AIR 1960 JAMMU AND KASHMIR 57

Jammu And Kashmir High Court

Hon'ble Judge(s): K. V. Gopalakrishnan Nair , J

(A) Muhammadan Law - Partition - Doctrine of partial partition - Applicability - Difference between Muhammadan and Hindu systems of law.Hindu Law - Partition. The doctrine of partial partition is applicable only to a Hindu coparcenary where the coparceners are joint in estate and not to Muslims who are only tenants in common. Under the Mohammedan Law the heirs of a deceased Mohammedan succeed to a definite fraction of every part of his estate. The doctrine of survivorship is not known to Mohammedan Law. The shares of heirs under the Mohammedan Law are definite and known before actual partition, whereas under the Mitakshara Law no individual member of an undivided family can predicate of the joint family property that he has a certain definite share. The theory of Hindu Law is that every coparcener is entitled to the entire joint family property, that is to say, every part of it and the share of no coparcener in the undivided coparcenary can be limited to a specified item of property or to a definite share of it. This is certainly not the case regarding the heirs under the Mohammedan Law who are only tenants in common and whose shares are definite and specified in law. All that happens on partition is a division by metes and bounds and separate possession and enjoyment of specified items of property, the specific share of each heir being already determined by....