Partition is impermissible during a Muslim owner's lifetime; inheritance rights devolve only upon death.

The suit property (Gut No. 152) was originally owned by Jugan Khan and subsequently inherited by his son, Umar Khan, who died intestate on August 15, 2011.

The Plaintiffs (daughters of Umar Khan) sought partition and separate possession, challenging revenue entries from 1985 that recorded an alleged partition between Umar Khan and his sons, Defendants Nos. 1 and 2.

Defendant No. 5 (Appellant) is a subsequent purchaser who acquired 2 acres from Defendant No. 2, and additional portions from one Nawab Khan and Umar Khan.

The Defendants claimed the suit was barred by limitation due to the 1985 allotment and asserted the validity of an oral gift (Hiba).

Both the Trial Court and the First Appellate Court decreed the suit in favor of the Plaintiffs, awarding them a 1/8th share each and declaring the sale deeds in favor of Defendant No. 5 as not binding on the Plaintiffs' shares.

1. Whether the suit for partition filed in 2016 was within the period of limitation, considering the father allegedly allotted the property in 1985?

2. Whether a mutation entry (Ex. 46) serves as proof of partition under Muslim Personal Law in the absence of a partition deed, and whether partition is permissible during the lifetime of the father?

3. Whether the Plaintiffs were entitled to seek partition of land already transferred to a third-party purchaser (Defendant No. 5) by a co-sharer (Defendant No. 2) who had not yet legally acquired his share?

The court applied the principles of Mohammedan Law regarding inheritance, which dictate that rights of legal heirs devolve only upon the death of the ancestor.

It relied on the Supreme Court precedent in Mansoor Saheb vs. Salima (AIR Online 2024 SC 833), which established that partition of property between a Muslim person and his heirs is impermissible during the owner's lifetime.

The court applied the principle that a plea of "bona fide purchaser" is unavailable where the vendor lacks the legal title to sell the property.

Section 54 of the Civil Procedure Code was applied regarding the execution of partition by the Collector.

The court reasoned that under Muslim Law, no right to property vest in the heirs until the death of the ancestor; thus, the Plaintiffs’ rights only accrued in 2011 upon Umar Khan’s death.

The court rejected the limitation plea, noting that the cause of action arose in 2015 when the Plaintiffs' rights were first denied during mutation proceedings.

Regarding the 1985 "allotment," the court held that mutation entries do not confer title and that partition is legally impossible while the father is alive.

Although Hiba (oral gift) is permitted, the Defendants failed to plead or prove the essential legal requirements for a valid gift.

For Defendant No. 5, the court observed that since the vendor (Defendant No. 2) had no absolute title to the specific acreage sold prior to a legal partition, the sale could not bind the Plaintiffs’ shares.

The court further noted that Defendant No. 5 failed to lead evidence or testify to support the "bona fide purchaser" defense.

The court held that the suit was filed within the limitation period as rights devolved only in 2011.

It ruled that the alleged 1985 partition was invalid under Muslim Law and that the sale deeds in favor of Defendant No. 5 were not binding on the Plaintiffs’ 1/8th shares.

The court upheld the direction to the Collector to effect partition under Section 54 of the CPC, adjusting the shares of the transferring brothers (Defendants Nos. 1 and 2) against the purchasers' portions as far as practicable.