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Monday, March 27, 2017

As per the compromise the division of the property has to take place between the appellants and the newly added respondent Nos.87 to 127. Same was objected to by one of heirs. It will involve transfer of the property, hence, we leave the parties to have resort to an appropriate remedy in this regard. It is found not to be recordable in the form of transaction in which it has been filed.- Resultantly, the appeals are allowed. Impugned judgment and decree passed by the High Court is set aside

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS.4731-4732 OF 2010


T. Ravi & Anr.                                     … Appellants

Vs.

B. Chinna Narasimha & Ors. etc.                    … Respondents

With

[Civil Appeal Nos.4733 of 2010, 4734-35 of 2010, 4736 of  2010,  4837-38  of
2010, 6536-37 of 2010, 4276-77 of 2011, Civil Appeal No. 4319-20 of 2017  (@
SLP(C) Nos.23864-23865 of 2011), Civil Appeal Nos.1196-97 of 2012 and  Civil
Appeal Nos.7105-06 of 2010.]

                               J U D G M E N T


ARUN MISHRA, J.


1.    Leave granted in S.L.P. (C) Nos. 23864-23865 of 2011.

2.    In the appeals, the  final  decree  which  has  been  drawn  up  in  a
partition suit with respect to item No.6 of Schedule ‘B’ pertaining to  land
admeasuring 68 acres 10 guntas comprised in survey Nos. 63, 68,  69  and  70
situated  at  village  Madhapur,  District  Ranga  Reddy,  Hyderabad  is  in
question.
3.    The property was matruka  property  of  Late   Mohd.  Nawab  Jung  who
passed away on 25.4.1935. Civil Suit  No.82/1935  was  instituted  by  Mohd.
Hashim Ali Khan, son of Mohd. Nawab, in Darul Qaza  City  Court,  Hyderabad,
for partition of matruka properties of Late  Nawab  comprised  in  Schedules
‘A’, ‘B’ and ‘C’. The suit was contested, inter alia, by  defendant  No.  1.
Darul Qaza Court was abolished in the year 1951. On  abolition  of  original
jurisdiction of the High Court, the case was  assigned  to  the  City  Civil
Court. It appears that later on as the file was not  received  by  the  City
Civil Court from the Custodian,  it  passed  order  dated  8.1.1955  to  the
effect that the file of the case was not yet  received,  the  plaintiff  was
also absent, as such the case be closed for the time being  and  be  revived
only on receipt of the file and  on  an  application  to  be  filed  by  the
plaintiff. The city civil court understood the order to be of  dismissal  of
suit in default. The plaintiff moved  an  application  for  revival  of  the
suit.  The  city  civil  court  directed  the  plaintiff  vide  order  dated
1.12.1955 to deposit Rs.50 towards costs and if the costs were not  paid  by
15.12.1955, the suit shall stand dismissed. The plaintiff could not pay  the
cost within the stipulated time and prayed for extension of time  which  was
not extended. The order was questioned by the plaintiff in  the  High  Court
by way of filing an appeal. The High Court decided  the  appeal  vide  order
dated 23.1.1962 and held that vide order dated 8.1.1955, the  suit  was  not
dismissed for default. It was an order adjourning the suit with a  direction
that it may be revived only on receipt  of  the  file  from  the  Custodian,
therefore, there was no necessity for the plaintiff to file  an  application
under Order 9 Rule 9 CPC for  restoration.  Thus  the  trial  court  had  no
jurisdiction to direct the plaintiff vide order dated 1.12.1955 to  pay  the
cost of Rs.50 to the defendants on  or  before  15.12.1955  as  a  condition
precedent. The appeal was allowed and the  order  dated  1.12.1955  was  set
aside. The order passed by the High  Court  attained  finality.  Thereafter,
the suit was re-numbered as Civil Suit No.42/1962 in the city  civil  court.
Hamid Ali Khan, defendant No.1 sold Item No.6 of Schedule  ‘B’  property  in
area 68 acres 10 guntas on 23.11.1959 to Bala Mallaiah vide registered  sale
deed. He sold the share inherited by other co-heirs also to  Bala  Mallaiah.
It was found in the preliminary decree for partition dated  24.11.1970  that
defendant No.1, Hamid Ali Khan, was having only 14/104th  share  in  matruka
properties. The plaintiff, and defendant Nos.2, 3 and 12  were  also  having
14/104th share each. Defendant Nos.4 to 6, daughters of  Nawab  had  7/104th
share  in  matruka  properties.  Nurunnisa  Begum,  widow  of  Late   Nawab,
defendant No.7 was entitled to 13/104th share in matruka properties.
4.    Aggrieved by the preliminary  decree  for  partition  determining  the
shares to the aforesaid extent, the plaintiff and legal heirs  of  defendant
No.1 i.e. defendant Nos.23 to 25 and defendant  No.27  preferred  appeal  in
the year 1972 before the High Court. Cross-objections  were  also  preferred
by defendant No.6 –  Shareefunnisa  Begum.  The  High  Court  dismissed  the
appeals and allowed the cross-objections of defendant No.6 with  respect  to
item No.4 of Schedule ‘A’ property. The plaintiff  questioned  the  decision
by way of filing LPA No.199/1977 and  the  same  was  dismissed  vide  order
dated 12.11.1976, the  decision  with  respect  to  preliminary  decree  has
attained finality.
5.    Defendant No.25 – daughter of defendant No.1 –  filed  IA  No.854/1984
for passing a final decree in terms of the preliminary decree passed in  the
partition suit. During the pendency of  the  final  decree  proceedings,  an
Advocate-Commissioner was appointed to divide  the  suit  schedule  land  by
metes and bounds as per the preliminary  decree  passed  on  24.11.1970  for
which an application (IA No.31/1989) was filed on 16.1.1989. He submitted  a
report in December, 1993  in  respect  of  item  No.6  of  Schedule  ‘B’  of
preliminary decree dated 24.11.1970. The Advocate-Commissioner  divided  the
suit schedule property on 28.11.1993. He also  noticed  that  third  parties
were in possession of the land and he had also seen  a  signboard  of  Surya
Enclave Developers. The sale transaction took place during the  pendency  of
the preliminary decree proceedings on 23.11.1959. The LRs. of Bala  Mallaiah
were entitled to the share of Hamid Ali Khan, defendant No.1. On  6.10.1997,
pending final decree proceedings, plaintiff and defendant Nos.4  and  14  to
17 i.e. LRs. of defendant No.5 assigned their interest  in  item  No.  6  of
plaint ‘B’ schedule properties in favour of D.A.P. Containers Pvt. Ltd.  The
assignees were brought on record as defendant Nos.99 to  112  in  the  final
decree proceedings vide order dated 22.4.1999 passed  by  the  Senior  Civil
Judge, City Civil Court, Hyderabad.
6.    On 16.7.2001, L.Rs. of Bala Mallaiah filed IA No.978/2001  and  sought
impleadment to contest the matter in respect of  item  No.6  of  plaint  ‘B’
Schedule properties. Vide order dated  14.10.2003,  LRs.  of  Bala  Mallaiah
were impleaded. On 2.4.2004, subsequent purchasers of the disputed  property
filed an application (IA No. 544/2004) under  Order  VII  Rule  11  CPC  for
rejection of the final decree proceedings.  It was  resisted  by  appellants
and rejected by the court vide  order  dated  5.7.2005  and  ultimately  the
final decree came to be passed on  7.7.2005  in  terms  of  the  preliminary
decree dated 24.11.1970. In the final decree  proceedings  initiated  by  IA
No.854/1984, share of each heir was  recognized  in  the  disputed  property
being Item No.6 of Schedule ‘B’ plaint. The rights of Hamid Ali,  vendor  of
Bala Mallaiah and subsequent purchaser’s share was recognized to the  extent
of  14/104th share. Rights of the assignees/appellants were also  recognized
in terms of the assignment deed and separate possession was given  to  them.
The final decree was questioned in Appeal Nos.385  and  386  of  2006  which
were filed by LRs. of Bala Mallaiah and purchasers from  them  with  respect
to item No.6 of plaint ‘B’ schedule property. The appeals were dismissed  on
27.4.2007. Aggrieved  thereby,  Second  Appeal  No.410/2008  was  preferred.
Appeal  had  been  allowed  by  the  impugned  judgment  and  decree   dated
15.4.2010.
7.    Before the final decree could be passed in the case, civil suit  being
OS No.294/1993 was filed for perpetual injunction by L.Rs. of Bala  Mallaiah
against Hashim Ali  Khan  and  others  on  the  basis  of  sale  deed  dated
23.11.1959. The suit was dismissed by Junior Civil Judge, Hyderabad  West  &
South vide judgment  and  decree  dated  8.6.1998.  It  was  held  that  the
plaintiffs were not entitled to  claim  adverse  possession  over  the  suit
schedule property and that their purchase and possession was subject to  the
result of the partition suit, O.S. No.42/1962. It was  also  held  that  the
possession of the plaintiff could not be said to be rightful possession  and
they could claim only to the extent of their vendor’s  share  and  not  over
the entire property, and thus, they were  not  entitled  to  the  relief  of
injunction against the defendants. As against the  judgment  and  decree  of
the trial court,  an  appeal  was  preferred  in  the  Court  of  Additional
District  Judge,  NTR  Nagar,  Hyderabad  and  the  same  was  dismissed  on
20.7.2000. Second Appeal No.465/2001 preferred against the same in the  High
Court was dismissed vide judgment and order dated 26.9.2001.
8.    Land grabbing proceedings  under  the  Andhra  Pradesh  Land  Grabbing
(Prohibition) Act, 1982  initiated  by  the  L.Rs.  of  Bala  Mallaiah  were
dismissed  by  the  Special  Court  in  LGC  No.148/1996  vide  order  dated
13.5.1997. It was held that the application was not maintainable. The  court
took cognizance of the preliminary decree proceedings,  appointment  of  the
Commissioner and also held  that  it  was  not  open  to  contend  that  the
doctrine of lis pendens had no application. The application  was  ultimately
dismissed. The order was questioned by way of filing W.P.  No.15577/2001  in
the High Court of Andhra Pradesh. The High Court simply  observed  that  the
observations made by the special court would not come  in  the  way  of  the
petitioners to  work  out  their  rights  in  accordance  with  law  in  the
partition suit, that is to say in the final decree proceedings.
9.    There was yet another litigation initiated by Boddam Narsimha,  nephew
of Bala  Mallaiah.  On  16.12.1998  an  application  was  filed  before  the
Tribunal, Ranga Reddy District, seeking  declaration  of  protected  tenancy
under section 37A of the A.P.  (Telangana  Area)  Tenancy  and  Agricultural
Lands Act, 1950. The same was dismissed  vide  order  dated  24.8.1999.  The
appeal preferred to the Joint Collector was  also  dismissed  on  13.3.2000.
CRP No.2229/2000 before the High Court of Judicature at Andhra  Pradesh  was
dismissed  by  the  Single  Judge  vide  order  dated  16.4.2001.  Aggrieved
thereby, C.A. No.3429/2002 - Boddam Narsimha v. Hasan  Ali  Khan  (dead)  by
LRs. & Ors. - (2007) 11 SCC 410 was filed, and the same was  also  dismissed
by this Court.
10.   The High Court while passing the impugned judgment  and  decree  under
appeal has held that the sale deed dated  23.11.1959  was  not  hit  by  the
principle of lis pendens under section 52 of the Transfer of  Property  Act.
During the pendency of the suit, defendant No.1 had leased out the  land  to
Bala Mallaiah and later  on  had  alienated  the  same  on  23.11.1959.  The
decision of this Court in Boddam Narsimha  (supra) had been relied  upon  to
hold that Bala Mallaiah was declared as Pattedar, that would  bind  all  the
parties. It was necessary for the plaintiff to take steps to  get  the  sale
deed dated 23.11.1959 cancelled in accordance with law.  It  has  also  been
held that as the sale by defendant No. 1 to Bala Mallaiah was  not  effected
during lis pendens, in the absence of challenge to the sale deed and due  to
non-impleadment in the suit, by virtue  of  adverse  possession,  title  has
been perfected. At the same time, the High Court  has  held  that  till  the
final decree is passed the suit is said to be pending  and  the  preliminary
decree only determines the rights of the parties.  Thus,  the  final  decree
which has been passed by the trial  court  with  respect  to  item  No.6  of
plaint ‘B’ schedule property was impracticable.
11.   It was submitted by learned senior counsel appearing on behalf of  the
appellants that in fact there was no dismissal of the suit in 1955  as  held
by the High Court in the year 1962. Thus, the  sale  deed  dated  23.11.1959
was clearly during lis pendens. The suit was filed in the year 1935 and  the
preliminary decree for partition was passed  in  the  year  1970  and  final
decree has been passed in 2005. It was further contended  that  it  was  not
open to defendant No.1 to sell more than his share. He had no  authority  to
sell the land belonging to the share of other co-heirs  as  Muslims  inherit
the property as tenants-in-common and not as joint tenants. It  was  further
submitted that there was no necessity of questioning the  sale  deed  as  it
was subject to the provisions of lis pendens  contained  in  section  52  of
T.P. Act. The High Court has gravely erred in law in holding that the  title
had been perfected by virtue of adverse possession. It  was  also  contended
that this Court in Boddam Narsimha  (supra) did not adjudicate the  question
of title of Bala Mallaiah. Thus, the High Court has gravely erred in law  in
reversing the judgment and decree passed by the trial court as  affirmed  by
the first appellate court. The High Court has also erred in law  in  holding
that it was impracticable to pass the decree with respect to  item  No.6  of
schedule ‘B’ property.
       Learned  senior  counsel  appearing  on  behalf  of  the   appellants
submitted  that  the  decision  in  Civil  Suit  No.289/1993  for  permanent
injunction which was based upon title, operates as res judicata  on  various
issues. The plea  of  estoppel  has  also  been  raised  on  behalf  of  the
appellants. It was further submitted that the plea of  equity  with  respect
to partition of property was not  available  to  Bala  Mallaiah  or  to  the
purchasers from him.
      It was also submitted on behalf  of  the  appellants  that  the  final
decree proceedings qua  other  item  No.2  of  schedule  ‘B’  property  have
attained finality in which the order passed by the  Division  Bench  of  the
High Court of Andhra Pradesh in LPA No.104/1997 has been  affirmed  by  this
Court by a  speaking  order  passed  in  SLP  [C]  No.3558/1999  decided  on
1.10.1999. Thus, the decision of this Court is binding upon the parties  and
the findings recorded by the High Court therein on questions of law  in  its
judgment have attained finality. Thus, the High Court has erred  in  law  in
holding otherwise.
12.   Learned  senior  counsel  appearing  on  behalf  of  respondents  have
submitted that the sale deed dated 23.11.1959 in favour of Bala Mallaiah  is
valid and binding as disputed land could have  been  alienated  even  during
the pendency of the suit for partition.  It  was  strenuously  submitted  on
behalf of the respondents that the sale in question could not be said to  be
during lis pendens as the suit in fact  stood  dismissed  in  1955  and  was
later on revived by the High Court in 1962. The decision of  this  Court  in
Boddam Narsimha (supra)  is binding in  which  foundational  basis  for  the
judgment was the fact that Bala Mallaiah was a pattedar of the land, and  it
was necessary to avoid the sale deed in question by getting it cancelled  in
accordance with law within the period of limitation and that  by  virtue  of
adverse possession, the  right  and  interest  had  been  perfected  by  the
purchasers.  It  was  also  submitted  that  even  otherwise,  the  equities
available to a purchaser ought to have been applied in the present  case  as
the principle of equitable adjustment is applicable to  Mohammedan  Law  and
the disputed property ought to have been allotted to the share of  defendant
No.1 in order to adjust the equities without affecting the rights  of  other
co-heirs.

      It was further urged that in view of the decision in  Civil  Suit  No.
294/1993, various questions were left open  to  be  agitated  in  the  final
decree proceedings. It  was  also  submitted  that  in  the  judgment  dated
24.11.1970 with regard to preliminary decree in  para  93,  purchasers  were
given the liberty to raise the  question  of  equity  in  the  final  decree
proceedings. Thus, the High Court has  rightly  interfered  with  the  final
decree with respect to the disputed property. Even  if  section  52  of  the
T.P. Act is applicable, the transactions hit by lis pendens  are  not  void.
Bala Mallaiah had acquired the rights of a pattedar, no  decree  could  have
been passed in favour of L.Rs. of Late Nawab Jung. Considering  the  conduct
of the appellants, no  case  for  interference  is  made  out.  They  cannot
approbate and reprobate.
13.   Following questions arise for consideration under the appeals:-

Whether the decision in  Original  Suit  No.294  of  1993  operates  as  res
judicata, if yes to what extent?
Whether the sale deed dated 23.11.1959 executed by defendant no.1 in  favour
of Bala Mallaiah is hit by doctrine of lis pendens?
Whether section 52 of T.P. Act renders a transfer pendente lite void ?
What is the effect of preliminary decree for partition  and  the  extent  to
which it is binding ?
Whether it was necessary to file a suit for cancellation of sale deed  dated
23.11.1959?
Whether Bala Mallaiah, his heirs and purchasers had perfected  their  right,
title and interest by virtue of adverse possession?
Whether under the Muslim law, defendant no.1 being a  co-sharer  could  have
alienated the share of other co-sharers in the disputed property?
Whether the purchaser has a right to claim  equity  for  allotment  of  Item
No.6 of Schedule ‘B’ property  in  final  decree  proceedings  in  suit  for
partition? If yes, to what extent ?
Whether sale was for legal necessity, and thus binding ?
What is the effect of proceedings under the Tenancy Act, 1950 ?
What is the effect of decision of this Court and High Court with respect  to
final decree proceedings in Item No.2 of Schedule ‘B’ property ?
Whether there is waiver of right by appellants ?
Whether appellants are guilty of delay or laches ?
What is the effect of the  decision  of  the  Court  under  the  Urban  Land
Ceiling Act?
(i) In re : whether the decision in Original Suit No.294  of  1993  operates
as res judicata, if yes, to what extent?

14.         Twelve LRs. of Bala Mallaiah filed the  aforesaid  suit  against
Mohd. Hasim Ali Khan and 13 other heirs of Late Nawab  Jung.  The  suit  was
with respect to Item No.6 of Schedule ‘B’ that is  with  respect  to  survey
Nos.63 and 68 to 70 comprised  in  area  68  acres  10  guntas  situated  at
village Madhapur in erstwhile West Taluk, Hyderabad district  now  known  as
Serilingampally Mandal.
15.         It was averred in the plaint that Hamid Ali Khan  had  sold  the
land to Bala Mallaiah by sale deed  dated  23.11.1959  after  obtaining  due
permission under the Andhra Pradesh  Tenancy  and  Agricultural  Lands  Act,
1950 (hereinafter referred to as ‘the Act of 1950’).  Though  the  land  was
purchased in the name of Bala Mallaiah but it was his joint family  property
along with two brothers, namely, Komaraiah and Agaiah.  Bala  Mallaiah  died
in the year 1975. His undivided 1/3rd share devolved  upon  plaintiff  Nos.1
and 2. Plaintiff Nos.3 and 4 are sons of plaintiff No.1 and  plaintiff  No.5
is the son of plaintiff No.2. Komaraiah, brother of Bala Mallaiah also  died
and his 1/3rd interest had devolved upon plaintiff Nos.6  and  7.  Agaiah  –
plaintiff No.8 is the brother of Bala Mallaiah and  plaintiff  Nos.9  to  12
are his sons.
         It  was  further  averred  that  the  plaintiff  entered   into   a
developer’s agreement with respect to  residential  plots  with  M/s.  Surya
Land Developers & Promoters with respect to 13 acres 17 guntas forming  part
of survey No.68 and 12 acres 31 guntas in survey  No.69.  Another  agreement
was entered into with Bapuji Estates with respect to 6 acres of area out  of
survey No.69. Plots comprised in survey  Nos.68  &  69  were  also  sold  to
various persons. Survey No.69 was  also  sold  in  entirety.  A  preliminary
decree for partition was passed in O.S. No. 42/1962 in the year  1970  which
comprised of disputed property also. Bala Mallaiah  or  the  plaintiffs  and
other heirs were  not  impleaded  as  parties  in  the  aforesaid  suit  for
partition and under  the  guise  of  decree  the  defendants  were  claiming
ownership and threatening to dispossess  the  plaintiffs  forcibly.  In  the
suit  for  partition,  during  final  decree   proceedings,   an   Advocate-
Commissioner had  been  appointed  who  visited  the  disputed  property  on
15.8.1993. Hence, suit No.294/1993 was filed for perpetual injunction.
16.         The defendants in their written  statement  contended  that  the
suit was not  maintainable.  The  preliminary  decree  for  partition  dated
24.11.1970 was binding in  which  shares  of  respective  parties  had  been
declared.  Suit  for  partition  was  filed  in  the  year  1935.  The  sale
transaction between Hamid Ali Khan and Bala Mallaiah was void and  conferred
no right, title or interest upon the plaintiffs. Plaintiffs had no right  to
interfere in  the  shares  allotted  to  other  co-heirs  in  the  suit  for
partition. The property in question was  ancestral  property.  The  findings
recorded in preliminary  decree  against  defendant  No.1,  vendor  of  Bala
Mallaiah are binding upon the plaintiffs, and as such they are not  entitled
for any relief.
17.         It is apparent that the suit for permanent injunction was  filed
by the plaintiffs on the basis of sale deed dated  23.11.1959  in  which  it
was also submitted that it was not  during  lis  pendens.  Plea  of  adverse
possession  had  also  been  raised  which  was  negatived.   They   claimed
injunction on the basis of possession under the sale deed dated  23.11.1959.
The trial court in the aforesaid civil  suit  gave  the  following  findings
against the plaintiff : (i) that the purchase was hit  by  doctrine  of  lis
pendens so that they are not entitled for relief of injunction  against  the
defendants  who  are  co-sharers  as  per  the  preliminary   decree   dated
24.11.1970 passed in the partition suit; (ii) it  was  also  held  that  the
possession of the plaintiff could not be said to be a  rightful  possession.
It is not open to the plaintiff to claim right on the basis of sale deed  on
the ground that they were not parties to the partition  suit.  It  was  also
held that whatever their vendors would get in the  suit  for  partition,  to
that extent they would be entitled to and they could not claim  rights  over
the  entire  property;  (iii)  the  plea  of  adverse  possession  was  also
negatived by the trial court on the ground that the purchase was during  lis
pendens and there was no pleading or evidence regarding adverse possession.
18.         The judgment was affirmed in the first appeal vide judgment  and
decree dated 8.6.1988 passed by the Court of II Additional  District  Judge,
NTR Nagar, Hyderabad in A.S. No.72/1998. It was held that the sale deed  was
hit by doctrine of lis pendens. The first appellate  court  also  held  that
the vendor of Bala Mallaiah namely, Hamid Ali  Khan,  defendant  1,  had  no
right to sell the entire  dispute  property  to  Bala  Malliah  as  absolute
owner. The plaintiffs could claim right over the property to the  extent  of
vendor of Bala Mallaiah. It was also held that the land  grabbing  case  LGC
No.148/1996 was dismissed which order had attained finality and  barred  the
present suit. Injunction could not be granted in  view  of  the  preliminary
decree for partition which  had  been  passed  as  it  would  tantamount  to
granting injunction against the decree-holders for  enforcing  their  lawful
decree. Being a purchaser lis pendens,  it  is  open  to  the  plaintiff  to
approach the court where the final decree proceedings were pending  to  work
out available equity to the extent  of  vendor’s  share.  Against  the  said
decision in first appeal, Second Appeal No.465/2011 was filed  in  the  High
Court of Andhra Pradesh at Hyderabad which  was  dismissed  in  limine  vide
order dated 26.9.2011 as no substantial question of law was  found  involved
in the appeal. Judgment and decrees of courts below were thus affirmed.
19.         In view of the categorical findings recorded by the trial  court
and  first  appellate  court  it  is  apparent  that  the  sale  deed  dated
23.11.1959 was hit by doctrine of lis pendens and secondly on the  basis  of
the said sale deed, L.Rs. of Bala Mallaiah could have claimed  only  to  the
extent of the share of his vendor and not the entire land, i.e. only to  the
extent of 14/104th share of defendant No.1.
20.         With respect to effect of suit for  permanent  injunction  based
upon title, effect of negativing title has been considered  by  this  Court.
In Sajjadanashin Sayed Md. B.E. Edr. (D) by LRs. v. Musa  Dadabhai  Ummer  &
Ors. (2000) 3 SCC 350, it has been held :
“24. Before parting with this point, we would like  to  refer  to  two  more
rulings. In Sulochana Amma v. Narayanan Nair (1994)  2  SCC  14  this  Court
held that a finding as to title given in an earlier  injunction  suit  would
be res judicata in a subsequent suit  on  title.  On  the  other  hand,  the
Madras    High    Court,    in    Vanagiri    Sri     Selliamman     Ayyanar
Uthirasomasundareswarar Temple v. Rajanga Asari AIR  1965  Madras  355  held
(see para 8  therein)  that  the  previous  suit  was  only  for  injunction
relating to the crops. Maybe, the question of title was decided, though  not
raised in the plaint. In the latter  suit  on  title,  the  finding  in  the
earlier suit on title would not be res judicata  as  the  earlier  suit  was
concerned only  with  a  possessory  right.  These  two  decisions,  in  our
opinion, cannot be treated as being contrary to each  other  but  should  be
understood in the context of the tests referred to above. Each of  them  can
perhaps be treated as correct if they are understood in  the  light  of  the
tests stated above. In the first case decided by this Court,  it  is  to  be
assumed that the tests above-referred to were  satisfied  for  holding  that
the finding as to possession was substantially rested on title upon which  a
finding was felt necessary and in the latter  case  decided  by  the  Madras
High Court, it must be assumed that the tests were not satisfied. As  stated
in Mulla, it all depends on the facts of each case and whether  the  finding
as to title was treated as necessary for  grant  of  an  injunction  in  the
earlier suit and was also the substantive basis for grant of injunction.  In
this context, we may refer to Corpus Juris Secundum (Vol. 50, para  735,  p.
229) where a  similar  aspect  in  regard  to  findings  on  possession  and
incidental findings on title were dealt with. It is stated:

“Where title to property  is  the  basis  of  the  right  of  possession,  a
decision on the question of possession is res judicata on  the  question  of
title to the  extent  that  adjudication  of  title  was  essential  to  the
judgment; but where the question of the right to  possession  was  the  only
issue actually or necessarily involved, the judgment is  not  conclusive  on
the question of ownership or title.”




25. We have gone into the above aspects  in  some  detail  so  that  when  a
question arises before the  Courts  as  to  whether  an  issue  was  earlier
decided only incidentally or collaterally, the Courts could  deal  with  the
question as a matter of legal principle rather than on vague grounds.  Point
1 is decided accordingly.”         (emphasis added by us)


      In Commissioner of Endowments & Ors. v. Vittal Rao &  Ors.   (2005)  4
SCC 120, it has been held thus :

“28. In support of his submission, the  learned  counsel  for  Respondent  1
contended that as long as an issue  arises  substantially  in  a  litigation
irrespective of the fact whether or not a formal issue has been framed or  a
formal relief has been claimed, a finding on the said  issue  would  operate
as  res  judicata,  strongly  relied  on  the   decision   of   this   Court
in Sajjadanashin Sayed Md. B.E. Edr.  v. Musa Dadabhai Ummer (supra).  Paras
18 and 19 of the said judgment read :  (SCC pp.359-60)


"18. In India, Mulla has referred to similar tests  (Mulla,  15th  Edn.,  p.
104). The learned author says: a  matter  in  respect  of  which  relief  is
claimed in an earlier suit can be said to be generally  a  matter  ‘directly
and substantially’ in issue but it does not mean that if the matter  is  one
in respect of which no relief is sought it is not directly or  substantially
in issue. It may or may not be. It is possible that  it  was  ‘directly  and
substantially in issue and  it  may  also  be  possible  that  it  was  only
collaterally or incidentally in issue,  depending  upon  the  facts  of  the
case. The question arises as to what is the test  for  deciding  into  which
category a case falls? One test is that if the issue was ‘necessary’  to  be
decided for adjudicating on the principal issue and was  decided,  it  would
have to be treated as ‘directly and substantially’ in issue  and  if  it  is
clear that the judgment was in fact based upon that decision, then it  would
be res judicata in a latter case (Mulla, p. 104). One  has  to  examine  the
plaint, the written statement, the issues and the judgment to  find  out  if
the matter was directly and substantially in issue (Isher  Singh  v.  Sarwan
Singh AIR 1965 SC 948 and Syed Mohd. Salie Labbai v. Mohd.  Hanifa (1976)  4
SCC 780). We are of the view that the above summary in Mulla  is  a  correct
statement of the law.


19. We have here to advert to another principle of caution  referred  to  by
Mulla (p. 105):


‘It is not to be assumed that matters in respect of which issues  have  been
framed are all of them directly and substantially in  issue.  Nor  is  there
any special significance to be attached to the fact that a particular  issue
is the first in the list of issues. Which of the  matters  are  directly  in
issue and which collaterally or incidentally,  must  be  determined  on  the
facts of each case. A material test to  be  applied  is  whether  the  court
considers the adjudication of the  issue  material  and  essential  for  its
decision.’ "


                                         (emphasis in original and supplied)


29. In the light of what is stated above, in the case on hand, in our  view,
it was necessary for the Court in the earlier round of litigation to  decide
the nature and scope of gift deed Ext. A-1. Accordingly, the courts  decided
that the gift made in favour of ancestors of Respondent 1 of  the  land  was
absolute and it was not an endowment for a public or charitable purpose.  On
the facts of the case, it is clear that though an  issue  was  not  formally
framed, the issue was material and essential for the decision  of  the  case
in the earlier proceeding. Hence, the bar of res  judicata  applies  to  the
facts of the present case.”


21.    Reliance  has  been  placed  by  learned  senior  counsel   for   the
respondents on a decision in Anathula Sudhakar v. P. Buchi Reddy  (dead)  by
LRs. &  Ors.  (2008)  4  SCC  594  wherein  the  Court  had  summarized  the
conclusions thus: :
“21.  To  summarise,  the  position  in  regard  to  suits  for  prohibitory
injunction relating to immovable property, is as under:

(a) Where a cloud is raised over the plaintiff’s title and he does not  have
possession, a suit  for  declaration  and  possession,  with  or  without  a
consequential injunction, is the remedy. Where the plaintiff’s title is  not
in dispute or under a cloud, but he is out of possession, he has to sue  for
possession with  a  consequential  injunction.  Where  there  is  merely  an
interference  with  the  plaintiff’s  lawful   possession   or   threat   of
dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with  possession,
normally the issue of title  will  not  be  directly  and  substantially  in
issue. The prayer for injunction will  be  decided  with  reference  to  the
finding on possession. But in cases where  de  jure  possession  has  to  be
established on the basis of title to the property, as in the case of  vacant
sites,  the  issue  of  title  may  directly  and  substantially  arise  for
consideration, as without a finding thereon, it  will  not  be  possible  to
decide the issue of possession.

(c) But a finding on title cannot be recorded  in  a  suit  for  injunction,
unless there are necessary pleadings and appropriate issue  regarding  title
(either specific, or implied as noticed in Annaimuthu  Thevar  v.  Alagammal
(2005) 6 SCC 202. Where the  averments  regarding  title  are  absent  in  a
plaint and where there is no issue relating to title,  the  court  will  not
investigate or examine or render a finding on a  question  of  title,  in  a
suit for injunction. Even where there are necessary pleadings and issue,  if
the matter involves complicated  questions  of  fact  and  law  relating  to
title, the court  will  relegate  the  parties  to  the  remedy  by  way  of
comprehensive suit for declaration of title, instead of deciding  the  issue
in a suit for mere injunction.

         (d) Where  there  are  necessary  pleadings  regarding  title,  and
appropriate issue relating to title on which parties lead evidence,  if  the
matter involved is simple and straightforward, the  court  may  decide  upon
the issue regarding title, even in a suit for injunction.  But  such  cases,
are the exception to the normal rule that question  of  title  will  not  be
decided in  suits  for  injunction.  But  persons  having  clear  title  and
possession suing for injunction, should not be driven to  the  costlier  and
more cumbersome remedy of  a  suit  for  declaration,  merely  because  some
meddler vexatiously or wrongfully makes a claim or tries  to  encroach  upon
his property. The court should use  its  discretion  carefully  to  identify
cases where it will enquire into title and cases where it will refer to  the
plaintiff to a more  comprehensive  declaratory  suit,  depending  upon  the
facts of the case.”

22.         It was submitted on behalf of respondents that the  findings  in
O.S. No.294/1993 do not operate as res judicata as it  was  left  ultimately
to raise the objections in the final decree proceedings. We  are  unable  to
accept the aforesaid submission  as  there  was  clear  inability  to  grant
injunction and the submission of the plaintiffs that they were having  title
on entire land on  the  basis  of  sale  deed  dated  23.11.1959,  had  been
negatived. It was found that Bala Mallaiah could  have  purchased  only  the
share of his vendor Hamid Ali and not the entire disputed property  and  the
purchase was affected by lis pendens. We are of the considered opinion  that
the finding with respect to purchase  being  made  during  lis  pendens  had
attained finality and was not open to question in the  present  proceedings.
Besides, the validity of the sale deed to the extent of  the  share  of  the
vendor which was sought to be re-agitated in the final  decree  proceedings,
was also not open to be raised in view of clear  findings  recorded  in  the
suit of 1993.  Though  we  have  held  so,  however  nothing  turns  on  the
aforesaid finding as to res judicata as we propose to examine  both  aspects
on merits afresh, in view of the conclusions  which  we  propose  to  record
hereinafter.
(ii) In re : Whether the sale deed dated 23.11.1959  executed  by  defendant
No.1 in favour of Bala Mallaiah is hit by doctrine of lis pendens?

23.         In the instant case, a suit for partition was filed in the  year
1935. On abolition of Darul Qaza Court in 1951 the case was  transferred  to
the High Court. On abolition of original jurisdiction  of  the  High  Court,
file was sent to the city civil court. It appears that when  the  file  from
Custodian did not reach  the city civil court, hence  order  dated  8.1.1955
was passed to the following effect :
8.1.1955 - “This file summoned by the Custodian is  not  yet  received.   As
the plaintiff too is absent and the  file  not  yet  received  the  case  be
closed.   It may be revived  only  on  the  receipt  of  the  file  and  the
application of the plaintiff.”

      It is apparent from the aforesaid order that it was clearly  an  order
of keeping the case sine die to be taken up only on receipt of the  file  on
being informed by filing an application by the plaintiff. The file  was  not
before the court. Thus, there was no question of dismissal of  the  case  in
default nor was  it  so  dismissed  by  the  court.  However  the  plaintiff
laboured under wrong impression, as such filed  application  under  Order  9
Rule 9 CPC and prayed for restoration of the suit. An order  was  passed  on
1.12.1955 by the city civil court,  restoring  the  suit  on  the  basis  of
payment of Rs.50 as costs to be paid on or before  15.12.1955.  Costs  could
not be deposited by the plaintiff by 15.12.1955.  The  prayer  was  made  to
accept the costs on 16.12.1955 by extending  time  under  section  148  CPC.
However, the city civil court dismissed the said application. The order  was
questioned in the High Court in appeal filed by the plaintiff in  which  the
Division Bench of the High Court vide order dated  5.2.1962  had  held  that
the suit in fact was not dismissed for default  on  8.1.1955  by  the  trial
court. It was an order adjourning the suit with a direction  to  be  revived
only on the file being received from the Custodian. Therefore, there was  no
necessity for the plaintiff to file an application  under  Order  9  Rule  9
CPC. The High Court had set aside the order dated  8.1.1955  and  also  held
that there was no jurisdiction with the city civil court to  pass  an  order
on 1.12.1955 to impose and pay costs  of  Rs.50.  The  following  order  was
passed in the year 1962 by the Division Bench of the High Court :
“It is clear from the order dated 8-1-55, that the suit  was  not  dismissed
for default.   Virtually,  it  is  an  order  adjourning  the  suit  with  a
direction that it may be revived only on the receipt of the  file  from  the
Custodian.  Therefore there was no necessity for the plaintiff to  file  the
application under Or. 9, Rule 9, CPC, praying that the suit be  restored  to
its original number after setting   aside   the   order  dated 8-1-55.   The
plaintiff could have merely asked the court to  take  up  the  suit  and  to
proceed with the trial.  The learned Judge has  no  jurisdiction  to  direct
the plaintiff by his order dated 1-12-55 to pay day costs viz.,  Rs.50/-  to
the defendants on or before 15-12-55 as a condition precedent.   This  order
is clearly illegal and has to be set aside.
In the result, the appeal is allowed, and the order dated 1-12-55  directing
the plaintiff to  pay  the  defendants Rs.50/-  on  or  before  15-12-55  as
a condition  precedent  to  restraining  the  suit  is  set  aside.    As  a
consequence, the order dated 7-1-56 is vacated.  Since this  is  a  suit  of
1951 which has been pending for a long time, the lower  court  will  dispose
of the same as expeditiously as possible.  The contesting respondents  shall
pay the costs of the appellant.”

24.   A preliminary objection has been raised on behalf of  the  respondents
as to very applicability of doctrine of lis pendens to Mohammedan law  based
upon provisions contained in section 2 of T.P. Act. Section 2  is  extracted
hereunder :
“2. Repeal  of  Acts.--Saving  of  certain  enactments,  incidents,  rights,
liabilities, etc. --- In the territories to which this Act extends  for  the
time being the enactments specified in the Schedule hereto annexed shall  be
repealed to the extent  therein  mentioned.  But  nothing  herein  contained
shall be deemed to affect---

(a) the provisions of any enactment not hereby expressly repealed;
(b) any terms or incidents of  any  contract  or  constitution  of  property
which are consistent with the provisions of this Act,  and  are  allowed  by
the law for the time being in force;
(c) any right or liability arising  out  of  a  legal  relation  constituted
before this Act comes into force, or any  relief  in  respect  of  any  such
right or liability; or
(d) save as provided by section 57 and Chapter IV of this Act, any  transfer
by operation of law or by, or in execution of, a decree or order of a  Court
of competent jurisdiction,

and nothing in the second Chapter of this Act shall be deemed to affect  any
rule of Muhammadan law.”

      No doubt about it  that  section  2  of  T.P.  Act  protects  rule  of
Mohammedan  law  by  excluding  the  provisions  of  Chapter  II  containing
sections 5 to 53A thereof. In our opinion,  exclusion  is  conditional  upon
existence of rule of Mohammedan law in  that  regard,  that  is  to  say  if
principle/rule of Mohammedan law provides as to transfers lis  pendens,  the
same would prevail and nothing in section 52 of T.P. Act shall be deemed  to
affect any such rule. However, we have not  been  shown  any  such  rule  of
Mohammedan law containing provision as to  lis  pendens  and  thus,  in  the
absence whereof the provisions of section 52 T.P. Act  would  be  attracted.
The submission as to  non-applicability  of   section  52  of  T.P.  Act  to
Mohammedan law is hereby rejected.
25.   It was submitted on behalf of the respondents that the sale  deed  had
been executed after dismissal of the suit on  16.12.1955  in  terms  of  the
order dated 1.12.1955 as such doctrine of lis  pendens  was  not  attracted.
Thus, it was submitted that between 15.12.1955 and  23.1.1962  no  suit  was
pending. Reliance has been placed on a decision in Bhutnath Das &  Ors.   v.
Sahadeb Chandra Panja AIR 1962 Cal. 485 :

 “4. … The real question, therefore, is whether in a case  like  this  where
an order has been made for the payment of certain  money  within  a  certain
time for the purpose of getting specific performance and at  the  same  time
an order has also been made that if the money is  not  paid  the  suit  will
stand  dismissed,  the  court  retains  jurisdiction.  Though  not   without
hesitation, I have reached the conclusion that in such a  case  it  will  be
unrealistic and unjust to say that the court retains  jurisdiction.  Whether
the court has retained jurisdiction or not will, in  my  view,  depend  very
much on the substance of the directions given….. Where…..  the  court  makes
also an order that if the amount is not deposited within the time  specified
the suit will stand dismissed, I find it difficult to agree that  the  court
retains any jurisdiction whatsoever.


6. …..the trial court lost jurisdiction in the suit as soon as it  made  the
order directing the payment within a  certain  time  and  further  directing
that on failure of the deposit being made within the time limited  the  case
should stand dismissed.”


26.   The decision of this Court in Vareed Jacob v.  Sosamma  Geevarghese  &
Ors.  (2004) 6 SCC 378 has been relied upon in which it has been  laid  down
thus :
“18. In the case of Saranatha Ayyangar v. Muthiah Moopanar AIR 1934  Mad  49
it has been held that on restoration of the suit dismissed for  default  all
interlocutory matters shall stand restored, unless the order of  restoration
says to the contrary. That as a matter of general  rule  on  restoration  of
the suit  dismissed  for  default,  all  interlocutory  orders  shall  stand
revived unless during the interregnum between the dismissal of the suit  and
restoration, there is any alienation in favour of a third party.

Even the dissenting judgment of S.B. Sinha, J. had on this point noted:
62. It is also of some importance that there exists a view that an order  of
dismissal of a suit does not render an order of attachment  void  ab  initio
as a sale of property under order of attachment would be invalid even  after
the date of such sale and the order of attachment is withdrawn.
63. A converse case may arise when the property is sold after  the  suit  is
dismissed for default and before the same is restored.  Is  it  possible  to
take a view that upon  restoration  of  suit  the  sale  of  property  under
attachment before judgment becomes invalid? The answer to the said  question
must be rendered in the negative. By taking recourse to  the  interpretation
of the provisions of the statute, the court cannot say that although such  a
sale shall be valid but  the  order  of  attachment  shall  revive.  Such  a
conclusion by reason of a judge-made law may be an illogical one.”

27.   It was submitted on  behalf  of  the  appellants  that  the  sale  was
subject to the doctrine of lis pendens under section 52 of the T.P. Act.  It
was further submitted that the said provision is clear and  unambiguous  and
the statutory explanation to the provision makes it clear that the  pendency
of the suit or proceeding shall be deemed  to  commence  from  the  date  of
presentation of the plaint or the  institution  of  the  proceeding  in  the
court  of  competent  jurisdiction,  and  to  continue  until  the  suit  or
proceeding has been disposed of  by  a  decree  or  an  order  and  complete
satisfaction of order  or  discharge  of  such  order  or  decree  has  been
obtained or has become unobtainable by  reason  of  the  expiration  of  any
period of  limitation prescribed  for  the  execution  thereof.   Thus,  the
transfer if any made in contravention of Section 52 renders  it  subservient
to the rights of  the  parties  in  litigation  so  that  the  rights  would
eventually be determined in a suit. Thomson  Press  (India)  Ltd.  v.  Nanak
Builders and Investors Pvt. Ltd. & Ors. (2013) 5 SCC 397,  has  been  relied
on in which this Court has laid down thus :
 “26. It would also be worth discussing some of the relevant laws  in  order
to appreciate the case on hand. Section 52 of the Transfer of  Property  Act
speaks about the doctrine of lis pendens. Section 52 reads as under:
     “52. Transfer of property pending  suit  relating  thereto.—During  the
pendency in any court having authority within the limits of India  excluding
the State of Jammu and Kashmir or established  beyond  such  limits  by  the
Central Government of any suit or proceeding which is not collusive  and  in
which any right to  immovable  property  is  directly  and  specifically  in
question, the property cannot be transferred or otherwise dealt with by  any
party to the suit or proceeding so as to affect  the  rights  of  any  other
party thereto under the decree or order which may be  made  therein,  except
under the authority of the court and on such terms as it may impose.
     Explanation.—For the purposes of this section, the pendency of  a  suit
or proceeding shall be deemed to commence from the date of the  presentation
of the plaint or the institution of the proceeding in a court  of  competent
jurisdiction, and  to  continue  until  the  suit  or  proceeding  has  been
disposed of by  a  final  decree  or  order  and  complete  satisfaction  or
discharge of  such  decree  or  order  has  been  obtained,  or  has  become
unobtainable by reason  of  the  expiration  of  any  period  of  limitation
prescribed for the execution thereof by  any  law  for  the  time  being  in
force.”
It is well settled that the doctrine of lis pendens is a doctrine  based  on
the ground that it is necessary for the administration of justice  that  the
decision of a court in a suit should be binding not only on  the  litigating
parties but on those who derive title pendente lite. The provision  of  this
section does not indeed annul the conveyance or the transfer otherwise,  but
to render it subservient to the rights of the parties to a litigation.

27. Discussing the principles of lis pendens, the  Privy  Council  in  Gouri
Dutt Maharaj v. Sk. Sukur Mohammed AIR 1948 PC 147 observed  as  under:  (IA
p. 170)
“… The broad purpose of Section 52 is to maintain the status quo  unaffected
by the act of any party to the litigation  pending  its  determination.  The
applicability of the section cannot  depend  on  matters  of  proof  or  the
strength or weakness of the case on one side  or  the  other  in  bona  fide
proceedings. To apply any such test is to  misconceive  the  object  of  the
enactment and, in the view of the Board, the learned Subordinate  Judge  was
in error in this respect in laying stress, as he did, on the fact  that  the
agreement of 8-6-1932, had not been registered.”

28. In Kedar Nath Lal v. Ganesh Ram AIR 1970 SC 1717,  this  Court  referred
the earlier decision in Samarendra Nath Sinha v. Krishna Kumar Nag AIR  1967
SC 1440 and observed: (Kedar Nath Lal case (supra), SCC p. 792, para 17)
“17. … ‘16. … The purchaser pendente lite under this doctrine  is  bound  by
the result of the litigation on the principle that  since  the  result  must
bind the party to it so must it bind the person deriving  his  right,  title
and interest from or through him. This  principle  is  well  illustrated  in
Radhamadhub Holder v. Monohur Mookerji (1887-88) 15 IA 97  where  the  facts
were almost similar to those in the instant case. It is  true  that  Section
52 strictly speaking does not  apply  to  involuntary  alienations  such  as
court sales but it is well established that the  principle  of  lis  pendens
applies to  such  alienations.  (See  Nilakant  Banerji  v.  Suresh  Chunder
Mullick (1884-85) 12 IA 171 and Moti Lal v. Karrab-ul-Din  (1896-97)  24  IA
170)’ (Samarendra Nath case  (supra), AIR p. 1445, para 16)”

29. The aforesaid Section 52 of the Transfer of Property Act again  came  up
for consideration before this Court in Rajender Singh  v.  Santa  Singh  AIR
1973 SC 2537 and Their Lordships with approval of the principles  laid  down
in Jayaram Mudaliar v. Ayyaswami (1972) 2  SCC  200   reiterated:  (Rajender
Singh case (supra), SCC p. 711, para 15)
“15. The doctrine of lis pendens was  intended  to  strike  at  attempts  by
parties to a litigation to circumvent the jurisdiction of a court, in  which
a dispute on rights or  interests  in  immovable  property  is  pending,  by
private dealings which may remove the subject-matter of litigation from  the
ambit of the court’s power to decide a  pending  dispute  or  frustrate  its
decree. Alienees acquiring any immovable property during a  litigation  over
it are held to be bound, by an application of the doctrine,  by  the  decree
passed in the suit even though they may not have been impleaded in  it.  The
whole object of the doctrine of lis pendens is to  subject  parties  to  the
litigation as well as others,  who  seek  to  acquire  rights  in  immovable
property, which are the subject-matter of a litigation,  to  the  power  and
jurisdiction of the court so as to prevent the object of  a  pending  action
from being defeated.””


28.   Reliance has been placed on A. Nawab John v. V.N. Subramaniyam  (2012)
7 SCC 738,  laying down thus :

“18. It is settled legal position that the effect of Section 52  is  not  to
render transfers effected during the pendency of a suit by a  party  to  the
suit void; but only to render such transfers subservient to  the  rights  of
the parties to such suit, as may be, eventually, determined in the suit.  In
other words, the transfer remains valid subject, of course,  to  the  result
of the suit. The pendente lite purchaser would be entitled to or suffer  the
same legal rights and  obligations  of  his  vendor  as  may  be  eventually
determined by the court.
“12. … The mere pendency of a suit does not prevent one of the parties  from
dealing with the property constituting the subject-matter of the  suit.  The
section only postulates a condition that the alienation will  in  no  manner
affect the rights of the other party under any decree which  may  be  passed
in the suit unless the property was alienated with  the  permission  of  the
court.” (Sanjay Verma v. Manik Roy  (2006) 13 SCC  608,  SCC  p.  612,  para
12.)””

29.   Reliance has been placed on  Sanjay  Verma  v.  Manik  Roy  and  Ors.,
(2006) 13 SCC 608, in which this Court laid down  :
“10. Bibi Zubaida Khatoon case (2004) 1 SCC 191  on  which  learned  counsel
for the respondents had placed reliance in fact goes against  the  stand  of
the respondents. Though a casual reading of para 9 supports the stand  taken
by the respondents, it  is  to  be  noted  that  the  factual  position  was
entirely different. In fact a cross-suit had been filed in the suit in  that
case. The respondents being transferees pendente lite without leave  of  the
court cannot as of right seek impleadment in  the  suit  which  was  in  the
instant case pending for a very long  time.  In  fact  in  para  10  of  the
judgment this Court has held that there  is  absolutely  no  rule  that  the
transferee pendente lite without leave of the  court  should  in  all  cases
contest the pending suit. In Sarvinder Singh v. Dalip  Singh  (1996)  5  SCC
539 it was observed in para 6 as follows: (SCC pp. 541-42, para 6)
“6. Section 52 of the Transfer of Property Act envisages that:
      ‘During the pendency in any court having authority within  the  limits
of India … of any suit or proceeding which is not  collusive  and  in  which
any right to immovable property is directly and  specifically  in  question,
the property cannot be transferred or otherwise dealt with by any  party  to
the suit or proceeding so as  to  affect  the  rights  of  any  other  party
thereto under the decree or order which may be made  therein,  except  under
the authority of the court and on such terms as it may impose.’
It would,  therefore,  be  clear  that  the  defendants  in  the  suit  were
prohibited by operation of Section 52 to deal with the  property  and  could
not transfer or otherwise deal with it in any way affecting  the  rights  of
the appellant except with the order or authority of the  court.  Admittedly,
the authority or order of the court had not been obtained for alienation  of
those properties. Therefore, the alienation obviously would be  hit  by  the
doctrine  of  lis  pendens  by  operation  of  Section   52.   Under   these
circumstances, the respondents cannot be considered to be  either  necessary
or proper parties to the suit.”
12. The principles specified in Section 52 of the TP Act are  in  accordance
with equity, good conscience or justice because they rest upon an  equitable
and just foundation that it will be impossible to bring an  action  or  suit
to a successful termination if  alienations  are  permitted  to  prevail.  A
transferee pendente lite is bound by the decree just as much  as  he  was  a
party to the suit. The principle of lis pendens embodied in  Section  52  of
the TP Act being a principle of public policy, no question of good faith  or
bona fide arises. The principle underlying Section 52 is that  a  litigating
party is exempted  from  taking  notice  of  a  title  acquired  during  the
pendency of the litigation. The mere pendency of a  suit  does  not  prevent
one of the parties from dealing with the property constituting the  subject-
matter of the suit.  The  section  only  postulates  a  condition  that  the
alienation will in no manner affect the rights of the other party under  any
decree which may be passed in the suit unless  the  property  was  alienated
with the permission of the court.”

30.   It was also submitted on behalf of the appellants that the  expression
in section 52 of the T.P. Act “suit or proceedings” is  also  applicable  to
the applications. An  application  seeking  extension  of  time  is  also  a
proceeding within the meaning of the said  provision  and  appeal  filed  is
also continuation of the suit or proceedings but comes  within  the  meaning
of the proceedings. The legislative intent behind the amendment  of  section
52 was not only to cover the suit but also to cover appeals and  proceedings
and  same  would  include  all  applications/appeals  under  the   CPC.   An
application under Order 9 Rule 9 would also be covered  within  the  meaning
of the expression suit or other proceedings to which  the  doctrine  of  lis
pendens would apply.  It  was  also  submitted  that  section  52  prior  to
amendment prohibited transfer made during  the  “active  prosecution”  of  a
suit. Section 52 of the Transfer of Property Act, embodies the rule  of  lis
pendens, which prior to  its  amendment  only  prohibited  a  transfer  made
during the “active prosecution” of a suit  or  a  proceeding  in  which  any
right to immoveable property was directly and specifically in question.  The
expression “active prosecution”, which existed in  the  section  before  its
amendment in 1929, led to much uncertainty in the application of  the  rule,
and caused a divergence of judicial opinion.  It was felt that the  standard
of diligence, which would constitute  “active  prosecution”,  could  not  be
defined with precision.  To remove this uncertainty, the law was amended  in
1929, and the Amending Act XX of 1929 substituted the  word  “pendency”  for
the phrase “active prosecution”; and there  can  now  be  no  difficulty  in
deciding whether the transfer was made during the  pendency  of  a  suit  or
proceeding. In Parmeshari Din v. Ram Charan & Ors. AIR 1937 PC 260,  it  was
held :
“2.   It is clear that the question of the active prosecution of a  suit  is
one of fact, but it was not suggested in either of the Courts in India  that
the plaintiffs had not actively prosecuted the suit, and  were  consequently
debarred from availing themselves of the rule of lis pendens.   The  learned
Judges of the Court of Appeal had,  therefore,  no  opportunity  to  express
their opinion on  this  point;  and  their  Lordships  cannot  entertain  an
objection, which depends upon a question  of  fact  not  dealt  with  below.
Upon the record before  them,  there  is  no  indication  of  any  delay  or
remissness in the prosecution of the suit, for which the plaintiffs  can  be
held responsible. Their Lordships, therefore,  agree  with  the  High  Court
that the transfer relied upon by the appellant cannot prejudice  the  rights
of the decree-holders, and that he cannot  resist  the  decree  obtained  by
them.”

      The abovesaid principle of law settled in the year 1937 by  the  Privy
Council is still valid as discerned from the latest judgment of  this  Court
rendered  in the case of Kirpal Kaur v. Jitender Pal Singh & Ors.  (2015)  9
SCC 356 :
 “21. The  execution  of  the  alleged  gift  deed  by  the  deceased  first
defendant in favour of the second defendant is  also  hit  by  Section 52 of
the Transfer of Property Act, 1882, as the said  deed  was  executed  during
the pendency of the proceedings and before  the  expiry  of  the  period  of
limitation  for  filing  SLP.  Further,  during  the   pendency   of   these
proceedings, the second  defendant,  who  has  claimed  to  be  the  alleged
beneficiary of the suit Schedule “B” property on the basis of  alleged  gift
deed should have sought leave of this Court as the  donee  and  brought  the
aforesaid fact of execution of the alleged  gift  deed  in  respect  of  “B”
schedule property by the deceased first defendant, which property  has  been
devolved in his favour, to the notice of this Court as provided under  Order
22 Rule 10 of the CPC and defended his right as required under  the  law  as
laid down by this Court in a catena of cases.

                                  x x x x x

26.   The legality of the alleged  gift  deed  executed  in  favour  of  the
second defendant by the deceased first defendant in respect of the  Schedule
'B' property has been further  examined  by  us  and  the  same  is  hit  by
Section 52 of the Transfer of Property  Act,  1882,  in  the  light  of  the
decision of this Court in the case  of Jagan  Singh v. Dhanwanti   (2012)  2
SCC 628, wherein this Court has laid down the  legal  principle  that  under
Section 52 of the Transfer of Property Act, 1882,  the  'lis'  continues  so
long as a final decree or order has not been obtained from the Court  and  a
complete satisfaction thereof has not been rendered to the  aggrieved  party
contesting the civil suit. It has been further held by this  Court  that  it
would be plainly impossible that any action or suit could be  brought  to  a
successful  termination  if  alienations pendente  lite were  permitted   to
prevail.”

      wherein the factum of the alleged gift deed was not made known to  the
Court.  This has been  extrapolated  in  the  case  of  Jagan  Singh  (dead)
through LRs.  v. Dhanwanti & Anr.  (2012) 2 SCC 628 thus :
 “32. The  broad  principle  underlying  Section 52 of  the  TP  Act  is  to
maintain the  status  quo  unaffected  by  the  act  of  any  party  to  the
litigation pending its determination. Even after the dismissal of a suit,  a
purchaser is subject to lis pendens, if an appeal is  afterwards  filed,  as
held in Krishanaji Pandharinath v. Anusayabai AIR (1959) Bom  475.  In  that
matter the respondent (original plaintiff) had filed a suit for  maintenance
against her husband and  claimed  a  charge  on  his  house.  The  suit  was
dismissed on 15.7.1952 under Order 9 Rule 2, of the Code of Civil  Procedure
1908,  for  non-payment  of  process  fee.  The  husband  sold   the   house
immediately  on  17.7.1952.  The  respondent  applied  for  restoration   on
29.7.1952, and the suit was restored leading to  a  decree  for  maintenance
and a charge  was  declared  on  the  house.  The  plaintiff  impleaded  the
appellant to the darkhast as purchaser. The Appellant resisted the  same  by
contending  that  the  sale  was  affected  when  the  suit  was  dismissed.
Rejecting the contention the High Court held in para 4 as follows:

“..In Section 52 of the Transfer of Property Act, as it stood before it  was
amended by Act 20 of 1929, the expression ‘active prosecution  of  any  suit
or proceeding’ was used. That expression  has  now  been  omitted,  and  the
Explanation makes it abundantly clear that the 'lis' continues so long as  a
final decree or order  has  not  been  obtained  and  complete  satisfaction
thereof has not been rendered. At p. 228 in Sir  Dinshah  Mulla's  "Transfer
of Property Act", 4th Edn., after referring to several authorities, the  law
is stated thus:

“Even after the  dismissal  of  a  suit  a  purchaser  is  subject  to  'lis
pendens', if an appeal is afterwards filed.”

If after the dismissal of a suit and before  an  appeal  is  presented,  the
'lis' continues so  as  to  prevent  the  defendant  from  transferring  the
property to the prejudice of the plaintiff, I fail to  see  any  reason  for
holding that between the date of dismissal of the suit under Order 9 Rule  2
of the Civil Procedure Code and the date of its restoration, the 'lis'  does
not continue.”

33.   It is relevant to note that even when Section 52 of TP Act was not  so
amended, a Division Bench of Allahabad High Court had following  to  say  in
Moti Chand v. British India Corpn. Ltd. AIR (1932) All 210:

‘10, ….The provision of law which has been relied upon by the appellants  is
contained in Section 52, TP Act. The  active  prosecution  in  this  section
must be deemed to continue so long as the suit is pending in  appeal,  since
the proceedings in the appellate court are merely continuation of  those  in
the suit …’(see Gobind Chunder Roy v. Guru Churn Kurmokar ILR 1988  15  Cal.
94).”

34.    If such a view is not taken, it would plainly be impossible that  any
action or suit could be brought to a successful termination  if  alienations
pendente lite were permitted to prevail. The  Explanation  to  this  section
lays down that the pendency of a suit or a proceeding  shall  be  deemed  to
continue until the suit or a proceeding is disposed of by  final  decree  or
order, and complete satisfaction or discharge of such decree  or  order  has
been obtained or has become unobtainable by reason of the expiration of  any
period of limitation prescribed for the execution thereof  by  any  law  for
the time being in force.

35.   In  the  present  case,  it  would  be  canvassed  on  behalf  of  the
respondent and the applicant that the sale has taken place in favour of  the
applicant at a time when there was no stay operating against such sale,  and
in fact when the second appeal had not been filed. We would however,  prefer
to follow the dicta in Krishanaji Pandharinath AIR 1959  Bom  475  to  cover
the present situation under the principle of lis pendens since the sale  was
executed at a time when the second appeal had not been filed but which  came
to be filed afterwards within the period of limitation. The doctrine of  lis
pendens is founded in public policy and equity, and if it  has  to  be  read
meaningfully such a sale  as  in  the  present  case  until  the  period  of
limitation for second appeal is over will have to be held as  covered  under
Section 52 of the TP Act.”


31.    The  doctrine  of  lis  pendens  would  be  applicable  even  to  the
proceedings  in the nature of an appeal as has been emphasized in  the  case
of Krishanaji Pandharinath v. Anusayabai AIR 1959 Bom 475 thus :
“3.   It is true that in this case the sale effected  by  Sidram  was  after
the dismissal of the suit filed  by  Anusayabai  and  before  the  suit  was
restored, but the alienation being before, the final  decree  or  order  was
passed and complete satisfaction or discharge of the  decree  was  obtained,
it must be regarded as pendente lite.  In s. 52 of the Transfer of  Property
Act, as it stood before it was amended by Act XX  of  1929,  the  expression
“active prosecution of any suit or proceeding” was  used.   That  expression
has now been omitted, and the Explanation makes  it  abundantly  clear  that
the lis continues so long as a final decree or order has not  been  obtained
and complete satisfaction thereof has not been rendered.   At  page  228  in
Sir Dinshah Mulla’s “Transfer of Property Act”, 4th  edn.,  after  referring
to several authorities, the law is stated thus:

“... Even after the dismissal of a  suit  a  purchaser  is  subject  to  lis
pendens, if an appeal is afterwards filed.”


32.   We are unable to accept  the  submissions  raised  on  behalf  of  the
respondents that there was hiatus  between  10.12.1955  and  1962  till  the
order was passed by the High Court as it was misunderstood  by  the  parties
that the suit had been dismissed. In our opinion, when the suit  itself  had
not been dismissed vide order dated 8.1.1955, the events subsequent  thereto
i.e. the trial court vide order dated 1.12.1955 treated it  as  having  been
dismissed or that the plaintiff also was left under a wrong impression  that
the suit had been dismissed in default and cost  was  imposed  on  1.12.1955
and it was not paid up to 15.12.1955, would make no difference. Due to  non-
payment of costs, by order dated 1.12.1955 the suit stood dismissed,  cannot
be accepted, as the order was non est in the eye of law. It was  an  illegal
order of treating a pending suit as having been dismissed. No legal  fiction
can be created so as to treat the suit as  having  been  dismissed  when  in
fact it had not been dismissed at all and as a matter of fact suit  had  not
been dismissed on 8.1.1955. Subsequent order or imposition of costs for  its
restoration was non est and illegal and was rightly set aside  by  the  High
Court. When suit had not been dismissed at all in the eye of law, it  is  to
be treated as pending only. No legal fiction can be  created  in  favour  of
the respondents that the suit itself had been dismissed  on  15.12.1955  due
to non-payment of costs for restoration; whereas it  was  not  dismissed  at
all and the High Court has also held that  the  order  dated  1.12.1955  was
without jurisdiction. The said order has to be ignored and was in  fact  set
aside by the High Court. Thus the suit was in fact pending and  was  wrongly
treated as having been dismissed. The High Court has rightly  held  that  it
was never dismissed. Thus, in our opinion, the sale deed in  question  dated
23.11.1959 was executed during lis pendens and the High Court has  erred  in
law in holding otherwise in the judgment impugned herein.

(iii) In re: whether section 52 of T.P.  Act  renders  a  transfer  pendente
lite void?
33.    Reliance  has  been  placed  by  learned  senior  counsel   for   the
respondents on Vinod Seth v. Devinder Bajaj (2010) 8 SCC  1  in  which  this
Court has laid down that the doctrine of lis pendens  does  not  affect  the
conveyance by a party to the suit but only renders  it  subservient  to  the
rights of other parties to the litigation. Section  52  will  not  therefore
render a transaction void. This Court has laid down thus :
“42. It is well settled that the doctrine of lis pendens does not annul  the
conveyance by a party to the suit, but only renders it  subservient  to  the
rights of  the  other  parties  to  the  litigation.  Section  52  will  not
therefore render a transaction relating to  the  suit  property  during  the
pendency of the suit void but render the  transfer  inoperative  insofar  as
the other parties to the suit. Transfer of any right, title or  interest  in
the suit property or the consequential acquisition of any  right,  title  or
interest, during the pendency of the suit will be subject  to  the  decision
in the suit.

43. The principle underlying Section 52 of the TP Act is  based  on  justice
and equity. The operation of the bar under Section 52 is however subject  to
the power of the court to exempt the suit property  from  the  operation  of
Section 52 subject to such conditions it may impose.  That  means  that  the
court in which the suit is pending, has the power, in appropriate cases,  to
permit a party to transfer the property which is the subject-matter  of  the
suit without being subjected to the rights of  any  part  to  the  suit,  by
imposing such terms as  it  deems  fit.  Having  regard  to  the  facts  and
circumstances, we are of the view that this is a fit  case  where  the  suit
property should be exempted from the operation of Section 52 of the TP  Act,
subject to  a  condition  relating  to  reasonable  security,  so  that  the
defendants will have the liberty to deal with the  property  in  any  manner
they may deem fit, in spite of the pendency of the suit.”


34.   Reliance has also been placed on A. Nawab John  v.  V.N.  Subramaniyam
(2012) 7 SCC 738 in which this Court has laid down thus :
“18. It is settled legal position that the effect of Section 52  is  not  to
render transfers effected during the pendency of a suit by a  party  to  the
suit void; but only to render such transfers subservient to  the  rights  of
the parties to such suit, as may be, eventually, determined in the suit.  In
other words, the transfer remains valid subject, of course,  to  the  result
of the suit. The pendente lite purchaser would be entitled to or suffer  the
same legal rights and  obligations  of  his  vendor  as  may  be  eventually
determined by the court.

“12. … The mere pendency of a suit does not prevent one of the parties  from
dealing with the property constituting the subject-matter of the  suit.  The
section only postulates a condition that the alienation will  in  no  manner
affect the rights of the other party under any decree which  may  be  passed
in the suit unless the property was alienated with  the  permission  of  the
court.” (Sanjay Verma v. Manik Roy, (2006) 13 SCC  608,  SCC  p.  612,  para
12.)”

35.   In Thomson Press (India) Ltd. v. Nanak Builders & Investors  (P)  Ltd.
(2013) 5 SCC 397, this Court has laid down thus :
“53. There is, therefore, little room for any doubt  that  the  transfer  of
the suit property  pendente  lite  is  not  void  ab  initio  and  that  the
purchaser of any such property takes the bargain subject to  the  rights  of
the plaintiff in the pending suit. Although the above decisions do not  deal
with a fact situation where the sale  deed  is  executed  in  breach  of  an
injunction issued by a competent court, we do not see  any  reason  why  the
breach of any such injunction should render the transfer whether by  way  of
an absolute sale or otherwise ineffective. The party committing  the  breach
may doubtless incur the liability to be punished for  the  breach  committed
by it but the sale by itself may remain valid as between the parties to  the
transaction subject only to any directions which  the  competent  court  may
issue in the suit against the vendor.”

36.   In our opinion the sale deed is not void but only valid to the  extent
of the share of vendor of Bala Mallaiah i.e. it is valid to  the  extent  of
14/104th share which has been found in the preliminary decree  and  affirmed
in the final decree. The sale deed was subject to the outcome  of  the  suit
which was to the aforesaid effect.
(iv) In re : What is the effect of preliminary decree for partition and  the
extent to which it is binding :

37.   In the instant case preliminary decree was passed  in  the  year  1970
and the shares were declared to  the  aforesaid  extent  of  the  respective
parties therein who were the heirs of  Late  Nawab  Jung.  Hamid  Ali  Khan,
defendant  No.1,  had  only  14/104th  share  in  the   disputed   property.
Preliminary  decree  dated  24.11.1970  has  attained  finality  which   was
questioned in appeal on limited extent in the High Court which has  attained
finality by dismissal of  LPA  on  12.10.1977.  Thus  the  determination  of
shares as per preliminary  decree  has  attained  finality,  shares  of  the
parties  had  been  crystallised  in  each  and  every  property.  Purchaser
pendente lite is bound by the preliminary decree with respect to the  shares
so determined and it cannot be re-opened  and  whatever  equity  could  have
been claimed in the final decree  proceedings  to  the  extent  of  vendor’s
share has already been extended to the purchasers.
38.   In Venkata Reddy & Ors. v. Pethi Reddy AIR 1963 SC 992,  it  has  been
laid down that the preliminary decree  for  partition   is  final.  It  also
embodies the final decision of the court. The question of finality has  been
discussed thus :
“6. The new provision makes it clear that the law is  and  has  always  been
that upon the father's insolvency his disposing power over the  interest  of
his undivided sons in the  joint  family  property  vests  in  the  Official
Receiver and  that  consequently  the  latter  has  a  right  to  sell  that
interest. The provision is thus declaratory of the law and was  intended  to
apply to all cases  except  those  covered  by  the  two  provisos.  We  are
concerned here only with the first proviso. This proviso  excepts  from  the
operation of the Act a transaction such as a sale by  an  Official  Receiver
which has been the subject of a final decision by  a  competent  Court.  The
short question, therefore, is whether the preliminary decree  for  partition
passed in this case which was affirmed finally in second appeal by the  High
Court of Madras can be regarded as a final decision. The competence  of  the
court is not in question here. What is, however,  contended  is  that  in  a
partition suit the only decision which can be said to be  a  final  decision
is the final  decree  passed  in  the  case  and  that  since  final  decree
proceedings were still going on when the Amending Act came  into  force  the
first proviso was not available  to  the  appellants.  It  is  contended  on
behalf  of  the  appellants  that  since  the  rights  of  the  parties  are
adjudicated upon by the court before a preliminary  decree  is  passed  that
decree must, in so far as rights adjudicated upon are concerned,  be  deemed
to be a final decision. The word 'decision' even in its popular sense  means
a concluded opinion (see Stroud's Judicial Dictionary - 3rd ed. Vol.  I,  p.
743). Where, therefore, the decision is embodied in the  judgment  which  is
followed by a decree finality must naturally attach  itself  to  it  in  the
sense that it is no longer open to question by either  party  except  in  an
appeal, review or revision petition as provided for by law. The  High  Court
has, however, observed :
"The mere declaration of the rights of  the  plaintiff  by  the  preliminary
decree, would, in our opinion not amount to a final decision for it is  well
known that even if a preliminary decree is passed either in a mortgage  suit
or in a partition suit, there are certain  contingencies  in  which  such  a
preliminary decree can be  modified  or  amended  and  therefore  would  not
become final.”
It is not clear from the judgment what the contingencies referred to by  the
High Court are in which a preliminary decree  can  be  modified  or  amended
unless what the learned Judges meant was modified or amended  in  appeal  or
in review or in revision or in exceptional  circumstances  by  resorting  to
the  powers  conferred  by  Sections 151 and 152 of  the   Code   of   Civil
Procedure. If that is what the High Court meant then every decree passed  by
a Court including decrees passed in cases which do  not  contemplate  making
of a preliminary decree are liable to be modified  and  amended.  Therefore,
if the reason given by the High Court is accepted  it  would  mean  that  no
finality attaches to decree at all. That is not the law. A decision is  said
to be final when, so far as the Court  rendering  it  is  concerned,  it  is
unalterable except by resort  to  such  provisions  of  the  Code  of  Civil
Procedure as permit its reversal, modification or  amendment.  Similarly,  a
final decision would mean a decision which would  operate  as  res  judicata
between the parties if it is not  sought  to  be  modified  or  reversed  by
preferring an appeal or a revision or a review application as  is  permitted
by the Code. A preliminary decree passed, whether it is in a  mortgage  suit
or a partition suit, is not a tentative decree but must, in so  far  as  the
matters dealt with by it  are  concerned,  be  regarded  as  conclusive.  No
doubt, in suits which contemplate the making of two decrees - a  preliminary
decree and a final decree - the decree which would be  executable  would  be
the final decree. But the finality of  a  decree  or  a  decision  does  not
necessarily depend upon its being executable. The legislature in its  wisdom
has thought that suits of certain types should  be  decided  in  stages  and
though the suit in such cases  can  be  regarded  as  fully  and  completely
decided only after a final decree is made the decision of the court  arrived
at the earlier stage also has  a  finality  attached  to  it.  It  would  be
relevant to refer to S. 97 of the Code of  Civil  Procedure  which  provides
that where a party aggrieved by a preliminary decree does  not  appeal  from
it, he is precluded from disputing its correctness in any appeal  which  may
be preferred from the final decree. This provision  thus  clearly  indicates
that as to the matters covered by it, a preliminary decree  is  regarded  as
embodying the final decision of the court passing that decree.”

39.   Moreover, it is provided in section 97 of the C.P.C. as under :
      “97. Appeal  from  final  decree  where  no  appeal  from  preliminary
decree.—Where any party aggrieved by a preliminary decree passed  after  the
commencement of this Code does not appeal from  such  decree,  he  shall  be
precluded from  disputing  its  correctness  in  any  appeal  which  may  be
preferred from the final decree.”

      It is apparent  from the aforesaid Section that the matters which  are
concluded by preliminary decree cannot be re-agitated in an  appeal  against
the final decree. No appeal was preferred by the purchasers or by  defendant
No.1 as against the preliminary decree.

(v) In re : whether it was necessary to file  a  suit  for  cancellation  of
sale deed dated 23.11.1959 ?

40.   In our opinion, when the  sale  deed  had  been  executed  during  the
pendency of suit the purchaser pendente lite is bound by the outcome of  the
suit. The provisions of section 52 prevent multiplicity of the  proceedings.
It was not at all necessary to file a suit  for  cancellation  of  the  sale
deed as the vendor had no authority to sell land  of  other  co-sharers.  He
had right to alienate his own share only which he had  in  the  property  to
the extent of 14/104th. As such  the  right,  title  and  interest  of  Bala
Mallaiah were  subject  to  the  pending  suit  for  partition  in  which  a
preliminary decree was passed in the year 1970 which had  attained  finality
in which vendor of Bala Mallaiah, defendant No.1  was  found  to  be  having
share only to the extent of 14/104th. The preliminary decree was  not  based
upon fraud or collusion. The sale deed was not under the  authority  of  the
court and the pendency of the suit under section 52 commenced from the  date
of presentation of the plaint and continued until the  suit  or  proceedings
were disposed of by a final decree, and on a complete  satisfaction  of  the
discharge of such decree, an  order  had  been  obtained.  The  lis  pendens
operates during execution also. Bala  Mallaiah,  his  L.Rs.  and  purchasers
from them are bound by the decision of the case. They cannot circumvent  the
jurisdiction of the court and  wriggle  out  of  the  decree.  The  transfer
remained valid  subject  to  the  result  of  the  suit  and  pendente  lite
purchaser is subject to the legal rights and obligations of  his  vendor  as
decided by the court. Our conclusion  is  buttressed  by  decision  in  K.N.
Aswathnarayana Setty (dead) through LRs. & Ors.  v.  State  of  Karnataka  &
Ors. (2014) 15 SCC 394, question has been discussed by this Court thus :
“11. The doctrine of lis pendens is based on legal maxim  ut  lite  pendente
nihil innovetur (during a litigation  nothing  new  should  be  introduced).
This doctrine stood embodied in Section 52 of the Transfer of Property  Act,
1882. The principle of “lis pendens” is in accordance with the equity,  good
conscience  or  justice  because  they  rest  upon  an  equitable  and  just
foundation that it will be impossible to  bring  an  action  or  suit  to  a
successful  termination  if  alienations  are  permitted   to   prevail.   A
transferee pendente lite is bound by the decree just as much  as  he  was  a
party to the suit. A litigating party is exempted from taking  notice  of  a
title acquired during the pendency of the litigation. However,  it  must  be
clear that mere pendency of a suit does not prevent one of the parties  from
dealing with the property constituting the subject-matter of the  suit.  The
law simply postulates a condition that the alienation will,  in  no  manner,
affect the rights of the other party under any decree which  may  be  passed
in the suit unless the property was alienated with  the  permission  of  the
court. The transferee cannot deprive the successful plaintiff of the  fruits
of the decree if he purchased the property pendente  lite.  (Vide  K.  Adivi
Naidu v. E. Duruvasulu Naidu (1995) 6 SCC 150, Venkatrao Anantdeo  Joshi  v.
Malatibai (2003) 1 SCC 722, Raj Kumar v. Sardari Lal (2004) 2  SCC  601  and
Sanjay Verma v. Manik Roy (2006) 13 SCC 608.)”


(vi) In re: whether Bala Mallaiah, his heirs and  purchasers  had  perfected
their right, title and interest by virtue of adverse possession ?

41.   The High Court has held that there was no lis pendens, and as such  it
was necessary to question the sale deed and  for  want  of  questioning  the
sale deed, the plaintiffs had perfected their title  by  virtue  of  adverse
possession. The same is clearly a perverse finding. Firstly, in the  earlier
civil suit of 1993 submission was raised with respect to adverse  possession
which was negatived. Secondly, in our opinion as we have held that the  sale
deed was hit by the doctrine of lis pendens, the purchasers  were  bound  by
the result of the suit. Thus there was no question of perfecting  the  title
by adverse possession during pendency of suit. Section 52 negates  the  very
plea of adverse possession. Trial  court  and  first  appellate  court  have
rightly held that there was no question  of  adverse  possession.  The  High
Court has simply without any discussion held that the  title  was  perfected
by adverse possession. Merely  a  bald  statement  that  there  was  adverse
possession is  not enough to set up a plea of adverse possession. It has  to
be clearly set out from which date it commenced,  and  became  hostile  when
there was repudiation of the title. No such plea has been raised. There  are
3 classic requirements of plea of  adverse  possession  i.e.  “nec  vi,  nec
clam, nec precario” i.e., peaceful, open and continuous.  No  such  pleading
has been raised much less there is question of any proof and moreover,  this
plea was not available to be raised in view  of  doctrine  of  lis  pendens.
Possession never became adverse in the instant  case  as  the  property  was
purchased subject to the outcome of the litigation. In  Karnataka  Board  of
Wakf v. Government of India & Ors. (2004) 10 SCC 779 it was held  that  when
litigation was pending  it  could  not  be  said  that  the  possession  was
peaceful or hostile in any view of the matter. It was held thus :
 “11. In the eye of the law, an owner would be deemed to  be  in  possession
of a property so long as there is no intrusion. Non-use of the  property  by
the owner even for a long time won’t affect  his  title.  But  the  position
will be altered when another person takes possession  of  the  property  and
asserts a right over it. Adverse  possession  is  a  hostile  possession  by
clearly asserting hostile title in denial of the title of  the  true  owner.
It is a well-settled principle that  a  party  claiming  adverse  possession
must prove that his possession is “nec vi, nec  clam,  nec  precario”,  that
is, peaceful, open and  continuous.  The  possession  must  be  adequate  in
continuity, in publicity and in extent to  show  that  their  possession  is
adverse to the true owner. It must start with a wrongful disposition of  the
rightful owner and be actual,  visible,  exclusive,  hostile  and  continued
over the statutory period. (See S.M. Karim v. Bibi Sakina AIR 1964 SC  1254,
Parsinni v. Sukhi (1993) 4 SCC 375  and  D.N.  Venkatarayappa  v.  State  of
Karnataka (1997) 7 SCC 567.) Physical fact of exclusive possession  and  the
animus possidendi to hold as owner in exclusion to the actual owner are  the
most important factors that are to be accounted in  cases  of  this  nature.
Plea of adverse possession is not a pure question of law but a  blended  one
of fact and law. Therefore, a person who claims  adverse  possession  should
show: (a) on what date he came into possession, (b) what was the  nature  of
his possession, (c) whether the factum of possession was known to the  other
party, (d) how long his possession has continued,  and  (e)  his  possession
was open and undisturbed.  A  person  pleading  adverse  possession  has  no
equities in his favour. Since he is trying to defeat the rights of the  true
owner, it is for him to clearly plead and establish all facts  necessary  to
establish his adverse possession. [Mahesh Chand Sharma (Dr.) v.  Raj  Kumari
Sharma (1996) 8 SCC 128.]

12. A plaintiff filing a title suit should be very clear  about  the  origin
of title over the property. He must specifically plead it. (See  S.M.  Karim
v. Bibi Sakina (Supra).) In P. Periasami v. P. Periathambi (1995) 6 SCC  523
this Court ruled that: (SCC p. 527, para 5)

“Whenever the plea of adverse possession is projected, inherent in the  plea
is that someone else was the owner of the property.”

The pleas on title and adverse possession are mutually inconsistent and  the
latter does not begin to operate until  the  former  is  renounced.  Dealing
with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639  that  is  similar  to
the case in hand, this Court held: (SCC pp. 640-41, para 4)

“4. As regards the first plea, it is  inconsistent  with  the  second  plea.
Having come into possession under the agreement, he must disclaim his  right
thereunder and plead and prove assertion of his independent hostile  adverse
possession to the knowledge of the transferor or his successor in  title  or
interest and that the  latter  had  acquiesced  to  his  illegal  possession
during the entire period of 12 years i.e. up to completing  the  period  his
title by prescription nec vi, nec clam, nec precario. Since the  appellant’s
claim is founded on Section 53-A, it goes without saying that he  admits  by
implication that  he  came  into  possession  of  land  lawfully  under  the
agreement and continued to remain in  possession  till  date  of  the  suit.
Thereby the plea of adverse possession is not available to the appellant.””

42.   In our opinion, the High Court has erred in law in  holding  that  the
plaintiffs perfected their  title  by  virtue  of  adverse  possession.  The
finding is perverse and has no foundational basis.

(vii) In re: whether under the Muslim Law, defendant No.1 being a  co-sharer
could have alienated the share of other co-sharers in the disputed  property
?

43.   In the instant case, the  property  was  ancestral  property  of  Late
Nawab Jung. It is not in dispute that Nawab Jung died intestate.  The  legal
heirs of Late Nawab Jung succeeded to the estate as tenants  in  common  and
not as joint-tenants. The heirs succeeded to the estate in specific  shares.
In Outlines of Muhammadan Law by Asaf A.A.  Fyzee,  4th  Edn,  it  has  been
observed  that  general  principles  of   Islamic   jurisprudence   do   not
contemplate administration, but a mere distribution of  the  estate  as  per
the principles laid down in Sirajiyyah. As per the  Sunni  law,  a  testator
can leave a legacy to an heir only to the extent of 1/3rd of estate and  not
exceeding that. After death of a person the first step is  to  make  payment
of funeral expenses, debts and legacies. Thereafter, distribution of  estate
among  legal  heirs,  firstly  to  sharers,  in  the  absence  thereof,   to
residuaries, and in case of absence of  both  to  distant  kindred.  As  per
Mulla, distribution takes place in the following manner :

“61.  Classes of heirs  There are three classes of heirs, namely, (1)
Sharers, (2) Residuaries, and (3) Distant Kindred:

“Sharers”  are  those  who  are  entitled  to  a  prescribed  share  of  the
inheritance;
 “Residuaries” are those who take no prescribed share, but  succeed  to  the
“residue” after the claims of the sharers are satisfied;
“Distant Kindred” are all those relations by blood who are  neither  Sharers
nor Residuaries.”

      Sharers take  in the following manner :

“63.  Sharers    After payment of funeral  expenses,  debts,  and  legacies,
the first step in the distribution of the estate, of  a  deceased  Mahomedan
is to ascertain which of the surviving relations  belong  to  the  class  of
sharers,  and  which  again  of  these  are  entitled  to  a  share  of  the
inheritance, and, after this is done, to proceed to assign their  respective
shares to such of the sharers as are, under the circumstances of  the  case,
entitled to succeed to a share.  The first column in the accompanying  table
(p.66A) contains a list of Sharers; the second column specifies  the  normal
share of each sharer;  the  third  column  specifies  the  conditions  which
determine the right of each sharer to a share, and the  fourth  column  sets
out the shares as varied by special circumstances.”

44.   Residuaries take if there are no sharers  or  if  there  are  sharers,
after satisfying  their  claims.  As  per  Mulla,  they  will  take  in  the
following manner :
 “65. Residuaries   If there are no Sharers, or if there  are  Sharers,  but
there  is  a  residue  left  after  satisfying  their  claims,   the   whole
inheritance or the residue, as the case may be,  devolves  upon  Residuaries
in the order set forth in the annexed table (p.74A).

The Residuaries or Agnatic heirs were  the  principal  heirs  before  Islam;
they continue to remain the principal heirs in  Sunni  law.   Their  premier
position is, in Islam, always  subject  to  the  claims  of  near  relations
mentioned as the Koranic heirs.  First they are  satisfied  by  giving  them
their Koranic shares.  Residuaries are the relations whose rights were  also
recognized by tribal laws in Saudi Arabia before Islam.
The rights of residuaries are recognized by the Holy Quran (by  implication)
and by the traditions of the prophet (PBUH) in very specific terms.

The Holy Quran declares:

“from what is left by parents and near kindred, there is  a  share  for  men
and a share for woman, whether the property be small or large-a  determinate
share”.

“To (benefit) every one, we have appointed  shares  and  heirs  to  property
left by parents and near relatives…”

“Allah directs you concerning your  children  (their  inheritance),  to  the
male a portion equal to that of two females..”

“They ask thee for a legal decision.  Say: Allah directs (thus) about  those
who leave no descendants or ascendants as heir.  If it is a man  that  dies,
leaving a sister but no child, she shall have  half  the  inheritance.    If
(such a deceased was) a woman who left  no  child,  her  brother  takes  her
inheritance...  If they are brothers and sisters,  (they  share),  the  male
having twice the share of the female.”

The first two verses are clear proof that blood relations  are  entitled  to
inherit.    Blood  relations  definitely  include  residuaries   (the   male
agnates).” [see, Mohammad Mustafa Ali Khan, Islamic Law of Inheritance,  1st
edition.]”

45.   The  “distant  kindred”  is  dealt  with  in  section  67  in  Mulla’s
Principles of Mahomedan Law thus :
 “67. Distant Kindred  (1)  If  there  be  no  shares  or  Residuaries,  the
inheritance is divided amongst Distant Kindred.

(2)   If the only sharer be a husband or wife,  and  there  be  no  relation
belonging to the class of Residuaries, the husband or wife will take his  or
her full share, and the remainder  of  the  estate  will  be  divided  among
Distant Kindred.”

46.   Incidents of tenancy in common have been cited  from  Halsbury’s  Laws
of England, 5th Edn., vol. 87 in which  nature  of  such  tenancy  has  been
discussed before 1925 in para 220. In para 221 nature of such tenancy  since
1925 has been discussed. It has been observed that tenants  in  common  have
several interests, where joint tenants, whether at law or  in  equity,  have
one interest. The tenants in common may be entitled to equitable  shares  in
the land in unequal shares  and  for  interests  which  may  be  unequal  in
duration; different shares would be subject  to  different  limitations  and
the limitations may include entailed interests. No  new  entailed  interests
can be created either in real  or  personal  property,  but  this  does  not
affect any  entailed  interests  created  before  1.1.1997  considering  the
provisions of the Trusts of Land and Appointment of Trustees  Act,  1996  as
applicable in the area for which it has been enacted. There is no  right  of
survivorship and on the  death  of  a  tenant-in-common,  his  share  passes
according to its  own  limitation.  In  para  224  the  modes  of  effecting
partition of tenancies-in-common have been dealt with  in  general  and  the
position  before  1925  and  subsequent  thereto   has   been   taken   into
consideration considering the enactments which  have  been  made  applicable
from time to time.
      Thus, it is apparent that the incidents  of  such  joint  tenancy  and
tenants in common are further subject  to  the  law  by  which  parties  are
governed and in that context, we  have  to  examine  a  case.  There  is  no
dispute with the general principles of joint tenancy and tenants  in  common
but the same would also depend upon in their  application  with  respect  to
the law by which the parties and the lis in  question  are  governed.  In  a
case  belonging  to  Muslims,  incidents  of  Muslim  Law,  their   law   of
inheritance has to be considered, in particular with respect  to  rights  of
tenants in common. Right of disposition by a testament is also different  in
the Muslim law. There cannot  be  testamentary  disposition  for  more  than
1/3rd of the property held by testator. The power of  alienation  in  Muslim
law is different from Hindu law.  In  Hindu  law,  there  is  difference  in
Dayabhaga and Mitakshra school of law.  Muslim  law  may  be  akin  in  some
respect to Dayabhaga law but not with Mitakshara Law. However, in  Mitakshra
Law  in  Bombay  School  and  in  Banaras  School,  power  of  alenation  is
different. A co-parcener  cannot  alienate  without  consent  of  other  co-
parceners  in  Banaras  School  of  Mitakshara  Law.  In  Bombay  School  of
Mitakshara Law, a co-parcener can alienate for value his undivided  interest
or his co-parcenery property without consent of other co-parceners.  However
in the area which is governed by the Banaras School of Mitakshara Law,  sale
of his undivided share in a co-parcenery property without consent  of  other
co-parceners is voidable at the instance of non-alienating co-parcener.
47.   A Full Bench of the M.P. High Court in Ramdayal v. Manaklal  AIR  1973
MP 222 has made  certain  observations  with  respect  to  applicability  of
Mitakshara law as administered in Bombay, Madras and M.P. A co-parcener  may
sell, mortgage or otherwise alienate for value his undivided interest in co-
parcenery property without the consent of other  co-parceners.  Decision  in
Ramdayal’s case (supra) has been explained by a  decision  of  another  Full
Bench of the M.P. High Court in Diwan Singh v. Bhaiya Lal AIR 1997  MP  210.
It has been held that in Madhya  Bharat,  Vindhya  Pradesh  etc.  of  Madhya
Pradesh, Banaras School of Hindu Law applies. Thus the applicability of  the
law at the place in question and certain customs which would  be  prevailing
in certain areas  are  also  relevant.  As  in  certain  parts  of  A.P.  or
elsewhere there may be different customs prevailing in Muslims which are  to
be taken into consideration  while  deciding  a  matter.  In  Halsbury  also
distinction has been made between the law which was applicable  before  1925
and the law which is applicable after 1925 and  the  discussion  of  law  is
with respect to various Acts on the basis of which the decisions  have  been
referred herein.
48.   When we consider  the  incidents  of  disposition  of  property  under
different laws, we have to consider the personal law and then to  apply  the
general principles of tenancy law to the permissible  non-conflict  zone  to
personal law which holds the field for the parties to arrive at a  decision.
The Privy Council in the case of Imambandi & Ors. v. Mutsaddi & Ors.  (1918)
L.R. 45 I.A. 73  considering  the  distinction  between  the  law  which  is
applicable to Mohammedans,  has held  that  there  is  a  sharp  distinction
which has to be drawn with other laws with respect to  its  special  nature.
The  Court  cautioned  to  apply  the  foreign  decisions   which   are   on
considerations and conditions totally differing from those applicable to  or
prevailing in India. The Privy Council has observed thus :
“45.  Their Lordships cannot help deprecating the practice  which  seems  to
be growing in some of the Indian Courts  of  referring  largely  to  foreign
decisions.   However  useful  in  the  scientific   study   of   comparative
jurisprudence, reference to judgments of foreign  Courts,  to  which  Indian
practitioners  cannot  be  expected  to  have   access,   based   often   on
considerations and conditions totally differing from those applicable to  or
prevailing in India,  is  only  likely  to  confuse  the  administration  of
justice.”

      Thus, in our opinion, courts have to be careful to apply the  decision
of  Muslim law to a case relating to Hindu law  and  the  foreign  decisions
and vice versa. There cannot be universal application of principles  of  law
on a particular subject. Special laws by  which  parties  are  governed  are
also to be taken into consideration  so as to arrive at a just conclusion.

49.   Keeping in  view  aforesaid  principle  we  proceed  to  consider  the
question further. In Syed Shah Ghulam Ghouse Mohiuddin & Ors. v.  Syed  Shah
Ahmed Mohiuddin Kamisul Quadri (died) by l.rs. & Ors.   (1971)  1  SCC  597,
this Court has laid down that Muslim heirs are tenants in  common  and  they
succeed to their definite fraction of every part of estate of the  deceased.
The shares of the heirs are definite  and  known  before  actual  partition.
Therefore, on partition of the properties there is  division  by  metes  and
bounds in accordance with specific shares of each sharer which have  already
been determined by law. This Court has observed thus :

“20. The cause of action for  partition  of  properties  is  said  to  be  a
“perpetually recurring one” (See Monsharam Chakravarty and Others v.  Ganesh
Chandra Chakravarty & Ors., 17 CWN 521. In Mohammedan law  the  doctrine  of
partial partition is not applicable because the heirs are  tenants-in-common
and the heirs of the deceased Muslim succeed to  the  definite  fraction  of
every part of his estate. The shares  of  heirs  under  Mohammedan  law  are
definite and known  before  actual  partition.  Therefore  on  partition  of
properties belonging to a deceased Muslim there is  division  by  metes  and
bounds in accordance with the specific share  of  each  heir  being  already
determined by the law.”

50.   In P.N. Veetil Narayani v. Pathumma Beevi & Ors.  (1990)  4  SCC  672,
it was reiterated that since heirs succeed  to  the  estate  as  tenants  in
common, thus, the liability of heirs of a Muslim dying intestate or that  of
the deceased is to the extent of his share  of  debt  proportionate  to  his
share of estate. If that is  proportionate  to  share  of  the  deceased  as
inheritance is as tenants-in-common and  as  independent  debtors,  not  co-
debtors or joint debtors. Co-sharers  can  hardly  be  classified  as  joint
contractors,  partners,  executors  or  mortgagees.  They  are   independent
debtors and the debt  having been split by operation of law. This Court  has
laid down thus :
“10. These observations in Jafri Begam case ILR (1885) 7 All 822  are  prime
roots of the theory as to the divisibility of  the  debt  in  the  hands  of
heirs of a Muslim intestate. So it would be right to treat it  settled  that
Muslim heirs are independent owners of their specific shares  simultaneously
in the estate and debts of the deceased, their  liability  fixed  under  the
personal law proportionate to the extent of their shares. In this  state  of
law it would be unnecessary to refer to  other  decisions  of  various  High
Courts touching the subject. So we proceed  on  the  footing  that  as  many
heirs as are defending this cause, there are debts in that number.

14. The heirs of a Muslim dying intestate on whom  falls  the  liability  to
discharge the debt, proportionate to their respective shares in  the  estate
devolved,  can  hardly  be  classified  as  joint   contractors,   partners,
executors or mortgagees. As held above they are  by  themselves  independent
debtors; the debt having been split by operation of law. Inter se they  have
no jural relationship as co-debtors or joint debtors so as  to  fall  within
the shadow of contractors, partners, executors or mortgagees or in  a  class
akin to them. They succeed to the estate as  tenants-in-common  in  specific
shares. Even a signed written acknowledgment by  the  principal  or  through
his agent would bind the principal and not anyone  else  standing  in  jural
relationship with the  principal  in  accordance  with  Section  20(2).  The
Muslim heirs inter se have  no  such  relationship.  In  this  view  of  the
matter, we take the view that the High Court  was  right  in  confining  the
acknowledgment of the debts only to  respondent  2  and  not  extending  the
acknowledgment to the other co-heirs for their independent position.

16. In the context, if the debt is one and indivisible, payment by one  will
interrupt limitation against all the debtors unless  they  come  within  the
exception laid down in Section 20(2) which has been taken note  of  earlier.
And if the  debt  is  susceptible  of  division  and  though  seemingly  one
consists really of several distinct debts each one of which  is  payable  by
one of the obligors separately and not by the rest, Section 20  keeps  alive
his part of the debt which has got to be discharged by the  person  who  has
made payment of interest. It cannot affect  separate  shares  of  the  other
debtors unless on the  principal  (sic  principle)  of  agency,  express  or
implied, the payment can be said to be a payment on their behalf  also.  See
in this connection Abheswari Dasya v. Baburali Shaikh AIR 1937 Cal 191.  The
payment made on account of debt by defendant-respondent 2 as an  independent
debtor, and not as an agent, express or implied,  on  behalf  of  other  co-
heirs could hardly, in the facts established, here be said to be  a  payment
on behalf of all so as to extend period of limitation  as  against  all.  We
are thus of the considered view that the High Court was right  in  confining
the extension of limitation on payment  of  a  part  of  debt  only  against
defendant-respondent 2, proportionate to his share of  the  estate  devolved
on him which was one-fourth. We are further of the view that the High  Court
was right in holding the  suit  against  other  co-heirs  to  be  barred  by
limitation relating to their shares of the debt.”

      This Court has also laid down  that  in  that  case  payment  made  on
account of debt by defendant-respondent 2 as an independent debtor, and  not
as an agent, express or implied, on behalf of other co-heirs, in  the  facts
established, could not be said to be a payment on behalf of all.
51.   This Court again in  Kasambhai  Sheikh  v.  Abdulla  Kasambhai  Sheikh
(2004) 13 SCC 385 has held that succession in Mohammedan Law is in  specific
shares as tenants in common.
52.   It was observed in Ram Awalamb v. Jata Shankar AIR 1969 All. 526  that
a  joint  tenancy  connotes  unity  of  title,  possession,   interest   and
commencement  of  title;  in  tenancy  in  common  there  may  be  unity  of
possession and commencement of title but the other two features as to  unity
of title and interest are missing.
53.   In Mansab Ali Khan v. Mt. Nabiunnisa & Ors. AIR 1934 All 702,  a  suit
was filed by the plaintiffs who had acquired rights in 12/24 sihams  in  the
property in dispute. They claimed possession over the  share  of  the  whole
property  on  the  ground  that  one  of  the   defendant-respondents,   Mt.
Nabiunnissa, had sold certain property to  the  defendant-respondents  Nos.2
and 3.  There  was  an  agreement  that  Mt.  Nabiunnisa  should  remain  in
possession on the condition that she became liable to pay all the debts  due
from the deceased. Though the agreement was  not  proved,  the  trial  court
found that certain debts were paid by Mt. Nabiunnisa. It was held  that  one
of the heirs of a deceased Mohamedan was perfectly entitled to alienate  his
share of the property without getting it partitioned provided  he  had  paid
the proportionate share of debt on assessment of property.

54.   Muhammadan Law does  not  recognize  the  right  of  any  one  of  the
shareholders being tenants-in-common, for acting on behalf  of  co-heirs  as
laid down in Abdul Majeeth Khan Sahib v. C .Krishnamachariar  AIR  1918  Mad
1049 (FB). It has been laid down that one heir has no authority  in  law  to
deal  with  the  share  of  his  co-heirs.  Relevant  portion  is  extracted
hereunder :
“This is absolutely clear authority in proof of the position that  one  heir
has no authority, in law, to deal with the shares of his co-heirs.  In  face
of it, it is not necessary to refer to  other  original  text-books.  It  is
stated, however, in Pathummabi v. Vittil Ummachabi I.L.R. 26 Mad.  734 that,
"if the creditor of the deceased can seek his relief against one of  several
co-heirs in a case where all the effects of the deceased are  in  the  hands
of that heir, it can make no difference whether the heir  meets  the  demand
by a bona fide voluntary sale,  or  the  property  is  brought  to  sale  in
execution of a decree obtained  against  him."  To  the  same  effect  is  a
decision of the Allahabad High Court in Hasan Ali v. Medhi  Husain I.L.R.  1
All.  533.  The  statement  in   Pathummabi   v.   Vittil   Ummachabi I.L.R.
(supra) was purely by way of obiter dictum  and  with  all  respect  to  the
learned Judges, they failed to bear in  mind  that,  the  provision  of  the
Muhammadan Law, that a decree against one heir  in  possession  of  all  the
effects of the deceased, is binding on all if  obtained  after  contest,  is
part of the processual law of that system and is not  based  on  the  ground
that a single heir, if he happens to be in possession of the estate  of  the
deceased,  represents  the  rest  of  the  heirs   for   the   purposes   of
administration generally. The ground on which a decree against  one  of  the
heirs, in such circumstances, is treated as res judicata is,  as  stated  in
the books, that the decree in such cases is, in law,  against  the  deceased
and not against the particular heir who is made defendant in the suit.
xxx         xxx        xxx
So far as voluntary alienations are concerned, which alone form the subject-
matter of reference, the Muhammadan Law is clear that one of the heirs of  a
deceased person is not competent to bind the other heirs by his acts,

Spencer, J. -- I agree with the judgment of Mr.  Justice  Abdur  Rahim  just
now pronounced.

Srinivasa Aiyangar, J.--     I agree. In the absence of any right in one  of
the heirs to represent the co-heirs, one of several co-heirs can  only  deal
with his or her interest in the ancestor's property inherited  by  them.  My
learned brother has shown that  there  is  nothing  in  the  Muhammadan  Law
giving such a right to one of the co-heirs who may happen to  be  in  actual
possession of the whole of the ancestor's estate; such possession,  it  must
be remembered, is presumably on behalf  of  all  the  co-heirs.  He  is  not
constituted the representative of the deceased  and  cannot  administer  his
property  even  for  the  limited  purpose  of  paying  off  his  debts.  In
Khiarajmal v. Daim  L.R., 32 Ind. App., 23, Lord Davey referring to  a  sale
by one of the heirs of a Muhammadan for discharging  the  debt  due  by  the
ancestor said "prima facie his conveyance would pass only his  share",  See.
p.37. Representation in a suit may conceivably stand on a different  footing
for as stated by their Lordships in the  same  judgment  at  page  35,  "The
Indian Courts have exercised a wide discretion in allowing the estate  of  a
deceased debtor to be represented by  one  member  of  the  family,  and  in
refusing to disturb judicial sales on the mere ground that some  members  of
the family, who were minors, were not made parties to  the  proceedings,  if
it appears that there was a debt  justly  due  from  the  deceased,  and  no
prejudice is shown to the absent minors.  But these are usually cases  where
the person named as  defendant  is  de  facto  manager  of  a  Hindu  family
property, or has the assets out of which  the  decree  is  to  be  satisfied
under his control;" and they applied this principle in  that  very  case  to
the estate of Nabibaksh. However, that is not the question here.”

55.   In Mohammad Afzal Khan, Haji v. Abdul Rahman, Malik & Ors.   AIR  1932
PC 235, the Privy Council has held that in case  one  of  two  or  more  co-
sharers had mortgaged an undivided share, the mortgagee takes  the  security
subject to rights of other co-sharers, and the partition  if  effected,  the
mortgaged properties are allotted to the other co-sharers, they  take  those
properties in  the  absence  of  fraud,  free  from  the  mortgage  and  the
mortgagee can proceed only against the properties allotted to the  mortgagor
in substitution of his undivided share.  The principle  that  emanates  from
the aforesaid decision is that co-sharer can bind his  property  and  cannot
create charge on the property of other co-sharers.  The  Privy  Council  had
relied upon the decision in the case of Byjnath Lall  v.  Ramoodeen  Chowdry
(1874) L R 1 Ind. App. 106, the relevant portion  of  Mohammad  Afzal  Khan,
Haji (supra) is extracted hereunder:
“As regards the first point, their Lordships are of opinion that  where  one
of two or more co-sharers mortgages his  undivided  share  in  some  of  the
properties held jointly by them, the mortgagee takes  the  security  subject
to the right of the other co-sharers to enforce a partition and  thereby  to
convert what was an undivided share of the  whole  into  a  defined  portion
held in severalty.  If the mortgage, therefore, is followed by  a  partition
and the mortgaged properties are allotted  to  the  other  co-sharers,  they
take those properties, in the absence of fraud, free from the mortgage,  and
the mortgagee can proceed  only  against  the  properties  allotted  to  the
mortgagor in substitution of his undivided share.  This was the  view  taken
by the Board in Byjnath Lall v. Ramoodeen Chowdry  (1874)  LR  1  Ind.  App.
106.  In that case the partition was made by the Collector under  Regulation
XIX of 1814 (Bengal), and the mortgagee was seeking to  enforce  his  remedy
not against the properties mortgaged to  him,  but  against  the  properties
which had been allotted to the mortgagor in lieu  of  his  undivided  share;
but the Board held that not only he had a right to do so, but  that  it  was
in the circumstances of the case his sole  right,  and  that  he  could  not
successfully have sought to charge any other parcel of  the  estate  in  the
hands of any of the former co-sharers.    Their  Lordships  think  that  the
principle enunciated  in  that  case  applies  equally  to  a  partition  by
arbitration such as the one  in  the  present  case.   Their  Lordships  are
therefore of opinion that the appellant  is  not  entitled  to  enforce  his
charge against the properties allotted to the first and second  respondents.
 The  third  respondent  (the  mortgagor)  has  not  appeared  before  their
Lordships, and their Lordships express no opinion as  to  any  other  rights
which the appellant may have in respect of his mortgage.”


56.   It was submitted on behalf of the appellants that  in  Mohammedan  law
the doctrine of partial partition is not applicable because  the  heirs  are
tenants-in-common.   Reliance has been placed  upon  the  decision  of  this
Court in Syed Shah Ghulam Ghouse Mohiuddin  v.  Syed  Shah  Ahmed  Mohiuddin
Kamisul (supra). In S.M.A. Samad & Ors. v. Shahid Hussain &  Ors.  AIR  1963
Patna  375,  the  Patna  High  Court  referring  to  the  various  decisions
indicated that it would be inexpedient to allow suits  for  partition  of  a
portion of the properties, because  it  would  lead  to  a  multiplicity  of
suits.  It is merely a rule of procedural law.  Mohammedans are never  joint
in estate but only tenants-in-common.  It has been observed  that  the  rule
with respect to the partial partition is not so rigid, it can be allowed  in
certain circumstances. Reliance has also been placed on a  decision  of  the
High Court of Madhya Pradesh in Abdul Karim & Ors. v. Hafij Mohammad &  Ors.
(1989) MP LJ 178, in which it had been held that suit for partial  partition
was maintainable. Reference has also been made to the case of A.J.  Pinto  &
Anr. v. Smt. Sahebbi  Kom Muktum Saheb (Dead) by LRs &  Ors.  (1972)  4  SCC
238,  wherein  this  Court  has  left  open  the  question  whether  partial
partition is possible under Muslim Law and no opinion was  expressed.    The
aforesaid decision as to the partial partition had been cited  to  emphasize
that when Muslims inherit in specific  share,  their  share  is  determined.
However, the question of partial partition is not involved  in  the  instant
case, as such, we need  not  go  into  the  aforesaid  question  as  to  the
permissibility of the partial partition, as the suit  in  the  instant  case
was filed for partition of the entire matruka property.
57.   A Full Bench decision of the High Court of Sind in Vazir alias Dino  &
Anr. v. Dwarkamal & Ors. AIR  1922  Sind  41  has  also  been  referred  to,
wherein referring to the case of Mangaldas v. Abdul Razak (1916)  16  Bombay
L.R. 224, it has been observed that  the  notions  of  joint  family,  joint
family property and joint family business are utterly unknown to  Mohammedan
Law.
58.   A decision in Jan Mahomed v. Dattu Jaffer (1913)  38  Bombay  449  has
also been referred to and it has been held that Mohammedans under their  own
law are never joint in estate whether they live together or whether they  do
not.  On death of a Muslim his heirs at once become vested with  the  shares
to which the Islamic Law entitles them.   They have not to  wait  until  the
property is divided by metes and bounds.  It has  also  been  observed  that
sometime an error is caused by application of  Hindu  law  to  the  case  of
Mohammedan law.  It has also been further observed that  a  Mohammedan  heir
is not a co-parcener.    He  has  not  merely  a  right  to  a  defined  and
immediate share in each portion of the estate but  if  any  portion  of  the
estate is in any case marked off and divided from the rest  of  the  estate,
he has a right to an immediate share in that portion.
59.   Reliance has also been placed upon the decision in  Ghumanmal  Lokumal
& Ors.  v. Faiz Muhammad Haji Khan & Ors. AIR 1948 Sind 83 in which  it  has
been observed thus:

“15. It may be conceded that the question of adjustment of equities  between
the vendor and vendee upon a suit by a Muslim  co-sharer  for  partition  of
the entire property held  in  co-ownership  might  properly  arise,  but  we
cannot accept the position that, while a Muslim co-sharer elects to sue  for
partition of some of the properties only held in co-ownership, a vendee  can
compel him to sue for a general partition,  for  the  purpose  of  adjusting
equities between the  co-sharer-  vendor  and  himself.  If  Mr.  Kimatrai's
contention were to prevail, it would put fetters upon  what  this  Court  in
second Appeal No. 64 of 1942 has held to be an unfettered right of a  Muslim
co-sharer to claim partition of some of the  properties  only  held  in  co-
ownership, while retaining his co-ownership in the remaining properties.


16. If, then, a vendee cannot require  a  Muslim  co-sharer  to  sue  for  a
general partition, much less can he institute a suit for  the  sole  purpose
of adjusting equities between himself and  his  Muslim  co-sharer-vendor  in
regard to property which has not been alienated to him, as is sought  to  be
done in the case before us.”

      It has been observed that a vendee cannot compel a Muslim to  sue  for
a general partition for the purpose of adjusting equities  between  the  co-
sharer-vendor and himself.   The logic behind this is  that  specific  share
is inherited by a co-sharer in a specific property.
60.   Right of pre-emption under Mohammedan Law  has  been  relied  upon  to
invalidate the sale to stranger even to the  extent  of  vendor’s  share.  A
Full Bench of the Allahabad  High  Court  in  Inayatullah  v.  Gobind  Dayal
(1885) ILR 7 All 775 has observed  that  right  of  pre-emption  is  closely
connected with the Mohammedan law of  inheritance.   The  following  is  the
observation made with respect to the right of pre-emption in  the  aforesaid
decision:
“7. Upon the present occasion it is unnecessary to consider  whether  "gift"
can properly be described as a "religious usage or institution"  within  the
meaning of Section 24. I am here concerned only with  the  question  whether
preemption can be so described. My own opinion is that it can, and  although
I cannot add much to the reasons given by SPANKIB, J., I  may  observe  that
preemption is closely connected with  the  Muhammadan  Law  of  inheritance.
That law was founded by the Prophet upon republican principles,  at  a  time
when the modern democratic conception of equality and division  of  property
was unknown even in the most  advanced  countries  of  Europe.  It  provides
that, upon the death of an  owner,  his  property  is  to  be  divided  into
numerous fractions, according to extremely  rigid  rules,  so  rigid  as  to
practically exclude all power of testamentary disposition,  and  to  prevent
any diversion of the property made even  with  the  consent  of  the  heirs,
unless that consent is given after the owner's death, when  the  reason  is,
not that the testator had power to defeat the law of inheritance,  but  that
the heirs, having become owners of the property, could deal with it as  they
liked, and could therefore ratify the act of their ancestor.  No  Muhammadan
is allowed to make a will in favour of any of his heirs, and a bequest to  a
stranger is allowed only to the extent of one-third of the  property.  Under
these circumstances, to allow the Muhammadan  Law  of  inheritance,  and  to
disallow the Muhammadan Law of pre-emption, would be to  carry-out  the  law
in an imperfect manner; for the latter is in reality the  proper  complement
of the former, and one department of the law cannot be administered  without
taking cognizance of the other…...”

      It has also been observed that under the Mohammedan law, the  rule  of
pre-emption proceeds upon a principle analogous to the maxim “sic utere  tuo
ut alienum non leadas”.   The right of preemption is  based  upon  the  fact
that there can be large number of  co-sharers,  the  preference  has  to  be
given to pre-emptor as a right of substitution, but not as a re-purchase  in
Mohammedan law to cut short the litigation.
61.   For the purpose of pre-emption, reliance has also been placed  on  the
decision in Zamir Ahmad v. S. Haidar Nazar &  Ors.  AIR  1952  All  541,  in
which it has been observed that where there is a  custom  relating  to  pre-
emption, the rule of Mohammedan law of pre-emption  is  not  to  be  applied
even on the ground of equity and good conscience.  In view of the  entry  in
Wajibularz the custom is complete  by  itself  and  can  be  enforced.   The
plaintiff being a relative and a co-sharer, accordingly, had a  preferential
right of pre-emption as against the vendees and was  entitled  to  pre-empt.

62.   The decision in Nagammal & Ors. v. Nanjammal & Anr.  (1970) 1 MLJ  358
has  also  been  referred  to,  wherein  it  has  been  observed  that   the
preferential right to acquire  the  share  of  a  co-heir  who  proposes  to
transfer his interest in the property  or  business  of  the  propositus  is
limited to cases of simultaneous succession and devolution of property  upon
two or more heirs belonging to Class I.  Obviously,  the  section  has  been
aimed at reducing to some  extent  at  least  the  inconvenient  effects  of
simultaneous succession by several persons at  one  and  the  same  time  as
members of Class I leading to  fragmentation  and  parcelling  up,  of  even
small holdings of property. To a degree the section  enables  a  co-heir  to
retain the property in the family and avoid the introduction of  a  stranger
in the enjoyment  of  family  property  if  he  so  desired.   Relying  upon
Inayatullah  (supra), it has been observed that it is not lawful for  anyone
to sell his own share till he has informed his co-sharer  who  may  take  or
leave it as he wishes; and if he has sold without such information, the  co-
sharer has a preferential right to the share.   It has  also  been  observed
that the existence of right of pre-emption is patent and the  burden  is  on
the purchaser to establish  that  other  co-heirs  declare  or  waive  their
preferential  right  when  occasion  arose.    It  is  not  pretended   that
purchaser  made  any  reference  to  non-alienating  co-heirs   before   his
purchase.  It follows that  plaintiffs  have  not  lost  their  preferential
right of purchase by sale and are entitled  to  have  property  conveyed  to
them.
63.    On  the  basis  of  the  aforesaid  decisions  with  respect  to  the
preferential right it is sought to be contended on behalf of the  appellants
that there is no equity in favour of the purchaser, but under Muslim law co-
heirs have the right of preferential purchase and in this case  even  it  is
not pretended by the purchaser that he had offered to  the  co-heirs  before
purchasing the same vide sale deed dated 23.11.1959. We  decline  to  accept
the submission as the property in question is capable of division and it  is
not a small fraction of property, but partition is of huge property, and  as
the property admittedly has exchanged several  hands  by  now,  we  are  not
inclined to invalidate the sale deed  executed by defendant No. 1 in  favour
of Bala Mallaiah even to the extent of his share i.e. 14/104th on the  basis
of principle of pre-emption  of  Muslim  law.  It  would  be  too  late  and
iniquitous  to  invoke  the  principle  of  pre-emption  in  such  a   case,
particularly when no such plea was raised at the relevant time  and  in  the
courts below. In case heirs were desirous of raising it,  they  should  have
raised their plea timely.
64.   In Shaik Mohd. Ali Ansari v. Shaik Abdul Samed (Died) per  LRs  (2012)
4 ALD 680 (DB), the question of fiduciary relationship has  been  discussed,
but  in  the  instant  case  it  is   not   the   case   set   up   by   the
objectors/purchasers that  the  sale  deed  was  the  outcome  of  fiduciary
relationship.
65.    The  parties  have  been  litigating  since  1935  for  partition  of
property. In the instant case sale by Hamid Ali Khan, defendant No.1 is  not
of undivided share but that of a specific property i.e. 68 acres  10  guntas
in which he had only 14/104th share. Thus being a tenant in  common  he  had
no authority or right to sell the share of other co-owners. The  vendor  had
the right to sell to the extent of his own share considering the  nature  of
succession amongst Mohammedans. Thus the  sale  of  property  of  other  co-
sharers was illegal and void.
66.   Similar question arose in Mansab Ali Khan  (supra)  in  which  it  has
been laid down that if partition has not been effected  the  heir  can  only
sell his  undivided  share  and  cannot  sell  a  particular  plot.  It  was
submitted that though the specific plot has been alienated but in the  whole
undivided property it would amount to less than the share of  an  alienating
co-sharer i.e. defendant No.1. He had share of approximately  250  acres  in
the matruka properties left by  Late  Nawab  Jung.  Similar  submission  was
repelled by the Allahabad High Court and it was held that to the  extent  of
the share of vendor only  in  the  specific  property,  the  sale  could  be
enforced and the vendor had no right to sell  the  specific  property  which
belonged to other co-sharers. The sale of a specific part  of  the  property
which was not in the vendor’s exclusive ownership, was set aside.  Allahabad
High Court has laid down thus :
“3.   The simple question  that  I  have  to  decide  is  whether  in  these
circumstances  the  plaintiff-appellants  are  entitled  to  a  decree   for
possession of their share in the property in suit,  including  that  portion
of it which  was  transferred  in  1920  and  1922  by  Mt.  Nabiunnissa  to
defendants Nos. 2 and 3, or to any other relief. It is not quite clear  what
the lower appellate Court meant  by  saying  that  the  sale  deed  was  not
challenged by the plaintiffs in the plaint on the ground that it dealt  with
one specific plot, or in expressing the opinion that such  a  sale  deed  is
only voidable at the opinion of a  joint  owner  within  six  years  of  the
transfer. The whole of the plaint shows that the plaintiffs  claimed  to  be
owners of 12 out of 24 sihams in the property which had  been  left  by  Mt.
Wasiunnisa. They also claim to  have  been  in  joint  possession  with  Mt.
Nabiunnissa although the latter's  name  alone  had  been  recorded  in  the
revenue  papers.  Their  cause  of  action  was  that  Mt.  Nabiunnissa  had
transferred part of the property and whether their grievance  was  that  she
had transferred more than her proper share or that  she  had  transferred  a
specific part of the property which was not in her own exclusive  ownership,
it is quite clear that the plaintiffs' object was to  dispel  the  cloud  on
their title to 12/24 sihams of the whole property which had arisen owing  to
the sale deeds of 1920 and 1922. It has not been  clearly  proved  that  the
plaintiffs have been in joint possession of the whole of  the  property  and
they have  therefore  paid  the  Court  fees  necessary  for  a  decree  for
possession. What  is  wanted,  however,  is  a  declaration  that  they  are
entitled to joint possession, and in the  circumstances  it  appears  to  me
that they ought to obtain such a decree. In the case of Jafri Begam v.  Amir
Mohammad Khan (1885) 7 All. 822,  it  was  held  that  in  somewhat  similar
circumstances a plaintiff could  recover  from  the  auction  purchaser  his
share in the property sold on condition that he paid a  proportionate  share
of the ancestor's debt for which the  decree  (in  execution  of  which  the
property had been sold) was passed.

4. As regards the question of the amount which is said to have been paid  by
Mt. Nabiunnissa in liquidation of her mother's debts, the trial Court  found
that she paid a sum of Rs.1,800 and that the plaintiffs were liable  to  pay
a proportionate amount viz. Rs. 853-14-0.  The  lower  appellate  Court  has
found that so far as Rs.1,000 is concerned it has not been proved  that  the
debt was due or that Mt. Nabiunnissa has liquidated it.  There  is,  however
no finding as  regards  the  balance  of  Rs.800.   Mr.  Mohd.  Husain,  who
appeared in this Court on behalf of Mt. Nabiunnissa, has argued that  he  is
not bound by the findings of the lower appellate Court with regard to  these
debts at all, because the decree of the lower appellate  Court  was  in  his
favour and these findings were therefore  irrelevant.  Mt.  Nabiunnissa  was
however one of the parties to the appeal in the lower appellate Court  where
these questions as to the debts were agitated and decided,  and  so  far  as
the findings of the lower appellate Court are findings of fact they must  be
held to be binding on Mt. Nabiunnissa.”

67.   In Abdul Majeeth Khan Sahib v. C. Krishnamachariar (1917) 5 LW 767,  a
Full Bench of the Privy Council was faced with the issue that if one of  the
co-heirs of a deceased Muhammadan in possession of the whole estate  of  the
deceased or of any part of it sells the property in his  possession  forming
part of the estate for discharging the debts of the deceased, is  such  sale
binding on other co-heirs or creditors of the deceased, and if so,  to  what
extent ? It was held that property of a deceased  Muhammadan  vests  in  his
heir upon his death in specified share. Heirs of  the  deceased  take  their
shares in severalty, as tenants-in-common and under Muhammadan Law one  heir
of the deceased cannot bind shares to his co-heirs.
68.   In our opinion, sale beyond  14/104th  share  by  Hamid  Ali  to  Bala
Malliah was void. The Mohammedan Law does not recognize the right of one  of
shareholders being tenants-in-common for acting on behalf of  others.  While
discharging debt also they act as independent debtors.  A  co-sharer  cannot
create  charge  on  property  of  co-heir.  The  right  of  Muslim  heir  is
immediately defined in each fraction  of  estate.  Notion  of  joint  family
property is unknown to Muslim law. Co-heir  does  not  act  as  agent  while
discharging debt but is an independent debtor  not  as  co-debtor  or  joint
debtor.  Co-sharers  are  not  defined  as  joint   contractors,   partners,
executors or mortgagees.
(viii) In re: whether  the  purchaser  has  a  right  to  claim  equity  for
allotment  of  Item  No.  6  of  Schedule  ‘B’  property  in  final   decree
proceedings in suit for partition ? If yes, to what extent ?

69.   It was contended on behalf of  the  respondents  that  in  respect  of
transactions which are hit by section 52 can be looked into at the  time  of
final decree proceedings. However, preliminary decree in  the  instant  case
identifies different  modes  and  manners  under  which  equities  could  be
adjusted at the time of final decree proceedings. Reliance has  been  placed
upon following paragraphs 81 and 93 of the  judgment  of   the  trial  court
while passing the preliminary decree in the year 1970 :
“81. It is fact established that the deceased had gifted  the  land  to  D-1
but the next point for consideration is, whether the entire  land  measuring
24 bigas and 10 bams  was  gifted  to  him  or  a  portion  of  it  for  the
construction of the house.  The learned counsel for  D-25  argued  that  the
entire land was given to D-1 and even  including  S.  No.22/2  another  item
about which I will deal later.  The learned counsels for D-6  and  plaintiff
contended that the house of D-1 was only on portion  of  land  and  that  it
cannot be presumed that the entire land of  more  than  18  acres  would  be
given for the construction of the house.  As already observed the  house  of
D-1 around the house.  There is no evidence on record to show the extent  of
land within the compound.  One of the witness stated that  it  was  4  or  5
acres and another stated that it was  about  15  acres.   The  plan  of  the
compound and the area of the house is not made the record of the  suit.   Of
course Ex. Alif 2 while  giving  permission  for  the  construction  of  the
compound mentioned about the plan but it did not give the  area  covered  by
it.  Subsequently, i.e. after the institution of the suit D-1  had  built  a
cinema house and the hotel and malgi.  Another witness said that  there  was
no open land between the compound and the road.  There is no  clear  picture
about  the  location  for  want  of  sufficient  material  on  record.   The
principles can be worked out in the final decree proceedings.   In  my  view
the deceased did not gift the entire land situated  in  Asifnagar  but  only
such portion of land on which D-1 had built the house and the compound.   As
already stated by me that the land was given  for  purpose  of  constructing
residential house.  It is a fact that in Ex. Alif 4 he gave  the  boundaries
and stated that a plan was also prepared after survey and settlement but  it
is not filed and nothing can be made out from the boundaries  given  in  Ex.
Alif 4 and also Ex. Alif. I am  not  inclined  to  believe  that  only  that
portion of land was gifted to him on which the house  stands  excluding  the
compound but in my view all that portion of land was given to D-1  on  which
the house stands and the land was given for the purpose of construction  the
house and if more land was given to him he could have enclosed it  with  the
compound or with some fence.  My conclusion is that the land covered by  the
residential house and the compound wall was gifted to D-1 and the  remaining
land outside the compound is matruka property.   If  the  cinema  house  was
built on the land outside the compound,  it  can  be  adjusted  towards  the
share of D-1 in the final decree proceedings.
                                  x x x x x
93. It is a fact and also admitted in some cases  that  D-1  had  sold  some
lands in some villages.  Ex.B-2 to B-9 are such sale deeds executed by  D-1.
 It was explained by D-1 that  he  was  to  pay  the  land  revenue  to  the
Government and for that purpose he had to sell the lands.   I  need  not  go
into the question about the lands sold by D-1 and  about  the  sale  amounts
realized. In the final decree proceedings these  facts  can  be  taken  into
consideration. D-1 would be liable to account for the monies realized.”

      It is apparent that the sale deed in question was not referred  to  in
para 93. Even if the aforesaid observations had not been made, it  was  open
to the executing court to adjust equity of  purchasers  to  the  permissible
extent as purchasers pendente lite can work out the equities  in  accordance
with law in the final decree proceedings.
70.   Reliance has been placed by the respondents on a decision  in  Jayaram
Mudaliar v. Ayyaswami & Ors. (1972) 2 SCC 200 :
“47. It is evident that the doctrine, as stated in Section 52,  applies  not
merely to actual transfers or rights which are subject-matter of  litigation
but to other dealings with it “by any party to the suit  or  proceeding,  so
as to affect the right of any other  party  thereto”.  Hence,  it  could  be
urged that where it is not a party to the litigation but an outside  agency,
such as the tax collecting authorities of  the  Government,  which  proceeds
against the  subject-matter  of  litigation,  without  anything  done  by  a
litigating party, the resulting transaction will not be hit by  Section  52.
Again,  where  all  the  parties  which  could  be  affected  by  a  pending
litigation are themselves parties to a transfer or  dealings  with  property
in such a way that  they  cannot  resile  from  or  disown  the  transaction
impugned before the Court dealing with the litigation, the  Court  may  bind
them to their own acts. All these are matters which  the  Court  could  have
properly considered. The purpose of Section 52 of the Transfer  of  Property
Act is not to defeat any just and equitable claim but only to  subject  them
to the authority of the Court which is dealing with the  property  to  which
claims                  are                  put                   forward.”
       (emphasis added by us)

      Reliance has also been placed on Vinodan  v.  Vishwanathan   (2009)  4
SCC 66 thus :
“11. In the facts  and  circumstances  of  the  case,  while  balancing  the
equities and for keeping peace and happiness in  the  family,  we  think  it
would be just and proper to direct the appellant to pay Rs 5,50,000  to  the
respondent within a period of four months. On  receiving  the  said  amount,
the respondent may construct a suitable house in his  portion  of  the  land
and for that purpose we grant one year’s time from the date  of  payment  of
Rs 5,50,000 to the respondent to vacate the portion of  the  building  which
is presently in his possession and give vacant and  peaceful  possession  of
his portion of the building to the  appellant  in  lieu  of  payment  of  Rs
5,50,000. We are granting a long  time  to  the  respondent  to  vacate  the
portion of the building in his possession to avoid any inconvenience to  the
respondent.”

      Decision in Dhanlakshmi & Ors.  v. P. Mohan & Ors., (2007) 10 SCC  719
has been referred laying down that :
“5. Section 52 deals with a  transfer  of  property  pending  suit.  In  the
instant case, the appellants have admittedly purchased the undivided  shares
of Respondents 2, 3,  4  and  6.  It  is  not  in  dispute  that  the  first
respondent P. Mohan has got an undivided share in the  said  suit  property.
Because of the purchase by the appellants of  the  undivided  share  in  the
suit property, the rights of the first respondent  herein  in  the  suit  or
proceeding will not affect his right in the suit  property  by  enforcing  a
partition. Admittedly, the appellants, having purchased  the  property  from
the other co-sharers, in our opinion, are entitled  to  come  on  record  in
order  to  work  out  the  equity  in  their  favour  in  the  final  decree
proceedings. In  our  opinion,  the  appellants  are  necessary  and  proper
parties to the suit, which is now pending before the trial  court.  We  also
make it clear that we are not concerned with the other  suit  filed  by  the
mortgagee in these proceedings.”

71.   Though it is true that purchasers can  work  out  the  equity  in  the
final decree proceedings but it is only to the  legally  permissible  extent
and not beyond that. The preliminary decree  declared  the  shares  in  item
No.6 of Schedule ‘B’ property in specified shares.  The  preliminary  decree
is binding and even otherwise the sale was valid only to the extent  of  the
share of defendant No.1 i.e. 14/104th share in  the  specific  property  and
not beyond it. This Court in K. Adivi Naidu & Ors. v. E. Duruvasulu Naidu  &
Ors. (1995) 6  SCC  150,  has  laid  down  that  when  a  specific  property
comprising of undivided share in joint family  properties  is  purchased  by
appellants from alienee of Karta of the  joint  family  prior  to  partition
suit and where the  preliminary  decree  in  partition  suit  directed  that
properties be  divided  by  metes  and  bounds,  taking  the  good  and  bad
qualities thereof, then the preliminary decree was allowed to become  final.
This Court held that the trial court should give effect to  the  preliminary
decree, and though the appellants had no equities, the restrictive share  to
which the principal alienator was entitled, should be allotted to them as  a
special case. In the instant  case,  preliminary  decree  has  declared  the
share only to the extent of 14/104th in the disputed property in item  No.6,
schedule ‘B’. Thus, by no equitable principle the purchaser  can  claim  the
entire property to be allotted to him.
72.   The respondents have placed reliance on a decision of the  High  Court
of Madras in Khatoon Bibi v. Abdul Wahab Sahib & Ors.  AIR 1939 Mad. 306  so
as to  contend  that  the  sale  deed  in  favour  of  Bala  Mallaiah  dated
23.11.1959  is  valid  and  binding  on  defendant  No.1,  Hamid  Ali   Khan
notwithstanding the pendency of the partition suit. In Muslim  law  property
can be alienated by heir during the pendency of the suit for its  partition.
In Khatoon  Bibi  (supra)  it  has  been  observed  that  inheritance  vests
immediately, in Mohammedan law, in his heir and is not suspended  by  reason
of debts being due from the estate of the deceased and against the other co-
heirs, the  claim  of  bona  fide  purchasers  to  have  the  share  in  the
particular plot is not absolute. It is  well  recognized  principle  of  law
relating to co-owners or tenants in common that an alienation by a  co-owner
or a tenant in common of a share in any item of the property is  subject  to
the rights and equities of the other co-owners or tenants in common. It  has
also been observed on the basis of Cooper v. Fisher  (1841)  10  LJ  Ch  221
that if persons deal in such interests as undivided shares, they do so  with
the liability of having something assigned to them different from what  they
might originally possess. The alienee of part of an  undivided  estate  must
take his interest subject to a bill of partition being  filed  against  him.
The court further observed that :
“11. A co-owner or a tenant-in-common can always file a suit  for  partition
and have his share defined and delivered to him. The Court  in  effecting  a
partition is bound to adjust all the equities existing between  the  parties
and arising out of their  relation  to  the  property  to  be  divided.  The
equities to be adjusted would involve every matter relating  to  the  common
property with reference to which one tenant-in-common may  equitably  demand
anything of the other such as contribution for repairs  or  improvements  to
the common property, accounting for waste of the  common  property  and  the
enforcement of any  lien  or  charge  which  a  tenant-in-common  may  claim
against the other in respect of any matter concerning the  common  property.
In regard to the method of division the Court  is  not  bound  to  allot  an
aliquot share of each species of property to each  of  the  parties.  It  is
enough if each tenant-in-common has an equal share of  the  whole.  This  is
subject to the other equities which may have to be adjusted.  In  this  case
the plaintiff is admittedly entitled to a half share in the estate  but  she
is not able to get her due and legitimate share by virtue of the  fact  that
defendants 1 to 3 have dissipated a major portion of the  estate  consisting
of the moveable property. The plaintiff  is  therefore  justly  entitled  to
demand that all the immovable property should be assigned to  her  and  that
no portion of the immovable property should be claimed by  defendants  1  to
3. Freeman on "Co-tenancy and Partition" dealing with equities which may  be
enforced in a suit for partition observed at page 676 thus :

If one of the co-tenants has wasted  any  part  of  the  lands  of  the  co-
tenancy, the Court may take that fact  into  consideration  and  do  justice
between the parties by assigning to the wrongdoer  the  part  which  he  has
wasted.

                                  x x x x x

13. The question now arises, should any portion of the  property  by  virtue
of the alienation by defendants 1 to 3 pendente  lite  be  allotted  to  the
share of the defendants in order to give effect  to  the  alleged  equitable
right in favour of the alienees? Ordinarily it would be just and  proper  to
allocate properties which have been alienated to the shares of the  alienor.
But where it is not practicable or equitable, the  Court  is  not  bound  to
allot those  properties  but  might  allot  any  other  properties  and  the
alienees’ only right is to have recourse to the properties so  allotted.  It
may be that the substituted property or security may prove worthless but  it
is a risk every alienee of an undivided interest of a tenant-in-common in  a
specific item of property takes as a necessary incident of  the  alienation.
Therefore there is  nothing  to  preclude  a  Court  from  awarding  to  the
plaintiff the immovable  properties  and  awarding  to  the  defendants  the
moveable properties which have been wasted by them, the only remedy  of  the
alienee being to proceed against the moveable  properties  in  their  hands.
But what is alleged in  this  case  is  that  the  alienees  are  bona  fide
alienees and they have got therefore an  equity  in  their  favour.  But  it
seems to me the equity of the plaintiff in this case  is  paramount  to  the
equity in favour of the alienees. She has  been  unjustly  deprived  of  her
legitimate share in the property by the wrongful act of defendants  1  to  3
aided by defendant 4, and the property was converted  and  appropriated  for
their use during her minority. She lost no time in enforcing  her  claim  as
soon as she attained majority and the alienations were  pendente  lite.  The
alienees allege that they were ignorant of the institution of the  suit  but
that fact is in my opinion immaterial as they cannot get higher rights  than
their alienors, i.e. an alienee from a co-tenant takes his interest  subject
to the equities of the other co-tenants. But this is a  case  in  which,  if
the alienees were not parties, they will be affected by the doctrine of  lis
pendens. The title to the immovable property  is  specifically  in  question
within the meaning of Section 52 of the Transfer of Property Act.

14. A question of title has been raised, namely whether the property in  the
suit belonged  solely  to  Abdul  Rahiman  or  was  the  joint  property  of
defendants 1 to 3 and Abdul Rahiman. This issue would  be  quite  sufficient
to attract the operation of lis pendens. No doubt a suit for  administration
has been  held  not  to  attract  the  operation  of  lis  pendens  until  a
preliminary decree for administration has been passed. But in this case  the
plaintiff has also prayed for partition and delivery of her  share  and  for
an account on the basis that defendants 1 to  3  have  wrongfully  possessed
themselves of her father's property and misappropriated the bulk of  it  and
this suit cannot therefore be viewed as  a  bare  administration  suit.  But
since the alienees are formally on record and they  will  be  bound  by  any
decree passed in the suit, there is no need to  consider  the  applicability
of Section 52 of the Transfer of Property Act. But the principle  underlying
the Section will have to be applied in favour of  the  plaintiff,  i.e.  the
Court in making the adjustment of equities in giving relief to her ought  to
confine itself to the legal rights of  the  co-heirs  on  the  date  of  the
institution of the  suit  without  reference  to  the  equitable  rights  of
persons who derived title from them pendente lite as her rights  should  not
be prejudiced by any intervening equity in the alienees.  The  plaintiff  is
entitled to say that so far as she is concerned, she is not  bound  to  take
any notice of a title acquired since the filing of the suit and "as to  them
it is as if no such title existed."

      The Court has reiterated the principle that  an  alienee  from  a  co-
tenant takes subject to the equities  from  other  co-tenants  and  in  case
alienees were not parties they would be affected  by  the  doctrine  of  lis
pendens. The decision is of no application in the facts of the instant  case
as alienation made was beyond the interest in the property of alienating co-
sharer and in the proceedings for final decree  itself,  no  such  equitable
right has been claimed by purchaser as discussed hereinafter. To claim  such
an  equity  separate  bundle  of  facts  was  required  to  be  pleaded  and
established. Thus, in absence thereof, it is not  possible  in  the  instant
case to work  out  the  equities  of  the  purchasers  in  other  properties
allotted to the share of the vendor.
73.   Reliance has been placed on a decision of the High Court  of  M.P.  in
Abdul Rahman & Anr. v. Hamid Ali Shah & Ors.  AIR  1959  MP  190.  The  main
question for consideration was with respect to maintainability of  the  suit
for partial partition or the suit has to be filed for general  partition  of
all the properties. It has been observed that an alienee  of  specific  item
of property has also to be given a right to sue for general partition so  as
to claim equitable right  against  his  vendor.  In  the  instant  case  the
proposition has no application firstly for the reason that  no  such  equity
has been claimed by the purchasers in the  objections  filed  in  the  final
decree proceedings. The claim was  to  retain  only  the  specific  property
which had been alienated by defendant No.1.
74.   Reliance has also been placed on  Tikam  Chand  Lunia  v.  Rahim  Khan
Ishak Khan & Ors. AIR 1971 MP 23. Following the aforesaid  decision  of  the
M.P. High Court in Abdul Rahman (supra), law to the similar effect has  been
laid down. In the latter decision  it  has  been  held  that  when  specific
property cannot be allotted to the  share  of  the  alienor,  sale  must  be
construed to be sale of so much portion as can justly be given to the  share
of the alienor. In the instant case the alienor had only 14/104th share  and
that has been rightly allotted to him.
75.   Reliance has also been placed on T.G. Ashok  Kumar  v.  Govindammal  &
Anr. (2010) 14 SCC 370 in which it has been laid down that in  the  case  of
pendente lite transfer of property during  the  pendency  of  the  partition
suit held by the other co-owner, sale pendente lite is not void but  subject
to the decree in partition suit. The title of the vendee would  depend  upon
the decision in the partition suit in regard to the title of vendor. If  the
vendor has title only in respect of a part of the property,  vendee’s  title
would be saved only to that extent. The sale of the remaining portion  which
fell to the share of other co-owner would be ineffective. On  the  basis  of
the aforesaid decision, Bala Mallaiah, his  heirs  and  purchasers  can  get
what can be allotted to vendor Hamid Ali Khan’s  share.  That  precisely  is
the preliminary as well as the final decree. This Court in T.G. Ashok  Kumar
(supra) has laid down thus and the relevant portion is  extracted  hereunder
:
“14. On the other hand, if the title of  the  pendente  lite  transferor  is
recognised or  accepted  only  in  regard  to  a  part  of  the  transferred
property, then the transferee’s title will be saved only in regard  to  that
extent  and  the  transfer  in  regard  to  the  remaining  portion  of  the
transferred property to which the transferor is found not entitled, will  be
invalid and the transferee will not get any  right,  title  or  interest  in
that portion.
15. If the property transferred pendente lite, is allotted  in  entirety  to
some other party or parties or if the transferor is held to  have  no  right
or title in that property, the transferee will not have  any  title  to  the
property. Where a co-owner alienates a property or a portion of  a  property
representing to be the absolute owner, equities can  no  doubt  be  adjusted
while making the division during the final decree proceedings,  if  feasible
and practical (that is, without causing loss or  hardship  or  inconvenience
to other parties) by allotting the  property  or  portion  of  the  property
transferred pendente lite, to the share of the transferor, so that the  bona
fide transferee’s right and title are saved fully or partially.”

      It is apparent from the aforesaid decision that a transferee may  lose
the entire property also  though  equities  can  be  worked  out  by  making
allotment of property which has been transferred pendente lite  but  in  the
instant case such equity is not permissible in view  of  the  provisions  of
Mohammedan Law as well as the fact that no such equity has been claimed  for
allotment out of other properties fallen to the share of the vendor.
76.   Reliance has also been placed on Khemchand Shankar  Chaudhari  &  Anr.
v. Vishnu Hari Patil & Ors. (1983) 1 SCC 18 in which  this  Court  has  laid
down thus :
“6. Section 52 of the Transfer of Property Act no doubt  lays  down  that  a
transferee pendente lite of an interest in an immovable  property  which  is
the subject-matter of a suit from any of the parties to  the  suit  will  be
bound insofar as that interest is concerned by the proceedings in the  suit.
Such a transferee is a representative in interest of the party from whom  he
has acquired that interest. Rule 10  of  Order  22  of  the  Code  of  Civil
Procedure clearly recognises the right of a transferee to be impleaded as  a
party to the proceedings and to be heard before any order is  made.  It  may
be that if he does not apply to be impleaded, he may suffer  by  default  on
account of any order passed in the proceedings. But  if  he  applies  to  be
impleaded as a party and to be heard, he has got  to  be  so  impleaded  and
heard. He can also prefer an appeal  against  an  order  made  in  the  said
proceedings but with the leave of  the  appellate  court  where  he  is  not
already brought on record. The position of a person  on  whom  any  interest
has devolved on account of a transfer during the pendency of any suit  or  a
proceeding is somewhat similar to the position of an heir or a legatee of  a
party who dies during the  pendency  of  a  suit  or  a  proceeding,  or  an
Official Receiver who  takes  over  the  assets  of  such  a  party  on  his
insolvency. An heir or a legatee or an Official  Receiver  or  a  transferee
can participate in the execution proceedings even  though  their  names  may
not have been shown in the decree, preliminary or final. If  they  apply  to
the court to be  impleaded  as  parties  they  cannot  be  turned  out.  The
Collector who has to effect partition of an estate under Section 54  of  the
Code of Civil Procedure has no doubt to divide it  in  accordance  with  the
decree sent to him. But if a party to such a decree dies leaving some  heirs
about whose interest there is no dispute should he fold  up  his  hands  and
return the papers to the civil court? He need not do so. He may  proceed  to
allot the share of the deceased party to his heirs. Similarly he  may,  when
there is no dispute, allot the share of a deceased party in  favour  of  his
legatees. In the case of insolvency of a party, the  Official  Receiver  may
be allotted the share of the insolvent. In the case of transferees  pendente
lite also, if there is  no  dispute,  the  Collector  may  proceed  to  make
allotment of properties in an equitable manner instead  of  rejecting  their
claim for such equitable partition on the ground that  they  have  no  locus
standi. A transferee from a party of a property which is the  subject-matter
of partition can exercise all the rights of  the  transferor.  There  is  no
dispute that a party can ask for an equitable partition. A  transferee  from
him, therefore, can also do so. Such a construction of  Section  54  of  the
Code of Civil Procedure advances the cause of justice.  Otherwise  in  every
case where a party dies, or where a party is adjudicated as an insolvent  or
where he transfers some interest in the  suit  property  pendente  lite  the
matter has got to be referred back to the civil court even though there  may
be no dispute about the succession, devolution or transfer of  interest.  In
any such case where there is no dispute if the Collector makes an  equitable
partition  taking  into  consideration  the  interests  of   all   concerned
including those on whom any interest in the subject-matter has devolved,  he
would neither be violating the decree nor transgressing any law. His  action
would not be ultra vires. On the other hand, it would be in conformity  with
the intention of the legislature which has placed the work of  partition  of
lands subject to payment of assessment to the Government in his hands to  be
carried out “in accordance with the law (if  any)  for  the  time  being  in
force relating to the partition or the separate possession of shares.”

      There  is  no  dispute  on  the  aforesaid  principle.  The  aforesaid
principle has been followed in the instant case and  permissible  share  has
been allotted. Thus the decision is  of no further assistance to  the  cause
espoused.
77.   In Jayaram Mudaliar v. Ayyaswami & Ors. (1972) 2 SCC 200, it has  been
laid down thus :
“47. It is evident that the doctrine, as stated in Section 52,  applies  not
merely to actual transfers or rights which are subject-matter of  litigation
but to other dealings with it “by any party to the suit  or  proceeding,  so
as to affect the right of any other  party  thereto”.  Hence,  it  could  be
urged that where it is not a party to the litigation but an outside  agency,
such as the tax collecting authorities of  the  Government,  which  proceeds
against the  subject-matter  of  litigation,  without  anything  done  by  a
litigating party, the resulting transaction will not be hit by  Section  52.
Again,  where  all  the  parties  which  could  be  affected  by  a  pending
litigation are themselves parties to a transfer or  dealings  with  property
in such a way that  they  cannot  resile  from  or  disown  the  transaction
impugned before the Court dealing with the litigation, the  Court  may  bind
them to their own acts. All these are matters which  the  Court  could  have
properly considered. The purpose of Section 52 of the Transfer  of  Property
Act is not to defeat any just and equitable claim but only to  subject  them
to the authority of the Court which is dealing with the  property  to  which
claims are put forward.
48. In the case before us, the Courts  had  given  directions  to  safeguard
such just and equitable claims as the purchaser-appellant may have  obtained
without trespassing on the rights of the plaintiff-respondent in  the  joint
property involved in  the  partition  suit  before  the  Court.  Hence,  the
doctrine of lis pendens was correctly applied.”

78.   In Marirudraiah & Ors. v. B. Sarojamma & Ors.  (2009) 12  SCC  710,  a
Constitution Bench of this Court set aside  an  order  passed  by  the  High
Court directing allotment of Item No.9 sold pendente lite to  purchaser  and
compensation to the co-sharers of his predecessor in interest  in  terms  of
money based on the market value of the property which was alienated to  him.
This Court has laid down that courts are not supposed to encourage  pendente
lite transactions, and regularizing  their  conduct  by  showing  equity  in
their favour at the cost of co-sharers.
79.   In Kammana  Sambamurthy  (Dead)  by  LRs.  v.  Kalipatnapu  Atchutamma
(Dead) & Ors.  (2011) 11 SCC 153, this Court has laid  down  that  when  the
vendor was having only ½ share in the property  but  executed  the  contract
for sale of the entire property, the vendee would be entitled to decree  for
specific performance only to the extent of ½ share of  the  vendor  and  not
beyond it.
80.   In Nova Ads v. Metropolitan Transport Corporation  &  Ors.  (2015)  13
SCC 257, this Court has considered various decisions like Raja  Ram  Mahadev
Paranjype v. Aba Maruti Mali AIR 1962 SC 753, P.M. Latha v. State of  Kerala
(2003) 3 SCC 541, Raghunath Raj Bareja v. Punjab National Bank (2007) 2  SCC
230,  Madamanchi  Ramappa  v.  Mothaluru  Bojjappa   AIR   1963   SC   1633,
Laxminarayan  R.  Bhattad  v.  State  of  Maharashtra  (2003)  5  SCC   413,
Nasiruddin  v.  Sita  Ram  Agarwal  (2003)  2  SCC  577,  E.  Palanisamy  v.
Palanisamy (2003) 1 SCC 123, India House v. Kishan N. Lalwani (2003)  9  SCC
393 and has observed  that law will prevail over the equity  principle  when
they cannot be harmonized thus :
“45.  In Raja Ram Mahadev Paranjype v. Aba Maruti Mali AIR 1962  SC  753,  a
three-Judge Bench has opined that: (AIR p. 756, para 9)

      “9. ... Equity does not operate to annul a statute.  This  appears  to
us to be well established but we may refer  to  White  and  Tudor’s  Leading
cases on Equity (9th Edn., p. 238), where it is stated:

      ‘Although, in cases of contract between  parties,  equity  will  often
relieve  against  penalties  and  forfeitures,  where  compensation  can  be
granted, relief can never be given against the provisions of a statute.”

46.   In P.M. Latha v. State of  Kerala  (2003)  3  SCC  541,  it  has  been
opined: (SCC p. 546, para 13)

      “13.  Equity and law are twin brothers and law should be  applied  and
interpreted equitably but equity cannot override written or settled law.”

47.   In Raghunath Raj Bareja v. Punjab National Bank (2007) 2 SCC 230,  the
Court observed that it is  well  settled  that  when  there  is  a  conflict
between law and equity, it is the law  which  has  to  prevail.   The  Court
further ruled that equity can supplement the law, but it cannot supplant  or
override it.  In this context, reliance  was  also  placed  upon  Madamanchi
Ramappa v. Muthaluru Bojjappa AIR 1963 SC 1633, Laxminarayan R.  Bhattad  v.
State of Maharashtra (2003) 5  SCC  413,  Nasiruddin  v.  Sita  Ram  Agarwal
(2003) 2 SCC 577, E. Palanisamy v. Palanisamy (2003) 1 SCC  123,  and  India
House v. Kishan N. Lalwani (2003) 9 SCC 393.”


81.   Reliance has been placed on Raghunath Rai  Bareja  &  Anr.  v.  Punjab
National Bank & Ors. (2007) 2 SCC 230, in which the Latin  maxim  “dura  lex
sed lex” which means “the law is hard, but  it  is  the  law”  was  applied.
Relying upon that it has been observed that equity can only  supplement  the
law, but it cannot supplant or override it. But when  there  is  a  conflict
between law and equity, it is the law which has to prevail.
82.   In the instant case, equitable right of allotment of some  land  other
than which was purchased out of some other properties allotted to the  share
of vendor Hamid Ali Khan, D-1 has not been claimed in the  objections  filed
during the final decree proceedings filed by the  purchasers.  The  property
admittedly has exchanged hands a number of  times  during  the  pendency  of
suit from 1935 till date and how the equity is to be worked out is always  a
question of fact in every case, how much share  has  been  allotted  to  the
share of one vendor and how much property  he  had  already  alienated  till
that time and what are the  debts  or  charges  on  the  property  that  are
legally permissible, would be some of the relevant  considerations.  Nothing
of that sort has been pleaded by the purchasers in the objections  filed  in
the final decree proceedings. Though in the absence  of  claiming  equitable
right in the share of vendor’s other properties, it  cannot  be  worked  out
and it is doubtful when undivided share has not been sold and  the  specific
property had been purchased, such equitable  right  can  be  enforced.  Even
assuming that the purchaser could  work  out  the  equity,  however  in  the
absence of pleadings and evidence required for the purpose, it would  amount
to misadventure. We do not propose to give any  finding  on  submission  and
its correctness, made on behalf of the appellants that  defendant  No.1  had
gone on a selling spree like anything and before executing the sale deed  on
23.11.1959 he had already sold more than 1000 acres of  land  which  was  in
excess of his entitlement, in the  absence  of  pleading  by  appellants  or
purchasers on the basis of oral submissions made before us. In  the  absence
of requisite data, pleadings and evidence, question of  working  out  equity
in aforesaid manner, cannot be examined or gone into by this Court  at  this
stage. The claim of equity is outcome of ingenuity of  arguments  made  only
in this Court like a drowning fish trying to catch last straw.  We  are  not
at all impressed by the submission, and consequently the same  is  repelled,
more so considering the provisions of the Mohammedan Law  that  sale  beyond
the extent of the share of the vendor in specific property was void.

(ix) In re : whether sale was for legal necessity, and thus binding :
83.   It was submitted that sale was for  legal  necessity  for  benefit  of
estate. It has been averred in the objections preferred  by  the  purchasers
that sale was made by Hamid Ali Khan, defendant No.1, for  payment  of  land
revenue. Thus it was contended that the payment of land revenue  has  enured
for the benefit of the entire estate. Thus sale would be valid  and  binding
on co-heirs. Except making the aforesaid bald statement,  nothing  has  been
placed on record to indicate that the sale was for payment of land  revenue.
On the other hand, when we peruse the sale deed,  recital  of  it  makes  it
clear that the sale was  effected  by  Hamid  Ali  Khan  for  his  ‘personal
necessity’. He had not executed the sale deed for payment  of  land  revenue
as its recital is otherwise which would prevail. Nor the sale deed had  been
executed in the fiduciary capacity acting on behalf of co-sharers rather  he
has claimed in the sale deed that he was the exclusive owner of 68 acres  10
guntas area of property and was in possession thereof. He had sold the  land
for a consideration of Rs.2000 in view of his personal necessity.  The  sale
was made after taking permission from the Deputy Collector Division,  Distt.
West, Hyderabad. Thus, the sale deed negates  the  aforesaid  bald  averment
made in the objection petition. Even otherwise under the Mohammedan Law,  it
was not open to Hamid Ali Khan, defendant No.1 to act in fiduciary  capacity
to sell the property and bind shares of others. It is not mentioned in  sale
deed that Hamid Ali Khan had  sold  for  any  legal  necessity  or  for  the
benefit of the entire estate. The recital in sale deed has  the  evidentiary
value and Bala Mallaiah and his  successors  are  bound  by  what  has  been
mentioned therein. Thus, no case is made out on the basis of  the  aforesaid
submission also to make an interference.

(x) In re : the effect of proceedings under the Tenancy Act, 1950 :

84.   It was contended on behalf of the respondents  that  with  respect  to
the disputed property the proceedings  were  initiated  by  Boddam  Narsimha
under the Act of 1950. Boddam Mallaiah was a lessee  for  3  years.  He  was
inducted in the aforesaid lands under a  koul  dated  1.3.1953  executed  by
Hamid Ali Khan, who was defendant No.1 in the partition suit. Initially,  it
was for one year and  was  renewed  each  year  later  on.  Hamid  Ali  Khan
executed a sale deed in favour of Bala Mallaiah  on  23.11.1959.  After  the
sale deed, Bala Mallaiah became a pattedar in place of  Hamid  Ali  Khan  in
respect of the suit land. Bala Mallaiah was the  paternal  uncle  of  Boddam
Narsimha. An application was filed by Boddam Narsimha under section  37A  of
the Tenancy Act on the ground  that  Late  Bala  Mallaiah  was  a  protected
tenant and prayed for issuance of ownership certificate  under  section  38E
of the Act of 1950. The tribunal vide order dated 24.8.1999 held  that  Bala
Mallaiah never protested the omission of entry of tenancy from  the  revenue
records as deemed tenant, and it was found  that  there  were  no  protected
tenants in Madhapur village. The order was questioned in  the  appeal  under
section 90 of the  Act  which  was  dismissed  by  the  Joint  Collector  on
13.3.2000. Thereafter, Writ Petition No.2229/2000 was preferred  before  the
High Court of Judicature at Andhra Pradesh which was also dismissed  by  the
High Court on 16.4.2001 and the same was questioned before this Court  which
dismissed appeal in Boddam Narsimha  (supra).
85.   However, on behalf of the respondents it has been submitted that  Bala
Mallaiah has become pattedar vide  conveyance  deed  dated  23.11.1959.  The
case set up by Bala Mallaiah that he was jointly cultivating the  suit  land
along with his two brothers Komaraiah and Agaiah was found to  be  meritless
and negatived for the period between 1952 and 1959.  On  1.1.1973  when  the
notification came to be issued, Bala Mallaiah was not the protected  tenant.
The case set up by Boddam Narsimha regarding protected tenancy and  issuance
of ownership certificate was negatived.  This Court noted that even for  the
sake of arguments if it is accepted that Bala  was  a  protected  tenant  on
12.2.1956,  he  still  became  a  pattedar  vide   conveyance   deed   dated
23.11.1959, and in any event assumed protected tenancy did not  continue  up
to 1.1.1973, and therefore, the appellant  was  not  entitled  to  ownership
certificate under section 38E. Section  38E  of  the  Act  of  1950  had  no
application to the facts of the case. This Court has  discussed  the  matter
thus :

“13. Bala was a kaul who had taken an annual lease from Hamid Ali  Khan.  He
was a tenant at will. This was during the pendency of  the  partition  suit.
He became a pattedar vide  conveyance  dated  23-11-1959.  The  kaul  itself
indicates, that Bala was to cultivate in his individual  capacity;  that  at
the end of the year, Bala had to return the lands to the  owner;  that  Bala
was not given the right to include any other  cultivator.  Therefore,  there
is no merit in the  contention  of  the  appellant  that  Bala  was  jointly
cultivating the suit lands with his  two  brothers  Agaiah  (father  of  the
appellant) and Komaraiah.  Further,  between  tenancy  and  the  conveyance,
there was a time-gap. Hamid  Ali  Khan  was  a  pattedar.  His  rights  were
purchased by Bala vide conveyance dated 23-11-1959, therefore, on  1-1-1973,
when the notification came to be issued, Bala was not the tenant. He  was  a
pattedar. Moreover, the appellant herein is not the LR  of  Bala.  Bala  was
his paternal uncle. At no point of time, even the LRs of  Bala  had  claimed
that Bala was a protected tenant. It is evident from Section 38-E  that  the
said section has been enacted for those protected tenants who  are  declared
to be protected tenants and included  in  the  register  prepared  for  that
purpose. A person becomes a protected tenant when he  is  a  holder  on  the
dates or for the periods mentioned in Sections  35,  37  and  37-A.  Once  a
person  becomes  a  protected  tenant,  he  is  entitled  to  an   ownership
certificate under Section 38-E. In Sada v.Tahsildar  AIR  1988  AP  77  Full
Bench of the Andhra Pradesh High Court held that a person “holds”  the  land
as protected tenant if he is still a protected tenant on the  notified  date
i.e. 1-1-1973, though out of possession. As long as his right  as  protected
tenant has not been determined by the  date  of  notification  in  a  manner
known to the  Act,  he  holds  the  land  as  a  protected  tenant,  whether
physically in possession or not. For the vesting of ownership of  land  held
by a protected tenant under Section 38-E,  it  is  not  necessary  that  the
protected tenant should  be  in  physical  possession  on  1-1-1973.  It  is
sufficient if he continues to hold the status of a protected tenant  on  the
notified date, even if he is not in physical possession. The  Act  does  not
merely regulate the relationship of landlord and tenant but deals  with  the
alienation of agricultural land and includes transfer  of  the  landholder’s
interest to  the  protected  tenants.  Therefore,  the  grant  of  pattedari
(ownership rights) also finds place in the Act.
14. On the facts and circumstances of the present case, Bala  had  become  a
pattedar (owner) under the conveyance deed dated 23-11-1959.  His  name  was
shown as a pattedar even prior to 1-1-1973. The benefit of Section  38-E  is
given to persons who hold the lands as protected tenants  and  who  continue
to hold the lands as protected tenants on 1-1-1973.  The  protected  tenancy
has to be enforced on 1-1-1973. Under Section  38-E,  ownership  rights  are
conferred only upon persons who continue to be protected tenants as on  1-1-
1973. They form a special class. In the present case, as stated above,  Bala
became a pattedar in 1959. In Sada (supra) it has been held  that  protected
tenants are covered by Chapter IV of the Act.  They  fall  under  a  limited
category. They are referred to in Sections 34, 37  and  37-A.  In  the  said
judgment, it has been held that Section 37-A, introduced by Act  3  of  1956
deals with a separate class of persons deemed to be protected tenants.  This
class of persons is different from the category  of  protected  tenants  who
fall under Sections 34 and 37 respectively. Section 37-A refers  to  persons
who are holders of the land at the commencement of amending Act of 1955 (12-
3-1956). These persons were required to be tenants  on  12-3-1956  and  that
they should continue to be tenants till  1-1-1973.  Only  such  category  of
persons are entitled to ownership certificate under  Section  38-E.  In  the
present case, even for the sake of argument, if we were to  proceed  on  the
basis that Bala was a protected tenant on 12-3-1956,  still  Bala  became  a
pattedar vide conveyance deed dated 23-11-1959,  therefore,  in  any  event,
the assumed protected tenancy did  not  continue  up  to  1-1-1973.  In  our
opinion, therefore, in any view of the matter, the appellant herein was  not
entitled to the  ownership  certificate  under  Section  38-E  of  the  Act.
Section 38-E has no application to the facts of the present case.”


86.   This Court in aforesaid case  has  only  decided  the  question  about
protected tenancy which was claimed and issuance  of  ownership  certificate
by Boddam Narsimha under section 38E. No other  question  was  involved  for
consideration in the proceedings under the Act of 1950. Thus,  the  decision
cannot  be taken to be an authority on a question which  was  not  agitated.
Boddam Narsimha  who filed the said proceedings had lost up  to  this  Court
and in that there was a mere mention of the  fact  that  by  virtue  of  the
conveyance deed, Bala Mallaiah became pattedar  vide  registered  sale  deed
dated 23.11.1959. There was no adjudication on the various issues as to  the
legality or validity of the said rights which could  be  conferred  by  sale
deed and to what  extent  Hamid  Ali  Khan  could  have  alienated  to  Bala
Mallaiah and issue about lis pendens etc. never came up  for  consideration.
Thus, the decision is of no help and cannot be taken to be  an  adjudication
by this Court with respect to the rights of Hamid Ali Khan or Bala  Mallaiah
in matruka properties which was not an issue  in  the  aforesaid  case.  The
scope of the proceedings and the  issue  involved  were  totally  different.
Thus, no sustenance can be derived by the respondents by  relying  upon  the
aforesaid decision in which Boddam Narsimha in fact had lost.

87.   It was also contended that Hamid Ali Khan  was  recorded  as  pattedar
after the death of Nawab Jung. The  plaintiffs  and  other  heirs  of   Late
Nawab Jung were aware that the name of Hamid Ali Khan had been  recorded  in
the revenue records. The transfer  was  made  with  the  permission  of  the
Collector under section 47 of the 1950  Act.  Any  person  affected  by  any
entry in such record of rights under Regulation 4 of  the  Hyderabad  Record
of Rights in Land Regulations,  1948  was  required  to  question  the  same
within two years. Bala Mallaiah was in possession. Thus,  the  decree  which
has been passed ignoring the rights of the pattedar is bad in  law.  In  our
opinion, admittedly, it was a matruka property of Late Nawab Jung. The  suit
for partition was pending w.e.f. 1935 and mutation simpliciter in  the  name
of Hamid Ali Khan conferred no right, title or  interest.  The  mutation  is
only for the fiscal purpose and is not decisive of right, title or  interest
in the property which is within the domain of the civil court. The grant  of
 patta from 1953 onwards by Hamid Ali Khan to Bala Mallaiah  was  on  yearly
basis and the execution of sale deed and the grant of land on  yearly  basis
were during lis pendens. Thus, the transactions are covered by the  doctrine
of lis pendens and were clearly  subject  to  the  outcome  of  the  pending
partition proceedings. In Venkatrao Anantdeo Joshi &  Ors.  v.  Malatibai  &
Ors. (2003) 1 SCC 722, a question came up for  consideration  assuming  that
pending suit for partition, a batai patra  was  executed  on  the  basis  of
which tenancy rights were claimed. It was held that such batai  patra  would
not confer any right on the person. It being hit by  the  principle  of  lis
pendens. This Court has held thus :
“8. At the  time  of  hearing  of  this  appeal,  learned  counsel  for  the
appellants submitted that the plea of tenancy raised by Baburao  is  on  the
face of it, bogus so as to defeat the rights of  the  appellants  which  are
crystallised at the time of passing of  the  preliminary  decree.  Presuming
that pending the suit for partition, even if batai  patra  is  executed,  it
would not confer any rights on Baburao as it is hit  by  principles  of  lis
pendens. In any case, as the preliminary decree becomes final,  it  was  not
open for Baburao to raise such contention at the time of  passing  of  final
decree for partition.
9. With regard to lis pendens, learned counsel for  the  appellants  rightly
referred to the judgment and decree passed in Regular Civil Suit No.  51  of
1973 and contended that presuming that the so-called batai patra was at  all
executed by Anantdeo, it was not open to him to  execute  the  same  pending
disposal of the suit filed by Appellant 1 for partition of the property.  In
that suit, Appellant 1 and his mother had challenged the  transfer  of  land
out of Survey No. 60/A and also for  partition  of  the  suit  property.  By
elaborate judgment and order, the suit filed by the appellants  was  decreed
to  the  extent  that  they  were  entitled  to  2/3rd  share  in  the  suit
properties. The court had also directed mesne profits. Till the date of  the
decree, it was contended by Anantdeo that he was in  possession  of  portion
of the suit land and the remaining portion was in possession  of  Malatibai,
in view of the sale deed in  her  favour.  It  has  also  been  specifically
contended that for some time, property was in possession  of  Baburao  prior
to marriage of Shakuntala Bai  and  then  in  possession  of  one  Pandurang
Saokar and lastly it was in possession of Malatibai and himself.  The  court
specifically arrived at the conclusion that Anantdeo was  in  possession  of
the suit property and the so-called  transfer  was  without  any  legal  and
family necessity as alleged and, therefore, the appellants were entitled  to
2/3rd share in the suit property. In the revenue records also, there  is  no
mutation in favour of Baburao. Further, the so-called compromise  decree  in
Civil Suit No. 288 of 1981 against Anantdeo and Malatibai would  not  confer
any title against the appellant.
10. Further, in a suit for partition where preliminary decree is passed,  at
the time of passing of the final decree it was not open  to  the  respondent
to raise the contention that he was a tenant of the suit  premises.  Section
97  CPC  specifically  provides  that  where  any  party  aggrieved  by  the
preliminary decree does not appeal from the said  decree,  he  is  precluded
from disputing its correctness in any appeal which  may  be  preferred  from
the final decree.”

      In view of the aforesaid, we find no force in the  submissions  raised
on behalf of the respondents based upon pattedar rights as  it  was  subject
to section 52 of T.P. Act and the same is hereby rejected.

(xi) In re : what is the effect of decision of this  Court  and  High  Court
with respect to final decree proceedings in  Item  No.  2  of  Schedule  ‘B’
property :

88.   With respect to item No.2 of Plaint ‘B’ schedule property one  Padmini
Co-operative Housing Society Ltd. filed an objection  in  the  final  decree
proceedings. The  trial  court  vide  order  dated  29.3.1996  rejected  the
objection which was preferred. First appeal preferred was also dismissed  by
a Single Judge on 23.4.1997. LPA No.104/1997 was filed which  was  dismissed
by a  Division  Bench  of  the  High  Court  on  20.11.1998.  Then  SLP  [C]
No.3558/1999 was filed in this Court which has been dismissed by a  speaking
order affirming the judgment and order passed by  the  executing  court  and
the High Court. A  perusal  of  the  judgment  of  the  High  Court  in  LPA
indicates that the High Court had held that in Mohammedan Law  there  is  no
recognition for a sale by a co-sharer of the  entire  estate  and  that  the
other co-sharers are not bound by such sale and said decision even  went  to
the extent of saying that even when the sale was meant for  discharging  the
debts of ancestor, whose property had devolved upon the  sharers,  the  said
sale without the consent of other co-sharers is invalid and does not  confer
any right on the purchaser with regard to such co-sharers who  do  not  join
the said sale. The decision has been  affirmed  by  this  Court  vide  order
dated 1.10.1999 in SLP [C] No.3558/1999. Following order was passed by  this
Court :
“After hearing arguments exhaustively for more  than  two  hours  and  after
considering the preliminary decree dated 24.11.70, the modified  preliminary
decree passed by the High Court, the Commissioner’s  report  dated  14.7.95,
final decree passed by the City Civil Court dated 11.2.96, the  judgment  of
the learned Single Judge dated 23.4.97, the judgment of the  Division  Bench
dated 24.11.93 and the other passed by the  High  Court  in  CRP.No.  700/94
dated 30.8.94 and after considering the various rulings of the Courts  cited
before us by the learned senior counsel on both sides, we are  not  inclined
to interfere with in SLP.  The SLP is dismissed.”

      At least on point of law the decision of this Court being  a  reasoned
order has relevance and the decision in the aforesaid matter  in  same  case
also supports the  view which has been taken by us on merits.

(xii) In re : whether there is waiver of right by appellants :
89.   It was also submitted that on behalf of the respondents that there  is
waiver of rights by the plaintiff and other heirs of Late  Nawab  Jung  with
respect to disputed property, and they cannot be permitted to approbate  and
reprobate. In Boddam Narsimha  (supra), stand was taken that  Bala  Mallaiah
was the pattedar, thus, they are bound  by  their  said  representation  and
cannot wriggle out  of  it.  They  have  relied  upon  the  decision  in  C.
Beepathuma v. Velasari Shankaranarayana Kadambolithaya AIR 1965  SC  241  on
the principle of approbate and reprobate as  also  the  decision  in  Mumbai
International Airport (P) Ltd. v. Golden Chariot Airport (2010) 10  SCC  422
in which it has been observed that the contesting respondent has  blown  hot
and cold by taking inconsistent stands which is not permissible.
90.   In fact, during the pendency of the partition  suit  with  respect  to
ancestral property of Late Nawab Jang, Hamid Ali Khan  –  defendant  No.1  –
had alienated the property treating it as his own whereas it  was  obviously
subject to the right of other co-shares finally declared in the  preliminary
decree. Bala Mallaiah and his successors  have  filed  several  proceedings,
civil suit of 1993 in which they have failed.  Boddam  Narsimha,  nephew  of
Bala Mallaiah also filed proceedings under the Act of 1950 for  issuance  of
ownership certificate by virtue of their being protected tenants which  case
was also dismissed. Thus, the stand which was taken by appellants under  the
protected Tenancy Act was not at all inconsistent  and  did  not  amount  to
approbation and reprobation on the part of the heirs  of  Late  Nawab  Jung.
Land grabbing proceedings were also instituted by LRs. of Bala Mallaiah  and
his brothers. The proceedings were dismissed and  W.P.  No.15577/2001  filed
before the High Court was also dismissed vide order dated  30.1.2002.  After
having lost in the aforesaid proceedings, belatedly the objection  had  been
preferred in the final decree proceedings  for  partition.  The  conduct  of
purchasers makes it clear that  they  instituted  multifarious  proceedings,
and took inconsistent stands which  were  not  accepted  by  this  Court  in
Boddam Narsimha (supra). The appellants or their predecessors had not  taken
inconsistent  stands.  They  were  clearly  protected  by  doctrine  of  lis
pendens.

(xiii) In re : whether appellants are guilty of delay or laches :
91.   It was also submitted that a preliminary decree recognized the  rights
of  the  transferees  to  be  adjudicated  at  the  time  of  final   decree
proceedings and no steps were taken by the legal heirs after passing of  the
preliminary decree way-back in 1970 to implead  them.  The  proceedings  for
final decree were initiated in the year 1984. The appellants have not  taken
prompt steps, as such they are not entitled  to  any  indulgence  from  this
Court. Reliance has been placed upon Municipal Council, Ahmednagar  v.  Shah
Hyder Beig (2000) 2 SCC 48 to contend that any delay  on  the  part  of  the
parties defeats the rights.

92.   We are  not  impressed  by  any  of  the  aforesaid  submissions.  The
preliminary decree passed in 1970 was clearly against the  interest  of  the
purchasers as their vendor was not found to have the rights  which  was  not
assailed by them. The preliminary decree attained finality in the year  1976
and proceedings for final decree taken in 1984 were  within  the  period  of
limitation. As a matter of fact, LRs. of Bala Mallaiah and his brother  etc.
took steps in the year 1993  and  onwards  by  filing  successive  cases  as
enumerated above.  There  was  no  delay  on  the  part  of  the  appellants
defeating their rights. It was the respondents who having lost in the  three
proceedings one after the other, raised objection in the year  2004  in  the
final decree proceedings. What prevented them from  doing  so  in  the  year
1993, has not at all been explained. Thus, it is they  who  are  responsible
to delay in the final decree proceedings in a partition case  instituted  in
the year 1935 and the matter is  still  pending  in  the  shape  of  instant
appeals before this Court.

(xiv) In re : the effect under the Urban Land Ceiling Act :
93.    It  was  also  submitted  that  under  the  Urban  Land  Ceiling  Act
proceedings, the land was not shown to be belonging to  the  heirs  of  Late
Nawab Jung. The orders passed in urban  land  ceiling  case  have  not  been
placed on record. That apart, it was stated that the proceedings lapsed  due
to repeal of Urban Land Ceiling Act. Be that as it may. The respondents  are
purchasers from branch of Bala Mallaiah whose  vendor  was  defendant  No.1.
The property has further exchanged hands. Since the  orders  have  not  been
placed on record, in the aforesaid factual scenario, we decline  to  examine
the  aforesaid  proposition  further  and  we  were  not  apprised  how  the
purchasers could claim a better  right  than  the  one  possessed  by  their
vendor. We leave it open to the State Government to examine the question  of
ceiling and effect of the decision.
94.   A compromise petition has been filed with respect to area 18 acres  25
guntas. As per the compromise the division  of  the  property  has  to  take
place between the appellants and the newly added respondent Nos.87  to  127.
Same was objected to by one of  heirs.  It  will  involve  transfer  of  the
property, hence, we leave the parties  to  have  resort  to  an  appropriate
remedy in this regard. It is found not to  be  recordable  in  the  form  of
transaction in which it has been filed.
95.   Resultantly, the appeals are allowed.  Impugned  judgment  and  decree
passed by the High Court is set aside. The final decree of the  Trial  Court
is restored.  Costs of Rs.1,00,000/- to  be  paid  within  two  months  from
today.



                                             …………………………J.
                                             (Arun Mishra)




New Delhi;                                   …………………...……..J.
March 21, 2017.                              (Amitava Roy)