Specific Relief Act, 1963: s.12 - Applicability of - Specific performance of contract - Agreement of sale of a house - Representation by vendor that he was absolute owner of the house - Receipt of advance money by vendor - Vendor's wife sought cancellation of agreement on the ground that the vendor was not absolute owner of the house and she owned half share in the house which, by virtue of s.14 of Hindu Succession Act, was received by her on death of her son - Suit for specific performance of contract by vendee - Held: Vendee cannot seek specific performance of contract of entire house, and decree for specific performance can be granted only to the extent of vendor's share in the house - The husband under such circumstances, in the absence of any express authority from the wife could not alienate or otherwise dispose of her Streedhana property - It was not a case of the performance of a part of the contract but the whole of the contract insofar as the vendor was concerned since he had agreed to sell the property in its entirety but it later turned out that vendor had only half share in the property and his wife held the remaining half - Thus, the agreement was not binding on the vendor's wife - s.12 was not applicable in facts of the case -s.41 of the Transfer of Property Act was also not applicable since it was not the case of the vendee that the vendor was the ostensible owner of the property - Right to invoke s.4 of the Partition Act also not available to the vendee - Transfer of Property Act, 1882 - s.41 - Partition Act, 1893 - s.4 - Hindu Succession Act, 1956 - s.14 - Contract. The original defendant no.1-vendor entered into an agreement of sale with the original plaintiff-vendee in respect of the suit house for a consideration of Rs.1 lac. The vendee paid Rs.10,000/- as advance and agreed to pay remaining consideration of Rs.90,000/- by 20.6.1984 whereupon sale deed was to be executed and registered. On 24.3.1984, the defendant no.2-vendor's wife sent a notice to the vendee as well as to the vendor calling upon them to cancel the agreement as she held half share in the property having devolved upon her on the death of her son. She also stated in the notice that she was not willing to sell her share and was ready to purchase the share of her husband-vendor. The vendee sent reply to her notice that the agreement was binding on her and notice given by her was in collusion with the vendor. His correspondence with the vendor failed and he filed the suit for specific performance of the agreement against the vendor and his wife. He prayed for a direction to them to execute the sale deed and in the alternative, he prayed for refund of the advance amount along with interest. The vendor and his wife filed separate written statements. The vendor admitted execution of agreement and receipt of advance amount of Rs. 10,000/-. The vendor further averred that he had one son, who had half share in the property; the son died intestate and after his death, his half share devolved upon his wife and, thus vendodr did not have absolute title to the property and, therefore, was unable to execute the sale deed. The trial court decreed the suit with a direction to the vendor and his wife to execute registered sale deed as per the terms of the sale agreement. Aggrieved, the vendor's wife filed appeal before the High Court. The High Court recorded the findings that the property was ancestral property in which the deceased son had half share on whose death that share devolved upon the vendor's wife; the vendee could not be said to have any knowledge that the vendor's wife had half share and in the absence of any express authority from his wife, the vendor could not alienate or otherwise dispose of her share in the property. The High Court finally held that the agreement of sale although covered the entire property but as the vendor had only half share and interest in the property, the decree for specific performance could only be granted to the extent of the vendor's share in the property. The instant appeals were filed by the legal representatives of the vendee and also by the vendor's wife challenging the order of the High Court. Dismissing the appeals, the Court HELD: 1. It was not in dispute that the agreement was an agreement of sale and there was concluded contract in this regard between the vendor and vendee. The vendor in his reply to the notice received from the vendee had not disputed the nature of the agreement. As a matter of fact, in view of the admitted position between the parties, particularly, the vendor and the vendee about the agreement, no issue was struck by the trial court in this regard nor any argument was advanced on behalf of the vendor before the trial court that the agreement was not an agreement of sale or that the same did not tantamount to concluded contract. Insofar as the vendor was concerned, he did not challenge the judgment passed by the trial court. It was only vendor's wife who filed appeal before the High Court. Even before the High Court, no plea was raised by the vendor's wife or the vendor that the agreement was not a concluded contract for sale of the property. [Paras 15, 16] [784-c; 785-C-e] 2. The finding of the two courts was divergent regarding question whether the property was ancestral property or not. The trial court held that the property was not the ancestral property but the High Court on re-appraisal of the evidence did not agree with that finding. The High Court concluded that under section 14 of the Hindu Succession Act, the share devolved upon the mother and it would become her Streedhana property. The husband under such circumstances, in the absence of any express authority from the wife, cannot alienate or otherwise dispose of her Streedhana property. The High Court correctly considered this aspect and there is no justifiable reason to take a view different from the High Court. [Para 17] [785-F; 786-B-C] 3. As regards applicability of Section 41 of the Transfer of Property Act, 1882, the High Court rightly observed that it was not even the case of the vendee that the vendor was the ostensible owner of the property and, therefore, Section 41 has no application. In view of the findings of the High Court, the conclusion that the vendee is not entitled to seek specific performance of the agreement to the extent of half share of vendor's wife cannot be faulted. [Para 18] [786-F, G] 4. As regards the question whether the agreement could be enforced against the vendor to the extent of his half share, the terms of the agreement would show that the vendor represented to the vendee that he was absolute owner of the property that fell to his share in the partition effected with his brothers and he did not have any male child. The vendor assured the vendee that excepting him none had got any right over the property and he would obtain the witness signatures of his daughters and get their voluntary consent letters in his favour. It is clear from the evidence that the vendee had no knowledge that vendor's wife had half share in the property which devolved upon her on the death of her son intestate. Section 12 of the Specific Relief Act, 1963 prohibits specific performance of a part of a contract except in the circumstances under sub-sections (2), (3) and (4). The circumstances mentioned in these sub-sections are exhaustive. Section 12 is not attracted in the facts and circumstances of the instant case. The instant case is not a case of the performance of a part of the contract but the whole of the contract insofar as the vendor is concerned, since he had agreed to sell the property in its entirety but it later turned out that the vendor had only half share in the property and his wife held the remaining half. The agreement is binding on the vendor as it is without being fractured. As regards him, there is neither segregation or separation of contract nor creation of a new contract. In the facts and circumstances, there was no impediment for enforcement of the agreement against the vendor to the extent of his half share in the property. [Paras 19, 21, 24] [786-H; 787-A, B; 788-F-H] Kartar Singh v. Harjinder Singh & Ors. (1990) 3 SCC 517; Manzoor Ahmed Magray v. Ghulam Hassan Aram & Ors. (1999) 7 SCC 703; Abdul Rashid Khan (Dead) & Ors. v. P.A.K.A. Shahul Hamid & Ors. (2000) 10 SCC 636 - relied on. HPA International v. Bhagwandas Fateh Chand Daswani & Ors. (2004) 6 SCC 537, distinguished. 5. The High Court rightly concluded that Section 4 of the Partition Act, 1893 was not attracted. It is only after the sale deed is executed in favour of the vendee that right under Section 4 of the Partition Act, 1893 may be available. Similarly, insofar as vendee is concerned, he has right to apply for partition of the property and get the share demarcated only after the sale deed is executed in his favour. Section 44 of the T.P. Act is also of no help to the case of vendor's wife. [Para 26] [797-F] Ghantesher Ghosh v. Madan Mohan Ghosh & Ors. (1996) 11 SCC 446; Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. (2005) 5 SCC 492; Shanmughasundaram & Ors. v. Diravia Nadar (Dead) By LRs. & Anr. (2005) 10 SCC 728, referred to. 6. The balance sale consideration of Rs. 90,000/- was deposited by the vendee on July 18, 1991 before the trial court and was lying there for more than 19 years. Therefore, there was no merit in the contention of the vendor's wife that it was not proved that vendee was ready and willing to purchase the property all along. The plea that the decree granted by the High Court would result in hardship since the vendor and vendor's wife are dead and their 10 daughters had been residing in the property was also not accepted since the facts do not constitute hardship justifying denial of decree for specific performance to the extent of vendor's half share in the property. [Paras 27, 28] [797-G; 798-D, E] Case Law Reference: (1990) 3 SCC 517 relied on Para 21 (1999) 7 SCC 703 relied on Para 22 (2000) 10 SCC 636 relied on Para 23 (2004) 6 SCC 537 distinguished Para 24 (1996) 11 SCC 446 referred to Para 25 (2005) 5 SCC 492 referred to Para 25 (2005) 10 SCC 728 referred to Para 25 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6088 of 2003. From the Judgment & Order dated 23.12.2002 of the High Cout of A.P. at Hyderabad in AN No. 287 of 1994. WITH C.A. No. 7265 of 2003. Sudha Gupta and A.T.M. Sampath for the appearing parties.

                                                          REPORTABLE




               IN THE SUPREME COURT OF INDIA


                 CIVIL APPELLATE JURISDICTION


                  CIVIL APPEAL NO. 6088 OF 2003




Kammana Sambamurthy (D) By  LRs.                            ...Appellants


                                 Versus



Kalipatnapu Atchutamma (D)  & Ors.                       ...Respondents




                                  WITH




                  CIVIL APPEAL NO. 7265 OF 2003





                             JUDGEMENT




R.M. Lodha, J.




             The   original   contesting   parties   are   dead.   They   are


now   represented   by   their   legal   representatives.   This   is   not


unusual when litigation goes on for more than 25 years.


2.           These two appeals, one   by the legal representatives


of   Kammana   Sambamurthy   (original   plaintiff)   and   the   other   by


legal   representatives   of     Kalipatnapu   Atchutamma   (original


defendant   no.   2)   are   directed   against   the   judgment   and   decree


dated   December   23,   2002   passed   by   the   High   Court   of


Judicature,   Andhra   Pradesh,   at   Hyderabad.     The   High   Court


modified the judgment and decree dated July 2, 1991 passed by


the   Subordinate   Judge,   Anakapalli   in   a   suit   for   specific


performance of the contract.   The husband of defendant no. 2 -


Kalipatnapu Kamaraju - was original defendant no. 1; he is also


dead.  For  convenience, we shall refer to the original plaintiff, `the


vendee'; the original defendant no. 1, `the vendor' and the original


defendant no. 2, `the vendor's wife'. The facts, as we find them,


are shortly as follow.


3.            On   February   19,   1984,   the   vendor   entered   into   an


agreement of sale (for short, `the agreement') with the vendee  in


respect of a tiled house consisting of six rooms, verandah, three


mulgis upstair portion consisting of one room, hall and verandah


inclusive   of   entire   area   pertaining   to   the   house   along   with   the


entire   vacant   site   situate   in   door   no.   9.118   bearing   assessment


116   at   village   Payakaraopet,   District   Visakhapatnam   (for   short,


`the property') for a consideration of Rs. 1,00,000/-.   The vendee





                                                                                 2


paid Rs. 10,000/- in advance and the remaining consideration of


Rs. 90,000/- was agreed to be paid at the time of execution and


registration   of   the   sale   deed.     The   vendor   in   the     agreement


represented   that   he   was   absolute   owner   of   the   property.     The


agreement  reads as follows :





       "       SALE AGREEMENT DATED 19-2-1984


       Absolute Sale Agreement for Rs. 100000/- (Rupees one

       lakh)   in   respect   of   the   immovable   property   i.e.   tiled

       house, building upon the tiled house inclusive of entire

       vacant   site   pertaining   to   the   house   got   executed   and

       delivered   on   19-2-84   in   favour   of   Kommana   Samba

       Murthy   S/o   Kommana   Adaiah   r/o   Namavaran   Village,

       Nekkapalli Tq. Visakhapatnam District.




       By


               Kalipatanapu            Kamaraju          s/o         Kalipatnapu

       Suryanarayana r/o Payakaraopet Village, Ditto Tq. Ditto

       District is as follows :-


       II.     As regards the property mentioned in para no. III in

       schedule hereunder wherein I have possessed absolute

       right   and   enjoyment   and   which   fell   to   my   share   in   the

       partition   effected   in   respect   of   immovable   property   with

       my  brothers   about  forty  years   back   and   ever   since  has

       been   in   my   possession   and   enjoyment   and   situated   in

       southern row of G.N.T. road of Payakaraopet village i.e.

       the   tiled   house,   six   rooms,   verandah,   3   mulgis   upstair

       portion   consisting   of   one   room,   hall   and   verandah

       inclusive of entire area pertaining to the house along with

       the   entire   vacant   site   there   of   belonging   to   me.   I   have

       settled   to   sell   the   same   to   you   for   the   reason   that   I

       attained old age and did not have any male children and




                                                                                       3


with intention to spend my rest of life with any one of my

daughters   and   thinking   that   it   is   better   to   augment   the

cash balances as you offered today higher price, then I

agreed there to and settled to sell the property to you.


Having   regard   for   a   sale   consideration   of   Rs.   100000/-

(Rupees one lakh only) this agreement of sale has been

executed   and   delivered   to   you.   Out   of   the   sale

consideration  you  have paid Rs. 10000/- as advance in

the   presence   of   undersigned   witnesses   at   the   time   of

execution   of   this   sale   agreement   and   the   same   was

received by me. Therefore starting from this date you are

requested   to   pay   by   20-6-84   the   balance   sale

consideration of Rs. 90000/- payable to me and shall get

the sale deed executed as per your plan on your name or

the  name chosen by you  on a proper  stamp  paper and

shall   get   the   same   registered   and   delivered   to   you   at

your   expense.   Having   assured   you   to   the   effect   that

excepting me, none have got any right over this property

and   having   proved   that   the   measurements,   boundaries

and circumstances in respect of the property are proper

and correct and that this property had not been subjected

to any alienation by way of mortgages etc. and that it is

an   undisputed   property   and   after   making   you   to   so

believe   this   sale   agreement   has   been   executed   and

delivered to you. The say situated on the rear side of the

house   i.e.   an   extent   of   3.9   feet   in   width   and   91   feet   in

length   happens   to   be   the   common   passage   to   this

property   and   also   to   Nudala   Chekeenam   Chokka   Rao.

As requested by you I shall obtain the witness signatures

of my daughters who are near to me and those who are

living   in   far   of   areas,   I   shall   get   their   voluntary   consent

letters in your favour.


III.     Situated   in   door   No.   9.118   bearing   assessment

116   a   tiled   house   consisting   of   six   rooms,   verandah,   3

mulgis,   upper   terrace   portion   consisting   of   a   room,   hall

and   verandah   together   with   entire   vacant   site   there   of

situated in southern row of G.N.T. road of Payakaraopet

village   and   which   has   been   included   in   Payakaraopet

grama panchayat limits in Nekkapalli Tq. Visakhapatnam

District and the boundaries whereof are as follows :-





                                                                                     4


       East    :      196   feet   vacant   site   belonging   to   Venkata

       Ramalinga Swamy and others


       South :        54   feet   houses   belonging   to   Nemmi

       Gouraiah and others


       West :         196 feet house, site belonging to Bekivalla

       Bapi Raju


       North :        37 feet, G.N.T. Road.


               The   house   and   vacant   site   comprising   within   the

       aforesaid   boundaries   has   been   sold   to   you.   This   is   the

       absolute sale agreement get executed and delivered with

       my consent."




4.             On March 24, 1984, the vendor's wife sent a notice to


the   vendee   as   well   as   vendor   calling   upon   them   to   cancel   the


agreement     as   she   held   half   share   in   the   property   having


devolved   upon   her   on   the   death   of   her   son   K.   Appala


Suryanarayana Murthy.  She stated in the notice that she was not


willing to sell her share and was ready to purchase the share of


the vendor (her husband).


5.             On March 28, 1984, the vendee replied to the notice


sent to him by the vendor's wife and asserted that the  agreement


was   binding   on   her   and   the   notice   has   been   given   in   collusion


with the vendor.





                                                                                    5


6.            On March 30, 1984, the vendee sent a notice to the


vendor calling upon him to receive the balance sale consideration


of Rs. 90,000/- from him and execute the sale deed along with his


wife (if she has any right in the property) as per the terms of the


agreement failing which he may be constrained to initiate action


for necessary reliefs.


7.            On   April   21,   1984,   the   vendor   sent   reply   to   the


vendee's notice dated March 30, 1984 informing him that he was


unable to execute sale deed in the vendee's favour and he may


take back sum of Rs. 10,000/- that was paid in advance.


8.            The vendee then filed a suit for  specific performance


of the agreement  against the  vendor and his wife.  He prayed for


a direction to them  to execute  sale deed as per the terms of the


agreement   and get it registered   after taking the remaining sale


consideration of Rs. 90,000/- and if they  fail to execute the same


as   per   the   directions   of   the   court,   then   court   may   execute   the


sale deed after the vendee deposits the balance sale price within


time allowed by the court. In the alternative, the vendee prayed


for refund of the advance amount along with interest.





                                                                                  6


9.            The   vendor   and   his   wife   filed   separate   written


statements.   The   vendor   admitted  execution   of     agreement     and


receipt  of  advance  amount  of Rs.  10,000/-.   The  vendor  averred


that he had one son,  K. Appala Suryanarayana Murthy who had


half share in the property;  he died intestate and after his death,


his  half share devolved upon his wife and thus he does not have


absolute title to the property and unable to execute the sale deed.


10.           The vendor's wife mainly set up the plea that her son


died intestate and she succeeded to his share; her husband is not


the absolute owner of the  property; she is not willing to part with


her   share   and   she   has   already   asked     her   husband   to   sell   his


share to her.


11.           The   Subordinate   Judge,   Anakapalli   in   light   of   the


pleadings   of   the   parties   framed     issues   and   after   recording   the


evidence and hearing the parties decreed the suit in the following


manner :


       "In the result, the suit is decreed with costs and with a

       direction   that   the   defendants   1   and   2   shall   execute

       registered   sale   deed   as   per   the   terms   of   the   sale

       agreement  dated 19-2-84 in favour of the plaintiff after

       taking   the  remaining   sale  consideration   of  Rs.   90000/-

       on or before 2-9-91 at the costs of the plaintiff and the

       plaintiff   is   hereby   directed   to   be   get   ready   with   the

       remaining   sale   consideration   by   Rs.   90000/-   and





                                                                                   7


       expenses   for   registration   on   or   before   3-9-1991   by

       informing the defendant for its registration......."




12.           The   vendor's   wife   being   not   satisfied   with   the


judgment   and   decree   dated   July   2,   1991   passed   by   the


Subordinate   Judge,   Anakapalli   preferred   first   appeal   before   the


High   Court.   The   High   Court   in   view   of   the   contentions   raised


before it formulated the following points for determination :


       "1)    Whether the suit house is  the  ancestral property

              of the first defendant?


       2)     Whether the suit house contract of sale binds the

              second defendant?


       3)     Whether the second defendant has got the right

              to purchase the half share of the first defendant?


       4)     Whether  the   suit contract  of  sale   is  not  voidable

              having   been   made   by   the   ostensible   owner,   the

              first  defendant  and   as  the  plaintiff   acted  in  good

              faith?


       5)     To what relief?"





13.           The High Court recorded the findings namely,  that on


the basis of the factual matrix and the evidence adduced by the


defendants, it was made out that the vendor and his wife had a


son   who   died   intestate   and   that     the   property   was       ancestral


property in which the deceased son had half share and that share




                                                                                 8


devolved  upon the vendor's wife;   the vendee cannot be said to


have any knowledge that the vendor's wife had half share and in


the   absence   of   any   express   authority   from   his   wife,   the   vendor


could   not   alienate   or   otherwise   dispose   of   her   share   in   the


property.  The  High  Court  did  not  accept  the  plea  of  the  vendee


that   vendor   had   implied   authority   or   that   vendor's   wife   was


estopped   from   raising   the   plea   that   the   agreement   did   not   bind


her.   The   High   Court   finally   held   that   the   agreement   of   sale


although covered the entire property  but as the vendor  had only


half   share   and   interest   in   the   property,     the   decree   for   specific


performance could only be granted to the extent of the vendor's


share in the property.  The High Court, accordingly,   allowed the


appeal preferred by vendor's wife to the extent of half share in the


property and the judgment and decree of the Subordinate Judge


was   confirmed   to   the   extent   of   half   share   of   the   vendor   in   the


property.


14.            We heard Mrs. Sudha Gupta, learned counsel for the


legal   representatives   of   the   vendee   and   Mr.   A.T.M.   Sampath,


learned counsel for the legal representatives of the vendor's wife.


15.            Mr. A.T.M. Sampath, learned counsel for the vendor's





                                                                                    9


wife   would   have   us   believe     that   the   agreement     is   not   an


agreement of sale but an invitation to offer as it is only signed by


the   vendor.     We   are   not   impressed.   That   the   agreement     is   an


agreement of sale  and there has been  concluded contract in this


regard   between   the   vendor   and   vendee   has   not   at   all   been     in


dispute. The vendor in his reply dated April 21, 1984  to the notice


received   from   the   vendee     did   not   dispute   the   nature   of   the


agreement.       In   the   plaint,   the   vendee   made   the   following


averment with regard to the agreement:





       ".......The   1st  defendant   offered   to   sell   the   plaint

       schedule house and site representing that he has got

       absolute title in them and that no others have got title

       in the said property. The plaintiff accepted to purchase

       the   property   after   making   due   inquiries.   After   mutual

       deliberations   the   plaintiff   offered   to   purchase   the   suit

       schedule   property   for   one   lakh   rupees.   The   first

       defendant   executed   sale   agreement   on   19-2-1984   in

       favour of the plaintiff, agreeing to sell the suit property

       to   plaintiff   for   the   said   sum   of   one   lakh   and   also

       agreeing to receive the balance of consideration on or

       before 20-6-1984 and to execute registered sale deed

       at the expense of the plaintiff in  favour of plaintiff or to

       his   order   and   also   undertaking   to   get   his   daughters

       and make them attest the sale deed. The plaintiff paid

       Rs. 10000/- (Rupees ten thousand only) as advance at

       the   time   of   the   said   sale   agreement.   The   first

       defendant   undertook   to   deliver   possession   of   the   suit

       schedule property on the date of sale deed......."





                                                                                  10


The   vendor   filed   written   statement   and   therein   he   admitted


execution of the  agreement  in the following words :





       ".....The averments that this defendant executed a sale

       agreement on 19-2-1984 in favour of plaintiff offering to

       sell the schedule house and site for a sale consideration

       of   Rs.   100000/-   (one   lakh)   agreeing   to   receive   the

       balance   of   sale   consideration   on   or   before   20-6-1984

       and   to   execute   a   sale   deed   at   the   expense   of   the

       plaintiff and that on the date of sale agreement received

       an   amount   of   Rs.   10000/-   towards   sale   consideration

       are true....."




16.            As   a   matter   of   fact,   in   view   of   the   admitted   position


between   the   parties,   particularly,   the   vendor   and   vendee   about


the   agreement,       no   issue   was   struck   by   the   trial   court   in   this


regard nor any argument was advanced on behalf of the vendor


before the trial court that the agreement  was not an agreement of


sale or that the same did not tantamount to concluded contract.


Insofar   as   vendor   is   concerned,   he   did   not   challenge   the


judgment   and   decree   passed   by   the   trial   court.   It   was   only


vendor's   wife   who   filed   appeal   being   not   satisfied   with   the


judgment   and   decree   dated   July   2,   1991   passed   by   the


Subordinate Judge before the High Court. Even before the High


Court, no plea was raised by the vendor's wife or  the vendor that




                                                                                     11


the   agreement     is   not   a   concluded   contract   for   sale   of   the


property.   The   submission     of   Mr.   A.T.M.   Sampath   that   the


agreement is not  an agreement of sale but an invitation to offer is


afterthought and does not merit further consideration.


17.            As   to   whether   the   property   is     ancestral   property   or


not, the finding of the two courts is divergent.  The trial court held


that   the   property   was   not   the   ancestral   property   but   the   High


Court   on   reappraisal   of   the   evidence   did   not   agree   with   that


finding. The High Court considered the matter thus :


       ".......Whatever   may   be   the   reason   behind   in   getting

       Ex.A2   notice   issued   while   seeking   to   avoid   Ex.A2

       transaction, the legal position cannot be doubted that half

       share  in  the  suit  house  was   devolved  upon  the  second

       defendant on account of the death of her son, in as much

       as by birth, the son got half share along with his father in

       the ancestral property and the mother succeeded to the

       same as Class I heir. It is also clear that under section 14

       of   the   Hindu   Succession   Act,   the   share   devolved   upon

       the mother would become the Streedhana property. The

       husband   under   such   circumstances,   in   the   absence   of

       any   express   authority   from   the   wife   cannot   alienate   or

       otherwise   dispose   of   the   Streedhana   property   of   his

       wife......."




In our view, the High Court has considered this aspect in the right


perspective   and   we   find   no   justifiable   reason   to   take   a   view


different from the High Court.





                                                                                  12


18.           Having regard to the conclusion that the vendor's wife


has got half share in the property and that she is not executant to


the   agreement,   what   needs   to   be   considered   is,   whether   the


agreement       binds   the   vendor's   wife.   According   to   vendee,   the


vendor   had   implied   authority   to   enter   into   agreement     of   the


property   and   the   vendor's   wife   was   clearly   aware   of   that


agreement and, therefore, she is estopped from raising the plea


that   she   is   not   bound   by   that   agreement.   The   High   Court


considered  the  evidence  on  record  and  held  that   no  express   or


implied   authority   by   the   wife   in   favour   of   her   husband   is


discernible   from   the   facts   and   evidence.   We   agree.   As   regards


applicability  of  Section   41   of  the  Transfer  of   Property   Act,   1882


(T.P. Act), the High Court observed that it was not even the case


of   the   vendee   that   the   vendor   was   the   ostensible   owner   of   the


property and, therefore, Section 41 has no application. We think


that High Court is right and in view of the aforenoticed findings of


the High Court, the conclusion that vendee is not entitled to seek


specific performance of the agreement to the extent of half share


of vendor's wife cannot be faulted.





                                                                                13


19.            The   crucial   question   in   the   case   is   whether   the


agreement  could be enforced against the vendor to the extent of


his half share in the property. The terms of the agreement show


that the vendor represented to the vendee that he was absolute


owner of the property that fell to his share in the partition effected


with his brothers and he did not have any male child. The vendor


assured   the   vendee   that   excepting   him   none   has   got   any   right


over the property and he would obtain the witness signatures of


his daughters and get their voluntary consent letters in his favour.


It is clear from the evidence that the vendee had no knowledge


that vendor's wife has half share in the property which devolved


upon her on the death of her son intestate.


20.            Section   12   of   the   Specific  Relief   Act,  1963  reads   as


follows :


       "S.-  12. Specific performance of part of contract.-


       (1)  Except   as   otherwise   hereinafter   provided   in   this

       section,   the   court   shall   not   direct   the   specific

       performance of a part of a contract.


       (2) Where a party to a contract is unable to perform the

       whole   of   his   part   of   it,   but   the   part   which   must   be   left

       unperformed by only a small proportion to the whole in

       value and admits of compensation in money,  the court

       may,   at   the   suit   of   either   party,   direct   the   specific

       performance   of   so   much   of   the   contract   as   can   be





                                                                                            14


       performed,   and   award   compensation   in   money   for   the

       deficiency.


       (3) Where a party to a contract is unable to perform the

       whole  of his part  of it, and the part which  must  be left

       unperformed either-


       (a)  forms   a   considerable   part   of   the   whole,   though

       admitting of compensation in money; or


       (b) does not admit of compensation in money;


       he   is   not   entitled   to   obtain   a   decree   for   specific

       performance; but the court may, at the suit of the other

       party,   direct   the   party   in   default   to   perform   specifically

       so much of his part of the contract as he can perform, if

       the other party-


       (i)  in a case falling  under clause (a), pays  or has  paid

       the   agreed   consideration   for   the   whole   of   the   contract

       reduced by the consideration for the part which must be

       left   unperformed   and   a   case   falling   under   clause   (b),

       pays or had paid the consideration for the whole of the

       contract without any abatement; and


       (ii)  in   either   case,   relinquishes   all   claims   to   the

       performance of the remaining part of the contract and all

       right to compensation, either for the deficiency or for the

       loss or damage sustained by him through the default of

       the defendant.


       (4) When a part of a contract which, taken by itself, can

       and   ought   to   be   specifically   performed,   stands   on   a

       separate  and independent  footing from  another part  of

       the   same   contract   which   cannot   or   ought   not   to   be

       specifically   performed,   the   court   may   direct   specific

       performance of the former part."




21.            Section 12 prohibits specific performance of a part of


a contract except in the circumstances under sub-sections (2), (3)




                                                                                      15


and (4). The circumstances mentioned in these sub-sections are


exhaustive. Is Section 12 attracted in the facts and circumstances


of the present case? We do not think so. The present case is not


a case of the performance of a part of the contract but the whole


of the contract insofar as the vendor is concerned since he had


agreed to sell the property in its entirety but it later turned out that


vendor had only half share in the property and his wife held the


remaining   half.  The  agreement  is  binding  on  the  vendor as  it  is


without   being   fractured.   As   regards   him,   there   is   neither


segregation   or   separation   of   contract   nor   creation   of   a   new


contract.   In  Kartar   Singh  v.  Harjinder   Singh   &   Ors.1,   this   Court


was   concerned  with a case where   vendor--brother  and  a  sister


had each half share in the suit properties. The agreement for the


sale was executed by the brother concerning the suit properties in


which the sister had half share. The sister was not executant to


the agreement; rather she refused to accept the agreement. The


question   for   consideration   before   this   Court   was   whether


agreement could be enforced against the vendor--brother to the


extent   of   his   half   share.   This   Court   considered   Section   12   and


held as under :


1 (1990) 3 SCC 517




                                                                               16


        "5. We are, therefore, of the view that this is not a case

        which   is   covered   by   Section   12   of   the   Act.   It   is   clear

        from   Section   12   that   it   relates   to   the   specific

        performance of a part of a contract. The present is not a

        case of the performance of a part of the contract but of

        the whole of the contract so far as the contracting party,

        namely,   the   respondent   is   concerned.   Under   the

        agreement,   he   had   contracted   to   sell   whole   of   his

        property. The two contracts, viz. for the sale of his share

        and   of   his   sister's   share   were   separate   and   were

        severable   from   each   other   although   they   were

        incorporated   in   one   agreement.   In   fact,   there   was   no

        contract   between   the   appellant   and   the   respondent's

        sister and the only valid contract was with respondent in

        respect of his share in the property.


        6.  As   regards   the   difficulty   pointed   out   by   the   High

        Court, namely,  that the decree of specific performance

        cannot   be   granted   since   the   property   will   have   to   be

        partitioned,   we   are   of   the   view   that   this   is   not   a   legal

        difficulty. Whenever a share in the property is sold the

        vendee   has   a   right   to   apply   for   the   partition   of   the

        property and get the share demarcated. We also do not

        see   any   difficulty   in   granting   specific   performance

        merely because the properties are scattered at different

        places.   There   is   no   law   that   the   properties   to   be   sold

        must   be   situated   at   one   place.   As   regards   the

        apportionment   of   consideration,   since   admittedly   the

        appellant and respondent's sister each have half share

        in   the   properties,   the   consideration   can   easily   be

        reduced by 50 per cent which is what the first appellate

        court has rightly done."




22.             Kartar   Singh1  has   been   followed   by   this   Court   in


Manzoor   Ahmed   Magray  v.  Ghulam   Hassan   Aram   &   Ors2.   In


Manzoor Ahmed Magray2, this Court considered the matter in the


context of Section 15 of J & K Specific Relief Act, 1977 which is


2 (1999) 7 SCC 703




                                                                                           17


pari materia to Section 12 of Specific Relief Act, 1963. This Court


said :


          ".......Hence, there is no bar for passing the decree for

          specific relief with regard to 1/3rd or 2/3rds share owned

          by   the   contracting   party   for   which   he   can   execute   the

          sale deed. For the share of Ghulam Rasool (brother of

          Defendant   1)   admittedly,   no   decree   is   passed   by   the

          High   Court.   Dealing   with   the   similar   contention   where

          agreement   was   for   sale   of   property   belonging   to   a

          brother and sister each having a half share, the Court in

          Kartar   Singh  v.  Harjinder   Singh  held   that   when   the

          absentee vendor, for some reason or the other refused

          to   accept   the   agreement,   there   is   no   reason   why   the

          agreement   should   not   be   enforced   against   the   vendor

          who   had   signed   and   his   property   is   identifiable   by

          specific share. The Court further held that such case is

          not   covered   by   Section   12   of   the   Specific   Relief   Act,

          1963 which relates to specific performance of a part of a

          contract.   Such   type   of   case   would   be   the   case   of

          specific performance of the whole of the contract so far

          as   the   contracting   party   is   concerned.   Further,

          whenever a share in the property is sold the vendee has

          the right to apply for the partition of the property and get

          the   share   demarcated.   Hence   there   would   not   be   any

          difficulty in granting specific performance of the contract

          to the extent to which it is binding between the parties."




23.              In the case of A. Abdul Rashid Khan (Dead) & Ors.  v.


P.A.K.A. Shahul Hamid & Ors.3,  this Court held that even where


any property is held jointly and once any party to the contract has


agreed to sell such joint property by agreement, then, even if the


other co-sharer has not joined, at least to the extent of his share,


the party to the contract is bound to execute the sale deed. In that

3 (2000) 10 SCC 636




                                                                                      18


case, the suit property originally belonged to one Aziz Khan. On


his   death,   his   heirs   under   the   Muslim   law--nine   sons   and   two


daughters   inherited   that   property.   The   sons   agreed   to   sell   that


property   to   the   first   respondent   therein.   However,   some   dispute


arose   between   the   parties   and   that   necessitated   the   first


respondent     therein   to   file   the   suit   for   specific   performance   in


which   the   executants   of   the   agreement   as   well   as   the   two


daughters   of   Aziz   Khan   were  impleaded   as   defendants.     It   was


admitted case that the daughters of Aziz Khan had not joined in


the   agreement   of   sale.   The   trial   court   dismissed   the   suit   by


holding   that   the   agreement   was   indivisible   and   could   only   be


enforced   if   the   daughters   of   Aziz   Khan   agreed.   The   first


respondent   therein   preferred   an   appeal   before   the   High   Court


against the judgment and decree of the trial court. The High Court


held   that   he   had   not   pleaded   and   proved   that   the   daughters   of


Aziz   Khan   had   agreed   to   sell   the   suit   property   and   hence,   it


cannot   be   held   that   the   said   agreement   was   by   all   the   heirs   of


Aziz Khan. The two daughters of Aziz Khan were held not bound


by the agreement. However, the High Court held that insofar as


the   executants   of   the   agreement   (sons   of   Aziz   Khan)   were





                                                                                   19


concerned   they   were   bound   by   it   and   valid   and   enforceable


contract   existed   between   the   first   respondent   and   the   sons   of


Aziz   Khan.   The   High   Court,   accordingly,   granted   decree   for


specific   performance   to   the   extent   of   5/6th  shares   which   Aziz


Khan's sons had in the property. This Court affirmed the decree


of  the High  Court  and  it  was  held  that  plaintiff's  suit  for  specific


performance   to   the   extent   of   5/6th  share   was   rightly   decreed   by


the High Court warranting no interference. While holding so, this


Court relied upon earlier decision in the case of Manzoor Ahmed


Magray2.


24.             In  view  of  the  above  decisions  of  this  Court  and  the


facts and circumstances which have already been noticed by us,


in   our   opinion,   there   is   no   impediment   for   enforcement   of   the


agreement   against the vendor to the extent of his half share in


the property. However, Mr. A.T.M. Sampath, learned counsel for


the vendor's wife placed great reliance upon HPA International v.


Bhagwandas Fateh Chand Daswani & Ors.4 and, particularly, the


following paragraphs of the report.


       "67.  If   the   vendee   intended   to   seek   conveyance

       separately  of   the   life   interest  of   the   vendor,  the  earliest

       opportunity   for   him   was   when   he   had   received   notice


4 (2004) 6 SCC 537




                                                                                     20


dated 11-9-1979 sent through the lawyer  by the vendor

cancelling   the   contract.   Assuming   that   at   that   time   he

could not opt for lesser relief as the suit for sanction was

pending,   he   could   have,   in   any   case,   opted   for

conveyance   of   life   interest   of   the   vendor   soon   after   he

came   to   know   of   the   negotiations   for   sale   with   Bob

Daswani, which took place in the presence of one of the

partners   of   the   plaintiff   vendee.   Even   after   deriving   the

knowledge   of   the   execution   of   the   sale   deed   dated   29-

12-1979   Ext.   D-1,   the   option   to   obtain   lesser   relief   of

transfer   of   life   interest   was   not   exercised.   It   was

exercised as late as on 25-11-1986 by filing an affidavit

and   at   the   time   when   pleadings   of   the   parties   were

completed and the joint trial in the two suits had already

commenced. During long pendency of the suits between

1979   to   1986,   the   parties   interested   in   the   property

changed   their   positions.   The   vendor   by   executing   a

registered sale deed in favour of the subsequent vendee

got   his   public   dues   paid   to   relieve   the   pressure   on   the

property and obtained market price of the property. After

obtaining possession of the property pursuant to the sale

deed,   the   subsequent   vendee   has   raised   construction

and   inducted   tenants.   Accepting   the   legal   stand   based

on Sections 90, 91 and 92 of the Indian Trusts Act that

the   subsequent   vendee,   being   a   purchaser   with

knowledge of prior agreement, is holding the property as

a trustee for the benefit of the prior vendee, the vendor,

who changed his position by effecting a subsequent sale

cannot   be   compelled   to   convey   his   life   interest   when

such   lesser   relief   was   not   claimed   at   the   earliest

opportunity   and   the   terms   of   the   contract   did   not

contemplate transfer of life interest alone."


98.     The   above   argument   has   no   merit   and   the

aforesaid   decision   is   hardly   of   any   help   to   the   vendee.

This   is   not   a   case   where   the   vendor   had   only   right   of

spes   successionis   and   after   execution   of   agreement   of

sale,   he   subsequently   acquired   full   interest   in   the

property to be held bound by Section 43 of the Transfer

of Property Act.   In the case before us, the reversioners

were not parties to the agreement of sale.   When in the

suit for sanction to transfer their interest they were made

parties and were noticed, they expressly objected to the



                                                                                21


      proposed transfer.  No principle of estoppel or provisions

      of   Section   43   of   the   Transfer   of   Property   Act   can,

      therefore,   operate   against   them.     So   far   as   the

      subsequent   vendee   is   concerned,   in   the   course   of   suit,

      he was pushed to a position in which he could not take a

      stand that he had no knowledge of the prior agreement

      with   the   vendee   but   he   has   separately   purchased   life

      interest   from   the   vendor  and  obtained  separate  release

      deeds,   on   payment   of   consideration,   from   the

      reversioners.    The  reversioners being not  parties to the

      sale   agreement,   Ext.   P-1   entered   into   with   the   vendee,

      the latter could not enforce the contract, Ext. P-1 against

      the former."




It   is   sufficient   to   say   that   the   agreement   of   sale   and   the   facts


which   their   Lordships   had   to   consider   in   the   case   of  HPA


International4 were in many respects different from the agreement


in the present case. In that case vide agreement of sale (Exhibit


P1)   therein,   full   interest   in   the   property,   i.e.   life   interest   of   the


vendor and spes successionis of reversioners with sanction of the


court was agreed to be sold. The reversioners were not parties to


the   sale   agreement   that   was   entered   with   the   vendee   therein.


The parties were conscious that the vendor had only life interest


in   the   property   and   he   could   not   convey   more   than   his   own


interest.   The court found that vendee entered into a speculative


deal for obtaining full interest in the property depending upon the


sanction   to   be   granted   by   the   court.   In   the   backdrop   of   these





                                                                                        22


facts,   this   Court   observed   in   paragraphs   68,   69   and   70   of   the


report thus :


       "68.  On   duly   appreciating   the   evidence   on   record,

       construing   specific   terms   of   the   contract   and

       considering the conduct of the parties, we have arrived

       at the conclusion that the rescission of the contract, due

       to  non-grant of  sanction  by the   Court  within  two years

       after  execution  of  the  contract and  filing  of the  suit for

       sanction,   was   not   an   act   of   breach   of   contract   on   the

       part   of   the   vendor   to   justify   grant   of   relief   of   specific

       performance of the contract to the prior vendee.


       69. We are also of the view that the plaintiff vendee, by

       his   own   act   in   the   pending   suits,   was   responsible   for

       rendering   the   suit   for   sanction   as   infructuous.   He   was

       guilty of lapse in not seeking conveyance of life interest

       of the vendor at the earliest opportunity when notice of

       rescission of the contract was received by him and later

       when   he   derived   the   knowledge   of   execution   of

       registered   sale   deed   in   favour   of   the   subsequent

       vendee.   The   option   was   exercised   conditionally   in   the

       midst of the joint trial of the two suits.


       70. There was one integrated and indivisible contract by

       the vendor to convey full interest in the property i.e. his

       own life interest and the interest of the reversioners with

       sanction of the Court. As the Court had not granted the

       sanction, the contract could not be specifically enforced.

       The   lesser   relief   of   transfer   of   life   interest   was   not

       claimed  within   a  reasonable   time   after   the   vendor  had

       intimated   that   the   contract,   as   agreed   for   full   interest,

       was   not   possible   of   performance.   We  find   that   neither

       equity nor law is in favour of the plaintiff vendee."




The   Court   further   observed   in   paragraph   100   of   the   report   as


follows :





                                                                                         23


       "100. In the case before us, we have not found that the

       vendor   was   guilty   of   rendering   the   suit   for   sanction

       infructuous. It did terminate the contract pending the suit

       for   sanction   but   never   withdrew   that   suit.   The   vendee

       himself prosecuted it and rendered it infructuous by his

       own   filing   of   an   affidavit   giving   up   his   claim   for   the

       interest   of   reversioners.   In   such   a   situation   where   the

       vendor was not in any manner guilty of not obtaining the

       sanction   and   the   clause   of   the   contract   requiring   the

       Court's sanction for conveyance of full interest, being for

       the   benefit   of   both   the   parties,   the   contract   had   been

       rendered   unenforceable   with   the   dismissal   of   the

       sanction suit."




HPA   International4  ,   thus,   have   no   considerable   bearing   on   the


case in hand.


25.            Mr.   A.T.M.   Sampath,   learned   counsel   for   vendor's


wife   also   argued   that   she   had   offered   as   joint   owner   to   the


undivided   entire   property   to   purchase   the   half   share   of   her


husband   under   the   Partition   Act,   1893     and   Hindu   Succession


Act, 1956. He would submit that at the earliest point of time both


in a notice as well as in the written statement she has raised the


plea  of pre-emption  to  buy her  husband's   share   and  demanded


the vendee as well as her husband to sell undivided half share to


her.  In  this  regard,  he  further  submitted     that  the  property is  an


undivided dwelling house and the court should not grant specific


performance against the co-owners of the family dwelling house.





                                                                                      24


He   relied   upon  Ghantesher   Ghosh  v.  Madan   Mohan   Ghosh   &


Ors.5,  Pramod   Kumar   Jaiswal   and   Ors.  v.  Bibi   Husn   Bano   and


Ors.6  and  Shanmughasundaram & Ors.  v.  Diravia Nadar (Dead)


By LRs. & Anr.7.


26.             The   above   submission     was   also   canvassed   before


the   High   Court.   The   High   Court   considered   this   aspect   in   the


following manner :


        "It   is   too   premature   for   the   defendant   to   have   invoked

        the   provisions   of   section   4   of   the   Partition   Act.   The

        plaintiff's   right   has   not   been   crystallized   yet   and   he

        cannot at this stage be considered as a purchaser of the

        undivided   interest   of   the   first   defendant.   In   order   to

        validly invoke section 4 of the Partition Act, the following

        five conditions have to be satisfied :


        1.      A  co-owner  having undivided  share in the family

        dwelling   house   should   effect   transfer   of   his   undivided

        interest therein;


        2.      The   transferee   of   such   undivided   interest   of   co-

        owner should an outsider or stranger to the family;


        3.      Such   transferee   much   sue   for   partition   and

        separate possession of the undivided share transferred

        to him by the co-owner concerned;


        4.      As   against   such   a   claim   of   the   stranger

        transferee, any member of the family having undivided

        share in the dwelling house should put forward his claim

        of   preemption   by   undertaking   to   buy   out   the   share   of

        such transferee and;




5 (1996) 11 SCC 446

6 (2005) 5 SCC 492

7 (2005) 10 SCC 728




                                                                                     25


       5.      While   accepting   such   a   claim   for   preemption   by

       the existing co-owners of the dwelling house belonging

       to   the   undivided   family,   the   Court   should   make   a

       valuation   of   the   transferred   share   belonging   to   the

       stranger   transferee   and   made   the   claimant   co-owner

       pay   the   value   of   the   share   of   the   transferee   so   as   to

       enable   the   claimant   co-owner   to   purchase   by   way   of

       pre-emption and said transferred share of the stranger

       transferee   in   the   dwelling   house   belonging   to   the

       undivided   family   so   that   the   stranger-transferee   can

       have   no   more   claim   left   for   partition   and   separate

       possession   of   his   share   in   the   dwelling   house   and

       accordingly can he effectively deny entry in any part of

       such family dwelling house.


               The   whole   object   seems   to   be   to   preserve   the

       privacy   of   the   family   members   by   not   allowing   a

       stranger to enter in a part of the family dwelling house.

       Such   is   not   the   situation   obtaining   in   this   case   having

       regard to the context. I am reinforced in my above view

       by   the   judgment   of   the   Apex   Court   in   Babulal   V.

       Habibnoor   Khan,   2000   (5)   SCC   662.   The   apex   Court

       placing reliance upon its earlier judgment in Ghantesher

       Ghosh   V.   Madan   Mohan   Ghosh,   1996   (11)   SCC   446

       reiterated the five essential requisites. For the foregoing

       reasons, the contention of the learned counsel merits no

       consideration."  




In   our   opinion,   the   High   Court   has   rightly   concluded   that   at   the


present stage, Section 4 of the Partition Act, 1893 is not attracted.


It is only after the sale deed is executed in favour of the vendee


that   right   under   Section   4   of   the   Partition   Act,   1893     may   be


available. Similarly, insofar as vendee is concerned, he has right


to apply for partition of the property and get the share demarcated





                                                                                       26


only after sale deed is executed in his favour.   Section 44 of the


T.P. Act is also  of no help to the case of vendor's wife.


27.           There   are   two   other   points   raised   by   Mr.   A.T.M.


Sampath.  Learned counsel for the vendor's wife would  contend


that   it   has   not   been   proved   that   vendee   has   been     ready   and


willing   to   purchase   the   property   all   along;     the   vendee   did   not


produce passbook showing that  he had sufficient funds and the


vendee   did   not   deposit   the   remaining   consideration   of   Rs.


90,000/-     within  three   months   of   the  decree   granted   by   the   trial


court.   The   argument   of   Mr.   A.T.M.   Sampath   has   no   merit   at   all


and   seems   to   have   been   raised   in   desperation.   As   a   matter   of


fact, as early as on March 30, 1984, the vendee sent a notice to


the   vendor   calling   upon   him   to   receive   the   balance   sale


consideration   of   Rs.   90,000/-   from   him   and   execute   the   sale


deed. In the plaint, a specific averment with regard to readiness


and   willingness   has   been   made   by   the   vendee   which   was   not


even   controverted   by   the   vendor   in   the   written   statement.   No


such   issue   has   been   raised   nor   it   was   pressed   by   the   vendor


before the trial court. Even the vendor's wife in the appeal before


the High Court did not raise any argument in this regard.   At the





                                                                                 27


time   of   hearing   of   these   appeals,     we   were   informed   by   the


counsel for the vendee that the balance sale consideration of Rs.


90,000/- has been deposited by the vendee on July 18, 1991 vide


T.R.  Challan No. 1159 before the trial court  and has been lying


there   for   more   than   19   years.   This   argument   of   Mr.   A.T.M.


Sampath  is, therefore, rejected.


28.           The other point  argued by Mr. A.T.M. Sampath is that


the   decree   granted   by   the   High   Court   would   result   in   hardship


since   the   vendor   and   vendor's   wife   are   dead   and   their   10


daughters are residing in the property. We are afraid these facts


hardly  constitute  hardship   justifying   denial   of   decree   for   specific


performance to the extent of vendor's half share in the property.


29.           In all fairness to Mr. A.T.M. Sampath, it must be said


that   he   cited   some   English   decisions   but,   in   our   view,   these


decisions have no bearing at all in the present case and it is for


this reason that we have not burdened this judgment by referring


to those decisions.


30.           In view of the above, we agree that the decision of the


High Court is right and, consequently, both the appeals must be


dismissed and are dismissed with no order as to costs.





                                                                              28


                                                .....................J.

                                                   (P. Sathasivam)





                                                         .................... J.

                                                  (R.M. Lodha)

NEW DELHI,

OCTOBER 8, 2010





                                                                   29

Indian Limitation Act, 1963: Adverse possession--Claim of Among co-heirs there must be evidence of an essertion of hostile title coupled with possession and enjoyment Mohd. Zainulabdeen and Yasin By filed a suit for decla- ration that they were entitled to be in enjoyment and pos- session of Saint Syeed Moosa Shah Khadiri Dargah in Madras for 27 days and to restrain the defendants from interfering with tile plaintiffs' aforesaid right and management in the Dargah. In reply the defendant No. 1 alleged that in the manage- ment of the Dargah, female members had no right nor could they claim the right of Mujawar. It was also alleged that Fathima Bee through whom the Plaintiffs were claiming never enjoyed the right to Hundial collection of the Dargah and share in the Mujawarship and even if she had any right the same was lost as she did not claim any right till her death and therefore the Plaintiffs were also not entitled to any relief. Defendants 7, 8 and 10 however in their written statements admitted family members to be sharer in the income and management of the Dargah and they also admitted that they were paying such share to their sister Ahamadun- nissa (10th defendant) in the Hundial collections and that the City Civil Court in suit No. 7518 of 1971 had also recognised the right of 7th defendant Anser Bi to management of the Dargah for 9 days in a year. Thus it was false to contend that the females were not entitled to claim manage- ment. The trial court decreed the suit of the Plaintiffs and held that they were entitled to manage the Dargah 1or 27 days in a year. Defendants 3 to 6 and 12 to 19 filed appeals against the judgment of the trial court.The City Civil Judge, however, affirmed the judgment of the Trial Court with some modifications in the relief. Different sets of defendant filed two second appeals before the High Court and both were disposed of by the High Court by its judgment and Order dated 17th November, 1981 whereby it reversed the 520 judgments and decrees of the courts below and dismissed the suit filed by the Plaintiffs. This Court came to the conclusion that there is no controversy as regards the period of 27 days falling to the share of the Plaintiffs and the right of the females to the management of the Dargah according to Muslim law. As regards the question of right of Fathima Bee having become barred by limitation by ouster and that as such the Plaintiffs too had lost that right, this Court, while setting aside the Judg- ment and Decree of the High Court and restoring that of the Trial Court as modified by the First Appellate Court, HELD: It iS well settled that where one co-heir pleads adverse possession against another co-heir it is not enough to show that one out of them was in sole possession and enjoyment of the profits of the properties. The possession of one co-heir is considered in law as possession of all the co-heirs. The co-heir in possession cannot render his pos- session adverse to the other co-heirs not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. [526G-H; 527A] It is a settled rule of law as between co-heirs that there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to construe ouster. [527A] The High Court in the instant case committed a serious error in reversing the finding of the lower Appellate Court and in taking a wrong approach in holding ouster on the basis of the judgment and decree given in Suit No. 116 of 1909 and on the ground that Fathima Bee had not made a demand or asked for her share of the hundial collections at any point of time till her death in 1957. [527G] P. Lakshmi v.L. Lakshmi Reddy, [1957] SCR 195, referred to. 1990 AIR 507, 1989( 2 )Suppl.SCR 519, 1990( 1 )SCC 345, 1989( 2 )SCALE1381, 1989( 4 )JT 563

PETITIONER:
MOHD. ZAINULABUDEEN (SINCE DECEASED) BY L.RS.

Vs.

RESPONDENT:
SAYED AHMED MOHINDEEN AND ORS.

DATE OF JUDGMENT15/12/1989

BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
SINGH, K.N. (J)

CITATION:
 1990 AIR  507  1989 SCR  Supl. (2) 519
 1990 SCC  (1) 345  JT 1989 (4) 563
 1989 SCALE  (2)1381


ACT:
    Indian Limitation Act,  1963: Adverse  possession--Claim
of Among co-heirs there must be evidence of an essertion  of
hostile title coupled with possession and enjoyment



HEADNOTE:
    Mohd. Zainulabdeen and Yasin By filed a suit for  decla-
ration that they were entitled to be in enjoyment and pos-
session of Saint Syeed Moosa Shah Khadiri Dargah in  Madras
for 27 days and to restrain the defendants from interfering
with tile plaintiffs' aforesaid right and management in the
Dargah.
    In reply the defendant No. 1 alleged that in the manage-
ment  of the Dargah, female members had no right  nor  could
they  claim the right of Mujawar. It was also  alleged that
Fathima Bee through whom the Plaintiffs were claiming  never
enjoyed the right to Hundial collection of the Dargah and
share  in the Mujawarship and even if she had any right the
same was lost as she did not claim any right till her  death
and  therefore the Plaintiffs were also not entitled to any
relief. Defendants  7, 8 and 10 however  in  their  written
statements  admitted  family  members to be  sharer  in the
income and management of the Dargah and they also  admitted
that  they were paying such share to their sister  Ahamadun-
nissa  (10th defendant) in the Hundial collections and that
the  City  Civil  Court in suit No. 7518 of  1971  had also
recognised the right of 7th defendant Anser Bi to management
of  the Dargah for 9 days in a year. Thus it was  false  to
contend that the females were not entitled to claim  manage-
ment.
    The trial court decreed the suit of the Plaintiffs and
held  that  they were entitled to manage the Dargah  1or  27
days in a year. Defendants 3 to 6 and 12 to 19 filed appeals
against the  judgment of the trial  court.The City  Civil
Judge, however,  affirmed the judgment of the Trial  Court
with some modifications in the relief.
    Different  sets  of defendant filed two  second  appeals
before the High Court and both were disposed of by the High
Court  by its judgment and Order dated 17th  November, 1981
whereby it reversed the
520
judgments and decrees of the courts below and dismissed the
suit filed by the Plaintiffs.
    This  Court came  to the conclusion that  there  is  no
controversy as regards the period of 27 days falling to the
share of the Plaintiffs and the right of the females to the
management of the Dargah according to Muslim law. As regards
the question of right of Fathima Bee having become barred by
limitation by ouster and that as such the Plaintiffs too had
lost  that right, this Court, while setting aside the  Judg-
ment and Decree of the High Court and restoring that of the
Trial Court as modified by the First Appellate Court,
    HELD:  It iS well settled that where one co-heir  pleads
adverse possession against another co-heir it is not  enough
to  show  that one out of them was in  sole  possession and
enjoyment  of the profits of the properties. The  possession
of one co-heir is considered in law as possession of all the
co-heirs.  The co-heir in possession cannot render his pos-
session adverse  to the other co-heirs not  in  possession
merely by  any secret hostile animus on his  own  part  in
derogation of the other co-heirs title. [526G-H; 527A]
    It is  a settled rule of law as between  co-heirs that
there  must be evidence of open assertion of  hostile  title
coupled with exclusive possession and enjoyment by  one  of
them to the knowledge of the other so as to construe ouster.
[527A]
    The High Court in the instant case committed a  serious
error in reversing the finding of the lower Appellate  Court
and  in taking a wrong approach in holding  ouster  on the
basis  of the judgment and decree given in Suit No.  116  of
1909  and  on  the ground that Fathima Bee had not  made  a
demand or asked for her share of the hundial collections  at
any point of time till her death in 1957. [527G]
P. Lakshmi v.L. Lakshmi Reddy, [1957] SCR 195, referred to.



JUDGMENT:
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3 160  of
1983.
    From  the  Judgment and Order dated 17.11.1981  of the
Madras High  Court in Second Appeals Nos. 650 and  874  of
1981.
    V.M.  Tarkunde, Ms. S. Khanna, Jagmohan Khanna and A.S.
Khan for the Appellants.
521
    T.S.  Krishnamurthy, K.R. Choudhary, S.M.  Amiad  Nainar
and S. Thananjayan for the Respondents.
The Judgment of the Court was delivered by
    KASLIWAL,  J.  This Civil Appeal by the  plaintiffs  is
directed against the Judgment of High Court of Judicature at
Madras in Second Appeal Nos. 650 & 894 dated 17th  November,
1981.
    Mohd. Zainulabdeen and Yasin Bi filed a suit for  decla-
ration that they were entitled to be in enjoyment and pos-
session of Saint Syed Moosa Shah Khadiri Dargah  in  Madras
for  a period of 27 days in all in the months  of  February,
March, June, July, October & November and to  restrain the
defendants  from interfering with the  plaintiffs  aforesaid
right  and management in the Dargah. The case of the  plain-
tiffs  as set up in the plaint was that the Dargah in  ques-
tion  was being managed by the members of the family of one
Sayed  Mohideen Sahib. Sayed Mohideen had  two sons  Sayed
Ismail Sahib and Sayed Gulam Dastagir Sahib. As per Judgment
in  C.S.  116 of 1909 the right of  management was  divided
between the  two sons each taking six months  for  himself.
According  to  this arrangement the branch of  Sayed  Ismail
Sahib  used to remain in management for the months of  Janu-
ary,  April,  May, August, September and  December  and the
branch of  Gulam Dastagir Sahib for the other six  months,
namely, February, March, June, July October  and  November.
The  present  suit relates to the  controversy between the
decendants of the branch of Gulam Dastagir Sahib.  According
to  the plaintiffs after the death of Sayed  Gulam  Dastagir
the  right and management of the Dargah according to  Muslim
Law devolved on his two sons and one daughter, namely, Sayed
Gaffar Sahib, Sayed Mohideen and Fathima Bee in  proportion
of  2:2:1  respectively. The plaintiffs alleged  that thus
Fathima Bee had 1/5 share in 6 months i.e. 36 days.  Fathima
Bee left surviving one son and two daughters. The plaintiffs
who are one son and one daughter of Fathima Bee as such are
entitled  to  3/4 share i.e. 27 days,  as  another  daughter
Zahurunnissa  was not interested in claiming her  right has
been impleaded as defendant No. 2. After the death of Fathi-
ma Bee, the plaintiffs being her son and daughter associated
themselves in the management of the Dargah with their mater-
nal  uncles  and the sons of the maternal  uncles  and were
getting share of the income of the Dargah. According to the
plaintiffs  this arrangement was going on for several  years
eversince  the death  of Fathima Bee in  1957. However  on
account of  some  dissensions, the  first  defendant  Sayed
Mohideen  (since deceased) and another defendant  being the
son of another
522
deceased maternal uncle were preventing the plaintiffs from
exercising  their right and enjoying the income of the Dar-
gah.  The  plaintiffs served a notice on  23.3.1972  calling
upon the defendants to recognize the right of management  of
the plaintiffs in the Dargah. The defendants sent a reply on
22.4.1972  stating  that  the  plaintiffs  claiming  through
female were not entitled to any right in the management  or
share  in the offerings in the Dargah and even if they were
entitled to any right or claim the same was barred by  limi-
tation.
    Sayed  Mohideen (since deceased) defendant No. 1 in the
suit  filed a written statement and took the plea  that his
father Sayed Gulam Dastagir was a Mujawar and was  receiving
the  offerings by right of inheritence. Sayed  Ismail  being
cousin brother of Sayed Gulam Dastagir as such he was also a
Mujawar along with Sayed Gulam Dastagir Sahib. Fathima Bee
the daughter of Sayed Gulam Dastagir had no right of Mujawar
as  the right was given only to the male members and not  to
the  females. Fathima Bee as such was not entitled to  claim
any  right  of Mujawar. The widows of Sayed  Gulam  Dastagir
also could not claim any right of Mujawar thus neither Wazir
Bee widow of Sayed Ismail nor Mohideen Bi the widow of Sayed
Gulam Dastagir could take upon the management of the  Dargah
as they were female members. According to the defendants  no
female members got the right of direct management  of the
Dargah and the Judgment in Suit No. 116 of 1909 also  nega-
tived the right of any management by Wazir Bee and  Mohideen
Bi.  It was admitted that though Fathima Bee was  alive but
she  was not a party to the aforesaid suit. It was  however
pleaded that claim of Fathima Bee was not recognized in the
above suit. It was further alleged in the written  statement
that Fathima Bee never participated in the management of the
Dargah. According to Muslim Law females were excluded from
performing the duties of the offices of Peshimam Khatib and
Mujawar.  It  was  further alleged that Fathima  Bee  never
enjoyed the right to the Hundial Collection of the  Dargah
and even if she had got any right, the same was lost as she
did  not claim any right till her death. Fathima  Bee  never
asserted  any  right during her life-time nor  received any
share in the offerings. Her right, if any, was extinguished
within 12 years after the death of her father Sayed  Gulam
Dastagir. It was further alleged that as Fathima Bee had  no
right  or  claim of share in the Mujawarship  and  was also
ousted from the enjoyment of any share in the Hundial Col-
lections,  the plaintiffs who were claiming through  Fathima
Bee were also not entitled to any relief. Defendants Nos.  2
to  6 adopted the written statement filed by the  first de-
fendant.  So far as the defendants Nos. 7, 8 & 10 were con-
cerned, they filed a written statement taking the plea that
the
523
family members were recognized as sharers in the  management
of the Dargah and they were also sharing the income. It was
further alleged  that even the answering  defendants were
paying such share to their sister Ahamadunnissa  (lOth de-
fendant)  in the Hundial collection of the Dargah.  The 7th
defendant  (Anser Bi) filed a suit No. 75 18 of 1971 in the
Court  of  4th Assistant City Civil Court and her  right  to
manage was  recognised for 9 days in a year. Hence  it was
false  to state that the females were not entitled to  claim
management. It may be mentioned at this stage that defendant
No.  1 Sayed Mohideen died during the pendency of  the suit
and defendants Nos. 12 to 19 were added as his legal  repre-
sentatives.
    The Trial Court decreed the suit and in  the  operative
part  held that the plaintiffs were entitled to manage the
Dargah for  27 days in February (viz. from  February  1  to
February 27).
    The defendants Nos. 3 to 6 and 12 to 19  filed  appeals
aggrieved against the Judgment of the Trial Court while 7th
defendant in the suit filed cross objections in respect of a
particular portion of the decree. Learned City Civil  Court,
Madras affirmed the Judgment and decree of the Trial  Court
except some modifications in the relief as mentioned below.
     "The Plaintiffs are entitled to the reliefs of
     declaration  that they are entitled to  be  in
     management of the Suit Dargah for a period  of
     27 days in a year during the months of  Febru-
     ary-March, June-July and October-November each
     year and that the said 27 days shall be Febru-
     ary 1 to 6, June 1 to 6 and October 1 to 6 for
     the first plaintiff and 9 days from July 1  to
     9 for the second plaintiff and that the plain-
     tiffs are entitled to the relief of possession
     of  the said right to be in management of the
     Dargah  and to be in enjoyment of the  Hundial
     income  during  the  said period.  The  cross
     objections of the 7th defendant is dismissed."
    Different  sets of defendants filed second appeals Nos.
650  & 894 of 1981, and both these second appeals were dis-
posed  of  by the High Court by order dated  17th  November,
1981.  The High Court allowed the second appeals  and  while
setting aside the Judgments and decrees of the Courts  below
dismissed  the suit filed by the plaintiffs. The High  Court
took the view that the Courts below proceeded upon an  erro-
neous assumption as if it was the duty of the defendants  to
prove  by  what hostile assertions of title  and  possession
ouster has been established.
524
In the view of the learned Judge by allowing inaction, more
so when it was coupled with sharing of profits in not claim-
ing  the profits at any point of time, there would  arise  a
clear  presumption  of ouster. The High  court laid  great
emphasis  on  the circumstances that Fathima  Bee  till her
death in 1957 did not care to make a demand of her right  or
share  at  any point of time. It was further  observed that
after the decree in Civil Suit No. 116 of 1909, it was only
male heirs who were exercising their rights. The High  Court
in  this regard further referred to the statement of P.W.  1
himself and drew the conclusion that after the death of his
mother nobody was employed as an agent. Only at  the time
when he consulted the Vakil he came to know that his  mother
had 36 days share in the Mujawarship. Before that he did not
do anything concerning the share of the Hundial collections.
The  demand was from 1960 to 1972. But nothing was paid.  He
knew  that he had rights even before. The High Court on the
basis  of the above evidence of P.W. 1 observed that it was
clear  that the mother of P.W. 1 was aware of the filing  of
Civil Suit No. 116 of 1909. Irrespective of that, in so far
as  there was absolutely no evidence whatsoever to  show  at
any  point of time till her death in 1957 that Fathima Bee
ever  made  a  demand or asked for a share  of the  Hundial
collections  as such it should be held that her rights had
become barred. The High Court in these circumstances held
that  if really the rights of Fathima Bee had become  barred
by her not exercising the rights, the plaintiffs  themselves
can have no independent right to claim.
    It may  be mentioned at the outset that  there  is  no
controversy now as regards the period of 27 days falling  to
the share of the plaintiffs and on the question that females
are  also  entitled in the right and  management  of  Dargah
according to Muslim Law. Thus the only controversy now left
to  be determined is whether the High Court  was  right  in
holding that the rights of Fathima Bee had become barred  by
limitation  by ouster and as such the plaintiffs  who were
also  claiming through Fathima Bee had lost their  right  by
ouster?
    It would first be necessary to make it clear as to what
is the impact of the decree dated 11.8.1910 passed in  Civil
Suit  No. 116 of 1909, so far as the present  litigation  is
concerned. A perusal of the Judgment in the above case goes
to  show  that Sayed Moosa Sahib and Wazir Bi filed  a suit
against Sayed Gaffar Sahib, Sayed Mohideen Sahib and  Mohi-
deen  Bi for a declaration that the plaintiffs and  the de-
fendants  were entitled to perform the duties of Mujawar  of
the  Dargah in turns and they were entitled to collect and
receive the  offerings, gifts and other emoluments  of the
Dargah as well as the collec-
525
tion of the hundi box in the Dargah and appropriate the same
in  two equal moities and to settle a scheme  for  managing
the' said Dargah so as to equalize the amount of income and
emoluments  to be collected and appropriated  by  both the
parties during their respective turns. In the said  case  a
decree was passed that the 1st plaintiff and the 1st & 2nd
Defendants were entitled to perform the duties of Mujawar of
the Dargah in question in turns. A scheme was also drawn for
collecting  and receiving the offerings,  gifts  and  other
emoluments of the said Dargah as well as the collections  of
the  hundi box and apportion the same in two  equal  moities
and  that Sayed Moosa Sahib, the 1st plaintiff was  entitled
to  one half and Sayed Gaffer Sahib and Sayed Mohideen, the
1st  and 2nd defendants were entitled to the other  half  of
the  collections, offerings, gifts and other  emoluments.  A
great  capital has been raised on the basis  of  the  above
decree by the learned counsel for the  defendant-respondents
that  no share was given to the female members in the  above
decree, namely, to Wazir Bi and Mohideen Bi and from this it
was  clear that the females were totally excluded  from the
right  or claim of any share in the management or  offerings
in the Dargah.
    We do not find much substance in the above contention.
In  the above judgment the controversy whether females were
entitled to any right or management of the offerings in the
Dargah was neither raised for decided. Fathima Bee  though
alive  but was not a party in the aforesaid  litigation and
any judgment given in that suit cannot be held as res  judi-
cata or binding on Fathima Bee or the present plaintiffs.
    Mr. Krishnamurthy Aiyer, learned counsel for the  defen-
dantrespondents contended that he was not arguing that the
aforesaid  judgment and decree were res judicata or  binding
on  Fathima  Bee, but his submission was that it  should  be
taken  as a circumstances in proving ouster of Fathima Bee
from  the fight or management of the Dargah or any claim  in
the  offerings. In our view as already mentioned such  judg-
ment  cannot be considered as an ouster of Fathima Bee cou-
pled with other circumstances which clearly show that  there
was no ouster in the facts of the present case.
    It is an admitted case of the parties that Sayed  Gulam
Dastagir  Sahib had a fight of management in the  Dargah  in
question  for six months (180 days) in the months of  Febru-
ary-March,  June-July and October-November.  Gulam  Dastagir
had one daughter Fathima Bee and two sons and as such Fathi-
ma  Bee got 1/5th share and which came to 36  days  out  of
aforesaid 180 days. Thus Fathima Bee was a co-sharer in the
right of management and possession of the Dargah as well  as
the
526
offerings  and hundial collection. Now, before considering
the question of ouster of Fathima Bee, it would be important
to consider the pleadings of the defendants in this  regard.
Learned counsel for the defendant-respondents in this regard
have  drawn  our attention to paragraph 19  of the  written
statement filed by 1st defendant Sayed Mohideen. Para 19  of
the written statement reads as under:
     "Neither Fathima Bee till her death  nor the
     plaintiffs from her death till now had posses-
     sion or management of the Dargah, None of them
     had at any time received a share in the hundi-
     al collection or offerings. Further there has
     been  expressed denial of Fathima Bee's  title
     at the time of the judgment of the High  Court
     in 1909, if she did not have a title according
     to Muslim Personal Law that title was  denied,
     and  she was expressly ousted  out  from the
     enjoyment of any share in the hundial  collec-
     tions. From her death till now the  plaintiffs
     have  not received any share in the  hundial
     collections".
    A perusal of the above pleading show that the defendants
are  claiming  ouster on the basis of  expressed  denial  of
Fathima Bee's title at the time of the judgment of the High
Court  in  1909 and another ground taken  is  that  neither
Fathima Bee nor the plaintiffs had at any time received  a
share in the hundial collection or offerings nor had posses-
sion or management of the Dargah. The defendants are totally
mistaken  in taking the ground that there was any  expressed
denial of  Fathima Bee's title in that litigation.  At the
risk of repetition it may be stated that neither Fathima Bee
was a party in that suit nor any such question was raised or
decided that females were not entitled to any share in the
management  or offerings of Dargah. Thus there was no  ques-
tion of any expressed denial of Fathima Bee's title in that
litigation.  It appears that the defendants were carrying  a
mistaken impression all along that females under the  Muslim
Law were not entitled to any right of management or  posses-
sion  in a Dargah and on that account they were pleading  an
ouster of Fathima Bee as well as the plaintiffs. Such plead-
ing cannot be considered as an ouster in fact of a co-sharer
from  a joint right. It is well settled that where  one co-
heir pleads adverse possession against another co-heir then
it  is not enough to show that one out of them is  in sole
possession  and enjoyment of the profits of the properties.
The  possession of  one co-heir is considered in  law,  as
possession  of all the co-heirs. The co-heir  in  possession
cannot render his possession adverse to the  other  co-heir
not in possession merely by any secret hostile animus on his
own part in derogation of
527
the other co-heir's title. Thus it is a settled rule of law
as between co-heirs there must be evidence of open assertion
of  hostile  title, coupled with  exclusive  possession and
enjoyment by one of them to the knowledge of the other so as
to  construe  ouster. Thus in order to make out a  case  of
ouster against Fathima Bee or the plaintiffs, it was  neces-
sary  for  the defendants to plead that they  had  asserted
hostile title coupled with exclusive possession and  enjoy-
ment to the knowledge of Fathima Bee. The written  statement
filed  by  the defendants in the present  case is  totally
lacking in  the above particulars and thus apart  from the
want  of evidence, there is no proper pleading of ouster  in
the  present  case.  Thus it is clear that  neither  in the
written statement nor in reply to the notice of the  plain-
tiffs  any stand was taken that the right of Fathima Bee  or
plaintiffs  was specifically denied on any particular  occa-
sion  so  as to put them on notice that from that  date the
possession of the defendants would be adverse to the  inter-
est  or rights of the plaintiffs of Fathima  Bee.  We are
supported  in the above view by a decision of this Court  in
P. Lakshmi v. L. Lakskmi Reddy, [1957] SCR 195.
    It is further proved from the evidence led by the plain-
tiffs that Fathima Bee was being looked after by her  broth-
ers  and she was in fact being paid portions of the  income
from  the  Dargah and on that account she was  satisfied  in
allowing the brothers to enjoy the office of Mujawar on her
behalf also.  The 13th defendant who has been examined  as
D.W.  1 has admitted that Fathima Bee was  living  and was
being looked after by Sayed Gaffar and who had arranged for
and met the expenses of the marriage of the two plaintiffs.
This clearly goes to show that relations between Fathima Bee
and  her  brothers  were cordial and as such  there  was  no
question of any knowledge to Fathima Bee that she was  being
ousted from her right or share in the Dargah. No  evidence
has  been led by the defendants to show that such right was
openly denied by the brothers which would be considered  as
an  ouster.  The First Appellate Court had  considered all
these aspects in detail after discussing the entire evidence
placed on record and had clearly recorded the finding that
there  was no proof of ouster in the present case. The High
Court in our view committed a serious error in reversing the
above  finding and in taking a wrong  approach in  holding
ouster on the basis of judgment and decree given in Suit No.
116 of 1909 and on the ground that Fathima Bee had not made
a  demand or asked for her share of the hundial collections
at any point of time till her death in 1957.
Mr. Krishnamurthy Aiyer, learned counsel for defendants Nos.
528
12  to 19 submitted that according to decree given by  First
Appellate  Court  the period of 27 days from  February 1-6,
June 1-6 and October 1-6 for First plaintiff and 9 days from
July  1-9,  for the second plaintiff acts  onerous  to his
defendants  12 to 19 and it must be fixed in a manner  which
may  be equitable to all the parties. The  appellants and
their counsel Shri Tarkunde on the other hand submitted that
their  share of 27 days may be fixed jointly and so  far  as
their own proportion of 18 and 9 days is concerned they will
make their arrangement inter se. After hearing learned coun-
sel  for  the parties and considering the entire  facts and
circumstances  of the case, we uphold the decree  passed  by
the First Appellate Court with the following modification in
the  arrangement of days in the management of the Dargah  in
question.
    The plaintiffs would be entitled to such management from
17th. to 30th June and 1st to 13th July and in the next year
from  18th to 30th June and 1st to 14th July. This  arrange-
ment  would  continue by rotation of each year. To  be more
precise the plaintiffs would be entitled to have the manage-
ment  of the suit Dargah from 17th to 30th June and  1st  to
13th July in the year 1990 and 18th to 30th June and 1st  to
14th July in the year 1991 and they shall continue to follow
such cycle by rotation every year.
    For the reasons stated above, we set aside the  judgment
and  decree of the High Court dated 17th Nov. 1987  and re-
store  that  of the Trial Court as affirmed  by  the  First
Appellate Court with modifications as stated earlier.
Parties to bear their own costs.
R.N.J.
529

U. P. Imposition of Ceiling on Land Holdings Act, 1960 : Ss. 5 and 10(2)-Determination of ceiling area-A Muslim tenure holder bequeathing some of his land on 15.12.1974-Death of tenure holder-Celing authority adding the said land in the holding of his son as inherited by him, without giving notice to legatees-Writ petition of legatees dismissed- Appeal by legatees contending that land bequeathed to them under the will having been mutated in their names and having become their property, cannot be treated to have been inherited by son of testator- U.P. Zamindari Abolition and Land Reforms Act, 1950 : Ss. 169 and 171-A Muslim bhumidhar- Bequeathing some of his land under a will-Distribution of land left by him- Held, the will was found to be genuine by Tehsildar-Lands which testator was entitled to hold was determined-Out of that land, legatees would be entitled to the land under the. will subject to their ceiling limit-In computation of ceiling area what is relevant is the land held by the individual as on 8.6.1973-But it is a continuous process-On subsequent acquisition of land by an individual, authorities will have to determine afresh his ceiling area as on the date of acquisition-Property bequeathed by a deceased person cannot be added to the share of his heirs for computing their khatas albeit it can be added to khatas of legates-It is not clear as to how much extent the testator was entitled to hold and how much extent his son got by way of inheritance-Matter remitted to Prescribed Authority for fresh inquiry for determination of area which legatees are entitled to have under the Will having regard to the land, if any, held by them in their khatas-Mohammedan Law-Matruka-Scheme of distribution. Held, would be governed by ss. 167 and 171-Limitation placed under Mohammedan Law that bequest should not exceed I/3rd of Matruka and it should not be in favour of an heir will not apply, so also classification of heirs and the proportion in which they will inherit Matruka under Mohammedan Law is replaced with the provisions of s. 171 of the Act in which a different order of succession is provided- Mohammedan Law-Matruka- Scheme of distribution. Mohammedan Law-Matruka left by a Bhumidhar under U.P. Zamindari Abolition and Land Reforms Act, 1950-Scheme of distribution-Explained. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2025 of 1979. From the Judgment and Order dated 24.11.78 of the Allahabad High Court in W.P. No. 1054 of 1978. E.R. Kumar, Musharraf Chowdhary, P.H. Parekh, Chandra Shekhar, (AC) for the appellants. Ex-parte for the Respondents. 2001 AIR 3067, 2001( 4 )Suppl.SCR 1, 2001( 8 )SCC 599, 2001( 7 )SCALE143 , 2001( 8 )JT 444

CASE NO.:
Appeal (civil)  2025 of 1979

PETITIONER:
JAMIL AHMAD AND ORS.

RESPONDENT:
5TH ADDL. DISTT. JUDGE MORADABAD AND ORS.

DATE OF JUDGMENT: 09/10/2001

BENCH:
SYED SHAH MOHAMMED QUADRI & S.N. PHUKAN

JUDGMENT:
JUDGMENT

2001 Supp(4) SCR 1

The following Order of the Court was delivered :

This appeal is from the order of the High Court of Judicature at Allahabad
dated November 24, 1978 disposing of the Writ Petition No. 1054/ 78 filed
by the appellants in terms of the order in W.P. No. 1270/78 passed on the
same date. By virtue of the said order, the Writ Petition filed by the
appellants stood dismissed.

To comprehend the controversy, it will be necessary to refer briefly to the
facts giving rise to this appeal. One Wali Mohammed held certain
agricultrual lands. He had transferred an extent of 25.79 acres of land in
favour of his blind unmarried daughter (Moti Begum) in 1359 Fasli - long
before coming into force of the Act. In accordance with the provisions of
the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (for short, 'the
Act'), his ceiling area, under Section 5 of the Act, was determined. On
December 15, 1974 he executed a Will beqeathing an extent of 25.32 acres
out of his land in favour of the appellants herein. He died on June 16,
1975 leaving behind him a son, Gulam Mohammed and a daughter, the said Moti
Begum.

On the basis of the said Will the appellants approached the Tehsildar,
Billari (U.P.) to have their names mutated in the revenue records. The
Tehsildar, after issuing a public notice and after examining witnesses
produced by the appellants held, by his order dated August 28, 1975, that
the Will was proved and ordered that their names be mutated in the revenue
records as legatees of Wali Mohammed in respect of an extent of 25.32
acres. That order makes it clear that mutation would not affect the ceiling
proceedings under the Act.

The Prescribed Authority treated the land held by Wali Mohammed on the date
of his death as inherited property of Gulam Mohammed, added the same to the
plots of land which were standing in his name and issued notices under
Section 10(2) of the Act to Gulam Mohammed and Moti begum for determining
the extent of land which he could retain under the Act. But no such notice
was admittedly given to the appellants. The Prescribed Authority confined
its consideration to the question as to how much land Gulam Mohammed was
entitled to hold under the Act after he inherited lands of his father and
whether Moti Begum could retain in her own right the land conveyed to her
by late Wali Mohammed in 1359 fasli. The Prescribed Authority negatived the
claim of Moti Begum and added all the lands which stood in the name of Wali
Mohammed to the holding of Gulam Mohammed by order dated January 6, 1975.

Immediately thereafter the appellants filed an application before the
Prescribed Authority to implead them in the proceedings under Section 10(2)
of the Act on the ground that the lands given to them under the Will of
Wali Mohammed were already mutated in their favour. That application was
dismissed on August 31, 1976 as the said proceedings stood disposed of on
June 30, 1976.

Against the said two orders of the Prescribed Authority three appeals were
filed before the learned 5th Additonal District Judge, Moradabad - the
Appellate Authority under the Act. By a common order dated December 2,
1977, the appeals were disposed of. Insofar as the appeal of Moti Begum is
concerned, the learned Additional District Judge upheld her claim and
ordered that the land conveyed to her by late Wali Mohammed could not be
included in the khata of Gulam Mohammed and thus allowed her appeal. That
order has become final. So far as the appeal of Gulam Mohammed is
concerned, it was partly allowed giving consequential benefit. Misc. Appeal
No. 317/76 filed by the appellants was dismissed.

Aggrieved by the said common order of the Appellate Authority two Writ
Petitions were filed-Writ Petition No. 1270/78, by Gulam Mohammed and Writ
Petition No. 1054/78 by the appellants. It has been noticed above that the
writ petition of the appellants was dismissed by the High Court on November
24, 1978 and against that order of the High Court the appellants are in
appeal before us.

Mr. E.R. Kumar, the learned counsel for the appellants, contends that the
lands given to the appellants under the Will of late Wall Mohammed could
not be treated as lands inherited by Gulam Mohammed because those lands
having been bequeathed became the property of the appellants in which Gulam
Mohammed could not claim any right or interest.

Inasmuch as the respondents did not enter appearance in spite of service of
notice we requested Mr. Chandra Shekhar, Advocate, to assist us as arnicus
curiae. The learned amicus curiae submits that from the record made
available to him he could gather the developments after the death of Wali
Mohammed with regard to issuing of notice under Section 10(2) of the Act to
Gulam Mohammed and his sister Moti Begum; the claim of the appellants under
the Will of late Wali Mohammed depends upon the genuineness of the Will
which is not proved and is subject to the U.P. Zamindari Abolition and Land
Reforms Act, 1950 (for short, 'ZALR Act'). He has invited our attention to
Sections 169 and 171 of the ZALR Act to contend that though late Wali
Mohammed was entitled to bequeath his land under Section 169 of ZALR Act,
it has to be read subject to the principle of Mohammedan Law that no person
can give away by way of bequest more than 1/3rd of his property. With
regard to Section 171 the learned arnicus curiae has argued that the
principles of Mohammedan Law of inheritance do not apply as a different
scheme of succession is provided with regard to the Bhoomidari land in
which both the son and the daughter will have an equal share.

The question that falls for our consideration is : whether the Will of Wali
Mohammed is genuine and the land bequeathed by late Wali Mohammed in favour
of the appellants under it could be treated as inherited land of Gulam
Mohammed.

The property (both movable as well as immovable) left by a deceased Muslim
is called Matruka. The scheme of distribution of Matruka among the heirs of
a deceased Muslim is that first that part of the Matruka which is covered
by a Will of the deceased, if there is a valid Will, (subject to a maximum
of l/3rd of the total Matruka provided it is not in favour of an heir) will
be separated and given to the legatee. The balance of Matruka alone is
distributable among the heirs and in the proportion ordained under the
Mohammedan Law. However, in regard to Bhoomiswami land the distribution of
Matruka will be governed by Sections 169 and 171 of ZALR Act. Consequently
the limitation placed under the Mohammedan law that the bequest should not
exceed l/3rd of the Matruka of the deceased and it should not be in favour
of an heir, will not apply; so also classification of heirs and the
proportion in which they will inherit Matruka under the Mohammedan Law is
replaced with the provisions of Section 171 of ZALR Act in which a
different order of succession is provided.

Inasmuch as the appellants were not parties to the proceedings initiated
under Section 10(2) of the Act the question of genuineness of the Will, did
not arise for consideration before the Prescribed Authority. The appellants
filed an application to implead them but as they woke up after the disposal
of the case, their application was dismissed by the Prescribed Authority.
In the appeal filed by the appellants, the Appellate Authority took note of
the fact that the lands were mutated in their names; it was, however,
observed that the Will was not proved. In our view, the observation is not
well-founded. As noted above the question of genuineness of the Will was
not considered by the Prescribed Authority, before the Appellante Authority
there was no occasion to prove the Will as it was not in dispute. Further,
the Appellate Authority ignored the order of the Tehsildar dated August 28,
1975, referred to above, which shows that after issuing public notice and
examining the witnesses the Tehsildar found that the Will executed by Wali
Mohammed was proved and on that finding the names of the appellants were
directed to be mutated in the revenue records. In view of the fact that the
Will of late Wali Mohammed has been found to be genuine; the only question
which remains to be considered is : whether the land bequeathed in favour
of the appellants by late Wali Mohammed could form part of inherited
property of Gulam Mohammed.

We make it clear that in the computation of the ceiling area under the
provisions of the Act what is relevant is the land held by the individual
as on June 8, 1973. But it is a continuous process. On subsequent
acquisition of land by an individual either by purchase or by succession or
otherwise, the authorities will have to determine afresh his ceiling area
as on the date of acquisition of land. From the material placed before us
it appears that the lands which late Wali Mohammed was entitled to hold was
determined and excess land of 8.14 acres was declared by the Prescribed
Authority, which was reduced by the Appellate Authority to 2.47 acres by
order dated October 25, 1975. From out of the land which Wali Mohammed was
entitled to hold pursuant to the final determination of his khata he
bequeathed Acres 25.32 in favour of the appellants who would be entitled to
that land under the Will subject to their ceiling limit. The property
bequeathed by a deceased person cannot be added to the share of his heirs
for computing their khatas albeit it can be added to the khata of the
legatee.

From the record it is not clear as to how much extent late Wali Mohammed
was entitled to hold and how much extent Gulam Mohammed got by way of
inheritance which alone could be added to the land already held by him. The
High Court took the view that by making a Will the declarant cannot reduce
his ceiling area. We think no exception can be taken to the said statement
of law provided the determination of the ceiling area under consideration
is that of the testator. But if the determination relates to his
successors/heirs either by intestate succession or testamentary succession
the said proposition will not be apt. In the instant case the Will was
executed by late Wali Mohammed. In computing the ceiling area of his heirs
Gulam Mohammed and Moti Begum the land given by Will to the appellants
(legatees) will have to be excluded before the actual area of the land
inherited by the said heirs is worked out.

We, therefore, set aside the order of the High Court and that of the
Appellate Court, remit the case to the Prescribed Authority for fresh
enquiry for determination of the area which the appellants are entitled to
have under the Will of late Wali Mohammed having regard to the land, if
any, held by them in their own khatas.

The appeal is accordingly allowed. There shall be no order as to costs.

Before parting with the case we record our appreciation of the efforts made
by Mr. Chandra Shekhar, the learned amicus curiae in studying the case
thoroughly by going through the original records of the High Court as well
as of the lower courts and in assisting us by arguing the case for the
respondents extensively.