1. This is an appeal from a decree of the learnedSubordinate Judge of Mymensingh in a suit brought by the Plaintiff forpartition of certain moveable properties. The Plaintiff is the brother ofDefendants Nos. 1, 2 and 3; and Defendant No. 4 is their mother. The father ofthe Plaintiff and Defendants Nos. 1, 2 and 3, Mahomed Mafizer Rahaman Chowdry,died on the 29th June 1904, leaving the parties to the suit surviving him, andalso two daughters, Rahimunnessa Banu and Kalimunnessa Banu. He appears to haveleft considerable property both moveable and immoveable. The Plaintiff now suesfor a partition of the moveable properties on the allegation that subsequent tothe death of his father, Mafizer Rahaman Chowdry, a document, called the deedof partition, was effected between the Plaintiff and the Defendants on the 1stOctober 1904, by which the daughters relinquished their claim to the moveableproperties now in suit and to the brick-built rooms of the dwelling-house. ThePlaintiff goes on to state that the moveable properties and the remaining immoveableproperties are the ijmali properties of the Plaintiff and the Defendants andare in their joint ownership and possession. It is true that he states that theimmoveable properties are separately enjoyed by the brothers but no partitionof them has been made. Defendants Nos. 1 and 2 objected to the frame of thesuit. The objections which they made in the lower Court and which have beenrepeated here, are, firstly that the present suit being one for partition of aportion only of the joint family property, cannot be maintained; secondly thatthe daughters were necessary parties to this suit inasmuch as they repudiatethe alleged relinquishment by them of their right to the properties now inquestion.

2. The learned Vakil for the Appellants raised other objectionsbut we need not go beyond these preliminary questions. Certain cases have beencited to us which no doubt dealt with suits for partition of property of Hindusbut so far as the question before us is concerned, there does not seem to beany distinction in principle between partition of joint property under Hindu orunder Mahomedan law. The real objection to the suit is one which seems commonto both classes of cases, namely, that it is inexpedient to allow suits forpartition of a portion of the properties because, it would lead to amultiplicity of suits and to endless litigation between the parties who arejointly entitled to the properties. It is clear upon the admissions of thePlaintiff that there are properties other than those in suit jointly owned byhim and by the Defendants. It is also a patent fact that the sisters,Rahimunessa Banu and Kalimunessa Banu (who have not been made parties to thissuit), in their evidence repudiate, as we have said, any relinquishment by themof the claim to a share of these moveable properties, while the so-called deedof partition has not even been placed on the record. Under these circumstancesit appears to us right that the case should go back in order that the Plaintiffmay amend his plaint and make his suit one to which there can be no objectioneither on the score of his suing only for a part of his cause of action or ofnon-jointer of parties necessary to the suit.

3. The learned Vakil for the Plaintiff-Respondent says thathe cannot raise any serious objection to this course being taken. The learnedSubordinate Judge has disposed of these preliminary objections somewhatcursorily. He does not appear to have fully considered the law on the point,nor has he considered at all the convenience of the parties.

4. We accordingly allow this appeal, set aside the judgmentand decree of the Subordinate Judge and remand the case to his Court withdirections that within two months from the date of the receipt of the record bythe lower Court, the Plaintiff be allowed to amend his plaint by making hissuit into one for partition of the whole property and also by adding hissisters as parties Defendants, so that there may be a final adjudication of therights of all the parties interested. The Plaintiff must pay the costs of thefirst and second Defendants of the suit and of this appeal up to date. Thesecosts must be paid by him before he is allowed to amend his plaint that is tosay within two months from the date of the arrival of the record in the lowerCourt.

5. As for the third Defendant, he has, so far as weunderstand, sided with the Plaintiff. We therefore direct that he do pay hisown costs in the Court below as well as in this Court. If the Plaintiff failsto amend his plaint within the time specified, then this appeal will be allowedand his suit will stand dismissed with costs in both the Courts.

6. We assess the hearing fee in this appeal at five goldmohurs. Let the record be sent down without delay.

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Mahomed Fuzlur Rahman Chowdhury and Ors. vs. Mahomed FayzurRahaman Choudry (25.04.1911 - CALHC)