Hefeez Ullah vs Smt. Khatoon Bibi and Others

S.R. Bhargava, J.—This is an appeal against an order of remand in partition suit.

Parties are Muslims and are governed by Mohammadan law. In the partition suit even daughters were parties. Trial Court passed a preliminary decree of partition declaring the share of Plaintiffs 3-1/9 in the suit property. In appeal the learned appellate Court, observed that the shares of, the daughters should have also been determined but if was not safe to determine their share without their written statement. No parry can be compelled to file written statement. Determination of shares of daughters was purely a question of application of law according to the proved pedigree. It appears, that at earlier stage Appellant was directed to file review application before the lower appellate Court. It is conceded that the Appellant filed review application which is still pending. It is evident that the ground of remand is unsustainable. Lower appellate Court should have itself proceeded to determine the shares of the daughters and if necessary re-determine the share of the Plaintiff.

In the result this appeal should be allowed. The order of the lower appellate Court should be set aside and it should be further added that review Petition pending before the lower appellate Court has become infructuous.

Before parting with this appeal it may further be mentioned that yesterday when there was illness slip of the Counsel of the Respondents it was represented before this Court that the Appellant shall be dispossessed and permanently prejudiced. Accepting this representation stay order was passed that Appellant should not be dispossessed from any property in dispute for ten days. When the appeal was taken up it emerges that the matter is still at the stage of preliminary decree. Hence the question of staying dispossession does not arise. The stay order with disposal of the appeal should be vacated.

Appeal is allowed. The order of the learned lower Court remanding the suit is set aside . Learned lower Court is directed to treat the review application as infructuous and proceed to determine the share of the daughters on the material before the learned lower Court. The stay order passed on 29-8-88 is vacated. It will have no consequence whatsoever, So far as this appeal is concerned, parties shall bear their own costs. Learned lower Court shall dispose of the appeal without further delay.

A copy of this order may be given to the Learned Counsel of the parties on payment of usual charges.