JUDGMENT : ( 1. ) THIS appeal under section 100 of the Code of Civil Procedure is by defendants 1, 4 and 5 against the judgment and decree dated 29-7-1976 passed by the Additional District Judge, Seoni, in Civil Appeal No. 11-A of 1976, decreeing the suit of the plaintiffs. ( 2. ) THE plaintiffs had filed the present suit for partition and separate possession with reference to the suit property claiming 46/88th share and according to them defendants 1 to 3 each were entitled to 14/88th share and the rest of the defendants could prescribe no claim. It would be necessary in the present appeal to describe the relationship on the basis of which the claim has been advanced by the plaintiffs. One Lalmiyan, who died several years ago, had three sons, namely, Idoomiyan, Murtejakhan and Mandu Miyan. Idoomiyan had a son Sherkhan. Both of them died leaving behind Abdul Matin son of sherkhan who is defendant No. 5-appellant No. 2. Murtejakhan died on 2-5-1950. He had three wives. The first wife Mst. Umraiyya Bi died leaving behind her son Mustafakhan (defendant No. 1-appellant No. 1 ). His wife is mst. Fatmabi (defendant No. 4-appellant No. 3 ). The second wife Mst. Mahrum Bi also died leaving behind her daughter Mst. Khutijulkubra Bi (plaintiff No. 2-respondent No. 2 ). The third wife Mst. Hayatbi (plaintiff No. 1-respondent No. 1) is still alive and she gave birth to four daughters and two sons : 1. Mst. Sabiabi (plaintiff No. 3-respondent 3)2. Mst. Sugrabi (plaintiff No. 4-respondent 4)3. Mst. Aamnabi (plaintiff No. 5-respondent 5)4. Mst Jaitunbi (plaintiff No. 6-respondent No. 6)5. Muntejakhan (defendant No. 2-respondent No. 7)6. Muktedakhan (defendant No. 3-respondent No. 8 ). Thus, the dispute is between the daughter of the second wife Mst. Mahrum Bi and four daughters of the third wife Mst. Hayatbi on one side and son from the first wife of Murtejakhan, his wife, grand son of Idoomiyan and two sons from the third wife of Murtejakhan. The disputed property is 105. 31 acres of land and some houses located in mouza Atri in tahsil and district Seoni which was held by Murtejakhan as a protected thekadar under the C. P. Land Revenue act, 1917. Besides that, another piece of land measuring 14. 29 acres located in mouza Saleh-Bharrai, tahsil Waraseoni, district Balaghat was held by Murtejakhan as two annas proprietor. 31 acres of land and some houses located in mouza Atri in tahsil and district Seoni which was held by Murtejakhan as a protected thekadar under the C. P. Land Revenue act, 1917. Besides that, another piece of land measuring 14. 29 acres located in mouza Saleh-Bharrai, tahsil Waraseoni, district Balaghat was held by Murtejakhan as two annas proprietor. After the death of Murtejakhan on 2-5-1950, his son Mustafakhan (defendant No. 1) was appointed as a protected thekadar by the revenue authorities on 21-8-1950. Thus, the plaintiffs filed the present suit as defendant No. 1 refused to give them any share in the suit property. The plaintiffs based their claim on the basis that they being heirs of Murtejakhan were entitled to a share in the suit property and for separate possession after the thekadari rights came to an end on coming into force of the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (1 of 1951) (hereinafter referred to as "the Abolition Act" ). ( 3. ) AS regards defendants 2 and 3 they accepted the allegations and claim advanced by the plaintiffs. The case was contested by defendants 1, 4 and 5. They, vide their joint written-statement, pleaded that defendant No. 1 after having been appointed as a protected thekadar on 28-8-1950 he alone had become the owner of the lands and houses appurtenant to the thekadari located in village atri while with regard to the other suit property located in mouza Saleh-Bharrvi, the defendant did not dispute the claim of the plaintiffs as that property was held by Murtejakhan in proprietary rights. According to them, after coming into force of the Abolition Act, 1951, defendant No. 1 had become an occupancy tenant under section 39 of the Abolition Act and thereafter on coming into force of the M. P. . Land Revenue Code, 1954 he became a Bhumidhari under section 147 (a) and subsequently after coming into force of the M. P. Land Revenue Code, 1959 he became a Bhumiswami under section 158 of the said Code. Thus, according to the defendants, the step brothers and sisters could prescribe no right or title to the thekadari property located in village Atri. They further pleaded that initially the suit property located in village Atri belonged to one Buttankhan son of Mandoomiyan alias Sayeed Khan who died on 17-10-1935. Originally he was a protected thekadar. Thus, according to the defendants, the step brothers and sisters could prescribe no right or title to the thekadari property located in village Atri. They further pleaded that initially the suit property located in village Atri belonged to one Buttankhan son of Mandoomiyan alias Sayeed Khan who died on 17-10-1935. Originally he was a protected thekadar. He had allotted some lands for maintenance of his cousins, namely, Mohd. Sherkhan son of Idoo-miyan and also to Murtejakhan and Yakubkban. The lands, which were allotted to Sherkhan continued in the name of his son Abdul Matin (defendant no. 5 ). After the death of Buttan Khan, Murtejakhan was appointed as a protected thekadar and after his death defendant No. 1 Mustafa Khan was so appointed. The defendants in the alternative pleaded that there was a partition or a family arrangement effected in the year 1939 and on that basis 53 acres of land were allotted to defendants 2 and 3 (Muntezakhan and Muktedakhan) and some lands were also allotted to plaintiff No. 1 Mst. Hayat Bi and as such that family arrangement stands binding and the present suit is not tenable. It was also tried to be pleaded that defendant No. 5 was allotted 22 acres of land by the original protected thekadar Buttankhan and that land could not be treated as belonging to Murtejakhan which would devolve on his heirs. Lastly, the defendants pleaded that in any case if it is held that the suit property located in village Atri appurtenant to the thekadari rights is liable to be partitioned, then 45 acres of land in possession of Mst. Hayat Bi (plaintiff No. 1) should also be included in it. ( 4. ) THE trial Court decreed the suit of the plaintiffs. The appeal filed by the defendants 1, 4 and 5 alone before the lower appellate Court having been dismissed, they have now come up in the present second appeal. ( 5. ) BEFORE proceeding further, I may mention here that learned counsel for the appealing defendants stated that in the present appeal he would not be challenging the judgment and decree of the lower appellate Court to the extent it relates to 14. 29 acres of land located in mouza Saleh-Bharrvi and as such he confined his submissions only with regard to 105. 29 acres of land located in mouza Saleh-Bharrvi and as such he confined his submissions only with regard to 105. 31 acres of land and some houses located in mouza Atri which Murtejakhan held as a protected thekadar. ( 6. ) HAVING heard learned counsel of the parties, I am of opinion that this appeal has merit and it must be allowed. This is an unusual case with reference to thekadari rights as it was then prevalent under the C. P. Land Revenue Act, 1917. According to the learned counsel for the defendants 1, 4 and 5 (appellants), Mustafakhan succeeded on the basis of succession to his father Murtejakhan on 21-8-1950 by an order of the competent authority as a protected thekadar and his thekadari was impartible. After coming into force of the abolition Act with effect from 31-3-1951, the impartibility that was attached to the thekadari ceased to exist as that system itself came to an end. Therefore, as Mustafakhan (defendant No. 1) was alone the protected thekadar and the property under the theka being impartiable estate, it did not become partible even after losing its character of impartibility. That being so, after coming into force of the Abolition Act the plaintiffs could not prescribe any right for their alleged share in the suit property which remained exclusively that of mustafakhan (defendant No. 1) even after coming into force of the Abolition act and subsequently he became a bhumidhari under section 147 of the M. P. Land Revenue Code, 1954 and thereafter a bhumiswami under section 158 of the m. P. Land Revenue Code, 1959. Thus, according to the learned counsel, the plaintiffs case was untenable and they could not be granted any relief. ( 7. ) ON the other hand, learned counsel for the plaintiffs disputed the contention of the learned counsel for the other side and submitted that in view of the proviso (i) to clause (a) of section 109 (1) of the C. P. Land Revenue act, 1917, they would be deemed to be the members of the family being heirs of Murtejakhan and as such entitled to a share in the theka which was secured by Mustafakhan on the basis of succession under section 109 (1) (b) of the said Act. Thus, according to him, as there could not be more than one thekadar, after the death of Murtejakhan although his son from the first wife mst. Umaraiyya Bi, Mustafakhan (defendant No. 1) was declared as a protected thekadar, he held the estate in a representative capacity. Thus, all the plaintiffs had their share in the thekadari left by Murtejakhan and after coming into force of the Abolition Act they had no other course but to file the present suit for their share as they could not have recourse to section 112 of the C. P. Land revenue Act for the relief. ( 8. ) THEREFORE, the question that arises for consideration in the present appeal is whether the plaintiffs, who are step-mother, step-sisters and defendants 2 and 3 who are step-brothers, could claim any share in the sir lands of mustafakhan (defendant No. 1) which he previously held as a protected thekadar of mouza Atri. For the answer to the question, one has first to look to the nature and tenure of a protected thekadari system as then prevalent. In this connection sections 107, 108, 109 and 112 of the C. P. Land Revenue Act, 1917 are relevant so far as the present case is concerned and they are reproduced hereunder:- "107. (1) The Deputy Commissioner may enquire into the claim of any person holding from a proprietor a village or any part of a village as thekadar and may notwithstanding any contract to the contrary, and with the previous sanction of the Commissioner declare such thekadar to be protected or confer on him the rights of an occupancy tenant in respect of the whole or part of his sir land or khudkasht and determine the rent payable by him: provided that no thekadar shall be declared to be protected or be granted the rights of an occupancy tenant under this section unless he or the persons from whom the theka has devolved upon him by inheritance or survivorship has or have been in lawful possession of the village or part of the village for a period of not less than twenty consecutive years, or unless it is provided that such thekadar or persons has or have established or successfully improved the village at his or their own cost. (2) If a thekadar has been declared to be protected or has been granted the rights of an occupancy tenant, any member of his family who is found to be cultivating land in the village by virtue of participation in the privileges of the theka, may, by order of the Deputy Commissioner and with the previous sanction of the Commissioner, be given the rights of occupancy tenant in such land, subject to the payment of such rent as the deputy Commissioner may determine. (3) The occupancy rights specified in sub-sections (1) and (2) shall take effect from the date of expiry of the theka. (4) Notwithstanding anything contained in this section, a thekadar holding a village or part thereof from a proprietor who is deemed to be member of an aboriginal tribe under the Central Provinces Land Alienation act, 1916 (C. P. Act 11 of 1916), shall not be declared to be protected or be granted the rights of an occupancy tenant. Explanation I - Sir land in which the rights of an occupancy tenant are thus conferred will not finally lose its character as such, but the sir right will remain in abeyance. Explanation 11.- In this section and in section 110 thekadar includes a gaontia or farmer of proprietary rights. 108. (1) If a thekadar has, under section 107, sub-section (1), been declared to be protected, the Deputy Commissioner shall enquire into and record the conditions on which the village or part thereof is held, including the theka-jama, miscellaneous dues and cesses, if any, to be paid, the period of elapse before enhancement, the rights over waste land and forest produce, and such other matters as may be prescribed by rules made under section 227. (2) If any dispute arises regarding any matter specified in sub-section (1), the Deputy Commissioner shall decide it after hearing the parties and making such enquiry as he thinks necessary, and shall record proceedings setting out the nature of the dispute, his decision thereon, the grounds of such decision and such other particulars as he thinks fit. (3) The Deputy Commissioner shall draw up a written lease and kabuliyat emboding the result of his enquiries under sub sections (1) and (2), and shall submit them for the orders of the Commissioner. (3) The Deputy Commissioner shall draw up a written lease and kabuliyat emboding the result of his enquiries under sub sections (1) and (2), and shall submit them for the orders of the Commissioner. (4) The terms of such lease and kabuliyat shall be binding on the parties and shall not be called in question in a Civil Court so long as the thekadar remains protected. (5) If the proprietor refuses to execute the lease, it shall be executed on his behalf by the Deputy Commissioner. 109. (4) The terms of such lease and kabuliyat shall be binding on the parties and shall not be called in question in a Civil Court so long as the thekadar remains protected. (5) If the proprietor refuses to execute the lease, it shall be executed on his behalf by the Deputy Commissioner. 109. (1) The incidents of the tenure of a protected thekadar shall be as follows:-- (a) the tenure shall be- (i) impartible; (ii) inalienable: and (iii) exempt from liability to sale or foreclosure in execution of any decree of a Civil Court: provided that- (i) Nothing herein contained shall prevent a protected thekadar, or any member or members of his family who would be entitled to share in the theka or to be maintained out of its income, from making any arrangement, binding on themselves only for the joint or divided management and enjoyment of the village or part thereof; (ii) the right of a protected thekadar may subject to the sanction of the Deputy Commissioner, be given in lease for a period not exceeding ten years in favour of a society registered under the Co-operative Societies Act, 1912 (II of 1912); (b) the succession shall be regulated by the personal law of the deceased thekadar, subject to the following conditions, namely:- (i) only one person at a time shall succeed; (ii) where there are several persons in the same degree of relationship to the deceased thekadar, those senior in descent from the common ancestor shall be preferred to those junior, and where there are several persons of equal seniority of descent, the eldest shall be preferred to the others: provided that, of such persons bearing the same degree of relationship to the deceased thekadar, one who was joint in estate with him at the time of his death shall be preferred to one who was not so joint; (iii) if there are several widows, the senior in date of marriage shall be preferred to the others; (iv) the person entitled to succeed may resign his rights and thereupon the person next in order of succession to the deceased thekadar shall succeed; (c) a protected thekadar, whether holding under a written lease or under a verbal agreement, shall be entitled on its expiry to a renewal of his lease or agreement and, on the occurrence of any such renewals, the provisions of section i08 shall apply; (d) all miscellaneous dues and cesses, unless specially authorised by the Commissioner shall be included in the theka jama. (2) Notwithstanding anything contained in the Indian Registration act (XVI of 1908), no officer empowered to register document shall admit to registration any document which purports to transfer the rights or any portion of the rights of a protected thekadar as such save as provided in sub-section (1), clause (a), proviso (ii ). (3) If a protected thekadar transfers any portion of his rights, save as provided in sub section (1), clause (a), proviso (ii), and the transferee obtains possession in pursuance of the transfer, the Deputy Commissioner may, of his own motion or on the application of any of the persons hereinafter mentioned, place in possession of the village or part of the village concerned the transferring thekadar, or any co-sharer, or, failing such persons, the proprietor, subject to the condition that the person so placed in possession shall accept the liabilities of the transferring thekadar for arrears of the theka jama: provided that, as among several co-sharers desirous of being placed in possession, the Deputy Commissioner shall decide in favour of the person who would be entitled to succeed the thekadar under subsection (1) if he were dead. Explanation I.- For the purposes of sub-section (3) a surrender of his rights as such by a protected thekadar shall be regarded as a transfer in contravention of sub-section (1 ). Explanation II.- In this section and in the third proviso to section 111 the expression co-sharer shall mean any person joint with the protected thekadar and entitled to a share in the profits of the lease. 112. Subject to rules made under section 227, the Deputy Commissioner may, on the application of any member of the family of a protected thekadar who is entitled to a share in the theka or to be maintained out of its income, transfer the theka to any such member of the family, who shall thereupon become the protected thekadar: provided that such transfer shall not deprive the person removed of his interest in the theka. " ( 9. " ( 9. ) A perusal of the aforementioned sections makes it clear that as regards section 107 is concerned, it deals with the power to enquire into claims of thekadars while section 108 authorises the Deputy Commissioner to hold an enquiry into record and conditions of protected thekadar and in case of a dispute the Deputy Commissioner was required to decide the same after giving due opportunities to the parties and also making such further enquiry as he may deem necessary. But his order was subject to approval by the Commissioner. The, thekadari rights by virtue of section 109 of the said Act were held to be impartible, inalienable and even exempt from liability to sale or foreclosure in execution of any decree of a Civil Court. In the present case we are concerned only with the character of impartibility. But in view of the proviso (i) to clause (a) of sub-section (1) of section 109, a protected thekadar, any member, or members of his family would be entitled to a share in the theka or to maintenance out of its income by making any arrangement binding on themselves. In case the thekadar fails to comply with the conditions of the arrangement arrived at, any member of the family of the pretected thekadar was given a right under section 112 to approach the Deputy Commissioner for the transfer of the theka to any such member of the family who shall thereupon become the thekadar. But that was subject to the protection of the earlier protected thekadar that though he may lose the thekadariship but would not lose his interest in the theka. This remedy, in fact, was made available to the members of the family in lieu of the right to sue for partition, of which they have been deprived of in consequence of the theka being made impartible by a statute. This remedy, in fact, was made available to the members of the family in lieu of the right to sue for partition, of which they have been deprived of in consequence of the theka being made impartible by a statute. I am supported in my view by a decision of the Privy Council in thakur Bhagwan Singh v. Darbar Singh, AIR 1928 PC 96=1928 N L R 179, the relevant passage of which reads as under: "section 112 is as follows: subject to rules made under section 277, the district Commissioner may, on the application of any member of the family of a protected thekadar who is entitled to be maintained out of its income, transfer the theka to any such member of the family who shall thereupon become the protected thekadar, provided that such removal shall not deprive the protected person removed of his interest in the theka. This remedy is no doubt given to the other members of the family in lieu of the right to sue for partition, of which they have been deprived in consequence of the theka being made impartible by statute. " Thus, it is clear from the aforesaid decision that so long as the C. P. Land revenue Act was in force, the only remedy for the member or members of the family of a protected thekadar was to have recourse for their share or maintenance by approaching the Deputy Commissioner under section 112 of the said Act and not by way of a civil suit. Their Lordships in the aforesaid decision also affirmed the impartible character of the thekadari. Nevertheless they have further held that it could be joint property of the thekadar and his family as provided in clause (a) of sub-section (1) of section 109. ( 10. ) THE question then that one is required to consider is whether after the thekadari ceased to exist on coming into force of the Abolition Act, the right to share in the property, if any, as in the present case by the heirs of murtejakhan, still survived so as to disentitle the thekadar Mustafakhan (defendant No. 1) from the sole enjoyment of the property. I was taken through a number of decisions of this Court dealing with the circumstances like in the present case. But they all relate to the cases of Hindu thekadars while the present case relates to a Mohammadan thekadar. I was taken through a number of decisions of this Court dealing with the circumstances like in the present case. But they all relate to the cases of Hindu thekadars while the present case relates to a Mohammadan thekadar. I particularly mention so because the distinction has to be made in the approach in view of the personal law applicable to a protected thekadar. In this connection, the first reference made was to a decision of a Division Bench of this Court in Shiv Prasad Sao v. Sukhan Bai, LP A No. 19 of 1949, decided on the 30th November 1954=1961 MPLJ Note 136. in which the learned Judges have laid down that under the c. P. Land Revenue Act, a protected status could be conferred not only upon hindus but also upon Muslims and others. The rules of impartible estates as understood in Hindu Law cannot, therefore, be made applicable and the analogy is apt to be misleading. These must be decided under the provisions of the Act. In that case the learned Judges have further laid down that the rights of co-sharers continue even after the forfeiture of a protected status and also if there was a family arrangement in the past, it would bind not only the protected thekadar but the whole family. It may be mentioned here that as for the present case is concerned, no such family arrangement has been alleged or proved. The second case that was referred to was that of Maniram Maksudan v. Ramdayal Maksudan and another, AIR 1960 MP 7 = 1959 MPLJ 829 . In that case though the theka was recorded in the name of the plaintiff but in the year 1935 a partition took place in which the family in which the sir and khudkasht lands attached to the theka and other properties belonging to the family were divided between three brothers and it was on that basis T. C. Shrivastava J. , as he then was, held that after the coming into force of the Abolition Act the proprietary rights pertaining to the protected thekadari disappeared and the normal character of lands as joint hindu family lands was restored. They, therefore, became partible between the co sharers after the year 1950. They, therefore, became partible between the co sharers after the year 1950. Thus, in that case, the protected thekadar did not hold the theka as his exclusive property inspite of the fact that the protected status was conferred on him. The property was jointly held by the brothers which is not the case here. As such, the said decision is of no help for solving the point arising the present case. The third case referred to at the Bar was that of Tekaram Jiwarakhan and others v. Amolabai Onkarprasad and others, 1961 MPLJ 997 (D B ) 5. That was also a case of a joint hindu family and which has been mainly relied upon by the Courts below for decreeing the suit of the plaintiffs. In my opinion, even this decision has no application to the facts and circumstances of the present case. In this case reliance was placed on the case of Shiv Prasad Sao (supra ). The relevant para 7 would itself make it clear that the learned Judges were dealing with the question in entirely different circumstances That was again a case of a joint hindu family of which the protected thekadar was a member and it was held that he secured the rights of occupancy tenant over the home-farm lands on behalf of all the members of the family who were entitled to claim such property as their joint property as a result of the vesting of the proprietary rights in the State under the Abolition Act. Even in this case there was a family arrangement arrived at between the parties and on that basis it was held that the protected thekadar alone could not become occupancy tenant of the entire home-farm land after cessation of the thekadari on coming into force of the abolition Act. The fourth case referred to was that of a Division Bench in Hiralal sundersingh v. Chandel Ranjitsingh, 1961 MPLJ 316 . In that case it was laid down that the plaintiff could not claim a share in the income arising from the thekadari property on the basis of his interest as a member of an undivided Hindu family and as such his claim for a share in the thekadari property on the basis of his interest in the joint Hindu family was held to be untenable. But that was a case decided on the basis that the suit related to a period prior to the Abolition of the Proprietary Rights Act when the thekadari property was impartible. It was on that basis that the plaintiffs suit for a share in the income was held to be not tenable. Therefore, in this case the question was left open with regard to the effect of the coming into force of the Abolition Act by which the lands of ex-thekadar had become occupancy lands and as such could be partible amongst the co-parceners. I may mention here that in this decision no reference was made to the earlier decision in the case of Tekaram Jiwarakhan and others (Supra) and I further notice that reliance was placed on Sukhambai wife of narayan Sao and another v. Ramsharan Doma Sao and others, 1951 NLJ 433. which was overruled earlier by a Division Bench in the case of Shiv Prasad Sao (supra ). It appears that this decision of the Division Bench was not brought to the notice of the learned Judges. ( 11. ) IN the circumstances, I might have thought to refer the case to a larger Bench but in view of the decision of the Supreme Court in the case of sri Rajah Velugoti Kumara Krishna Yachendra Varu and others v. Sri Rajah velugoti Sarvangana Kumara Yachandra Varu and others, AIR 1970 SC 1795 . about impartible estate; whether it becomes partible amongst the members once it lost its character of impartibility, the need if any ceased to exist. In the decision of the Supreme Court reliance has been placed for the relevant observations on the same two decisions of the Privy Council in Commr. of I. T. , Punjab v. Krishna Kishore, AIR 1941 PC 120=68 I A 155 ILR 23 Lah 1. and Krishna Bahadur v. Rajeshwara Rao, AIR 1942 PC 3 ILR 1942 Mad. 419=68 IA 181. which were also relied upon for the view expressed in the case of Sukhambai (supra ). Any way, the relevant para 17 of the aforesaid decision reads as under : "we are also unable to accept the contention of the plaintiffs that the property of the impartible estate was held in coparcenary as joint family property and became partible amongst the members once it lost its character of impartibility. Any way, the relevant para 17 of the aforesaid decision reads as under : "we are also unable to accept the contention of the plaintiffs that the property of the impartible estate was held in coparcenary as joint family property and became partible amongst the members once it lost its character of impartibility. In other words, the contention was that junior members had a present interest in the impartible estate and were entitled to a share in the estate once impartibility was removed. In our opinion there is no justification for this argument. The law regarding the nature and incidents of impartible estate is now well settled. Impartibility is essentially a creature of custom. The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth and, therefore, have no right of partition having regard to the very nature of the estate that it is impartible. Secondly, they have no right to interdict alienations by the head of the family either for necessity or otherwise. This, of course, is subject to section 4 of the Madras Impartible estates Act in the case of impartible estates governed by the Act. The right of junior members of the family for maintenance is governed by custom and is not based upon any joint right or interest in the property as co-owners. This is now made clear by the Judicial Committee in Commr. of 1. T. Punjab v. Krishna Kishore. The income of the impartible estate is the individual income of the holder of the estate and is not the income of the joint family since the decision ultimately rests on the first proviso to section 109 (1) (a) of the C. P. Land Revenue Act, it is desirable to examine it before finally drawing the conclusion on the basis of the Supreme Court case of Krishna {supra ). A reading of the proviso makes it clear that the rights of the members of the thekadars family to claim a share in the theka or to be maintained out of its income were recognised under the Act of 1917 on the basis of any arrangement arrived at between the thekadar and the members of his family. A reading of the proviso makes it clear that the rights of the members of the thekadars family to claim a share in the theka or to be maintained out of its income were recognised under the Act of 1917 on the basis of any arrangement arrived at between the thekadar and the members of his family. This, in my opinion, the Legislature thought to enact inspite of making the theka impartible for the reasons to save certain arrangements to the contrary and also provided a remedy under section 112 incase of their violation on the part of the thekadar. The plaintiffs did not resort for their relief under the Act. On the contrary, they filed the present suit for partition and separate possession on the basis of heirs of previous thekadar Murtejakhan (not on the basis of any arrangement between them and the thekadar) after the thekadari ceased to exist on coming into force of the Abolition Act and the character of impartibility which was attached to the tenure of a protected thekadar under section 109 (1) (i) ceased. But then whether this cessation made the impartible theka as partible amongst the plaintiffs and the then thekadar (defendant No. 1 ). My answer is in the negative relying upon the Supreme Court decision in the case of Krishna (supra) which squarely applies with all force. Therefore, even here though impartibility was removed by the Abolition Act, that did not create any right which the plaintiffs could prescribe to themselves. Under section 39 (1) of the said Act the then thekadar (defendant No. 1) alone became the occupancy tenant and subsequently on coming into force of the M. P. Land revenue Code, 1954, he became a bhumidhari under section 147 (a) of the said code and finally a bhumiswami under section 158 of the M. P. Land Revenue code, 1959. The plaintiffs claim on the ground of inheritance fails once it is held that the theka being impartible, it would be deemed to have been clothed with the incidents of self acquired and separate property as in the case of impartible estate which may be ancestral. I may further mention here that as the parties are Mahommedan, there was no such thing as a joint Mahommedan family nor does the Mahommedan Law recognise a joint tenancy in a Mahommedan family. I may further mention here that as the parties are Mahommedan, there was no such thing as a joint Mahommedan family nor does the Mahommedan Law recognise a joint tenancy in a Mahommedan family. Therefore, all those considerations which arose in the cases where parties were Hindus will have no applicability here, much less to say now on the face of the Supreme Court decision. In this view of the matter, differing from the lower appellate Court, I hold that the plaintiffs had no right to claim partition from the defendant No. 1, the then thekadar. Accordingly the suit of the plaintiffs must fail partly. ( 12. ) FOR the reasons stated above, the appeal succeeds and is allowed partly. The judgment and decree of the lower appellate Court are set aside and the suit of the plaintiffs is dismissed to the extent it relates to the suit property situate in village Atri. In the circumstances, it is ordered that the plaintiffs shall bear 2/3rd costs of the contesting defendants (Nos. 1, 4 and 5) throughout and shall bear their own. Appeal partly allowed.