ILLUSIONARY CAUSE OF ACTION -JOINT FAMILY PROPERTIES AND JOINT OWNERSHIP UNKNOWN TO MOHAMMEDAN LAW

 THE HON’BLE SRI JUSTICE M.LAXMAN

 APPEAL SUIT Nos.107, 109, 270, 274, 319, 320, 325 & 331 of 2022

MOHD NASEERUDDIN AHMED KHAN DIED PER L Rs 

VS

HABEEBUNISSA BEGUM AND OTHERS 

28. A reading of entire pleadings makes out that the suit is filed as if there was matruka property and generation of funds from such matruka property and creation of joint family funds and purchase of Thimmajiguda properties from such joint family funds and joint ownership and joint possession of suit properties. The claim of shares also shows that suit is filed as if the Mohammedan Law recognises the theory of representation. These are all indications for assumption of suit properties as joint family properties and joint ownership, in the sense of Hindu Law, which is unknown to Mohammedan Law. The suit based on such claim is impermissible under Mohammedan Law. 

29. In the light of such plaint pleadings, there is also no real cause of action set out in plaint. A meaningful reading of such pleadings manifestly establishes vexatious, and meritless, in the sense of not disclosing a clear right to sue and it is by such pleadings, a illusionary cause of action has been created which has to be nipped in the bud and it cannot be allowed to continue. The filing of suit for partition treating the properties as matruka 19 property means the properties must be distributed as per Mohammedan Law principles and such pleadings rules out the case set up by the plaintiffs that it is general suit for partition, which is not governed under Mohammedan Law. The pleadings clearly show that it is not general suit for partition as set up by the plaintiffs in their counter to the application. 

30. A reading of the impugned orders shows that the learned Judge was wrong in holding that the suit for partition among brothers is not maintainable and only among wife and children is maintainable. This assumption is wrong. When all the brothers have commonly acquired properties out of their own pooling of earnings, suit for partition is maintainable for division of common property by metes and bounds.

 31. In the present case, in the absence of pleadings that four brothers have acquired the property by pooling their earnings, it can be assumed Mankhal village properties become matruka property of their descendants. Such pleadings are lacking in the present case, in respect of Ac.174-22 guntas of Mankhal village. The plea set up against Ac.60-36 guntas by implications show that such properties were purchased from generation of funds from Ac.174-22 guntas and it is based on the assumption of existence of matruka property relating to Ac.174-22 guntas. This makes no cause of action and no right to sue. Therefore, this Court feels that the result arrived at by the Court below cannot be found fault except to the above extent. 

32. The contention that the other defendants were not made parties to the application cannot be entertained because all the contesting parties were represented by their counsel. While the suit was pending, the applications for rejection were filed by some of defendants. Such applications were long pending and during the interregnum of filing and disposal there were many adjournments. If the concerned defendants were really interested in opposing the said application, they could have resisted the application by appropriate steps. Further, they have also approached this Court with Civil Revision Petition Nos. 1050, 1051, 1675 and 1676 of 2022 and such petitions were dismissed by this Court holding that they have failed to file application as interveners. In spite of such orders, they did not choose to intervene and invited orders. Now, they cannot challenge the impugned orders passed on the same ground that they were not made parties. Therefore, such contention cannot be sustained. 

33. The next ground is that defendant No.1 in his pleadings admitted nature of joint family property. Therefore, the legal heirs cannot go beyond the averments of defendant No.1. This contention is also devoid of merits. While, deciding the application of rejection of plaint under Order VII Rule 11, the Court is not concerned with the pleadings of defendants. Hence, the said contention is unmerited and the same is rejected. 34. In the result, all the appeals are dismissed confirming the orders and decrees of Court below dated 15.02.2022 in I.A.No.534 of 2021 and 21 I.A.No.218 of 2021 in O.S.No.182 of 2006. No order as to costs. Miscellaneous petitions, if any, pending shall stand closed. ________________ JUSTICE M.LAXMAN Date: 17.08.2023 GVR