had relied
upon the decision in the case of Byjnath Lall v. Ramoodeen Chowdry (1874) L R 1
Ind. App. 106, the relevant portion of Mohammad Afzal Khan, Haji (supra) is
extracted hereunder:
“As regards the first point, their Lordships are of opinion that where
one of two or more co-sharers mortgages his undivided share in some
of the properties held jointly by them, the mortgagee takes the security
subject to the right of the other co-sharers to enforce a partition and
thereby to convert what was an undivided share of the whole into a
defined portion held in severalty. If the mortgage, therefore, is
followed by a partition and the mortgaged properties are allotted to
the other co-sharers, they take those properties, in the absence of
fraud, free from the mortgage, and the mortgagee can proceed only
against the properties allotted to the mortgagor in substitution of his
undivided share. This was the view taken by the Board in Byjnath
Lall v. Ramoodeen Chowdry (1874) LR 1 Ind. App. 106. In that case
the partition was made by the Collector under Regulation XIX of
1814 (Bengal), and the mortgagee was seeking to enforce his remedy
not against the properties mortgaged to him, but against the properties
which had been allotted to the mortgagor in lieu of his undivided
share; but the Board held that not only he had a right to do so, but that
it was in the circumstances of the case his sole right, and that he could
not successfully have sought to charge any other parcel of the estate in
the hands of any of the former co-sharers. Their Lordships think that
the principle enunciated in that case applies equally to a partition by
arbitration such as the one in the present case. Their Lordships are
therefore of opinion that the appellant is not entitled to enforce his
charge against the properties allotted to the first and second
respondents. The third respondent (the mortgagor) has not appeared
before their Lordships, and their Lordships express no opinion as to
any other rights which the appellant may have in respect of his
mortgage.”
56. It was submitted on behalf of the appellants that in Mohammedan law the
doctrine of partial partition is not applicable because the heirs are
tenants-in-common. Reliance has been placed upon the decision of this Court in
Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul
(supra). In S.M.A. Samad & Ors. v. Shahid Hussain & Ors. AIR 1963 Patna 375,
the Patna High Court referring to the various decisions indicated that it would be
inexpedient to allow suits for partition of a portion of the properties, because it
would lead to a multiplicity of suits. It is merely a rule of procedural law.
Mohammedans are never joint in estate but only tenants-in-common. It has been
observed that the rule with respect to the partial partition is not so rigid, it can be
allowed in certain circumstances. Reliance has also been placed on a decision of
the High Court of Madhya Pradesh in Abdul Karim & Ors. v. Hafij Mohammad &
Ors. (1989) MP LJ 178, in which it had been held that suit for partial partition was
maintainable. Reference has also been made to the case of A.J. Pinto & Anr. v. Smt.
Sahebbi Kom Muktum Saheb (Dead) by LRs & Ors. (1972) 4 SCC 238, wherein
this Court has left open the question whether partial partition is possible under
Muslim Law and no opinion was expressed. The aforesaid decision as to the
partial partition had been cited to emphasize that when Muslims inherit in specific
share, their share is determined. However, the question of partial partition is not
involved in the instant case, as such, we need not go into the aforesaid question as
to the permissibility of the partial partition, as the suit in the instant case was filed
for partition of the entire matruka property.
57. A Full Bench decision of the High Court of Sind in Vazir alias Dino & Anr.
v. Dwarkamal & Ors. AIR 1922 Sind 41 has also been referred to, wherein
referring to the case of Mangaldas v. Abdul Razak (1916) 16 Bombay L.R. 224, it
has been observed that the notions of joint family, joint family property and joint
family business are utterly unknown to Mohammedan Law.
58. A decision in Jan Mahomed v. Dattu Jaffer (1913) 38 Bombay 449 has also
been referred to and it has been held that Mohammedans under their own law are
never joint in estate whether they live together or whether they do not. On death of
a Muslim his heirs at once become vested with the shares to which the Islamic Law
entitles them. They have not to wait until the property is divided by metes and
bounds. It has also been observed that sometime an error is caused by application
of Hindu law to the case of Mohammedan law. It has also been further observed
that a Mohammedan heir is not a co-parcener. He has not merely a right to a
defined and immediate share in each portion of the estate but if any portion of the
estate is in any case marked off and divided from the rest of the estate, he has a
right to an immediate share in that portion.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr. Vs. B. Chinna Narasimha & Ors. etc.
Dated: 21 MARCH 2017
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