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Suit No. 279 of 1973, decided on 13th October, 1986.

‑‑‑Ss. 16 & 0. XX, R. 18‑‑Suit for partition and mesne profit‑‑Defendant contesting suit filed by plaintiff, his brother, by relying on documents of transfer executed in his favour by Housing Society as a nominee of his deceased father‑‑Defendant asserting that plot in question was purchased and house built thereon by his deceased father with funds provided by defendant who allowed deceased to get sub‑licence registered in his name and deceased nominated defendant as owner of property and plaintiff had no share therein‑‑Defendant claiming that his deceased father was merely a Benamidar‑‑Defendant producing no receipt of any such payment to his father for purchase or construction of building and story of providing funds appearing to be an afterthought and defendant failing to substantiate his claim that his father was merely a Benamidar‑‑Defendant's deceased father built house with gratuity he received after retirement from service‑‑Nothing placed on record to show that at any point of time during period when house in dispute was constructed, defendant was in a position to spare funds for construction‑‑House remained in possession of plaintiff and his mother and defendant came to occupy same after death of father when plaintiff was a minor‑‑Except nomination paper, defendant, held, no other document of title‑‑Transfer document executed by Housing Society on ground of nomination by deceased father in favour of defendant, held, only a formality and could not advance case of defendant to entitle him to claim entire property to the exclusion of plaintiff who owned property as one of heirs‑‑Suit decreed in circumstances.

‑‑‑Ss. 16 & 115, 0. XX, R. 18‑‑Suit for partition‑‑ Estoppel‑‑Plaintiff a minor at time when property in dispute was allegedly transferred to defendant‑‑Knowledge about transfer of property, held, would not be an estopel to plaintiff from filing suit for partition.‑‑[ Estoppel].

‑‑‑Ss. 11, 16 & 0. IX, R. 8‑‑Suit for partition‑‑Doctrine of res judicata‑‑A suit for partition, held, was never hit by doctrine of res judicata or even by limitation as it was a continuing cause of action and any shareholder whether a minor or even an adult, whose right had not been adjudicated earlier, could file a suit for partition.

Bisheshar Das and another v . Ram Prasad and another I L R 1928 All. 627; Manohar Lal Behari Lal v. Onkar Dass allas Omkar Dass and others A I R 1959. Pb. 252 and Muhammad Bazlur Rahman v. Syed Ali Pramanik and others P L D 1967 Dacca 809 rel.

‑‑‑Ss. 16 & 0. XX, R. 18‑‑Suit for partition‑‑Nomination of defendant by his deceased father who was allotted plot by Housing Society, held, did not confer exclusive right of wnership on nominee defendant.

P L D 1974 S C 185 rel.

Shaikh Abdul Aziz for Plaintiff.

Abdul Wahab for Defendant No.l.

Date of hearing: 13th October, 1986.

Plaintiff in this suit claims partition of a House No. 82‑H, Block No. 2, P. E. C. H. S., Karachi which he is occupying with the defendants. Plaintiff is the son of one Dr. Abdul Razzaq. Abdul Razzaq had two wives, (1) Mst. Mumtaz Begum, the mother of the plaintiff and (2) Mst. Fatima Begum, the mother of defendants Nos. 1 and 2. Dr. Abdul Razzaq died on 25‑8‑1959. Both the wives survived him. Mst. Fatima Begum also died on 20‑9‑1962, and Mst. Mumtaz Begum, the mother of the plaintiff is still allve.

This suit has been filed by the plaintiff for partition of the house between these heirs of Abdul Razzaq, according to their shares under the Sunni law of inheritance.

Abdul Razzaq was a Railway employee, who opted for Pakistan from India. He was allotted Plot No. 82‑H measuring 400 sq. yds. in Block No. 2, P.E.C.H.S., Karachi in 1949 and his name was mutated and he was granted a Sub‑Licence. At the time of allotment he nominated defendant No. 1 as a nominee with the Society. Dr. Abdul Razzaq retired from Railway service in 1952 and was paid a sum of Rs.40,000 as gratuity. It is alleged in the plaint that with this money Dr. Abdul Razzaq constructed a double‑storeyed house during the period 1954‑55.

Abdul Razzaq died on 25‑8‑1959. According to the plaint, plaintiff and his mother were living with Abdul Razzaq at the time of his death in this house, while defendant No.l, who is also a Railway employee, was occupying some Railway accommodation with his family. The defendants' family also came to reside in this house after the death of Abdul Razzaq.

It is alleged by the plaintiff that at the time of the death of Abdul Razzaq, he was aged only 7 years, and could not resist the defendants from taking possession of the house, who had come to reside after the death of his father. During his stay in the house, the defendant No.l, taking advantage of ignorance and illiteracy of the plaintiff's mother and minority of the plaintiff managed to secure the documents of title, including Sub‑Licence, in his own name.

The defendant surrendered the Sub‑Licence of his father and obtained a fresh Sub‑Licence exclusively in his name from the Society and got it registered on 25‑5‑1961. He also secured mutation in his favour in the records of the Society. He let out a portion of the house to the tenants and never shared the income with the plaintiff, or his mother.

The mother of the plaintiff being an illiterate woman and having no means of subsistence, earned her livelihood by teaching "QURAN", while the plaintiff being a minor of seven years, earned some income as a Newspapers Hawker. The plaintiff's mother then filed an application dated 23‑4‑1969 with the Martial Law Authorities complaining to them about the conduct of the defendants. The Martial Law Authorities called the defendant and after hearing both the parties, a Military Officer passed an order that the defendant No.l should share the income from the tenants by paying Rs.100 per month to the mother of the plaintiff out of Rs.300, which the defendant was recovering from the tenants. This order was passed by the Military Officer on 26‑4‑1969.

In 1965 the plaintiff's mother filed a suit being Suit No. 109 of 1965 in the Court of VIIIth Civil Judge, Karachi. This suit was instituted by the plaintiff's mother, as well as by plaintiff through a next friend, Ziauddin Farooqui for partition of the house between the different heirs. This suit was dismissed in default for non‑prosecution by an order dated 8‑2‑1968.

The defendant No.l then filed a suit being Suit No. 1506 of 1970 in the Court of VIIIth Civil Judge, Karachi praying for ejectment of the plaintiff and his mother from the house and also for a decree in the sum of Rs.1,424.50 as mesne profit.

It appears that before this suit could be disposed of the plaintiff filed the present gift, first as forma‑pauperis which, after permission was given, has been converted into the present suit with a No. 279 of 1973. In this suit the plaintiff has claimed partition of the property as stated by me in the opening paragraph of the judgment. After narrating events in sequence the plaintiff has claimed the following reliefs:‑

"(i) Grant permission to the plaintiff to sue in forma‑pauperis in the above matter;

(ii) Declare that the alleged nomination in respect of and the transfer of the entire 'property in dispute in the exclusive name of the defendant No.l by defendant No.4 is forged, fraudulent, illegal, void and not binding and the plaintiff and other legal heirs particularly the defendant No.3 are still the owners of their above‑mentioned respective shares in the said property;

(iii) Make an order for cancellation of the registered deed of surrender dated 22‑5‑1961 (Registered No. 2167 at pages 205, 210 in Volume 1087 of Book No.l, dated 24‑5‑1961 and the sub‑licence, dated 22‑5‑1961 (Registered No.2195 at pages 182 to 184, in Volume 638 of Book No.l Addl. dated 24‑5‑1961) both documents executed between the defendants Nos. 1 and 4 and registered in the office of the District Registrar, Karachi;

(iv) Pass a decree for partition of the property in question by meats and bounds according to the respective shares of the plaintiff, his mother, defendant No.3 and other legal heirs and delivery of possession of the plaintiffs share to him and the shares of other legal heirs to them;

(v) Mandatory injunction ordering the defendant No.4 to transfer the respective shares of the plaintiff and other legal heirs in the property in question in their favour through proper registered deed or deeds;

(vi) Probibitory injunction restraining the defendant No. 1 and everybody claiming through him from taking any steps to eject the plaintiff and his mother from the property in dispute;

(vii) Pass a decree for accounts of the Income of the property in dispute to be rendered by the defendant No.l and share of the plaintiff in the same, right from the date of death of the said deceased on 25th August, 1959 to date to be paid to him;

(viii) Costs of the suit may also be allowed to the plaintiff.

(ix) Any other relief warranted by facts and circumstances of the case may also be granted to the plaintiff.

(x) Declare that ex parte dismissal order dated 8‑2‑1968 of VIIIth Civil Judge (F . C ) , Karachi in Suit No. 109 of 1965 is not binding on the plaintiff."

The defendant has filed a written statement contesting the claim of the plaintiff and in his written statement, he has heavily relied on the documents of transfer which the Society has executed in his favour as a nominee of the deceased Abdul Razzaq. In the written statement the defendant has pleaded that the "Plot No. 82‑H, Block No‑2, P . E. C . H . S was purchased by the late father of the defendant No.1 with the funds of the defendant No.l, who out of respect allowed the deceased to get the Sub‑Licence registered in his name and the deceased nominated the defendant No.l as his nominee and rightful and legal heir and owner of the said property". That "whatever constructions were raised on the plot and fittings and fixtures etc. done in the bungalow was done with the funds of the defendant No. l." That "it is denied that on the death of the deceased Abdur Razzaq the property was devolved and vested in the plaintiff and defendants Nos. 1 to 3. It is averred and maintained that Late Dr. Abdur Razzaq being a "BENAMI" Sub‑Licensee of the abovesaid plot soon after the registration of the Sub‑Licence nominated the defendant No.l only as nominee and legal owner of the abovesaid property and according to the nomination made by the deceased Abdul Razzaq and registered in the records of the defendant No.4 (the Society) the defendant No.4 recognised this defendant as rightful and legal owner of the said property under the rules and bye‑laws of the Society as per nomination and acknowledged the rights and interests of this defendant to succeed the said property, issued transfer letter in his favour on 14/22nd February, 1961, and thereafter on 22‑5‑1961 registered the sub‑licence in his favour before the Registrar." In para. 9 of the written statement the defendant states that "it is correct that the defendant No.l being full and absolute owner of the bungalow let out a portion on rent but the question of paying any share to the plaintiff or his mother does not arise at all, because both of them have no share in the property in dispute and were not entitled to any share". In para. 10 of the written statement it is asserted by the defendant No.l that "although the plot originally was entered in the name of the deceased as Benamidar but actually this defendant was the real and rightful owner of the same as the plot was purchased with the funds of this defendant and the building was also constructed with the funds of this defendant and this was the only reason that the deceased nominated this defendant as his nominee. All the documents of title i.e. allotment order, possession order, and sub‑lease were in possession of this defendant. This defendant rightly and legally executed the surrender deed and got the Sub‑Licence registered in his name."

On these pleadings of the parties the following issues were framed by Court:‑

(1) Whether the property in question was purchased and construction thereon was raised by Dr. Abdur Razzaq from the funds of defendant No. l

(2) Whether alleged nomination by Dr. Abdur Razzaq in favour of defendant No.l in respect of the property in question was legal and valid. If so whether it could deprive the plaintiff and defendants Nos. 2 and 3 of their legal shares in the property in question after the death of Dr. Abdur Razzaq

(3) Whether transfer of the property in question by defendant No.4 to the exclusive name of defendant No.l to the exclusion of other heirs of Dr. Abdur Razzaq and execution of the surrender deed and sub‑licence in question in between the defendants Nos.l and 4 is legal and valid

(4) Whether the interest of plaintiff has legally and fully been represented in Civil Suit No. 109 of 1965 and whether the order passed therein by the learned Civil Judge during the minority of the plaintiff is binding on him, and whether this suit is barred by res judicata and estoppel

(5) Whether the plaintiff cannot claim account of the income of the property in question from defendant No.l and get his share in the same

(6) Whether the defendant No.l was the real owner of the suit property, and the late Dr. Abdur Razzaq was ostensible owner or Farazidar or Benamidar

(7) Whether the plaintiff and other defendants have the knowledge and information about ‑the transfer of suit property in favour of defendant No.l since April/May, 1961 or thereabout, if so, its effect

(8) Whether the plaintiff is entitled to the reliefs claimed

(9) What should the decree be "

My findings on the issues are as follows:

In the negative.

This issue has two parts. My finding is that the nomination in favour of the defendant No.l was legal, but as a result of this nomination the defendant No.l cannot deprive the plaintiff and other defendants from the shares which they have inherited as heirs of the Late Dr. Abdur Razzaq, according to 'Sunni' Law of Inheritance.

In the negative.

The present suit is neither barred by res judicata nor the plaintiff is stopped from filing the suit.

The plaintiff is a shareholder and is entitled to a share in the income from the property in proportion to his share.

In the negative. Late Dr. Abdur Razzaq was the real owner of the property at the time of his death.

It was not argued and not pressed by either side.

In the affirmative

The plaintiff is entitled to a decree in terms of the plaint. My reasons are as foilows:‑

These two issues can be disposed of together. The discussion above would show that the relationship and proportionate right of inheritance in the property if any left by the deceased Abdur Razzaq is not disputed. The only question that falls for determination is whether the house in question belonged to the deceased Abdur Razzaq or he was merely a Benamidar as alleged by the defendant No.l.

It is admitted position that Dr. Abdur Razzaq was the recorded owner of the plot and the Society had executed a sub‑lease in his favour and that he had nominated the defendant No.l as his nominee.

The burden of these two issues is on the defendant to show that Dr. Abdur Razzaq the recorded owner was not the real owner of the property at the time of his death, but was only a Benamidar. The defendant has not been able to substantiate that the plot was purchased by his funds and the construction was raised by Dr. Abdur Razzaq through the funds provided by the defendant. No receipt of any such payment by the defendant No. 1 to Dr. Abdur Razzaq or no letter supporting this version has been placed on the record. Even the dates and particulars for such advances and payments have not been shown. There is a bold statement that the defendant No.l had provided the funds through which this property was purchased by Late Abdur Razzaq. Even this claim bears inherent inconsistencies if it is examined closely.

As mentioned above, the plaintiff's mother had filed Suit No. 109 of 1985 in the Court of VIIIth Civil Judge, Karachi. In this suit the defendant No.l had filed a written statement. Para. 1 of this written statement which is the earliest re‑action of this defendant to the claim of the plaintiff, is very pertinent. The relevant portion of C this para. may be produced to show that the stand of the defendant in that suit and upto that stage was that he was claiming the ownership on the strength of nomination by Abdur Razzaq in favour of defendant No.l. There is no mention of the defendant having made any advances whatsoever to finance the purchase of the plot or for raising construction. All this story is after thought. In para. 1 of the written statement in suit the defendant has stated as follows:‑

"The defendant No.l being the nominee of the deceased, the society has rightly and properly according to its provisions, duly transferred the same to the answering defendant and as such no other person excepting the answering defendant is the owner of the said property. The copy of the letter of the Society No. 1208/4870, dated 22‑2‑1961 transferring the property in dispute to the answering defendant in filed and marked 'A'. Thereafter the sale sub‑lease has been registered by the Society in defendants' favour."

The above would show that the basis of the claim for sole ownership was the nomination of the defendant No.1 by Abdur Razzaq.

During the arguments the learned counsel for the defendant has done no more than to rely upon Exhs. 6/4, 6/6 and 6/8 in support of his claim. Exh.6/4 is an order of the learned Rent Controller in Rent Case No. 486 of 1964 which were the ejectment proceedings filed by the defendant No.l against the tenant Abdul Khalil. The plaintiff's mother wanted to be joined as a party in these proceedings on the basis of a co‑ownership in the property. This prayer was examined by the learned Rent Controller and the application was dismissed on the ground that the tenant had been paying rents to the defendant No.l and the defendant was also shown as owner of the property in the records of the Society, the Rent Controller could not introduce the applicant as co‑owner in the proceedings before him. It needs no efforts to emphasis that these observations of the learned Rent Controller were merely a tentative assessment of the situation of the case before him. The learned Rent Controller himself made the following observations in his order‑dated 11‑1‑1965:

"At any rate, if there are other heirs of Dr. Abdur Razzaq they could claim easily the share of the amount from the applicant. I see nothing for the opponent to be prejudiced if those heirs are not made parties here. Particularly I see no ground to add them as parties without mutation."

This order of the learned Rent Controller cannot confer rights of ownership of the house on the defendant No.l.

The other document relied upon by the learned counsel for the defendant is Exh.6/3, dated 26‑2‑1961. This is a letter from the Joint Secretary of P.E.C.H.S., Karachi to the defendant No.l informing him that "I am directed to inform you that Plot No.82‑H, Block No.2 measuring 400 sq. yds. has been transferred in your name, as you are nominee of Late Abdur Razzaq".

The third document relied upon by the learned counsel for the defendant is Exh.6/1. This is a Deed of Surrender dated 26‑5‑1961 by the. defendant No.l. This document is executed in order to prove the way for obtaining a direct sub‑licence from the Society. The opening para of this document is very relevant and may be reproduced below:‑

"Whereas Plot No. 2/82‑H measuring 400 sq. yds. situated in the territorial Division of P. E. C. H. Society Ltd. , Karachi was allotted to the said Late Abdur Razzaq by the raid Society party of the other part and sub‑licence was registered as No.43 on pages 82 to 84 in Volume 162, Book No.1 additional dated 13‑1‑1964 between society and the deceased. Whereas Abdul Razzaq expired on 25‑8‑1959, therefore, the sub‑licensee is the one part who is nominee became the rightful heir of the said plot according to law.

Whereas at the request of Mr. Abdur Rahman the party of the one part, the licensee has entered his name in the record of the Society after due verification."

The other document relied upon by the learned counsel for the defendant is Exh.6/2. This is a sub‑licence dated 23‑5‑1961 executed by the Society in favour of the defendant No.l.

All this material and I must say that this is the entire material on which reliance has been placed by the defendant No.l relates to formal documentation by the Society in favour of the defendant No.l on the strength of the nomination by Abdur Razzaq in favour of defendant No.l. I will presently examine the effect of this nomination, but for the present enough to say that if this nomination does not confer exclusive right on the defendant No.1, there is nothing to support the contention now being raised on behalf of defendant No.l that the funds for purchase of the plot were provided by the defendant E and the construction was also raised through the finance provided by the defendant to the Late Abdur Razzaq. Moreover, nothing is placed on the record to show that at any point of time during the period 1951 to 1954 the defendant No.1 was in a position to spare any funds for the construction of the house. On the contrary the plaintiff has categorically stated and it remains uncontradicted that Abdur Razzaq retired from the Railway service in 1952 and was paid a substantial amount of Rs.38,000 to Rs.40,000 as gratuity etc. It stands to reason that after having this substantial money in hand Abdur Razzaq utilised this money for the purposes of construction of the house which was quite sufficient for this purpose in those days of 1954‑55, when the house was constructed.

It was contended by the learned counsel for the defendant No.l that he is in possession of the documents of title and the presumption should be raised in his favour that the property belongs to him and Abdur Razzaq was a Benamidar. The learned counsel has not been able to show what documents of title except those executed by the Society or a nomination executed by Abdur Razzaq are in his possession So far as the question of possession is concerned, the house always remained in possession of the deceased Abdur Razzaq and the plaintiff and his mother have been residing in the house all the time. They were residing with Abdur Razzaq during the latter's lifetime and continue to occupy a portion of the house till today. It is the defendant No.l who has come to occupy the house after the death of Abdur Razzaa. To sum up the discussion on these two issues, the plea that Abdur Razzaq was only a Benamidar or the contention that the funds or construction of the house were provided by the defendant No 1 remains unsubstantiated and unproved and these issues must be decided in favour of the plaintiff and against the defendant.

As stated above this issue consists of two parts; (a) whether the nomination by Dr. Abdur Razzaq was legal and valid If so, whether it could deprive the plaintiff and the defendants Nos.2 and 3 of their legal shares in the property in question after the death of Dr. Abdur Razzaq

It is nobody's case that a particular member of the Society, who is allotted a plot by the Society has no right to nominate some one. But this nomination does not confer exclusive right of ownership on 1 such a nominee. The defendant No.l has based his entire claim on this nomination as is evident from the written statement filed by him in Suit No. 109 of 1985 quoted above.

(b) Whether the nominee :an claim exlusive ownership or merely it is a tentative authority to the nominee to deal with the Scosety temporarily after the death of the owner This question has been decided by the Supreme Court in a case reported in P L D 1974 S C 185.

In the first instance it was held that usually the nomination of a person by a member of the Society merely indicates that the Society should transfer the shares held by the member and the nominees may thus be admitted by the Society as a shareholder in the Society. Such a nomination would be possible even if the member has no plot in the Society. In other words the nomination has nothing to do with the ownership of land transferred by the Society to the member. It merely relates to the shares held by the member in the Society at a given time. The relevant part of the findings may be quoted hereunder. At page 191 it was held:‑

"The holding of a share is merely a qualification for the allotment of a plot or a house, but it does not follow from this that every member is necessarily entitled to a plot or house. It appears furthermore that under Bye‑law 12‑A of the Bye‑laws of the Pakistan Employees Co‑operative Housing Society Ltd. , Karachi, even a non‑member may become the owner of a plot if he has acquired the same by sale or mortgage or otherwise from a member of the Society. It is, therefore, also not necessary that to acquire a plot one must be a member. The membership of the society is thus, something different from the right to hold a plot or house under the Society. Apart from this, it appears to us, that unless a nomination can amount to a valid gift inter vivos, it cannot pass title to the nominee in respect of immovable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death. Obviously, the nomination cannot operate as a valid gift under the Muhammadian Law, because such a gift, in order to confer the title on the donee, must be accompanied by delivery of possession of the property gifted. In the case of plots allotted to Muhammad Yaqub, there could be no delivery of possession at the time the nomination was made, for, at that time, no plot had even been allotted to him."

It was held further:

"Thus, in the case Aimai v. Awabai Dhanjishaw Jamsefji A I R 1924 Sind 57, a Division Bench of the Sind Chief Court held that a nomination even under the Provident Funds Act was neither a will nor a gift nor a trust, and that such a nomination was merely a mandate, the validity of which expired with the death of the mandator, and, therefore, the fund formed part of his own undisposed of estate on his death."

Their Lordships concluded by saying:

"We are of the opinion, however, that the correct view has been taken in the cases referred to earlier, namely, that the nomination merely confers a right to collect the money or to 'receive the money'. It does not operate either as a gift or as a will and, therefore, cannot deprive the other heirs of the nominator, who may be entitled thereto under the law of succession applicable to the deceased. The nominee thus, collects as a trustee for the benefit of all persons entitled to inherit from the deceased employee."

The answer to this issue in the light of the observations of the Supreme Court must be in the negative. This nomination does not K deprive the plaintiff from the legitimate share to which he is entitled as a legal heir of Late Abdur Razzaq.

This issue needs no elaborate discussion. The transfer documents executed by the Society in favour of the defendant No.l were a mere L formality on the strength of the nomination and of course, on suppression of facts by the defendant No.l himself. The execution of such document would not advance the case of the defendant and entitle him to claim the entire property for himself. Exhs. 6/1 and 6/5 both dated 22‑5‑1961 have no legal sanction and must be cancelled.

No arguments were addressed on this issue. The learned counsel for the defendant has not been able to show that the plaintiff, who was a minor in 1961, had any knowledge about the transfer of the M property and even if so, how such a knowledge would be an estopped to the plaintiff from filing the present suit.

Learned counsel for the defendant No.l attempted to argue that the dismissal of Suit No.109 of 1965 which, as stated above was filed by the mother of the plaintiff, is a res judicata to this suit. In the first instance it must be noted that the suit was not dismissed on merits. It was dismissed on account of non‑prosecution when the plaintiff was still a minor. The plaintiff was born on 8‑4‑1952 and attained majority in or about April, 1970. The suit was filed in 1971.

The learned counsel for the plaintiff has placed his reliance on the following cases to show that a suit for partition is never hit by N the doctrine of res judicata or even by limitation as it is a continuing cause of action and any shareholder whether a minor or even an adult, whose right has not been adjudicated earlier, can file a suit for partition.

(1) Bisheshar Das and another v. Ram Prasad and another I L R 1928 All. 627.

The above case was decided by a Division Bench of Allahabad High Court in which it was held that if a suit for partition was dismissed in default, a fresh suit was competent so long as the property was not partitioned and continued to be occupied by the defendant. The learned Judges made the following observations in that case: ‑

"In this respect suits for declaration of right to partition differ from most other suits. So long as the property is jointly held so long does a right to partition continue. When a person having a right to partition, and desiring to partition, has his right challenged, it appears to us he can maintain a suit for a declaration, provided his prior decree is not still enforceable."

After narrating this passage from an earlier judgment the learned Judges proceeded to hold "as it appears to us, the right to enforce partition is a legal incident of a joint tenancy, and so long as such tenancy subsists so long may any of the joint tenants apply to the Court for partition of the joint property. For these reasons the Courts below have erred in dismissing the suit".

(2) Manohar Lal Behari Lal v. Onkar Dass alias Omkar Dass and others A I R 1959 Pb. 252.

This is another case from Indian jurisdiction in which the same view has been taken. This is also a Division Bench case in which the maintainability of a second suit has been examined in the light of section 11 and Order IX, Rule 8, C.P.C. The plaintiff had filed a suit for partition of a joint property against his brother. Before proceeding on merits a settlement was arrived at between the parties under which the plaintiff agreed to take a special oath and be bound by the agreement. Later he changed his mind and refused to take a special oath. When the case came up for hearing, it was notified in Court that the plaintiff had not taken the special oath. The plaintiff also did not turn upon the date of hearing and the learned Judge dismissed the claim of the plaintiff on account of his absence, under Order IX, Rule 8, C . P. C . After sometime he filed a fresh suit, but the same was dismissed by the Court on the ground that the second suit was hit by res judicata. In appeal the High Court held that "there can be no doubt that an order under Order IX, Rule 8 cannot amount to res judicata for the simple reason that the suit cannot be deemed to have been heard and finally decided by means of this order. The only effect of an order passed under Order IX, Rule 8 is that a fresh suit based on the same cause of action is barred by the provisions or Order IX, Rule 9. However, a suit for partition dismissed for default under Order IX, Rule 8 does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues".

(3) Muhammad Bazlur Rahman v. Syed Ali Pramanik and others PLD 1967 Dacca 809.

In this case the same view has been adopted. In this case one of the plaintiffs died during the pendency of the suit and her widow was not brought on the record within the period of limitation. After the period of limitation the remaining plaintiffs filed an application for expunging the name of plaintiff No.l from the plaint and impleading the widow as defendant No.4. The application was allowed by the trial Court and against this order a revision was filed by the defendants on the ground that the widow's name was substituted after expiry of the period of limitation. This contention was negatived and the order of the trial Court was sustained. The following observations are pertinent:‑

"A suit for partition has some distinct features. In such a suit every co‑sharer, whether he is included in the category of plaintiffs‑defendants, stands in the position of a plaintiff. Moreover cause of action for such a suit is always recurring. Rule 9 of Order XXII of the Code of Civil Procedure provides that where a suit abates no fresh suit shall be brought on the same cause of action. As there is always a recurring cause of action for a suit for partition, such a suit can be brought even after the abatement of a previous partition suit. That being so, the ends of justice demand that the parties in a suit for partition should not be driven to a fresh suit only on the ground that substitution of the heirs of one of the deceased plaintiffs or defendants was not sought for well in time."

In view of the above rulings the plaintiff is entitled to file the suit for partition.

Now the question arises whether the plaintiff is entitled to any mesne profit for the period prior to three years of his attaining majority. In my opinion the claim for the period prior to three years of his attaining majority would be barred by limitation. The plaintiff attained majority on 8‑4‑1970. He is entitled to mesne profit with effect from April, 1967 upto date.

In the result the suit is decreed with cost and a preliminary decree should be passed in favour of the plaintiff for distribution of the property among the different heirs mentioned in the plaint in 0 proportion to the shares specified in para. 9 of the plaint according to

the Sunni Law of Inheritance.

Mr. Abdul Aziz Urfi, Advocate of this Court is appointed as Commissioner for partitioning the property among the different heirs of the deceased Abdur Razzaq. He will examine site and obtain assistance from the parties. to determine the question whether the property can be .divided by eats and bounds and submit report in this behalf within two months. He will also submit report on the income earned by the defendant with effect from 8th April, 1967 upto date and calculate the proportionate share of the parties in ‑ this income. Tentative fee of the Commissioner is fixed as Rs.3,000 to be initially deposited by the plaintiff within one week from the date of this judgment.

M. Y. H. Suit decreed.

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