Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr. … Appellants
Vs.
B. Chinna Narasimha & Ors. etc. … Respondents
With
[Civil Appeal Nos.4733 of 2010, 4734-35 of 2010, 4736 of 2010, 4837-38 of
2010, 6536-37 of 2010, 4276-77 of 2011, Civil Appeal No. 4319-20 of 2017 (@
SLP(C) Nos.23864-23865 of 2011), Civil Appeal Nos.1196-97 of 2012 and Civil
Appeal Nos.7105-06 of 2010.]
J U D G M E N T
ARUN MISHRA, J.
1. Leave granted in S.L.P. (C) Nos. 23864-23865 of 2011.
2. In the appeals, the final decree which has been drawn up in a
partition suit with respect to item No.6 of Schedule ‘B’ pertaining to land
admeasuring 68 acres 10 guntas comprised in survey Nos. 63, 68, 69 and 70
situated at village Madhapur, District Ranga Reddy, Hyderabad is in
question.
3. The property was matruka property of Late Mohd. Nawab Jung who
passed away on 25.4.1935. Civil Suit No.82/1935 was instituted by Mohd.
Hashim Ali Khan, son of Mohd. Nawab, in Darul Qaza City Court, Hyderabad,
for partition of matruka properties of Late Nawab comprised in Schedules
‘A’, ‘B’ and ‘C’. The suit was contested, inter alia, by defendant No. 1.
Darul Qaza Court was abolished in the year 1951. On abolition of original
jurisdiction of the High Court, the case was assigned to the City Civil
Court. It appears that later on as the file was not received by the City
Civil Court from the Custodian, it passed order dated 8.1.1955 to the
effect that the file of the case was not yet received, the plaintiff was
also absent, as such the case be closed for the time being and be revived
only on receipt of the file and on an application to be filed by the
plaintiff. The city civil court understood the order to be of dismissal of
suit in default. The plaintiff moved an application for revival of the
suit. The city civil court directed the plaintiff vide order dated
1.12.1955 to deposit Rs.50 towards costs and if the costs were not paid by
15.12.1955, the suit shall stand dismissed. The plaintiff could not pay the
cost within the stipulated time and prayed for extension of time which was
not extended. The order was questioned by the plaintiff in the High Court
by way of filing an appeal. The High Court decided the appeal vide order
dated 23.1.1962 and held that vide order dated 8.1.1955, the suit was not
dismissed for default. It was an order adjourning the suit with a direction
that it may be revived only on receipt of the file from the Custodian,
therefore, there was no necessity for the plaintiff to file an application
under Order 9 Rule 9 CPC for restoration. Thus the trial court had no
jurisdiction to direct the plaintiff vide order dated 1.12.1955 to pay the
cost of Rs.50 to the defendants on or before 15.12.1955 as a condition
precedent. The appeal was allowed and the order dated 1.12.1955 was set
aside. The order passed by the High Court attained finality. Thereafter,
the suit was re-numbered as Civil Suit No.42/1962 in the city civil court.
Hamid Ali Khan, defendant No.1 sold Item No.6 of Schedule ‘B’ property in
area 68 acres 10 guntas on 23.11.1959 to Bala Mallaiah vide registered sale
deed. He sold the share inherited by other co-heirs also to Bala Mallaiah.
It was found in the preliminary decree for partition dated 24.11.1970 that
defendant No.1, Hamid Ali Khan, was having only 14/104th share in matruka
properties. The plaintiff, and defendant Nos.2, 3 and 12 were also having
14/104th share each. Defendant Nos.4 to 6, daughters of Nawab had 7/104th
share in matruka properties. Nurunnisa Begum, widow of Late Nawab,
defendant No.7 was entitled to 13/104th share in matruka properties.
4. Aggrieved by the preliminary decree for partition determining the
shares to the aforesaid extent, the plaintiff and legal heirs of defendant
No.1 i.e. defendant Nos.23 to 25 and defendant No.27 preferred appeal in
the year 1972 before the High Court. Cross-objections were also preferred
by defendant No.6 – Shareefunnisa Begum. The High Court dismissed the
appeals and allowed the cross-objections of defendant No.6 with respect to
item No.4 of Schedule ‘A’ property. The plaintiff questioned the decision
by way of filing LPA No.199/1977 and the same was dismissed vide order
dated 12.11.1976, the decision with respect to preliminary decree has
attained finality.
5. Defendant No.25 – daughter of defendant No.1 – filed IA No.854/1984
for passing a final decree in terms of the preliminary decree passed in the
partition suit. During the pendency of the final decree proceedings, an
Advocate-Commissioner was appointed to divide the suit schedule land by
metes and bounds as per the preliminary decree passed on 24.11.1970 for
which an application (IA No.31/1989) was filed on 16.1.1989. He submitted a
report in December, 1993 in respect of item No.6 of Schedule ‘B’ of
preliminary decree dated 24.11.1970. The Advocate-Commissioner divided the
suit schedule property on 28.11.1993. He also noticed that third parties
were in possession of the land and he had also seen a signboard of Surya
Enclave Developers. The sale transaction took place during the pendency of
the preliminary decree proceedings on 23.11.1959. The LRs. of Bala Mallaiah
were entitled to the share of Hamid Ali Khan, defendant No.1. On 6.10.1997,
pending final decree proceedings, plaintiff and defendant Nos.4 and 14 to
17 i.e. LRs. of defendant No.5 assigned their interest in item No. 6 of
plaint ‘B’ schedule properties in favour of D.A.P. Containers Pvt. Ltd. The
assignees were brought on record as defendant Nos.99 to 112 in the final
decree proceedings vide order dated 22.4.1999 passed by the Senior Civil
Judge, City Civil Court, Hyderabad.
6. On 16.7.2001, L.Rs. of Bala Mallaiah filed IA No.978/2001 and sought
impleadment to contest the matter in respect of item No.6 of plaint ‘B’
Schedule properties. Vide order dated 14.10.2003, LRs. of Bala Mallaiah
were impleaded. On 2.4.2004, subsequent purchasers of the disputed property
filed an application (IA No. 544/2004) under Order VII Rule 11 CPC for
rejection of the final decree proceedings. It was resisted by appellants
and rejected by the court vide order dated 5.7.2005 and ultimately the
final decree came to be passed on 7.7.2005 in terms of the preliminary
decree dated 24.11.1970. In the final decree proceedings initiated by IA
No.854/1984, share of each heir was recognized in the disputed property
being Item No.6 of Schedule ‘B’ plaint. The rights of Hamid Ali, vendor of
Bala Mallaiah and subsequent purchaser’s share was recognized to the extent
of 14/104th share. Rights of the assignees/appellants were also recognized
in terms of the assignment deed and separate possession was given to them.
The final decree was questioned in Appeal Nos.385 and 386 of 2006 which
were filed by LRs. of Bala Mallaiah and purchasers from them with respect
to item No.6 of plaint ‘B’ schedule property. The appeals were dismissed on
27.4.2007. Aggrieved thereby, Second Appeal No.410/2008 was preferred.
Appeal had been allowed by the impugned judgment and decree dated
15.4.2010.
7. Before the final decree could be passed in the case, civil suit being
OS No.294/1993 was filed for perpetual injunction by L.Rs. of Bala Mallaiah
against Hashim Ali Khan and others on the basis of sale deed dated
23.11.1959. The suit was dismissed by Junior Civil Judge, Hyderabad West &
South vide judgment and decree dated 8.6.1998. It was held that the
plaintiffs were not entitled to claim adverse possession over the suit
schedule property and that their purchase and possession was subject to the
result of the partition suit, O.S. No.42/1962. It was also held that the
possession of the plaintiff could not be said to be rightful possession and
they could claim only to the extent of their vendor’s share and not over
the entire property, and thus, they were not entitled to the relief of
injunction against the defendants. As against the judgment and decree of
the trial court, an appeal was preferred in the Court of Additional
District Judge, NTR Nagar, Hyderabad and the same was dismissed on
20.7.2000. Second Appeal No.465/2001 preferred against the same in the High
Court was dismissed vide judgment and order dated 26.9.2001.
8. Land grabbing proceedings under the Andhra Pradesh Land Grabbing
(Prohibition) Act, 1982 initiated by the L.Rs. of Bala Mallaiah were
dismissed by the Special Court in LGC No.148/1996 vide order dated
13.5.1997. It was held that the application was not maintainable. The court
took cognizance of the preliminary decree proceedings, appointment of the
Commissioner and also held that it was not open to contend that the
doctrine of lis pendens had no application. The application was ultimately
dismissed. The order was questioned by way of filing W.P. No.15577/2001 in
the High Court of Andhra Pradesh. The High Court simply observed that the
observations made by the special court would not come in the way of the
petitioners to work out their rights in accordance with law in the
partition suit, that is to say in the final decree proceedings.
9. There was yet another litigation initiated by Boddam Narsimha, nephew
of Bala Mallaiah. On 16.12.1998 an application was filed before the
Tribunal, Ranga Reddy District, seeking declaration of protected tenancy
under section 37A of the A.P. (Telangana Area) Tenancy and Agricultural
Lands Act, 1950. The same was dismissed vide order dated 24.8.1999. The
appeal preferred to the Joint Collector was also dismissed on 13.3.2000.
CRP No.2229/2000 before the High Court of Judicature at Andhra Pradesh was
dismissed by the Single Judge vide order dated 16.4.2001. Aggrieved
thereby, C.A. No.3429/2002 - Boddam Narsimha v. Hasan Ali Khan (dead) by
LRs. & Ors. - (2007) 11 SCC 410 was filed, and the same was also dismissed
by this Court.
10. The High Court while passing the impugned judgment and decree under
appeal has held that the sale deed dated 23.11.1959 was not hit by the
principle of lis pendens under section 52 of the Transfer of Property Act.
During the pendency of the suit, defendant No.1 had leased out the land to
Bala Mallaiah and later on had alienated the same on 23.11.1959. The
decision of this Court in Boddam Narsimha (supra) had been relied upon to
hold that Bala Mallaiah was declared as Pattedar, that would bind all the
parties. It was necessary for the plaintiff to take steps to get the sale
deed dated 23.11.1959 cancelled in accordance with law. It has also been
held that as the sale by defendant No. 1 to Bala Mallaiah was not effected
during lis pendens, in the absence of challenge to the sale deed and due to
non-impleadment in the suit, by virtue of adverse possession, title has
been perfected. At the same time, the High Court has held that till the
final decree is passed the suit is said to be pending and the preliminary
decree only determines the rights of the parties. Thus, the final decree
which has been passed by the trial court with respect to item No.6 of
plaint ‘B’ schedule property was impracticable.
11. It was submitted by learned senior counsel appearing on behalf of the
appellants that in fact there was no dismissal of the suit in 1955 as held
by the High Court in the year 1962. Thus, the sale deed dated 23.11.1959
was clearly during lis pendens. The suit was filed in the year 1935 and the
preliminary decree for partition was passed in the year 1970 and final
decree has been passed in 2005. It was further contended that it was not
open to defendant No.1 to sell more than his share. He had no authority to
sell the land belonging to the share of other co-heirs as Muslims inherit
the property as tenants-in-common and not as joint tenants. It was further
submitted that there was no necessity of questioning the sale deed as it
was subject to the provisions of lis pendens contained in section 52 of
T.P. Act. The High Court has gravely erred in law in holding that the title
had been perfected by virtue of adverse possession. It was also contended
that this Court in Boddam Narsimha (supra) did not adjudicate the question
of title of Bala Mallaiah. Thus, the High Court has gravely erred in law in
reversing the judgment and decree passed by the trial court as affirmed by
the first appellate court. The High Court has also erred in law in holding
that it was impracticable to pass the decree with respect to item No.6 of
schedule ‘B’ property.
Learned senior counsel appearing on behalf of the appellants
submitted that the decision in Civil Suit No.289/1993 for permanent
injunction which was based upon title, operates as res judicata on various
issues. The plea of estoppel has also been raised on behalf of the
appellants. It was further submitted that the plea of equity with respect
to partition of property was not available to Bala Mallaiah or to the
purchasers from him.
It was also submitted on behalf of the appellants that the final
decree proceedings qua other item No.2 of schedule ‘B’ property have
attained finality in which the order passed by the Division Bench of the
High Court of Andhra Pradesh in LPA No.104/1997 has been affirmed by this
Court by a speaking order passed in SLP [C] No.3558/1999 decided on
1.10.1999. Thus, the decision of this Court is binding upon the parties and
the findings recorded by the High Court therein on questions of law in its
judgment have attained finality. Thus, the High Court has erred in law in
holding otherwise.
12. Learned senior counsel appearing on behalf of respondents have
submitted that the sale deed dated 23.11.1959 in favour of Bala Mallaiah is
valid and binding as disputed land could have been alienated even during
the pendency of the suit for partition. It was strenuously submitted on
behalf of the respondents that the sale in question could not be said to be
during lis pendens as the suit in fact stood dismissed in 1955 and was
later on revived by the High Court in 1962. The decision of this Court in
Boddam Narsimha (supra) is binding in which foundational basis for the
judgment was the fact that Bala Mallaiah was a pattedar of the land, and it
was necessary to avoid the sale deed in question by getting it cancelled in
accordance with law within the period of limitation and that by virtue of
adverse possession, the right and interest had been perfected by the
purchasers. It was also submitted that even otherwise, the equities
available to a purchaser ought to have been applied in the present case as
the principle of equitable adjustment is applicable to Mohammedan Law and
the disputed property ought to have been allotted to the share of defendant
No.1 in order to adjust the equities without affecting the rights of other
co-heirs.
It was further urged that in view of the decision in Civil Suit No.
294/1993, various questions were left open to be agitated in the final
decree proceedings. It was also submitted that in the judgment dated
24.11.1970 with regard to preliminary decree in para 93, purchasers were
given the liberty to raise the question of equity in the final decree
proceedings. Thus, the High Court has rightly interfered with the final
decree with respect to the disputed property. Even if section 52 of the
T.P. Act is applicable, the transactions hit by lis pendens are not void.
Bala Mallaiah had acquired the rights of a pattedar, no decree could have
been passed in favour of L.Rs. of Late Nawab Jung. Considering the conduct
of the appellants, no case for interference is made out. They cannot
approbate and reprobate.
13. Following questions arise for consideration under the appeals:-
Whether the decision in Original Suit No.294 of 1993 operates as res
judicata, if yes to what extent?
Whether the sale deed dated 23.11.1959 executed by defendant no.1 in favour
of Bala Mallaiah is hit by doctrine of lis pendens?
Whether section 52 of T.P. Act renders a transfer pendente lite void ?
What is the effect of preliminary decree for partition and the extent to
which it is binding ?
Whether it was necessary to file a suit for cancellation of sale deed dated
23.11.1959?
Whether Bala Mallaiah, his heirs and purchasers had perfected their right,
title and interest by virtue of adverse possession?
Whether under the Muslim law, defendant no.1 being a co-sharer could have
alienated the share of other co-sharers in the disputed property?
Whether the purchaser has a right to claim equity for allotment of Item
No.6 of Schedule ‘B’ property in final decree proceedings in suit for
partition? If yes, to what extent ?
Whether sale was for legal necessity, and thus binding ?
What is the effect of proceedings under the Tenancy Act, 1950 ?
What is the effect of decision of this Court and High Court with respect to
final decree proceedings in Item No.2 of Schedule ‘B’ property ?
Whether there is waiver of right by appellants ?
Whether appellants are guilty of delay or laches ?
What is the effect of the decision of the Court under the Urban Land
Ceiling Act?
(i) In re : whether the decision in Original Suit No.294 of 1993 operates
as res judicata, if yes, to what extent?
14. Twelve LRs. of Bala Mallaiah filed the aforesaid suit against
Mohd. Hasim Ali Khan and 13 other heirs of Late Nawab Jung. The suit was
with respect to Item No.6 of Schedule ‘B’ that is with respect to survey
Nos.63 and 68 to 70 comprised in area 68 acres 10 guntas situated at
village Madhapur in erstwhile West Taluk, Hyderabad district now known as
Serilingampally Mandal.
15. It was averred in the plaint that Hamid Ali Khan had sold the
land to Bala Mallaiah by sale deed dated 23.11.1959 after obtaining due
permission under the Andhra Pradesh Tenancy and Agricultural Lands Act,
1950 (hereinafter referred to as ‘the Act of 1950’). Though the land was
purchased in the name of Bala Mallaiah but it was his joint family property
along with two brothers, namely, Komaraiah and Agaiah. Bala Mallaiah died
in the year 1975. His undivided 1/3rd share devolved upon plaintiff Nos.1
and 2. Plaintiff Nos.3 and 4 are sons of plaintiff No.1 and plaintiff No.5
is the son of plaintiff No.2. Komaraiah, brother of Bala Mallaiah also died
and his 1/3rd interest had devolved upon plaintiff Nos.6 and 7. Agaiah –
plaintiff No.8 is the brother of Bala Mallaiah and plaintiff Nos.9 to 12
are his sons.
It was further averred that the plaintiff entered into a
developer’s agreement with respect to residential plots with M/s. Surya
Land Developers & Promoters with respect to 13 acres 17 guntas forming part
of survey No.68 and 12 acres 31 guntas in survey No.69. Another agreement
was entered into with Bapuji Estates with respect to 6 acres of area out of
survey No.69. Plots comprised in survey Nos.68 & 69 were also sold to
various persons. Survey No.69 was also sold in entirety. A preliminary
decree for partition was passed in O.S. No. 42/1962 in the year 1970 which
comprised of disputed property also. Bala Mallaiah or the plaintiffs and
other heirs were not impleaded as parties in the aforesaid suit for
partition and under the guise of decree the defendants were claiming
ownership and threatening to dispossess the plaintiffs forcibly. In the
suit for partition, during final decree proceedings, an Advocate-
Commissioner had been appointed who visited the disputed property on
15.8.1993. Hence, suit No.294/1993 was filed for perpetual injunction.
16. The defendants in their written statement contended that the
suit was not maintainable. The preliminary decree for partition dated
24.11.1970 was binding in which shares of respective parties had been
declared. Suit for partition was filed in the year 1935. The sale
transaction between Hamid Ali Khan and Bala Mallaiah was void and conferred
no right, title or interest upon the plaintiffs. Plaintiffs had no right to
interfere in the shares allotted to other co-heirs in the suit for
partition. The property in question was ancestral property. The findings
recorded in preliminary decree against defendant No.1, vendor of Bala
Mallaiah are binding upon the plaintiffs, and as such they are not entitled
for any relief.
17. It is apparent that the suit for permanent injunction was filed
by the plaintiffs on the basis of sale deed dated 23.11.1959 in which it
was also submitted that it was not during lis pendens. Plea of adverse
possession had also been raised which was negatived. They claimed
injunction on the basis of possession under the sale deed dated 23.11.1959.
The trial court in the aforesaid civil suit gave the following findings
against the plaintiff : (i) that the purchase was hit by doctrine of lis
pendens so that they are not entitled for relief of injunction against the
defendants who are co-sharers as per the preliminary decree dated
24.11.1970 passed in the partition suit; (ii) it was also held that the
possession of the plaintiff could not be said to be a rightful possession.
It is not open to the plaintiff to claim right on the basis of sale deed on
the ground that they were not parties to the partition suit. It was also
held that whatever their vendors would get in the suit for partition, to
that extent they would be entitled to and they could not claim rights over
the entire property; (iii) the plea of adverse possession was also
negatived by the trial court on the ground that the purchase was during lis
pendens and there was no pleading or evidence regarding adverse possession.
18. The judgment was affirmed in the first appeal vide judgment and
decree dated 8.6.1988 passed by the Court of II Additional District Judge,
NTR Nagar, Hyderabad in A.S. No.72/1998. It was held that the sale deed was
hit by doctrine of lis pendens. The first appellate court also held that
the vendor of Bala Mallaiah namely, Hamid Ali Khan, defendant 1, had no
right to sell the entire dispute property to Bala Malliah as absolute
owner. The plaintiffs could claim right over the property to the extent of
vendor of Bala Mallaiah. It was also held that the land grabbing case LGC
No.148/1996 was dismissed which order had attained finality and barred the
present suit. Injunction could not be granted in view of the preliminary
decree for partition which had been passed as it would tantamount to
granting injunction against the decree-holders for enforcing their lawful
decree. Being a purchaser lis pendens, it is open to the plaintiff to
approach the court where the final decree proceedings were pending to work
out available equity to the extent of vendor’s share. Against the said
decision in first appeal, Second Appeal No.465/2011 was filed in the High
Court of Andhra Pradesh at Hyderabad which was dismissed in limine vide
order dated 26.9.2011 as no substantial question of law was found involved
in the appeal. Judgment and decrees of courts below were thus affirmed.
19. In view of the categorical findings recorded by the trial court
and first appellate court it is apparent that the sale deed dated
23.11.1959 was hit by doctrine of lis pendens and secondly on the basis of
the said sale deed, L.Rs. of Bala Mallaiah could have claimed only to the
extent of the share of his vendor and not the entire land, i.e. only to the
extent of 14/104th share of defendant No.1.
20. With respect to effect of suit for permanent injunction based
upon title, effect of negativing title has been considered by this Court.
In Sajjadanashin Sayed Md. B.E. Edr. (D) by LRs. v. Musa Dadabhai Ummer &
Ors. (2000) 3 SCC 350, it has been held :
“24. Before parting with this point, we would like to refer to two more
rulings. In Sulochana Amma v. Narayanan Nair (1994) 2 SCC 14 this Court
held that a finding as to title given in an earlier injunction suit would
be res judicata in a subsequent suit on title. On the other hand, the
Madras High Court, in Vanagiri Sri Selliamman Ayyanar
Uthirasomasundareswarar Temple v. Rajanga Asari AIR 1965 Madras 355 held
(see para 8 therein) that the previous suit was only for injunction
relating to the crops. Maybe, the question of title was decided, though not
raised in the plaint. In the latter suit on title, the finding in the
earlier suit on title would not be res judicata as the earlier suit was
concerned only with a possessory right. These two decisions, in our
opinion, cannot be treated as being contrary to each other but should be
understood in the context of the tests referred to above. Each of them can
perhaps be treated as correct if they are understood in the light of the
tests stated above. In the first case decided by this Court, it is to be
assumed that the tests above-referred to were satisfied for holding that
the finding as to possession was substantially rested on title upon which a
finding was felt necessary and in the latter case decided by the Madras
High Court, it must be assumed that the tests were not satisfied. As stated
in Mulla, it all depends on the facts of each case and whether the finding
as to title was treated as necessary for grant of an injunction in the
earlier suit and was also the substantive basis for grant of injunction. In
this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, p.
229) where a similar aspect in regard to findings on possession and
incidental findings on title were dealt with. It is stated:
“Where title to property is the basis of the right of possession, a
decision on the question of possession is res judicata on the question of
title to the extent that adjudication of title was essential to the
judgment; but where the question of the right to possession was the only
issue actually or necessarily involved, the judgment is not conclusive on
the question of ownership or title.”
25. We have gone into the above aspects in some detail so that when a
question arises before the Courts as to whether an issue was earlier
decided only incidentally or collaterally, the Courts could deal with the
question as a matter of legal principle rather than on vague grounds. Point
1 is decided accordingly.” (emphasis added by us)
In Commissioner of Endowments & Ors. v. Vittal Rao & Ors. (2005) 4
SCC 120, it has been held thus :
“28. In support of his submission, the learned counsel for Respondent 1
contended that as long as an issue arises substantially in a litigation
irrespective of the fact whether or not a formal issue has been framed or a
formal relief has been claimed, a finding on the said issue would operate
as res judicata, strongly relied on the decision of this Court
in Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer (supra). Paras
18 and 19 of the said judgment read : (SCC pp.359-60)
"18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p.
104). The learned author says: a matter in respect of which relief is
claimed in an earlier suit can be said to be generally a matter ‘directly
and substantially’ in issue but it does not mean that if the matter is one
in respect of which no relief is sought it is not directly or substantially
in issue. It may or may not be. It is possible that it was ‘directly and
substantially in issue and it may also be possible that it was only
collaterally or incidentally in issue, depending upon the facts of the
case. The question arises as to what is the test for deciding into which
category a case falls? One test is that if the issue was ‘necessary’ to be
decided for adjudicating on the principal issue and was decided, it would
have to be treated as ‘directly and substantially’ in issue and if it is
clear that the judgment was in fact based upon that decision, then it would
be res judicata in a latter case (Mulla, p. 104). One has to examine the
plaint, the written statement, the issues and the judgment to find out if
the matter was directly and substantially in issue (Isher Singh v. Sarwan
Singh AIR 1965 SC 948 and Syed Mohd. Salie Labbai v. Mohd. Hanifa (1976) 4
SCC 780). We are of the view that the above summary in Mulla is a correct
statement of the law.
19. We have here to advert to another principle of caution referred to by
Mulla (p. 105):
‘It is not to be assumed that matters in respect of which issues have been
framed are all of them directly and substantially in issue. Nor is there
any special significance to be attached to the fact that a particular issue
is the first in the list of issues. Which of the matters are directly in
issue and which collaterally or incidentally, must be determined on the
facts of each case. A material test to be applied is whether the court
considers the adjudication of the issue material and essential for its
decision.’ "
(emphasis in original and supplied)
29. In the light of what is stated above, in the case on hand, in our view,
it was necessary for the Court in the earlier round of litigation to decide
the nature and scope of gift deed Ext. A-1. Accordingly, the courts decided
that the gift made in favour of ancestors of Respondent 1 of the land was
absolute and it was not an endowment for a public or charitable purpose. On
the facts of the case, it is clear that though an issue was not formally
framed, the issue was material and essential for the decision of the case
in the earlier proceeding. Hence, the bar of res judicata applies to the
facts of the present case.”
21. Reliance has been placed by learned senior counsel for the
respondents on a decision in Anathula Sudhakar v. P. Buchi Reddy (dead) by
LRs. & Ors. (2008) 4 SCC 594 wherein the Court had summarized the
conclusions thus: :
“21. To summarise, the position in regard to suits for prohibitory
injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff’s title and he does not have
possession, a suit for declaration and possession, with or without a
consequential injunction, is the remedy. Where the plaintiff’s title is not
in dispute or under a cloud, but he is out of possession, he has to sue for
possession with a consequential injunction. Where there is merely an
interference with the plaintiff’s lawful possession or threat of
dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession,
normally the issue of title will not be directly and substantially in
issue. The prayer for injunction will be decided with reference to the
finding on possession. But in cases where de jure possession has to be
established on the basis of title to the property, as in the case of vacant
sites, the issue of title may directly and substantially arise for
consideration, as without a finding thereon, it will not be possible to
decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction,
unless there are necessary pleadings and appropriate issue regarding title
(either specific, or implied as noticed in Annaimuthu Thevar v. Alagammal
(2005) 6 SCC 202. Where the averments regarding title are absent in a
plaint and where there is no issue relating to title, the court will not
investigate or examine or render a finding on a question of title, in a
suit for injunction. Even where there are necessary pleadings and issue, if
the matter involves complicated questions of fact and law relating to
title, the court will relegate the parties to the remedy by way of
comprehensive suit for declaration of title, instead of deciding the issue
in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and
appropriate issue relating to title on which parties lead evidence, if the
matter involved is simple and straightforward, the court may decide upon
the issue regarding title, even in a suit for injunction. But such cases,
are the exception to the normal rule that question of title will not be
decided in suits for injunction. But persons having clear title and
possession suing for injunction, should not be driven to the costlier and
more cumbersome remedy of a suit for declaration, merely because some
meddler vexatiously or wrongfully makes a claim or tries to encroach upon
his property. The court should use its discretion carefully to identify
cases where it will enquire into title and cases where it will refer to the
plaintiff to a more comprehensive declaratory suit, depending upon the
facts of the case.”
22. It was submitted on behalf of respondents that the findings in
O.S. No.294/1993 do not operate as res judicata as it was left ultimately
to raise the objections in the final decree proceedings. We are unable to
accept the aforesaid submission as there was clear inability to grant
injunction and the submission of the plaintiffs that they were having title
on entire land on the basis of sale deed dated 23.11.1959, had been
negatived. It was found that Bala Mallaiah could have purchased only the
share of his vendor Hamid Ali and not the entire disputed property and the
purchase was affected by lis pendens. We are of the considered opinion that
the finding with respect to purchase being made during lis pendens had
attained finality and was not open to question in the present proceedings.
Besides, the validity of the sale deed to the extent of the share of the
vendor which was sought to be re-agitated in the final decree proceedings,
was also not open to be raised in view of clear findings recorded in the
suit of 1993. Though we have held so, however nothing turns on the
aforesaid finding as to res judicata as we propose to examine both aspects
on merits afresh, in view of the conclusions which we propose to record
hereinafter.
(ii) In re : Whether the sale deed dated 23.11.1959 executed by defendant
No.1 in favour of Bala Mallaiah is hit by doctrine of lis pendens?
23. In the instant case, a suit for partition was filed in the year
1935. On abolition of Darul Qaza Court in 1951 the case was transferred to
the High Court. On abolition of original jurisdiction of the High Court,
file was sent to the city civil court. It appears that when the file from
Custodian did not reach the city civil court, hence order dated 8.1.1955
was passed to the following effect :
8.1.1955 - “This file summoned by the Custodian is not yet received. As
the plaintiff too is absent and the file not yet received the case be
closed. It may be revived only on the receipt of the file and the
application of the plaintiff.”
It is apparent from the aforesaid order that it was clearly an order
of keeping the case sine die to be taken up only on receipt of the file on
being informed by filing an application by the plaintiff. The file was not
before the court. Thus, there was no question of dismissal of the case in
default nor was it so dismissed by the court. However the plaintiff
laboured under wrong impression, as such filed application under Order 9
Rule 9 CPC and prayed for restoration of the suit. An order was passed on
1.12.1955 by the city civil court, restoring the suit on the basis of
payment of Rs.50 as costs to be paid on or before 15.12.1955. Costs could
not be deposited by the plaintiff by 15.12.1955. The prayer was made to
accept the costs on 16.12.1955 by extending time under section 148 CPC.
However, the city civil court dismissed the said application. The order was
questioned in the High Court in appeal filed by the plaintiff in which the
Division Bench of the High Court vide order dated 5.2.1962 had held that
the suit in fact was not dismissed for default on 8.1.1955 by the trial
court. It was an order adjourning the suit with a direction to be revived
only on the file being received from the Custodian. Therefore, there was no
necessity for the plaintiff to file an application under Order 9 Rule 9
CPC. The High Court had set aside the order dated 8.1.1955 and also held
that there was no jurisdiction with the city civil court to pass an order
on 1.12.1955 to impose and pay costs of Rs.50. The following order was
passed in the year 1962 by the Division Bench of the High Court :
“It is clear from the order dated 8-1-55, that the suit was not dismissed
for default. Virtually, it is an order adjourning the suit with a
direction that it may be revived only on the receipt of the file from the
Custodian. Therefore there was no necessity for the plaintiff to file the
application under Or. 9, Rule 9, CPC, praying that the suit be restored to
its original number after setting aside the order dated 8-1-55. The
plaintiff could have merely asked the court to take up the suit and to
proceed with the trial. The learned Judge has no jurisdiction to direct
the plaintiff by his order dated 1-12-55 to pay day costs viz., Rs.50/- to
the defendants on or before 15-12-55 as a condition precedent. This order
is clearly illegal and has to be set aside.
In the result, the appeal is allowed, and the order dated 1-12-55 directing
the plaintiff to pay the defendants Rs.50/- on or before 15-12-55 as
a condition precedent to restraining the suit is set aside. As a
consequence, the order dated 7-1-56 is vacated. Since this is a suit of
1951 which has been pending for a long time, the lower court will dispose
of the same as expeditiously as possible. The contesting respondents shall
pay the costs of the appellant.”
24. A preliminary objection has been raised on behalf of the respondents
as to very applicability of doctrine of lis pendens to Mohammedan law based
upon provisions contained in section 2 of T.P. Act. Section 2 is extracted
hereunder :
“2. Repeal of Acts.--Saving of certain enactments, incidents, rights,
liabilities, etc. --- In the territories to which this Act extends for the
time being the enactments specified in the Schedule hereto annexed shall be
repealed to the extent therein mentioned. But nothing herein contained
shall be deemed to affect---
(a) the provisions of any enactment not hereby expressly repealed;
(b) any terms or incidents of any contract or constitution of property
which are consistent with the provisions of this Act, and are allowed by
the law for the time being in force;
(c) any right or liability arising out of a legal relation constituted
before this Act comes into force, or any relief in respect of any such
right or liability; or
(d) save as provided by section 57 and Chapter IV of this Act, any transfer
by operation of law or by, or in execution of, a decree or order of a Court
of competent jurisdiction,
and nothing in the second Chapter of this Act shall be deemed to affect any
rule of Muhammadan law.”
No doubt about it that section 2 of T.P. Act protects rule of
Mohammedan law by excluding the provisions of Chapter II containing
sections 5 to 53A thereof. In our opinion, exclusion is conditional upon
existence of rule of Mohammedan law in that regard, that is to say if
principle/rule of Mohammedan law provides as to transfers lis pendens, the
same would prevail and nothing in section 52 of T.P. Act shall be deemed to
affect any such rule. However, we have not been shown any such rule of
Mohammedan law containing provision as to lis pendens and thus, in the
absence whereof the provisions of section 52 T.P. Act would be attracted.
The submission as to non-applicability of section 52 of T.P. Act to
Mohammedan law is hereby rejected.
25. It was submitted on behalf of the respondents that the sale deed had
been executed after dismissal of the suit on 16.12.1955 in terms of the
order dated 1.12.1955 as such doctrine of lis pendens was not attracted.
Thus, it was submitted that between 15.12.1955 and 23.1.1962 no suit was
pending. Reliance has been placed on a decision in Bhutnath Das & Ors. v.
Sahadeb Chandra Panja AIR 1962 Cal. 485 :
“4. … The real question, therefore, is whether in a case like this where
an order has been made for the payment of certain money within a certain
time for the purpose of getting specific performance and at the same time
an order has also been made that if the money is not paid the suit will
stand dismissed, the court retains jurisdiction. Though not without
hesitation, I have reached the conclusion that in such a case it will be
unrealistic and unjust to say that the court retains jurisdiction. Whether
the court has retained jurisdiction or not will, in my view, depend very
much on the substance of the directions given….. Where….. the court makes
also an order that if the amount is not deposited within the time specified
the suit will stand dismissed, I find it difficult to agree that the court
retains any jurisdiction whatsoever.
6. …..the trial court lost jurisdiction in the suit as soon as it made the
order directing the payment within a certain time and further directing
that on failure of the deposit being made within the time limited the case
should stand dismissed.”
26. The decision of this Court in Vareed Jacob v. Sosamma Geevarghese &
Ors. (2004) 6 SCC 378 has been relied upon in which it has been laid down
thus :
“18. In the case of Saranatha Ayyangar v. Muthiah Moopanar AIR 1934 Mad 49
it has been held that on restoration of the suit dismissed for default all
interlocutory matters shall stand restored, unless the order of restoration
says to the contrary. That as a matter of general rule on restoration of
the suit dismissed for default, all interlocutory orders shall stand
revived unless during the interregnum between the dismissal of the suit and
restoration, there is any alienation in favour of a third party.
Even the dissenting judgment of S.B. Sinha, J. had on this point noted:
62. It is also of some importance that there exists a view that an order of
dismissal of a suit does not render an order of attachment void ab initio
as a sale of property under order of attachment would be invalid even after
the date of such sale and the order of attachment is withdrawn.
63. A converse case may arise when the property is sold after the suit is
dismissed for default and before the same is restored. Is it possible to
take a view that upon restoration of suit the sale of property under
attachment before judgment becomes invalid? The answer to the said question
must be rendered in the negative. By taking recourse to the interpretation
of the provisions of the statute, the court cannot say that although such a
sale shall be valid but the order of attachment shall revive. Such a
conclusion by reason of a judge-made law may be an illogical one.”
27. It was submitted on behalf of the appellants that the sale was
subject to the doctrine of lis pendens under section 52 of the T.P. Act. It
was further submitted that the said provision is clear and unambiguous and
the statutory explanation to the provision makes it clear that the pendency
of the suit or proceeding shall be deemed to commence from the date of
presentation of the plaint or the institution of the proceeding in the
court of competent jurisdiction, and to continue until the suit or
proceeding has been disposed of by a decree or an order and complete
satisfaction of order or discharge of such order or decree has been
obtained or has become unobtainable by reason of the expiration of any
period of limitation prescribed for the execution thereof. Thus, the
transfer if any made in contravention of Section 52 renders it subservient
to the rights of the parties in litigation so that the rights would
eventually be determined in a suit. Thomson Press (India) Ltd. v. Nanak
Builders and Investors Pvt. Ltd. & Ors. (2013) 5 SCC 397, has been relied
on in which this Court has laid down thus :
“26. It would also be worth discussing some of the relevant laws in order
to appreciate the case on hand. Section 52 of the Transfer of Property Act
speaks about the doctrine of lis pendens. Section 52 reads as under:
“52. Transfer of property pending suit relating thereto.—During the
pendency in any court having authority within the limits of India excluding
the State of Jammu and Kashmir or established beyond such limits by the
Central Government of any suit or proceeding which is not collusive and in
which any right to immovable property is directly and specifically in
question, the property cannot be transferred or otherwise dealt with by any
party to the suit or proceeding so as to affect the rights of any other
party thereto under the decree or order which may be made therein, except
under the authority of the court and on such terms as it may impose.
Explanation.—For the purposes of this section, the pendency of a suit
or proceeding shall be deemed to commence from the date of the presentation
of the plaint or the institution of the proceeding in a court of competent
jurisdiction, and to continue until the suit or proceeding has been
disposed of by a final decree or order and complete satisfaction or
discharge of such decree or order has been obtained, or has become
unobtainable by reason of the expiration of any period of limitation
prescribed for the execution thereof by any law for the time being in
force.”
It is well settled that the doctrine of lis pendens is a doctrine based on
the ground that it is necessary for the administration of justice that the
decision of a court in a suit should be binding not only on the litigating
parties but on those who derive title pendente lite. The provision of this
section does not indeed annul the conveyance or the transfer otherwise, but
to render it subservient to the rights of the parties to a litigation.
27. Discussing the principles of lis pendens, the Privy Council in Gouri
Dutt Maharaj v. Sk. Sukur Mohammed AIR 1948 PC 147 observed as under: (IA
p. 170)
“… The broad purpose of Section 52 is to maintain the status quo unaffected
by the act of any party to the litigation pending its determination. The
applicability of the section cannot depend on matters of proof or the
strength or weakness of the case on one side or the other in bona fide
proceedings. To apply any such test is to misconceive the object of the
enactment and, in the view of the Board, the learned Subordinate Judge was
in error in this respect in laying stress, as he did, on the fact that the
agreement of 8-6-1932, had not been registered.”
28. In Kedar Nath Lal v. Ganesh Ram AIR 1970 SC 1717, this Court referred
the earlier decision in Samarendra Nath Sinha v. Krishna Kumar Nag AIR 1967
SC 1440 and observed: (Kedar Nath Lal case (supra), SCC p. 792, para 17)
“17. … ‘16. … The purchaser pendente lite under this doctrine is bound by
the result of the litigation on the principle that since the result must
bind the party to it so must it bind the person deriving his right, title
and interest from or through him. This principle is well illustrated in
Radhamadhub Holder v. Monohur Mookerji (1887-88) 15 IA 97 where the facts
were almost similar to those in the instant case. It is true that Section
52 strictly speaking does not apply to involuntary alienations such as
court sales but it is well established that the principle of lis pendens
applies to such alienations. (See Nilakant Banerji v. Suresh Chunder
Mullick (1884-85) 12 IA 171 and Moti Lal v. Karrab-ul-Din (1896-97) 24 IA
170)’ (Samarendra Nath case (supra), AIR p. 1445, para 16)”
29. The aforesaid Section 52 of the Transfer of Property Act again came up
for consideration before this Court in Rajender Singh v. Santa Singh AIR
1973 SC 2537 and Their Lordships with approval of the principles laid down
in Jayaram Mudaliar v. Ayyaswami (1972) 2 SCC 200 reiterated: (Rajender
Singh case (supra), SCC p. 711, para 15)
“15. The doctrine of lis pendens was intended to strike at attempts by
parties to a litigation to circumvent the jurisdiction of a court, in which
a dispute on rights or interests in immovable property is pending, by
private dealings which may remove the subject-matter of litigation from the
ambit of the court’s power to decide a pending dispute or frustrate its
decree. Alienees acquiring any immovable property during a litigation over
it are held to be bound, by an application of the doctrine, by the decree
passed in the suit even though they may not have been impleaded in it. The
whole object of the doctrine of lis pendens is to subject parties to the
litigation as well as others, who seek to acquire rights in immovable
property, which are the subject-matter of a litigation, to the power and
jurisdiction of the court so as to prevent the object of a pending action
from being defeated.””
28. Reliance has been placed on A. Nawab John v. V.N. Subramaniyam (2012)
7 SCC 738, laying down thus :
“18. It is settled legal position that the effect of Section 52 is not to
render transfers effected during the pendency of a suit by a party to the
suit void; but only to render such transfers subservient to the rights of
the parties to such suit, as may be, eventually, determined in the suit. In
other words, the transfer remains valid subject, of course, to the result
of the suit. The pendente lite purchaser would be entitled to or suffer the
same legal rights and obligations of his vendor as may be eventually
determined by the court.
“12. … The mere pendency of a suit does not prevent one of the parties from
dealing with the property constituting the subject-matter of the suit. The
section only postulates a condition that the alienation will in no manner
affect the rights of the other party under any decree which may be passed
in the suit unless the property was alienated with the permission of the
court.” (Sanjay Verma v. Manik Roy (2006) 13 SCC 608, SCC p. 612, para
12.)””
29. Reliance has been placed on Sanjay Verma v. Manik Roy and Ors.,
(2006) 13 SCC 608, in which this Court laid down :
“10. Bibi Zubaida Khatoon case (2004) 1 SCC 191 on which learned counsel
for the respondents had placed reliance in fact goes against the stand of
the respondents. Though a casual reading of para 9 supports the stand taken
by the respondents, it is to be noted that the factual position was
entirely different. In fact a cross-suit had been filed in the suit in that
case. The respondents being transferees pendente lite without leave of the
court cannot as of right seek impleadment in the suit which was in the
instant case pending for a very long time. In fact in para 10 of the
judgment this Court has held that there is absolutely no rule that the
transferee pendente lite without leave of the court should in all cases
contest the pending suit. In Sarvinder Singh v. Dalip Singh (1996) 5 SCC
539 it was observed in para 6 as follows: (SCC pp. 541-42, para 6)
“6. Section 52 of the Transfer of Property Act envisages that:
‘During the pendency in any court having authority within the limits
of India … of any suit or proceeding which is not collusive and in which
any right to immovable property is directly and specifically in question,
the property cannot be transferred or otherwise dealt with by any party to
the suit or proceeding so as to affect the rights of any other party
thereto under the decree or order which may be made therein, except under
the authority of the court and on such terms as it may impose.’
It would, therefore, be clear that the defendants in the suit were
prohibited by operation of Section 52 to deal with the property and could
not transfer or otherwise deal with it in any way affecting the rights of
the appellant except with the order or authority of the court. Admittedly,
the authority or order of the court had not been obtained for alienation of
those properties. Therefore, the alienation obviously would be hit by the
doctrine of lis pendens by operation of Section 52. Under these
circumstances, the respondents cannot be considered to be either necessary
or proper parties to the suit.”
12. The principles specified in Section 52 of the TP Act are in accordance
with equity, good conscience or justice because they rest upon an equitable
and just foundation that it will be impossible to bring an action or suit
to a successful termination if alienations are permitted to prevail. A
transferee pendente lite is bound by the decree just as much as he was a
party to the suit. The principle of lis pendens embodied in Section 52 of
the TP Act being a principle of public policy, no question of good faith or
bona fide arises. The principle underlying Section 52 is that a litigating
party is exempted from taking notice of a title acquired during the
pendency of the litigation. The mere pendency of a suit does not prevent
one of the parties from dealing with the property constituting the subject-
matter of the suit. The section only postulates a condition that the
alienation will in no manner affect the rights of the other party under any
decree which may be passed in the suit unless the property was alienated
with the permission of the court.”
30. It was also submitted on behalf of the appellants that the expression
in section 52 of the T.P. Act “suit or proceedings” is also applicable to
the applications. An application seeking extension of time is also a
proceeding within the meaning of the said provision and appeal filed is
also continuation of the suit or proceedings but comes within the meaning
of the proceedings. The legislative intent behind the amendment of section
52 was not only to cover the suit but also to cover appeals and proceedings
and same would include all applications/appeals under the CPC. An
application under Order 9 Rule 9 would also be covered within the meaning
of the expression suit or other proceedings to which the doctrine of lis
pendens would apply. It was also submitted that section 52 prior to
amendment prohibited transfer made during the “active prosecution” of a
suit. Section 52 of the Transfer of Property Act, embodies the rule of lis
pendens, which prior to its amendment only prohibited a transfer made
during the “active prosecution” of a suit or a proceeding in which any
right to immoveable property was directly and specifically in question. The
expression “active prosecution”, which existed in the section before its
amendment in 1929, led to much uncertainty in the application of the rule,
and caused a divergence of judicial opinion. It was felt that the standard
of diligence, which would constitute “active prosecution”, could not be
defined with precision. To remove this uncertainty, the law was amended in
1929, and the Amending Act XX of 1929 substituted the word “pendency” for
the phrase “active prosecution”; and there can now be no difficulty in
deciding whether the transfer was made during the pendency of a suit or
proceeding. In Parmeshari Din v. Ram Charan & Ors. AIR 1937 PC 260, it was
held :
“2. It is clear that the question of the active prosecution of a suit is
one of fact, but it was not suggested in either of the Courts in India that
the plaintiffs had not actively prosecuted the suit, and were consequently
debarred from availing themselves of the rule of lis pendens. The learned
Judges of the Court of Appeal had, therefore, no opportunity to express
their opinion on this point; and their Lordships cannot entertain an
objection, which depends upon a question of fact not dealt with below.
Upon the record before them, there is no indication of any delay or
remissness in the prosecution of the suit, for which the plaintiffs can be
held responsible. Their Lordships, therefore, agree with the High Court
that the transfer relied upon by the appellant cannot prejudice the rights
of the decree-holders, and that he cannot resist the decree obtained by
them.”
The abovesaid principle of law settled in the year 1937 by the Privy
Council is still valid as discerned from the latest judgment of this Court
rendered in the case of Kirpal Kaur v. Jitender Pal Singh & Ors. (2015) 9
SCC 356 :
“21. The execution of the alleged gift deed by the deceased first
defendant in favour of the second defendant is also hit by Section 52 of
the Transfer of Property Act, 1882, as the said deed was executed during
the pendency of the proceedings and before the expiry of the period of
limitation for filing SLP. Further, during the pendency of these
proceedings, the second defendant, who has claimed to be the alleged
beneficiary of the suit Schedule “B” property on the basis of alleged gift
deed should have sought leave of this Court as the donee and brought the
aforesaid fact of execution of the alleged gift deed in respect of “B”
schedule property by the deceased first defendant, which property has been
devolved in his favour, to the notice of this Court as provided under Order
22 Rule 10 of the CPC and defended his right as required under the law as
laid down by this Court in a catena of cases.
x x x x x
26. The legality of the alleged gift deed executed in favour of the
second defendant by the deceased first defendant in respect of the Schedule
'B' property has been further examined by us and the same is hit by
Section 52 of the Transfer of Property Act, 1882, in the light of the
decision of this Court in the case of Jagan Singh v. Dhanwanti (2012) 2
SCC 628, wherein this Court has laid down the legal principle that under
Section 52 of the Transfer of Property Act, 1882, the 'lis' continues so
long as a final decree or order has not been obtained from the Court and a
complete satisfaction thereof has not been rendered to the aggrieved party
contesting the civil suit. It has been further held by this Court that it
would be plainly impossible that any action or suit could be brought to a
successful termination if alienations pendente lite were permitted to
prevail.”
wherein the factum of the alleged gift deed was not made known to the
Court. This has been extrapolated in the case of Jagan Singh (dead)
through LRs. v. Dhanwanti & Anr. (2012) 2 SCC 628 thus :
“32. The broad principle underlying Section 52 of the TP Act is to
maintain the status quo unaffected by the act of any party to the
litigation pending its determination. Even after the dismissal of a suit, a
purchaser is subject to lis pendens, if an appeal is afterwards filed, as
held in Krishanaji Pandharinath v. Anusayabai AIR (1959) Bom 475. In that
matter the respondent (original plaintiff) had filed a suit for maintenance
against her husband and claimed a charge on his house. The suit was
dismissed on 15.7.1952 under Order 9 Rule 2, of the Code of Civil Procedure
1908, for non-payment of process fee. The husband sold the house
immediately on 17.7.1952. The respondent applied for restoration on
29.7.1952, and the suit was restored leading to a decree for maintenance
and a charge was declared on the house. The plaintiff impleaded the
appellant to the darkhast as purchaser. The Appellant resisted the same by
contending that the sale was affected when the suit was dismissed.
Rejecting the contention the High Court held in para 4 as follows:
“..In Section 52 of the Transfer of Property Act, as it stood before it was
amended by Act 20 of 1929, the expression ‘active prosecution of any suit
or proceeding’ was used. That expression has now been omitted, and the
Explanation makes it abundantly clear that the 'lis' continues so long as a
final decree or order has not been obtained and complete satisfaction
thereof has not been rendered. At p. 228 in Sir Dinshah Mulla's "Transfer
of Property Act", 4th Edn., after referring to several authorities, the law
is stated thus:
“Even after the dismissal of a suit a purchaser is subject to 'lis
pendens', if an appeal is afterwards filed.”
If after the dismissal of a suit and before an appeal is presented, the
'lis' continues so as to prevent the defendant from transferring the
property to the prejudice of the plaintiff, I fail to see any reason for
holding that between the date of dismissal of the suit under Order 9 Rule 2
of the Civil Procedure Code and the date of its restoration, the 'lis' does
not continue.”
33. It is relevant to note that even when Section 52 of TP Act was not so
amended, a Division Bench of Allahabad High Court had following to say in
Moti Chand v. British India Corpn. Ltd. AIR (1932) All 210:
‘10, ….The provision of law which has been relied upon by the appellants is
contained in Section 52, TP Act. The active prosecution in this section
must be deemed to continue so long as the suit is pending in appeal, since
the proceedings in the appellate court are merely continuation of those in
the suit …’(see Gobind Chunder Roy v. Guru Churn Kurmokar ILR 1988 15 Cal.
94).”
34. If such a view is not taken, it would plainly be impossible that any
action or suit could be brought to a successful termination if alienations
pendente lite were permitted to prevail. The Explanation to this section
lays down that the pendency of a suit or a proceeding shall be deemed to
continue until the suit or a proceeding is disposed of by final decree or
order, and complete satisfaction or discharge of such decree or order has
been obtained or has become unobtainable by reason of the expiration of any
period of limitation prescribed for the execution thereof by any law for
the time being in force.
35. In the present case, it would be canvassed on behalf of the
respondent and the applicant that the sale has taken place in favour of the
applicant at a time when there was no stay operating against such sale, and
in fact when the second appeal had not been filed. We would however, prefer
to follow the dicta in Krishanaji Pandharinath AIR 1959 Bom 475 to cover
the present situation under the principle of lis pendens since the sale was
executed at a time when the second appeal had not been filed but which came
to be filed afterwards within the period of limitation. The doctrine of lis
pendens is founded in public policy and equity, and if it has to be read
meaningfully such a sale as in the present case until the period of
limitation for second appeal is over will have to be held as covered under
Section 52 of the TP Act.”
31. The doctrine of lis pendens would be applicable even to the
proceedings in the nature of an appeal as has been emphasized in the case
of Krishanaji Pandharinath v. Anusayabai AIR 1959 Bom 475 thus :
“3. It is true that in this case the sale effected by Sidram was after
the dismissal of the suit filed by Anusayabai and before the suit was
restored, but the alienation being before, the final decree or order was
passed and complete satisfaction or discharge of the decree was obtained,
it must be regarded as pendente lite. In s. 52 of the Transfer of Property
Act, as it stood before it was amended by Act XX of 1929, the expression
“active prosecution of any suit or proceeding” was used. That expression
has now been omitted, and the Explanation makes it abundantly clear that
the lis continues so long as a final decree or order has not been obtained
and complete satisfaction thereof has not been rendered. At page 228 in
Sir Dinshah Mulla’s “Transfer of Property Act”, 4th edn., after referring
to several authorities, the law is stated thus:
“... Even after the dismissal of a suit a purchaser is subject to lis
pendens, if an appeal is afterwards filed.”
32. We are unable to accept the submissions raised on behalf of the
respondents that there was hiatus between 10.12.1955 and 1962 till the
order was passed by the High Court as it was misunderstood by the parties
that the suit had been dismissed. In our opinion, when the suit itself had
not been dismissed vide order dated 8.1.1955, the events subsequent thereto
i.e. the trial court vide order dated 1.12.1955 treated it as having been
dismissed or that the plaintiff also was left under a wrong impression that
the suit had been dismissed in default and cost was imposed on 1.12.1955
and it was not paid up to 15.12.1955, would make no difference. Due to non-
payment of costs, by order dated 1.12.1955 the suit stood dismissed, cannot
be accepted, as the order was non est in the eye of law. It was an illegal
order of treating a pending suit as having been dismissed. No legal fiction
can be created so as to treat the suit as having been dismissed when in
fact it had not been dismissed at all and as a matter of fact suit had not
been dismissed on 8.1.1955. Subsequent order or imposition of costs for its
restoration was non est and illegal and was rightly set aside by the High
Court. When suit had not been dismissed at all in the eye of law, it is to
be treated as pending only. No legal fiction can be created in favour of
the respondents that the suit itself had been dismissed on 15.12.1955 due
to non-payment of costs for restoration; whereas it was not dismissed at
all and the High Court has also held that the order dated 1.12.1955 was
without jurisdiction. The said order has to be ignored and was in fact set
aside by the High Court. Thus the suit was in fact pending and was wrongly
treated as having been dismissed. The High Court has rightly held that it
was never dismissed. Thus, in our opinion, the sale deed in question dated
23.11.1959 was executed during lis pendens and the High Court has erred in
law in holding otherwise in the judgment impugned herein.
(iii) In re: whether section 52 of T.P. Act renders a transfer pendente
lite void?
33. Reliance has been placed by learned senior counsel for the
respondents on Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1 in which this
Court has laid down that the doctrine of lis pendens does not affect the
conveyance by a party to the suit but only renders it subservient to the
rights of other parties to the litigation. Section 52 will not therefore
render a transaction void. This Court has laid down thus :
“42. It is well settled that the doctrine of lis pendens does not annul the
conveyance by a party to the suit, but only renders it subservient to the
rights of the other parties to the litigation. Section 52 will not
therefore render a transaction relating to the suit property during the
pendency of the suit void but render the transfer inoperative insofar as
the other parties to the suit. Transfer of any right, title or interest in
the suit property or the consequential acquisition of any right, title or
interest, during the pendency of the suit will be subject to the decision
in the suit.
43. The principle underlying Section 52 of the TP Act is based on justice
and equity. The operation of the bar under Section 52 is however subject to
the power of the court to exempt the suit property from the operation of
Section 52 subject to such conditions it may impose. That means that the
court in which the suit is pending, has the power, in appropriate cases, to
permit a party to transfer the property which is the subject-matter of the
suit without being subjected to the rights of any part to the suit, by
imposing such terms as it deems fit. Having regard to the facts and
circumstances, we are of the view that this is a fit case where the suit
property should be exempted from the operation of Section 52 of the TP Act,
subject to a condition relating to reasonable security, so that the
defendants will have the liberty to deal with the property in any manner
they may deem fit, in spite of the pendency of the suit.”
34. Reliance has also been placed on A. Nawab John v. V.N. Subramaniyam
(2012) 7 SCC 738 in which this Court has laid down thus :
“18. It is settled legal position that the effect of Section 52 is not to
render transfers effected during the pendency of a suit by a party to the
suit void; but only to render such transfers subservient to the rights of
the parties to such suit, as may be, eventually, determined in the suit. In
other words, the transfer remains valid subject, of course, to the result
of the suit. The pendente lite purchaser would be entitled to or suffer the
same legal rights and obligations of his vendor as may be eventually
determined by the court.
“12. … The mere pendency of a suit does not prevent one of the parties from
dealing with the property constituting the subject-matter of the suit. The
section only postulates a condition that the alienation will in no manner
affect the rights of the other party under any decree which may be passed
in the suit unless the property was alienated with the permission of the
court.” (Sanjay Verma v. Manik Roy, (2006) 13 SCC 608, SCC p. 612, para
12.)”
35. In Thomson Press (India) Ltd. v. Nanak Builders & Investors (P) Ltd.
(2013) 5 SCC 397, this Court has laid down thus :
“53. There is, therefore, little room for any doubt that the transfer of
the suit property pendente lite is not void ab initio and that the
purchaser of any such property takes the bargain subject to the rights of
the plaintiff in the pending suit. Although the above decisions do not deal
with a fact situation where the sale deed is executed in breach of an
injunction issued by a competent court, we do not see any reason why the
breach of any such injunction should render the transfer whether by way of
an absolute sale or otherwise ineffective. The party committing the breach
may doubtless incur the liability to be punished for the breach committed
by it but the sale by itself may remain valid as between the parties to the
transaction subject only to any directions which the competent court may
issue in the suit against the vendor.”
36. In our opinion the sale deed is not void but only valid to the extent
of the share of vendor of Bala Mallaiah i.e. it is valid to the extent of
14/104th share which has been found in the preliminary decree and affirmed
in the final decree. The sale deed was subject to the outcome of the suit
which was to the aforesaid effect.
(iv) In re : What is the effect of preliminary decree for partition and the
extent to which it is binding :
37. In the instant case preliminary decree was passed in the year 1970
and the shares were declared to the aforesaid extent of the respective
parties therein who were the heirs of Late Nawab Jung. Hamid Ali Khan,
defendant No.1, had only 14/104th share in the disputed property.
Preliminary decree dated 24.11.1970 has attained finality which was
questioned in appeal on limited extent in the High Court which has attained
finality by dismissal of LPA on 12.10.1977. Thus the determination of
shares as per preliminary decree has attained finality, shares of the
parties had been crystallised in each and every property. Purchaser
pendente lite is bound by the preliminary decree with respect to the shares
so determined and it cannot be re-opened and whatever equity could have
been claimed in the final decree proceedings to the extent of vendor’s
share has already been extended to the purchasers.
38. In Venkata Reddy & Ors. v. Pethi Reddy AIR 1963 SC 992, it has been
laid down that the preliminary decree for partition is final. It also
embodies the final decision of the court. The question of finality has been
discussed thus :
“6. The new provision makes it clear that the law is and has always been
that upon the father's insolvency his disposing power over the interest of
his undivided sons in the joint family property vests in the Official
Receiver and that consequently the latter has a right to sell that
interest. The provision is thus declaratory of the law and was intended to
apply to all cases except those covered by the two provisos. We are
concerned here only with the first proviso. This proviso excepts from the
operation of the Act a transaction such as a sale by an Official Receiver
which has been the subject of a final decision by a competent Court. The
short question, therefore, is whether the preliminary decree for partition
passed in this case which was affirmed finally in second appeal by the High
Court of Madras can be regarded as a final decision. The competence of the
court is not in question here. What is, however, contended is that in a
partition suit the only decision which can be said to be a final decision
is the final decree passed in the case and that since final decree
proceedings were still going on when the Amending Act came into force the
first proviso was not available to the appellants. It is contended on
behalf of the appellants that since the rights of the parties are
adjudicated upon by the court before a preliminary decree is passed that
decree must, in so far as rights adjudicated upon are concerned, be deemed
to be a final decision. The word 'decision' even in its popular sense means
a concluded opinion (see Stroud's Judicial Dictionary - 3rd ed. Vol. I, p.
743). Where, therefore, the decision is embodied in the judgment which is
followed by a decree finality must naturally attach itself to it in the
sense that it is no longer open to question by either party except in an
appeal, review or revision petition as provided for by law. The High Court
has, however, observed :
"The mere declaration of the rights of the plaintiff by the preliminary
decree, would, in our opinion not amount to a final decision for it is well
known that even if a preliminary decree is passed either in a mortgage suit
or in a partition suit, there are certain contingencies in which such a
preliminary decree can be modified or amended and therefore would not
become final.”
It is not clear from the judgment what the contingencies referred to by the
High Court are in which a preliminary decree can be modified or amended
unless what the learned Judges meant was modified or amended in appeal or
in review or in revision or in exceptional circumstances by resorting to
the powers conferred by Sections 151 and 152 of the Code of Civil
Procedure. If that is what the High Court meant then every decree passed by
a Court including decrees passed in cases which do not contemplate making
of a preliminary decree are liable to be modified and amended. Therefore,
if the reason given by the High Court is accepted it would mean that no
finality attaches to decree at all. That is not the law. A decision is said
to be final when, so far as the Court rendering it is concerned, it is
unalterable except by resort to such provisions of the Code of Civil
Procedure as permit its reversal, modification or amendment. Similarly, a
final decision would mean a decision which would operate as res judicata
between the parties if it is not sought to be modified or reversed by
preferring an appeal or a revision or a review application as is permitted
by the Code. A preliminary decree passed, whether it is in a mortgage suit
or a partition suit, is not a tentative decree but must, in so far as the
matters dealt with by it are concerned, be regarded as conclusive. No
doubt, in suits which contemplate the making of two decrees - a preliminary
decree and a final decree - the decree which would be executable would be
the final decree. But the finality of a decree or a decision does not
necessarily depend upon its being executable. The legislature in its wisdom
has thought that suits of certain types should be decided in stages and
though the suit in such cases can be regarded as fully and completely
decided only after a final decree is made the decision of the court arrived
at the earlier stage also has a finality attached to it. It would be
relevant to refer to S. 97 of the Code of Civil Procedure which provides
that where a party aggrieved by a preliminary decree does not appeal from
it, he is precluded from disputing its correctness in any appeal which may
be preferred from the final decree. This provision thus clearly indicates
that as to the matters covered by it, a preliminary decree is regarded as
embodying the final decision of the court passing that decree.”
39. Moreover, it is provided in section 97 of the C.P.C. as under :
“97. Appeal from final decree where no appeal from preliminary
decree.—Where any party aggrieved by a preliminary decree passed after the
commencement of this Code does not appeal from such decree, he shall be
precluded from disputing its correctness in any appeal which may be
preferred from the final decree.”
It is apparent from the aforesaid Section that the matters which are
concluded by preliminary decree cannot be re-agitated in an appeal against
the final decree. No appeal was preferred by the purchasers or by defendant
No.1 as against the preliminary decree.
(v) In re : whether it was necessary to file a suit for cancellation of
sale deed dated 23.11.1959 ?
40. In our opinion, when the sale deed had been executed during the
pendency of suit the purchaser pendente lite is bound by the outcome of the
suit. The provisions of section 52 prevent multiplicity of the proceedings.
It was not at all necessary to file a suit for cancellation of the sale
deed as the vendor had no authority to sell land of other co-sharers. He
had right to alienate his own share only which he had in the property to
the extent of 14/104th. As such the right, title and interest of Bala
Mallaiah were subject to the pending suit for partition in which a
preliminary decree was passed in the year 1970 which had attained finality
in which vendor of Bala Mallaiah, defendant No.1 was found to be having
share only to the extent of 14/104th. The preliminary decree was not based
upon fraud or collusion. The sale deed was not under the authority of the
court and the pendency of the suit under section 52 commenced from the date
of presentation of the plaint and continued until the suit or proceedings
were disposed of by a final decree, and on a complete satisfaction of the
discharge of such decree, an order had been obtained. The lis pendens
operates during execution also. Bala Mallaiah, his L.Rs. and purchasers
from them are bound by the decision of the case. They cannot circumvent the
jurisdiction of the court and wriggle out of the decree. The transfer
remained valid subject to the result of the suit and pendente lite
purchaser is subject to the legal rights and obligations of his vendor as
decided by the court. Our conclusion is buttressed by decision in K.N.
Aswathnarayana Setty (dead) through LRs. & Ors. v. State of Karnataka &
Ors. (2014) 15 SCC 394, question has been discussed by this Court thus :
“11. The doctrine of lis pendens is based on legal maxim ut lite pendente
nihil innovetur (during a litigation nothing new should be introduced).
This doctrine stood embodied in Section 52 of the Transfer of Property Act,
1882. The principle of “lis pendens” is in accordance with the equity, good
conscience or justice because they rest upon an equitable and just
foundation that it will be impossible to bring an action or suit to a
successful termination if alienations are permitted to prevail. A
transferee pendente lite is bound by the decree just as much as he was a
party to the suit. A litigating party is exempted from taking notice of a
title acquired during the pendency of the litigation. However, it must be
clear that mere pendency of a suit does not prevent one of the parties from
dealing with the property constituting the subject-matter of the suit. The
law simply postulates a condition that the alienation will, in no manner,
affect the rights of the other party under any decree which may be passed
in the suit unless the property was alienated with the permission of the
court. The transferee cannot deprive the successful plaintiff of the fruits
of the decree if he purchased the property pendente lite. (Vide K. Adivi
Naidu v. E. Duruvasulu Naidu (1995) 6 SCC 150, Venkatrao Anantdeo Joshi v.
Malatibai (2003) 1 SCC 722, Raj Kumar v. Sardari Lal (2004) 2 SCC 601 and
Sanjay Verma v. Manik Roy (2006) 13 SCC 608.)”
(vi) In re: whether Bala Mallaiah, his heirs and purchasers had perfected
their right, title and interest by virtue of adverse possession ?
41. The High Court has held that there was no lis pendens, and as such it
was necessary to question the sale deed and for want of questioning the
sale deed, the plaintiffs had perfected their title by virtue of adverse
possession. The same is clearly a perverse finding. Firstly, in the earlier
civil suit of 1993 submission was raised with respect to adverse possession
which was negatived. Secondly, in our opinion as we have held that the sale
deed was hit by the doctrine of lis pendens, the purchasers were bound by
the result of the suit. Thus there was no question of perfecting the title
by adverse possession during pendency of suit. Section 52 negates the very
plea of adverse possession. Trial court and first appellate court have
rightly held that there was no question of adverse possession. The High
Court has simply without any discussion held that the title was perfected
by adverse possession. Merely a bald statement that there was adverse
possession is not enough to set up a plea of adverse possession. It has to
be clearly set out from which date it commenced, and became hostile when
there was repudiation of the title. No such plea has been raised. There are
3 classic requirements of plea of adverse possession i.e. “nec vi, nec
clam, nec precario” i.e., peaceful, open and continuous. No such pleading
has been raised much less there is question of any proof and moreover, this
plea was not available to be raised in view of doctrine of lis pendens.
Possession never became adverse in the instant case as the property was
purchased subject to the outcome of the litigation. In Karnataka Board of
Wakf v. Government of India & Ors. (2004) 10 SCC 779 it was held that when
litigation was pending it could not be said that the possession was
peaceful or hostile in any view of the matter. It was held thus :
“11. In the eye of the law, an owner would be deemed to be in possession
of a property so long as there is no intrusion. Non-use of the property by
the owner even for a long time won’t affect his title. But the position
will be altered when another person takes possession of the property and
asserts a right over it. Adverse possession is a hostile possession by
clearly asserting hostile title in denial of the title of the true owner.
It is a well-settled principle that a party claiming adverse possession
must prove that his possession is “nec vi, nec clam, nec precario”, that
is, peaceful, open and continuous. The possession must be adequate in
continuity, in publicity and in extent to show that their possession is
adverse to the true owner. It must start with a wrongful disposition of the
rightful owner and be actual, visible, exclusive, hostile and continued
over the statutory period. (See S.M. Karim v. Bibi Sakina AIR 1964 SC 1254,
Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of
Karnataka (1997) 7 SCC 567.) Physical fact of exclusive possession and the
animus possidendi to hold as owner in exclusion to the actual owner are the
most important factors that are to be accounted in cases of this nature.
Plea of adverse possession is not a pure question of law but a blended one
of fact and law. Therefore, a person who claims adverse possession should
show: (a) on what date he came into possession, (b) what was the nature of
his possession, (c) whether the factum of possession was known to the other
party, (d) how long his possession has continued, and (e) his possession
was open and undisturbed. A person pleading adverse possession has no
equities in his favour. Since he is trying to defeat the rights of the true
owner, it is for him to clearly plead and establish all facts necessary to
establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari
Sharma (1996) 8 SCC 128.]
12. A plaintiff filing a title suit should be very clear about the origin
of title over the property. He must specifically plead it. (See S.M. Karim
v. Bibi Sakina (Supra).) In P. Periasami v. P. Periathambi (1995) 6 SCC 523
this Court ruled that: (SCC p. 527, para 5)
“Whenever the plea of adverse possession is projected, inherent in the plea
is that someone else was the owner of the property.”
The pleas on title and adverse possession are mutually inconsistent and the
latter does not begin to operate until the former is renounced. Dealing
with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to
the case in hand, this Court held: (SCC pp. 640-41, para 4)
“4. As regards the first plea, it is inconsistent with the second plea.
Having come into possession under the agreement, he must disclaim his right
thereunder and plead and prove assertion of his independent hostile adverse
possession to the knowledge of the transferor or his successor in title or
interest and that the latter had acquiesced to his illegal possession
during the entire period of 12 years i.e. up to completing the period his
title by prescription nec vi, nec clam, nec precario. Since the appellant’s
claim is founded on Section 53-A, it goes without saying that he admits by
implication that he came into possession of land lawfully under the
agreement and continued to remain in possession till date of the suit.
Thereby the plea of adverse possession is not available to the appellant.””
42. In our opinion, the High Court has erred in law in holding that the
plaintiffs perfected their title by virtue of adverse possession. The
finding is perverse and has no foundational basis.
(vii) In re: whether under the Muslim Law, defendant No.1 being a co-sharer
could have alienated the share of other co-sharers in the disputed property
?
43. In the instant case, the property was ancestral property of Late
Nawab Jung. It is not in dispute that Nawab Jung died intestate. The legal
heirs of Late Nawab Jung succeeded to the estate as tenants in common and
not as joint-tenants. The heirs succeeded to the estate in specific shares.
In Outlines of Muhammadan Law by Asaf A.A. Fyzee, 4th Edn, it has been
observed that general principles of Islamic jurisprudence do not
contemplate administration, but a mere distribution of the estate as per
the principles laid down in Sirajiyyah. As per the Sunni law, a testator
can leave a legacy to an heir only to the extent of 1/3rd of estate and not
exceeding that. After death of a person the first step is to make payment
of funeral expenses, debts and legacies. Thereafter, distribution of estate
among legal heirs, firstly to sharers, in the absence thereof, to
residuaries, and in case of absence of both to distant kindred. As per
Mulla, distribution takes place in the following manner :
“61. Classes of heirs There are three classes of heirs, namely, (1)
Sharers, (2) Residuaries, and (3) Distant Kindred:
“Sharers” are those who are entitled to a prescribed share of the
inheritance;
“Residuaries” are those who take no prescribed share, but succeed to the
“residue” after the claims of the sharers are satisfied;
“Distant Kindred” are all those relations by blood who are neither Sharers
nor Residuaries.”
Sharers take in the following manner :
“63. Sharers After payment of funeral expenses, debts, and legacies,
the first step in the distribution of the estate, of a deceased Mahomedan
is to ascertain which of the surviving relations belong to the class of
sharers, and which again of these are entitled to a share of the
inheritance, and, after this is done, to proceed to assign their respective
shares to such of the sharers as are, under the circumstances of the case,
entitled to succeed to a share. The first column in the accompanying table
(p.66A) contains a list of Sharers; the second column specifies the normal
share of each sharer; the third column specifies the conditions which
determine the right of each sharer to a share, and the fourth column sets
out the shares as varied by special circumstances.”
44. Residuaries take if there are no sharers or if there are sharers,
after satisfying their claims. As per Mulla, they will take in the
following manner :
“65. Residuaries If there are no Sharers, or if there are Sharers, but
there is a residue left after satisfying their claims, the whole
inheritance or the residue, as the case may be, devolves upon Residuaries
in the order set forth in the annexed table (p.74A).
The Residuaries or Agnatic heirs were the principal heirs before Islam;
they continue to remain the principal heirs in Sunni law. Their premier
position is, in Islam, always subject to the claims of near relations
mentioned as the Koranic heirs. First they are satisfied by giving them
their Koranic shares. Residuaries are the relations whose rights were also
recognized by tribal laws in Saudi Arabia before Islam.
The rights of residuaries are recognized by the Holy Quran (by implication)
and by the traditions of the prophet (PBUH) in very specific terms.
The Holy Quran declares:
“from what is left by parents and near kindred, there is a share for men
and a share for woman, whether the property be small or large-a determinate
share”.
“To (benefit) every one, we have appointed shares and heirs to property
left by parents and near relatives…”
“Allah directs you concerning your children (their inheritance), to the
male a portion equal to that of two females..”
“They ask thee for a legal decision. Say: Allah directs (thus) about those
who leave no descendants or ascendants as heir. If it is a man that dies,
leaving a sister but no child, she shall have half the inheritance. If
(such a deceased was) a woman who left no child, her brother takes her
inheritance... If they are brothers and sisters, (they share), the male
having twice the share of the female.”
The first two verses are clear proof that blood relations are entitled to
inherit. Blood relations definitely include residuaries (the male
agnates).” [see, Mohammad Mustafa Ali Khan, Islamic Law of Inheritance, 1st
edition.]”
45. The “distant kindred” is dealt with in section 67 in Mulla’s
Principles of Mahomedan Law thus :
“67. Distant Kindred (1) If there be no shares or Residuaries, the
inheritance is divided amongst Distant Kindred.
(2) If the only sharer be a husband or wife, and there be no relation
belonging to the class of Residuaries, the husband or wife will take his or
her full share, and the remainder of the estate will be divided among
Distant Kindred.”
46. Incidents of tenancy in common have been cited from Halsbury’s Laws
of England, 5th Edn., vol. 87 in which nature of such tenancy has been
discussed before 1925 in para 220. In para 221 nature of such tenancy since
1925 has been discussed. It has been observed that tenants in common have
several interests, where joint tenants, whether at law or in equity, have
one interest. The tenants in common may be entitled to equitable shares in
the land in unequal shares and for interests which may be unequal in
duration; different shares would be subject to different limitations and
the limitations may include entailed interests. No new entailed interests
can be created either in real or personal property, but this does not
affect any entailed interests created before 1.1.1997 considering the
provisions of the Trusts of Land and Appointment of Trustees Act, 1996 as
applicable in the area for which it has been enacted. There is no right of
survivorship and on the death of a tenant-in-common, his share passes
according to its own limitation. In para 224 the modes of effecting
partition of tenancies-in-common have been dealt with in general and the
position before 1925 and subsequent thereto has been taken into
consideration considering the enactments which have been made applicable
from time to time.
Thus, it is apparent that the incidents of such joint tenancy and
tenants in common are further subject to the law by which parties are
governed and in that context, we have to examine a case. There is no
dispute with the general principles of joint tenancy and tenants in common
but the same would also depend upon in their application with respect to
the law by which the parties and the lis in question are governed. In a
case belonging to Muslims, incidents of Muslim Law, their law of
inheritance has to be considered, in particular with respect to rights of
tenants in common. Right of disposition by a testament is also different in
the Muslim law. There cannot be testamentary disposition for more than
1/3rd of the property held by testator. The power of alienation in Muslim
law is different from Hindu law. In Hindu law, there is difference in
Dayabhaga and Mitakshra school of law. Muslim law may be akin in some
respect to Dayabhaga law but not with Mitakshara Law. However, in Mitakshra
Law in Bombay School and in Banaras School, power of alenation is
different. A co-parcener cannot alienate without consent of other co-
parceners in Banaras School of Mitakshara Law. In Bombay School of
Mitakshara Law, a co-parcener can alienate for value his undivided interest
or his co-parcenery property without consent of other co-parceners. However
in the area which is governed by the Banaras School of Mitakshara Law, sale
of his undivided share in a co-parcenery property without consent of other
co-parceners is voidable at the instance of non-alienating co-parcener.
47. A Full Bench of the M.P. High Court in Ramdayal v. Manaklal AIR 1973
MP 222 has made certain observations with respect to applicability of
Mitakshara law as administered in Bombay, Madras and M.P. A co-parcener may
sell, mortgage or otherwise alienate for value his undivided interest in co-
parcenery property without the consent of other co-parceners. Decision in
Ramdayal’s case (supra) has been explained by a decision of another Full
Bench of the M.P. High Court in Diwan Singh v. Bhaiya Lal AIR 1997 MP 210.
It has been held that in Madhya Bharat, Vindhya Pradesh etc. of Madhya
Pradesh, Banaras School of Hindu Law applies. Thus the applicability of the
law at the place in question and certain customs which would be prevailing
in certain areas are also relevant. As in certain parts of A.P. or
elsewhere there may be different customs prevailing in Muslims which are to
be taken into consideration while deciding a matter. In Halsbury also
distinction has been made between the law which was applicable before 1925
and the law which is applicable after 1925 and the discussion of law is
with respect to various Acts on the basis of which the decisions have been
referred herein.
48. When we consider the incidents of disposition of property under
different laws, we have to consider the personal law and then to apply the
general principles of tenancy law to the permissible non-conflict zone to
personal law which holds the field for the parties to arrive at a decision.
The Privy Council in the case of Imambandi & Ors. v. Mutsaddi & Ors. (1918)
L.R. 45 I.A. 73 considering the distinction between the law which is
applicable to Mohammedans, has held that there is a sharp distinction
which has to be drawn with other laws with respect to its special nature.
The Court cautioned to apply the foreign decisions which are on
considerations and conditions totally differing from those applicable to or
prevailing in India. The Privy Council has observed thus :
“45. Their Lordships cannot help deprecating the practice which seems to
be growing in some of the Indian Courts of referring largely to foreign
decisions. However useful in the scientific study of comparative
jurisprudence, reference to judgments of foreign Courts, to which Indian
practitioners cannot be expected to have access, based often on
considerations and conditions totally differing from those applicable to or
prevailing in India, is only likely to confuse the administration of
justice.”
Thus, in our opinion, courts have to be careful to apply the decision
of Muslim law to a case relating to Hindu law and the foreign decisions
and vice versa. There cannot be universal application of principles of law
on a particular subject. Special laws by which parties are governed are
also to be taken into consideration so as to arrive at a just conclusion.
49. Keeping in view aforesaid principle we proceed to consider the
question further. In Syed Shah Ghulam Ghouse Mohiuddin & Ors. v. Syed Shah
Ahmed Mohiuddin Kamisul Quadri (died) by l.rs. & Ors. (1971) 1 SCC 597,
this Court has laid down that Muslim heirs are tenants in common and they
succeed to their definite fraction of every part of estate of the deceased.
The shares of the heirs are definite and known before actual partition.
Therefore, on partition of the properties there is division by metes and
bounds in accordance with specific shares of each sharer which have already
been determined by law. This Court has observed thus :
“20. The cause of action for partition of properties is said to be a
“perpetually recurring one” (See Monsharam Chakravarty and Others v. Ganesh
Chandra Chakravarty & Ors., 17 CWN 521. In Mohammedan law the doctrine of
partial partition is not applicable because the heirs are tenants-in-common
and the heirs of the deceased Muslim succeed to the definite fraction of
every part of his estate. The shares of heirs under Mohammedan law are
definite and known before actual partition. Therefore on partition of
properties belonging to a deceased Muslim there is division by metes and
bounds in accordance with the specific share of each heir being already
determined by the law.”
50. In P.N. Veetil Narayani v. Pathumma Beevi & Ors. (1990) 4 SCC 672,
it was reiterated that since heirs succeed to the estate as tenants in
common, thus, the liability of heirs of a Muslim dying intestate or that of
the deceased is to the extent of his share of debt proportionate to his
share of estate. If that is proportionate to share of the deceased as
inheritance is as tenants-in-common and as independent debtors, not co-
debtors or joint debtors. Co-sharers can hardly be classified as joint
contractors, partners, executors or mortgagees. They are independent
debtors and the debt having been split by operation of law. This Court has
laid down thus :
“10. These observations in Jafri Begam case ILR (1885) 7 All 822 are prime
roots of the theory as to the divisibility of the debt in the hands of
heirs of a Muslim intestate. So it would be right to treat it settled that
Muslim heirs are independent owners of their specific shares simultaneously
in the estate and debts of the deceased, their liability fixed under the
personal law proportionate to the extent of their shares. In this state of
law it would be unnecessary to refer to other decisions of various High
Courts touching the subject. So we proceed on the footing that as many
heirs as are defending this cause, there are debts in that number.
14. The heirs of a Muslim dying intestate on whom falls the liability to
discharge the debt, proportionate to their respective shares in the estate
devolved, can hardly be classified as joint contractors, partners,
executors or mortgagees. As held above they are by themselves independent
debtors; the debt having been split by operation of law. Inter se they have
no jural relationship as co-debtors or joint debtors so as to fall within
the shadow of contractors, partners, executors or mortgagees or in a class
akin to them. They succeed to the estate as tenants-in-common in specific
shares. Even a signed written acknowledgment by the principal or through
his agent would bind the principal and not anyone else standing in jural
relationship with the principal in accordance with Section 20(2). The
Muslim heirs inter se have no such relationship. In this view of the
matter, we take the view that the High Court was right in confining the
acknowledgment of the debts only to respondent 2 and not extending the
acknowledgment to the other co-heirs for their independent position.
16. In the context, if the debt is one and indivisible, payment by one will
interrupt limitation against all the debtors unless they come within the
exception laid down in Section 20(2) which has been taken note of earlier.
And if the debt is susceptible of division and though seemingly one
consists really of several distinct debts each one of which is payable by
one of the obligors separately and not by the rest, Section 20 keeps alive
his part of the debt which has got to be discharged by the person who has
made payment of interest. It cannot affect separate shares of the other
debtors unless on the principal (sic principle) of agency, express or
implied, the payment can be said to be a payment on their behalf also. See
in this connection Abheswari Dasya v. Baburali Shaikh AIR 1937 Cal 191. The
payment made on account of debt by defendant-respondent 2 as an independent
debtor, and not as an agent, express or implied, on behalf of other co-
heirs could hardly, in the facts established, here be said to be a payment
on behalf of all so as to extend period of limitation as against all. We
are thus of the considered view that the High Court was right in confining
the extension of limitation on payment of a part of debt only against
defendant-respondent 2, proportionate to his share of the estate devolved
on him which was one-fourth. We are further of the view that the High Court
was right in holding the suit against other co-heirs to be barred by
limitation relating to their shares of the debt.”
This Court has also laid down that in that case payment made on
account of debt by defendant-respondent 2 as an independent debtor, and not
as an agent, express or implied, on behalf of other co-heirs, in the facts
established, could not be said to be a payment on behalf of all.
51. This Court again in Kasambhai Sheikh v. Abdulla Kasambhai Sheikh
(2004) 13 SCC 385 has held that succession in Mohammedan Law is in specific
shares as tenants in common.
52. It was observed in Ram Awalamb v. Jata Shankar AIR 1969 All. 526 that
a joint tenancy connotes unity of title, possession, interest and
commencement of title; in tenancy in common there may be unity of
possession and commencement of title but the other two features as to unity
of title and interest are missing.
53. In Mansab Ali Khan v. Mt. Nabiunnisa & Ors. AIR 1934 All 702, a suit
was filed by the plaintiffs who had acquired rights in 12/24 sihams in the
property in dispute. They claimed possession over the share of the whole
property on the ground that one of the defendant-respondents, Mt.
Nabiunnissa, had sold certain property to the defendant-respondents Nos.2
and 3. There was an agreement that Mt. Nabiunnisa should remain in
possession on the condition that she became liable to pay all the debts due
from the deceased. Though the agreement was not proved, the trial court
found that certain debts were paid by Mt. Nabiunnisa. It was held that one
of the heirs of a deceased Mohamedan was perfectly entitled to alienate his
share of the property without getting it partitioned provided he had paid
the proportionate share of debt on assessment of property.
54. Muhammadan Law does not recognize the right of any one of the
shareholders being tenants-in-common, for acting on behalf of co-heirs as
laid down in Abdul Majeeth Khan Sahib v. C .Krishnamachariar AIR 1918 Mad
1049 (FB). It has been laid down that one heir has no authority in law to
deal with the share of his co-heirs. Relevant portion is extracted
hereunder :
“This is absolutely clear authority in proof of the position that one heir
has no authority, in law, to deal with the shares of his co-heirs. In face
of it, it is not necessary to refer to other original text-books. It is
stated, however, in Pathummabi v. Vittil Ummachabi I.L.R. 26 Mad. 734 that,
"if the creditor of the deceased can seek his relief against one of several
co-heirs in a case where all the effects of the deceased are in the hands
of that heir, it can make no difference whether the heir meets the demand
by a bona fide voluntary sale, or the property is brought to sale in
execution of a decree obtained against him." To the same effect is a
decision of the Allahabad High Court in Hasan Ali v. Medhi Husain I.L.R. 1
All. 533. The statement in Pathummabi v. Vittil Ummachabi I.L.R.
(supra) was purely by way of obiter dictum and with all respect to the
learned Judges, they failed to bear in mind that, the provision of the
Muhammadan Law, that a decree against one heir in possession of all the
effects of the deceased, is binding on all if obtained after contest, is
part of the processual law of that system and is not based on the ground
that a single heir, if he happens to be in possession of the estate of the
deceased, represents the rest of the heirs for the purposes of
administration generally. The ground on which a decree against one of the
heirs, in such circumstances, is treated as res judicata is, as stated in
the books, that the decree in such cases is, in law, against the deceased
and not against the particular heir who is made defendant in the suit.
xxx xxx xxx
So far as voluntary alienations are concerned, which alone form the subject-
matter of reference, the Muhammadan Law is clear that one of the heirs of a
deceased person is not competent to bind the other heirs by his acts,
Spencer, J. -- I agree with the judgment of Mr. Justice Abdur Rahim just
now pronounced.
Srinivasa Aiyangar, J.-- I agree. In the absence of any right in one of
the heirs to represent the co-heirs, one of several co-heirs can only deal
with his or her interest in the ancestor's property inherited by them. My
learned brother has shown that there is nothing in the Muhammadan Law
giving such a right to one of the co-heirs who may happen to be in actual
possession of the whole of the ancestor's estate; such possession, it must
be remembered, is presumably on behalf of all the co-heirs. He is not
constituted the representative of the deceased and cannot administer his
property even for the limited purpose of paying off his debts. In
Khiarajmal v. Daim L.R., 32 Ind. App., 23, Lord Davey referring to a sale
by one of the heirs of a Muhammadan for discharging the debt due by the
ancestor said "prima facie his conveyance would pass only his share", See.
p.37. Representation in a suit may conceivably stand on a different footing
for as stated by their Lordships in the same judgment at page 35, "The
Indian Courts have exercised a wide discretion in allowing the estate of a
deceased debtor to be represented by one member of the family, and in
refusing to disturb judicial sales on the mere ground that some members of
the family, who were minors, were not made parties to the proceedings, if
it appears that there was a debt justly due from the deceased, and no
prejudice is shown to the absent minors. But these are usually cases where
the person named as defendant is de facto manager of a Hindu family
property, or has the assets out of which the decree is to be satisfied
under his control;" and they applied this principle in that very case to
the estate of Nabibaksh. However, that is not the question here.”
55. In Mohammad Afzal Khan, Haji v. Abdul Rahman, Malik & Ors. AIR 1932
PC 235, the Privy Council has held that in case one of two or more co-
sharers had mortgaged an undivided share, the mortgagee takes the security
subject to rights of other co-sharers, and the partition if effected, the
mortgaged properties are allotted to the other co-sharers, they take those
properties in the absence of fraud, free from the mortgage and the
mortgagee can proceed only against the properties allotted to the mortgagor
in substitution of his undivided share. The principle that emanates from
the aforesaid decision is that co-sharer can bind his property and cannot
create charge on the property of other co-sharers. The Privy Council had
relied upon the decision in the case of Byjnath Lall v. Ramoodeen Chowdry
(1874) L R 1 Ind. App. 106, the relevant portion of Mohammad Afzal Khan,
Haji (supra) is extracted hereunder:
“As regards the first point, their Lordships are of opinion that where one
of two or more co-sharers mortgages his undivided share in some of the
properties held jointly by them, the mortgagee takes the security subject
to the right of the other co-sharers to enforce a partition and thereby to
convert what was an undivided share of the whole into a defined portion
held in severalty. If the mortgage, therefore, is followed by a partition
and the mortgaged properties are allotted to the other co-sharers, they
take those properties, in the absence of fraud, free from the mortgage, and
the mortgagee can proceed only against the properties allotted to the
mortgagor in substitution of his undivided share. This was the view taken
by the Board in Byjnath Lall v. Ramoodeen Chowdry (1874) LR 1 Ind. App.
106. In that case the partition was made by the Collector under Regulation
XIX of 1814 (Bengal), and the mortgagee was seeking to enforce his remedy
not against the properties mortgaged to him, but against the properties
which had been allotted to the mortgagor in lieu of his undivided share;
but the Board held that not only he had a right to do so, but that it was
in the circumstances of the case his sole right, and that he could not
successfully have sought to charge any other parcel of the estate in the
hands of any of the former co-sharers. Their Lordships think that the
principle enunciated in that case applies equally to a partition by
arbitration such as the one in the present case. Their Lordships are
therefore of opinion that the appellant is not entitled to enforce his
charge against the properties allotted to the first and second respondents.
The third respondent (the mortgagor) has not appeared before their
Lordships, and their Lordships express no opinion as to any other rights
which the appellant may have in respect of his mortgage.”
56. It was submitted on behalf of the appellants that in Mohammedan law
the doctrine of partial partition is not applicable because the heirs are
tenants-in-common. Reliance has been placed upon the decision of this
Court in Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin
Kamisul (supra). In S.M.A. Samad & Ors. v. Shahid Hussain & Ors. AIR 1963
Patna 375, the Patna High Court referring to the various decisions
indicated that it would be inexpedient to allow suits for partition of a
portion of the properties, because it would lead to a multiplicity of
suits. It is merely a rule of procedural law. Mohammedans are never joint
in estate but only tenants-in-common. It has been observed that the rule
with respect to the partial partition is not so rigid, it can be allowed in
certain circumstances. Reliance has also been placed on a decision of the
High Court of Madhya Pradesh in Abdul Karim & Ors. v. Hafij Mohammad & Ors.
(1989) MP LJ 178, in which it had been held that suit for partial partition
was maintainable. Reference has also been made to the case of A.J. Pinto &
Anr. v. Smt. Sahebbi Kom Muktum Saheb (Dead) by LRs & Ors. (1972) 4 SCC
238, wherein this Court has left open the question whether partial
partition is possible under Muslim Law and no opinion was expressed. The
aforesaid decision as to the partial partition had been cited to emphasize
that when Muslims inherit in specific share, their share is determined.
However, the question of partial partition is not involved in the instant
case, as such, we need not go into the aforesaid question as to the
permissibility of the partial partition, as the suit in the instant case
was filed for partition of the entire matruka property.
57. A Full Bench decision of the High Court of Sind in Vazir alias Dino &
Anr. v. Dwarkamal & Ors. AIR 1922 Sind 41 has also been referred to,
wherein referring to the case of Mangaldas v. Abdul Razak (1916) 16 Bombay
L.R. 224, it has been observed that the notions of joint family, joint
family property and joint family business are utterly unknown to Mohammedan
Law.
58. A decision in Jan Mahomed v. Dattu Jaffer (1913) 38 Bombay 449 has
also been referred to and it has been held that Mohammedans under their own
law are never joint in estate whether they live together or whether they do
not. On death of a Muslim his heirs at once become vested with the shares
to which the Islamic Law entitles them. They have not to wait until the
property is divided by metes and bounds. It has also been observed that
sometime an error is caused by application of Hindu law to the case of
Mohammedan law. It has also been further observed that a Mohammedan heir
is not a co-parcener. He has not merely a right to a defined and
immediate share in each portion of the estate but if any portion of the
estate is in any case marked off and divided from the rest of the estate,
he has a right to an immediate share in that portion.
59. Reliance has also been placed upon the decision in Ghumanmal Lokumal
& Ors. v. Faiz Muhammad Haji Khan & Ors. AIR 1948 Sind 83 in which it has
been observed thus:
“15. It may be conceded that the question of adjustment of equities between
the vendor and vendee upon a suit by a Muslim co-sharer for partition of
the entire property held in co-ownership might properly arise, but we
cannot accept the position that, while a Muslim co-sharer elects to sue for
partition of some of the properties only held in co-ownership, a vendee can
compel him to sue for a general partition, for the purpose of adjusting
equities between the co-sharer- vendor and himself. If Mr. Kimatrai's
contention were to prevail, it would put fetters upon what this Court in
second Appeal No. 64 of 1942 has held to be an unfettered right of a Muslim
co-sharer to claim partition of some of the properties only held in co-
ownership, while retaining his co-ownership in the remaining properties.
16. If, then, a vendee cannot require a Muslim co-sharer to sue for a
general partition, much less can he institute a suit for the sole purpose
of adjusting equities between himself and his Muslim co-sharer-vendor in
regard to property which has not been alienated to him, as is sought to be
done in the case before us.”
It has been observed that a vendee cannot compel a Muslim to sue for
a general partition for the purpose of adjusting equities between the co-
sharer-vendor and himself. The logic behind this is that specific share
is inherited by a co-sharer in a specific property.
60. Right of pre-emption under Mohammedan Law has been relied upon to
invalidate the sale to stranger even to the extent of vendor’s share. A
Full Bench of the Allahabad High Court in Inayatullah v. Gobind Dayal
(1885) ILR 7 All 775 has observed that right of pre-emption is closely
connected with the Mohammedan law of inheritance. The following is the
observation made with respect to the right of pre-emption in the aforesaid
decision:
“7. Upon the present occasion it is unnecessary to consider whether "gift"
can properly be described as a "religious usage or institution" within the
meaning of Section 24. I am here concerned only with the question whether
preemption can be so described. My own opinion is that it can, and although
I cannot add much to the reasons given by SPANKIB, J., I may observe that
preemption is closely connected with the Muhammadan Law of inheritance.
That law was founded by the Prophet upon republican principles, at a time
when the modern democratic conception of equality and division of property
was unknown even in the most advanced countries of Europe. It provides
that, upon the death of an owner, his property is to be divided into
numerous fractions, according to extremely rigid rules, so rigid as to
practically exclude all power of testamentary disposition, and to prevent
any diversion of the property made even with the consent of the heirs,
unless that consent is given after the owner's death, when the reason is,
not that the testator had power to defeat the law of inheritance, but that
the heirs, having become owners of the property, could deal with it as they
liked, and could therefore ratify the act of their ancestor. No Muhammadan
is allowed to make a will in favour of any of his heirs, and a bequest to a
stranger is allowed only to the extent of one-third of the property. Under
these circumstances, to allow the Muhammadan Law of inheritance, and to
disallow the Muhammadan Law of pre-emption, would be to carry-out the law
in an imperfect manner; for the latter is in reality the proper complement
of the former, and one department of the law cannot be administered without
taking cognizance of the other…...”
It has also been observed that under the Mohammedan law, the rule of
pre-emption proceeds upon a principle analogous to the maxim “sic utere tuo
ut alienum non leadas”. The right of preemption is based upon the fact
that there can be large number of co-sharers, the preference has to be
given to pre-emptor as a right of substitution, but not as a re-purchase in
Mohammedan law to cut short the litigation.
61. For the purpose of pre-emption, reliance has also been placed on the
decision in Zamir Ahmad v. S. Haidar Nazar & Ors. AIR 1952 All 541, in
which it has been observed that where there is a custom relating to pre-
emption, the rule of Mohammedan law of pre-emption is not to be applied
even on the ground of equity and good conscience. In view of the entry in
Wajibularz the custom is complete by itself and can be enforced. The
plaintiff being a relative and a co-sharer, accordingly, had a preferential
right of pre-emption as against the vendees and was entitled to pre-empt.
62. The decision in Nagammal & Ors. v. Nanjammal & Anr. (1970) 1 MLJ 358
has also been referred to, wherein it has been observed that the
preferential right to acquire the share of a co-heir who proposes to
transfer his interest in the property or business of the propositus is
limited to cases of simultaneous succession and devolution of property upon
two or more heirs belonging to Class I. Obviously, the section has been
aimed at reducing to some extent at least the inconvenient effects of
simultaneous succession by several persons at one and the same time as
members of Class I leading to fragmentation and parcelling up, of even
small holdings of property. To a degree the section enables a co-heir to
retain the property in the family and avoid the introduction of a stranger
in the enjoyment of family property if he so desired. Relying upon
Inayatullah (supra), it has been observed that it is not lawful for anyone
to sell his own share till he has informed his co-sharer who may take or
leave it as he wishes; and if he has sold without such information, the co-
sharer has a preferential right to the share. It has also been observed
that the existence of right of pre-emption is patent and the burden is on
the purchaser to establish that other co-heirs declare or waive their
preferential right when occasion arose. It is not pretended that
purchaser made any reference to non-alienating co-heirs before his
purchase. It follows that plaintiffs have not lost their preferential
right of purchase by sale and are entitled to have property conveyed to
them.
63. On the basis of the aforesaid decisions with respect to the
preferential right it is sought to be contended on behalf of the appellants
that there is no equity in favour of the purchaser, but under Muslim law co-
heirs have the right of preferential purchase and in this case even it is
not pretended by the purchaser that he had offered to the co-heirs before
purchasing the same vide sale deed dated 23.11.1959. We decline to accept
the submission as the property in question is capable of division and it is
not a small fraction of property, but partition is of huge property, and as
the property admittedly has exchanged several hands by now, we are not
inclined to invalidate the sale deed executed by defendant No. 1 in favour
of Bala Mallaiah even to the extent of his share i.e. 14/104th on the basis
of principle of pre-emption of Muslim law. It would be too late and
iniquitous to invoke the principle of pre-emption in such a case,
particularly when no such plea was raised at the relevant time and in the
courts below. In case heirs were desirous of raising it, they should have
raised their plea timely.
64. In Shaik Mohd. Ali Ansari v. Shaik Abdul Samed (Died) per LRs (2012)
4 ALD 680 (DB), the question of fiduciary relationship has been discussed,
but in the instant case it is not the case set up by the
objectors/purchasers that the sale deed was the outcome of fiduciary
relationship.
65. The parties have been litigating since 1935 for partition of
property. In the instant case sale by Hamid Ali Khan, defendant No.1 is not
of undivided share but that of a specific property i.e. 68 acres 10 guntas
in which he had only 14/104th share. Thus being a tenant in common he had
no authority or right to sell the share of other co-owners. The vendor had
the right to sell to the extent of his own share considering the nature of
succession amongst Mohammedans. Thus the sale of property of other co-
sharers was illegal and void.
66. Similar question arose in Mansab Ali Khan (supra) in which it has
been laid down that if partition has not been effected the heir can only
sell his undivided share and cannot sell a particular plot. It was
submitted that though the specific plot has been alienated but in the whole
undivided property it would amount to less than the share of an alienating
co-sharer i.e. defendant No.1. He had share of approximately 250 acres in
the matruka properties left by Late Nawab Jung. Similar submission was
repelled by the Allahabad High Court and it was held that to the extent of
the share of vendor only in the specific property, the sale could be
enforced and the vendor had no right to sell the specific property which
belonged to other co-sharers. The sale of a specific part of the property
which was not in the vendor’s exclusive ownership, was set aside. Allahabad
High Court has laid down thus :
“3. The simple question that I have to decide is whether in these
circumstances the plaintiff-appellants are entitled to a decree for
possession of their share in the property in suit, including that portion
of it which was transferred in 1920 and 1922 by Mt. Nabiunnissa to
defendants Nos. 2 and 3, or to any other relief. It is not quite clear what
the lower appellate Court meant by saying that the sale deed was not
challenged by the plaintiffs in the plaint on the ground that it dealt with
one specific plot, or in expressing the opinion that such a sale deed is
only voidable at the opinion of a joint owner within six years of the
transfer. The whole of the plaint shows that the plaintiffs claimed to be
owners of 12 out of 24 sihams in the property which had been left by Mt.
Wasiunnisa. They also claim to have been in joint possession with Mt.
Nabiunnissa although the latter's name alone had been recorded in the
revenue papers. Their cause of action was that Mt. Nabiunnissa had
transferred part of the property and whether their grievance was that she
had transferred more than her proper share or that she had transferred a
specific part of the property which was not in her own exclusive ownership,
it is quite clear that the plaintiffs' object was to dispel the cloud on
their title to 12/24 sihams of the whole property which had arisen owing to
the sale deeds of 1920 and 1922. It has not been clearly proved that the
plaintiffs have been in joint possession of the whole of the property and
they have therefore paid the Court fees necessary for a decree for
possession. What is wanted, however, is a declaration that they are
entitled to joint possession, and in the circumstances it appears to me
that they ought to obtain such a decree. In the case of Jafri Begam v. Amir
Mohammad Khan (1885) 7 All. 822, it was held that in somewhat similar
circumstances a plaintiff could recover from the auction purchaser his
share in the property sold on condition that he paid a proportionate share
of the ancestor's debt for which the decree (in execution of which the
property had been sold) was passed.
4. As regards the question of the amount which is said to have been paid by
Mt. Nabiunnissa in liquidation of her mother's debts, the trial Court found
that she paid a sum of Rs.1,800 and that the plaintiffs were liable to pay
a proportionate amount viz. Rs. 853-14-0. The lower appellate Court has
found that so far as Rs.1,000 is concerned it has not been proved that the
debt was due or that Mt. Nabiunnissa has liquidated it. There is, however
no finding as regards the balance of Rs.800. Mr. Mohd. Husain, who
appeared in this Court on behalf of Mt. Nabiunnissa, has argued that he is
not bound by the findings of the lower appellate Court with regard to these
debts at all, because the decree of the lower appellate Court was in his
favour and these findings were therefore irrelevant. Mt. Nabiunnissa was
however one of the parties to the appeal in the lower appellate Court where
these questions as to the debts were agitated and decided, and so far as
the findings of the lower appellate Court are findings of fact they must be
held to be binding on Mt. Nabiunnissa.”
67. In Abdul Majeeth Khan Sahib v. C. Krishnamachariar (1917) 5 LW 767, a
Full Bench of the Privy Council was faced with the issue that if one of the
co-heirs of a deceased Muhammadan in possession of the whole estate of the
deceased or of any part of it sells the property in his possession forming
part of the estate for discharging the debts of the deceased, is such sale
binding on other co-heirs or creditors of the deceased, and if so, to what
extent ? It was held that property of a deceased Muhammadan vests in his
heir upon his death in specified share. Heirs of the deceased take their
shares in severalty, as tenants-in-common and under Muhammadan Law one heir
of the deceased cannot bind shares to his co-heirs.
68. In our opinion, sale beyond 14/104th share by Hamid Ali to Bala
Malliah was void. The Mohammedan Law does not recognize the right of one of
shareholders being tenants-in-common for acting on behalf of others. While
discharging debt also they act as independent debtors. A co-sharer cannot
create charge on property of co-heir. The right of Muslim heir is
immediately defined in each fraction of estate. Notion of joint family
property is unknown to Muslim law. Co-heir does not act as agent while
discharging debt but is an independent debtor not as co-debtor or joint
debtor. Co-sharers are not defined as joint contractors, partners,
executors or mortgagees.
(viii) In re: whether the purchaser has a right to claim equity for
allotment of Item No. 6 of Schedule ‘B’ property in final decree
proceedings in suit for partition ? If yes, to what extent ?
69. It was contended on behalf of the respondents that in respect of
transactions which are hit by section 52 can be looked into at the time of
final decree proceedings. However, preliminary decree in the instant case
identifies different modes and manners under which equities could be
adjusted at the time of final decree proceedings. Reliance has been placed
upon following paragraphs 81 and 93 of the judgment of the trial court
while passing the preliminary decree in the year 1970 :
“81. It is fact established that the deceased had gifted the land to D-1
but the next point for consideration is, whether the entire land measuring
24 bigas and 10 bams was gifted to him or a portion of it for the
construction of the house. The learned counsel for D-25 argued that the
entire land was given to D-1 and even including S. No.22/2 another item
about which I will deal later. The learned counsels for D-6 and plaintiff
contended that the house of D-1 was only on portion of land and that it
cannot be presumed that the entire land of more than 18 acres would be
given for the construction of the house. As already observed the house of
D-1 around the house. There is no evidence on record to show the extent of
land within the compound. One of the witness stated that it was 4 or 5
acres and another stated that it was about 15 acres. The plan of the
compound and the area of the house is not made the record of the suit. Of
course Ex. Alif 2 while giving permission for the construction of the
compound mentioned about the plan but it did not give the area covered by
it. Subsequently, i.e. after the institution of the suit D-1 had built a
cinema house and the hotel and malgi. Another witness said that there was
no open land between the compound and the road. There is no clear picture
about the location for want of sufficient material on record. The
principles can be worked out in the final decree proceedings. In my view
the deceased did not gift the entire land situated in Asifnagar but only
such portion of land on which D-1 had built the house and the compound. As
already stated by me that the land was given for purpose of constructing
residential house. It is a fact that in Ex. Alif 4 he gave the boundaries
and stated that a plan was also prepared after survey and settlement but it
is not filed and nothing can be made out from the boundaries given in Ex.
Alif 4 and also Ex. Alif. I am not inclined to believe that only that
portion of land was gifted to him on which the house stands excluding the
compound but in my view all that portion of land was given to D-1 on which
the house stands and the land was given for the purpose of construction the
house and if more land was given to him he could have enclosed it with the
compound or with some fence. My conclusion is that the land covered by the
residential house and the compound wall was gifted to D-1 and the remaining
land outside the compound is matruka property. If the cinema house was
built on the land outside the compound, it can be adjusted towards the
share of D-1 in the final decree proceedings.
x x x x x
93. It is a fact and also admitted in some cases that D-1 had sold some
lands in some villages. Ex.B-2 to B-9 are such sale deeds executed by D-1.
It was explained by D-1 that he was to pay the land revenue to the
Government and for that purpose he had to sell the lands. I need not go
into the question about the lands sold by D-1 and about the sale amounts
realized. In the final decree proceedings these facts can be taken into
consideration. D-1 would be liable to account for the monies realized.”
It is apparent that the sale deed in question was not referred to in
para 93. Even if the aforesaid observations had not been made, it was open
to the executing court to adjust equity of purchasers to the permissible
extent as purchasers pendente lite can work out the equities in accordance
with law in the final decree proceedings.
70. Reliance has been placed by the respondents on a decision in Jayaram
Mudaliar v. Ayyaswami & Ors. (1972) 2 SCC 200 :
“47. It is evident that the doctrine, as stated in Section 52, applies not
merely to actual transfers or rights which are subject-matter of litigation
but to other dealings with it “by any party to the suit or proceeding, so
as to affect the right of any other party thereto”. Hence, it could be
urged that where it is not a party to the litigation but an outside agency,
such as the tax collecting authorities of the Government, which proceeds
against the subject-matter of litigation, without anything done by a
litigating party, the resulting transaction will not be hit by Section 52.
Again, where all the parties which could be affected by a pending
litigation are themselves parties to a transfer or dealings with property
in such a way that they cannot resile from or disown the transaction
impugned before the Court dealing with the litigation, the Court may bind
them to their own acts. All these are matters which the Court could have
properly considered. The purpose of Section 52 of the Transfer of Property
Act is not to defeat any just and equitable claim but only to subject them
to the authority of the Court which is dealing with the property to which
claims are put forward.”
(emphasis added by us)
Reliance has also been placed on Vinodan v. Vishwanathan (2009) 4
SCC 66 thus :
“11. In the facts and circumstances of the case, while balancing the
equities and for keeping peace and happiness in the family, we think it
would be just and proper to direct the appellant to pay Rs 5,50,000 to the
respondent within a period of four months. On receiving the said amount,
the respondent may construct a suitable house in his portion of the land
and for that purpose we grant one year’s time from the date of payment of
Rs 5,50,000 to the respondent to vacate the portion of the building which
is presently in his possession and give vacant and peaceful possession of
his portion of the building to the appellant in lieu of payment of Rs
5,50,000. We are granting a long time to the respondent to vacate the
portion of the building in his possession to avoid any inconvenience to the
respondent.”
Decision in Dhanlakshmi & Ors. v. P. Mohan & Ors., (2007) 10 SCC 719
has been referred laying down that :
“5. Section 52 deals with a transfer of property pending suit. In the
instant case, the appellants have admittedly purchased the undivided shares
of Respondents 2, 3, 4 and 6. It is not in dispute that the first
respondent P. Mohan has got an undivided share in the said suit property.
Because of the purchase by the appellants of the undivided share in the
suit property, the rights of the first respondent herein in the suit or
proceeding will not affect his right in the suit property by enforcing a
partition. Admittedly, the appellants, having purchased the property from
the other co-sharers, in our opinion, are entitled to come on record in
order to work out the equity in their favour in the final decree
proceedings. In our opinion, the appellants are necessary and proper
parties to the suit, which is now pending before the trial court. We also
make it clear that we are not concerned with the other suit filed by the
mortgagee in these proceedings.”
71. Though it is true that purchasers can work out the equity in the
final decree proceedings but it is only to the legally permissible extent
and not beyond that. The preliminary decree declared the shares in item
No.6 of Schedule ‘B’ property in specified shares. The preliminary decree
is binding and even otherwise the sale was valid only to the extent of the
share of defendant No.1 i.e. 14/104th share in the specific property and
not beyond it. This Court in K. Adivi Naidu & Ors. v. E. Duruvasulu Naidu &
Ors. (1995) 6 SCC 150, has laid down that when a specific property
comprising of undivided share in joint family properties is purchased by
appellants from alienee of Karta of the joint family prior to partition
suit and where the preliminary decree in partition suit directed that
properties be divided by metes and bounds, taking the good and bad
qualities thereof, then the preliminary decree was allowed to become final.
This Court held that the trial court should give effect to the preliminary
decree, and though the appellants had no equities, the restrictive share to
which the principal alienator was entitled, should be allotted to them as a
special case. In the instant case, preliminary decree has declared the
share only to the extent of 14/104th in the disputed property in item No.6,
schedule ‘B’. Thus, by no equitable principle the purchaser can claim the
entire property to be allotted to him.
72. The respondents have placed reliance on a decision of the High Court
of Madras in Khatoon Bibi v. Abdul Wahab Sahib & Ors. AIR 1939 Mad. 306 so
as to contend that the sale deed in favour of Bala Mallaiah dated
23.11.1959 is valid and binding on defendant No.1, Hamid Ali Khan
notwithstanding the pendency of the partition suit. In Muslim law property
can be alienated by heir during the pendency of the suit for its partition.
In Khatoon Bibi (supra) it has been observed that inheritance vests
immediately, in Mohammedan law, in his heir and is not suspended by reason
of debts being due from the estate of the deceased and against the other co-
heirs, the claim of bona fide purchasers to have the share in the
particular plot is not absolute. It is well recognized principle of law
relating to co-owners or tenants in common that an alienation by a co-owner
or a tenant in common of a share in any item of the property is subject to
the rights and equities of the other co-owners or tenants in common. It has
also been observed on the basis of Cooper v. Fisher (1841) 10 LJ Ch 221
that if persons deal in such interests as undivided shares, they do so with
the liability of having something assigned to them different from what they
might originally possess. The alienee of part of an undivided estate must
take his interest subject to a bill of partition being filed against him.
The court further observed that :
“11. A co-owner or a tenant-in-common can always file a suit for partition
and have his share defined and delivered to him. The Court in effecting a
partition is bound to adjust all the equities existing between the parties
and arising out of their relation to the property to be divided. The
equities to be adjusted would involve every matter relating to the common
property with reference to which one tenant-in-common may equitably demand
anything of the other such as contribution for repairs or improvements to
the common property, accounting for waste of the common property and the
enforcement of any lien or charge which a tenant-in-common may claim
against the other in respect of any matter concerning the common property.
In regard to the method of division the Court is not bound to allot an
aliquot share of each species of property to each of the parties. It is
enough if each tenant-in-common has an equal share of the whole. This is
subject to the other equities which may have to be adjusted. In this case
the plaintiff is admittedly entitled to a half share in the estate but she
is not able to get her due and legitimate share by virtue of the fact that
defendants 1 to 3 have dissipated a major portion of the estate consisting
of the moveable property. The plaintiff is therefore justly entitled to
demand that all the immovable property should be assigned to her and that
no portion of the immovable property should be claimed by defendants 1 to
3. Freeman on "Co-tenancy and Partition" dealing with equities which may be
enforced in a suit for partition observed at page 676 thus :
If one of the co-tenants has wasted any part of the lands of the co-
tenancy, the Court may take that fact into consideration and do justice
between the parties by assigning to the wrongdoer the part which he has
wasted.
x x x x x
13. The question now arises, should any portion of the property by virtue
of the alienation by defendants 1 to 3 pendente lite be allotted to the
share of the defendants in order to give effect to the alleged equitable
right in favour of the alienees? Ordinarily it would be just and proper to
allocate properties which have been alienated to the shares of the alienor.
But where it is not practicable or equitable, the Court is not bound to
allot those properties but might allot any other properties and the
alienees’ only right is to have recourse to the properties so allotted. It
may be that the substituted property or security may prove worthless but it
is a risk every alienee of an undivided interest of a tenant-in-common in a
specific item of property takes as a necessary incident of the alienation.
Therefore there is nothing to preclude a Court from awarding to the
plaintiff the immovable properties and awarding to the defendants the
moveable properties which have been wasted by them, the only remedy of the
alienee being to proceed against the moveable properties in their hands.
But what is alleged in this case is that the alienees are bona fide
alienees and they have got therefore an equity in their favour. But it
seems to me the equity of the plaintiff in this case is paramount to the
equity in favour of the alienees. She has been unjustly deprived of her
legitimate share in the property by the wrongful act of defendants 1 to 3
aided by defendant 4, and the property was converted and appropriated for
their use during her minority. She lost no time in enforcing her claim as
soon as she attained majority and the alienations were pendente lite. The
alienees allege that they were ignorant of the institution of the suit but
that fact is in my opinion immaterial as they cannot get higher rights than
their alienors, i.e. an alienee from a co-tenant takes his interest subject
to the equities of the other co-tenants. But this is a case in which, if
the alienees were not parties, they will be affected by the doctrine of lis
pendens. The title to the immovable property is specifically in question
within the meaning of Section 52 of the Transfer of Property Act.
14. A question of title has been raised, namely whether the property in the
suit belonged solely to Abdul Rahiman or was the joint property of
defendants 1 to 3 and Abdul Rahiman. This issue would be quite sufficient
to attract the operation of lis pendens. No doubt a suit for administration
has been held not to attract the operation of lis pendens until a
preliminary decree for administration has been passed. But in this case the
plaintiff has also prayed for partition and delivery of her share and for
an account on the basis that defendants 1 to 3 have wrongfully possessed
themselves of her father's property and misappropriated the bulk of it and
this suit cannot therefore be viewed as a bare administration suit. But
since the alienees are formally on record and they will be bound by any
decree passed in the suit, there is no need to consider the applicability
of Section 52 of the Transfer of Property Act. But the principle underlying
the Section will have to be applied in favour of the plaintiff, i.e. the
Court in making the adjustment of equities in giving relief to her ought to
confine itself to the legal rights of the co-heirs on the date of the
institution of the suit without reference to the equitable rights of
persons who derived title from them pendente lite as her rights should not
be prejudiced by any intervening equity in the alienees. The plaintiff is
entitled to say that so far as she is concerned, she is not bound to take
any notice of a title acquired since the filing of the suit and "as to them
it is as if no such title existed."
The Court has reiterated the principle that an alienee from a co-
tenant takes subject to the equities from other co-tenants and in case
alienees were not parties they would be affected by the doctrine of lis
pendens. The decision is of no application in the facts of the instant case
as alienation made was beyond the interest in the property of alienating co-
sharer and in the proceedings for final decree itself, no such equitable
right has been claimed by purchaser as discussed hereinafter. To claim such
an equity separate bundle of facts was required to be pleaded and
established. Thus, in absence thereof, it is not possible in the instant
case to work out the equities of the purchasers in other properties
allotted to the share of the vendor.
73. Reliance has been placed on a decision of the High Court of M.P. in
Abdul Rahman & Anr. v. Hamid Ali Shah & Ors. AIR 1959 MP 190. The main
question for consideration was with respect to maintainability of the suit
for partial partition or the suit has to be filed for general partition of
all the properties. It has been observed that an alienee of specific item
of property has also to be given a right to sue for general partition so as
to claim equitable right against his vendor. In the instant case the
proposition has no application firstly for the reason that no such equity
has been claimed by the purchasers in the objections filed in the final
decree proceedings. The claim was to retain only the specific property
which had been alienated by defendant No.1.
74. Reliance has also been placed on Tikam Chand Lunia v. Rahim Khan
Ishak Khan & Ors. AIR 1971 MP 23. Following the aforesaid decision of the
M.P. High Court in Abdul Rahman (supra), law to the similar effect has been
laid down. In the latter decision it has been held that when specific
property cannot be allotted to the share of the alienor, sale must be
construed to be sale of so much portion as can justly be given to the share
of the alienor. In the instant case the alienor had only 14/104th share and
that has been rightly allotted to him.
75. Reliance has also been placed on T.G. Ashok Kumar v. Govindammal &
Anr. (2010) 14 SCC 370 in which it has been laid down that in the case of
pendente lite transfer of property during the pendency of the partition
suit held by the other co-owner, sale pendente lite is not void but subject
to the decree in partition suit. The title of the vendee would depend upon
the decision in the partition suit in regard to the title of vendor. If the
vendor has title only in respect of a part of the property, vendee’s title
would be saved only to that extent. The sale of the remaining portion which
fell to the share of other co-owner would be ineffective. On the basis of
the aforesaid decision, Bala Mallaiah, his heirs and purchasers can get
what can be allotted to vendor Hamid Ali Khan’s share. That precisely is
the preliminary as well as the final decree. This Court in T.G. Ashok Kumar
(supra) has laid down thus and the relevant portion is extracted hereunder
:
“14. On the other hand, if the title of the pendente lite transferor is
recognised or accepted only in regard to a part of the transferred
property, then the transferee’s title will be saved only in regard to that
extent and the transfer in regard to the remaining portion of the
transferred property to which the transferor is found not entitled, will be
invalid and the transferee will not get any right, title or interest in
that portion.
15. If the property transferred pendente lite, is allotted in entirety to
some other party or parties or if the transferor is held to have no right
or title in that property, the transferee will not have any title to the
property. Where a co-owner alienates a property or a portion of a property
representing to be the absolute owner, equities can no doubt be adjusted
while making the division during the final decree proceedings, if feasible
and practical (that is, without causing loss or hardship or inconvenience
to other parties) by allotting the property or portion of the property
transferred pendente lite, to the share of the transferor, so that the bona
fide transferee’s right and title are saved fully or partially.”
It is apparent from the aforesaid decision that a transferee may lose
the entire property also though equities can be worked out by making
allotment of property which has been transferred pendente lite but in the
instant case such equity is not permissible in view of the provisions of
Mohammedan Law as well as the fact that no such equity has been claimed for
allotment out of other properties fallen to the share of the vendor.
76. Reliance has also been placed on Khemchand Shankar Chaudhari & Anr.
v. Vishnu Hari Patil & Ors. (1983) 1 SCC 18 in which this Court has laid
down thus :
“6. Section 52 of the Transfer of Property Act no doubt lays down that a
transferee pendente lite of an interest in an immovable property which is
the subject-matter of a suit from any of the parties to the suit will be
bound insofar as that interest is concerned by the proceedings in the suit.
Such a transferee is a representative in interest of the party from whom he
has acquired that interest. Rule 10 of Order 22 of the Code of Civil
Procedure clearly recognises the right of a transferee to be impleaded as a
party to the proceedings and to be heard before any order is made. It may
be that if he does not apply to be impleaded, he may suffer by default on
account of any order passed in the proceedings. But if he applies to be
impleaded as a party and to be heard, he has got to be so impleaded and
heard. He can also prefer an appeal against an order made in the said
proceedings but with the leave of the appellate court where he is not
already brought on record. The position of a person on whom any interest
has devolved on account of a transfer during the pendency of any suit or a
proceeding is somewhat similar to the position of an heir or a legatee of a
party who dies during the pendency of a suit or a proceeding, or an
Official Receiver who takes over the assets of such a party on his
insolvency. An heir or a legatee or an Official Receiver or a transferee
can participate in the execution proceedings even though their names may
not have been shown in the decree, preliminary or final. If they apply to
the court to be impleaded as parties they cannot be turned out. The
Collector who has to effect partition of an estate under Section 54 of the
Code of Civil Procedure has no doubt to divide it in accordance with the
decree sent to him. But if a party to such a decree dies leaving some heirs
about whose interest there is no dispute should he fold up his hands and
return the papers to the civil court? He need not do so. He may proceed to
allot the share of the deceased party to his heirs. Similarly he may, when
there is no dispute, allot the share of a deceased party in favour of his
legatees. In the case of insolvency of a party, the Official Receiver may
be allotted the share of the insolvent. In the case of transferees pendente
lite also, if there is no dispute, the Collector may proceed to make
allotment of properties in an equitable manner instead of rejecting their
claim for such equitable partition on the ground that they have no locus
standi. A transferee from a party of a property which is the subject-matter
of partition can exercise all the rights of the transferor. There is no
dispute that a party can ask for an equitable partition. A transferee from
him, therefore, can also do so. Such a construction of Section 54 of the
Code of Civil Procedure advances the cause of justice. Otherwise in every
case where a party dies, or where a party is adjudicated as an insolvent or
where he transfers some interest in the suit property pendente lite the
matter has got to be referred back to the civil court even though there may
be no dispute about the succession, devolution or transfer of interest. In
any such case where there is no dispute if the Collector makes an equitable
partition taking into consideration the interests of all concerned
including those on whom any interest in the subject-matter has devolved, he
would neither be violating the decree nor transgressing any law. His action
would not be ultra vires. On the other hand, it would be in conformity with
the intention of the legislature which has placed the work of partition of
lands subject to payment of assessment to the Government in his hands to be
carried out “in accordance with the law (if any) for the time being in
force relating to the partition or the separate possession of shares.”
There is no dispute on the aforesaid principle. The aforesaid
principle has been followed in the instant case and permissible share has
been allotted. Thus the decision is of no further assistance to the cause
espoused.
77. In Jayaram Mudaliar v. Ayyaswami & Ors. (1972) 2 SCC 200, it has been
laid down thus :
“47. It is evident that the doctrine, as stated in Section 52, applies not
merely to actual transfers or rights which are subject-matter of litigation
but to other dealings with it “by any party to the suit or proceeding, so
as to affect the right of any other party thereto”. Hence, it could be
urged that where it is not a party to the litigation but an outside agency,
such as the tax collecting authorities of the Government, which proceeds
against the subject-matter of litigation, without anything done by a
litigating party, the resulting transaction will not be hit by Section 52.
Again, where all the parties which could be affected by a pending
litigation are themselves parties to a transfer or dealings with property
in such a way that they cannot resile from or disown the transaction
impugned before the Court dealing with the litigation, the Court may bind
them to their own acts. All these are matters which the Court could have
properly considered. The purpose of Section 52 of the Transfer of Property
Act is not to defeat any just and equitable claim but only to subject them
to the authority of the Court which is dealing with the property to which
claims are put forward.
48. In the case before us, the Courts had given directions to safeguard
such just and equitable claims as the purchaser-appellant may have obtained
without trespassing on the rights of the plaintiff-respondent in the joint
property involved in the partition suit before the Court. Hence, the
doctrine of lis pendens was correctly applied.”
78. In Marirudraiah & Ors. v. B. Sarojamma & Ors. (2009) 12 SCC 710, a
Constitution Bench of this Court set aside an order passed by the High
Court directing allotment of Item No.9 sold pendente lite to purchaser and
compensation to the co-sharers of his predecessor in interest in terms of
money based on the market value of the property which was alienated to him.
This Court has laid down that courts are not supposed to encourage pendente
lite transactions, and regularizing their conduct by showing equity in
their favour at the cost of co-sharers.
79. In Kammana Sambamurthy (Dead) by LRs. v. Kalipatnapu Atchutamma
(Dead) & Ors. (2011) 11 SCC 153, this Court has laid down that when the
vendor was having only ½ share in the property but executed the contract
for sale of the entire property, the vendee would be entitled to decree for
specific performance only to the extent of ½ share of the vendor and not
beyond it.
80. In Nova Ads v. Metropolitan Transport Corporation & Ors. (2015) 13
SCC 257, this Court has considered various decisions like Raja Ram Mahadev
Paranjype v. Aba Maruti Mali AIR 1962 SC 753, P.M. Latha v. State of Kerala
(2003) 3 SCC 541, Raghunath Raj Bareja v. Punjab National Bank (2007) 2 SCC
230, Madamanchi Ramappa v. Mothaluru Bojjappa AIR 1963 SC 1633,
Laxminarayan R. Bhattad v. State of Maharashtra (2003) 5 SCC 413,
Nasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577, E. Palanisamy v.
Palanisamy (2003) 1 SCC 123, India House v. Kishan N. Lalwani (2003) 9 SCC
393 and has observed that law will prevail over the equity principle when
they cannot be harmonized thus :
“45. In Raja Ram Mahadev Paranjype v. Aba Maruti Mali AIR 1962 SC 753, a
three-Judge Bench has opined that: (AIR p. 756, para 9)
“9. ... Equity does not operate to annul a statute. This appears to
us to be well established but we may refer to White and Tudor’s Leading
cases on Equity (9th Edn., p. 238), where it is stated:
‘Although, in cases of contract between parties, equity will often
relieve against penalties and forfeitures, where compensation can be
granted, relief can never be given against the provisions of a statute.”
46. In P.M. Latha v. State of Kerala (2003) 3 SCC 541, it has been
opined: (SCC p. 546, para 13)
“13. Equity and law are twin brothers and law should be applied and
interpreted equitably but equity cannot override written or settled law.”
47. In Raghunath Raj Bareja v. Punjab National Bank (2007) 2 SCC 230, the
Court observed that it is well settled that when there is a conflict
between law and equity, it is the law which has to prevail. The Court
further ruled that equity can supplement the law, but it cannot supplant or
override it. In this context, reliance was also placed upon Madamanchi
Ramappa v. Muthaluru Bojjappa AIR 1963 SC 1633, Laxminarayan R. Bhattad v.
State of Maharashtra (2003) 5 SCC 413, Nasiruddin v. Sita Ram Agarwal
(2003) 2 SCC 577, E. Palanisamy v. Palanisamy (2003) 1 SCC 123, and India
House v. Kishan N. Lalwani (2003) 9 SCC 393.”
81. Reliance has been placed on Raghunath Rai Bareja & Anr. v. Punjab
National Bank & Ors. (2007) 2 SCC 230, in which the Latin maxim “dura lex
sed lex” which means “the law is hard, but it is the law” was applied.
Relying upon that it has been observed that equity can only supplement the
law, but it cannot supplant or override it. But when there is a conflict
between law and equity, it is the law which has to prevail.
82. In the instant case, equitable right of allotment of some land other
than which was purchased out of some other properties allotted to the share
of vendor Hamid Ali Khan, D-1 has not been claimed in the objections filed
during the final decree proceedings filed by the purchasers. The property
admittedly has exchanged hands a number of times during the pendency of
suit from 1935 till date and how the equity is to be worked out is always a
question of fact in every case, how much share has been allotted to the
share of one vendor and how much property he had already alienated till
that time and what are the debts or charges on the property that are
legally permissible, would be some of the relevant considerations. Nothing
of that sort has been pleaded by the purchasers in the objections filed in
the final decree proceedings. Though in the absence of claiming equitable
right in the share of vendor’s other properties, it cannot be worked out
and it is doubtful when undivided share has not been sold and the specific
property had been purchased, such equitable right can be enforced. Even
assuming that the purchaser could work out the equity, however in the
absence of pleadings and evidence required for the purpose, it would amount
to misadventure. We do not propose to give any finding on submission and
its correctness, made on behalf of the appellants that defendant No.1 had
gone on a selling spree like anything and before executing the sale deed on
23.11.1959 he had already sold more than 1000 acres of land which was in
excess of his entitlement, in the absence of pleading by appellants or
purchasers on the basis of oral submissions made before us. In the absence
of requisite data, pleadings and evidence, question of working out equity
in aforesaid manner, cannot be examined or gone into by this Court at this
stage. The claim of equity is outcome of ingenuity of arguments made only
in this Court like a drowning fish trying to catch last straw. We are not
at all impressed by the submission, and consequently the same is repelled,
more so considering the provisions of the Mohammedan Law that sale beyond
the extent of the share of the vendor in specific property was void.
(ix) In re : whether sale was for legal necessity, and thus binding :
83. It was submitted that sale was for legal necessity for benefit of
estate. It has been averred in the objections preferred by the purchasers
that sale was made by Hamid Ali Khan, defendant No.1, for payment of land
revenue. Thus it was contended that the payment of land revenue has enured
for the benefit of the entire estate. Thus sale would be valid and binding
on co-heirs. Except making the aforesaid bald statement, nothing has been
placed on record to indicate that the sale was for payment of land revenue.
On the other hand, when we peruse the sale deed, recital of it makes it
clear that the sale was effected by Hamid Ali Khan for his ‘personal
necessity’. He had not executed the sale deed for payment of land revenue
as its recital is otherwise which would prevail. Nor the sale deed had been
executed in the fiduciary capacity acting on behalf of co-sharers rather he
has claimed in the sale deed that he was the exclusive owner of 68 acres 10
guntas area of property and was in possession thereof. He had sold the land
for a consideration of Rs.2000 in view of his personal necessity. The sale
was made after taking permission from the Deputy Collector Division, Distt.
West, Hyderabad. Thus, the sale deed negates the aforesaid bald averment
made in the objection petition. Even otherwise under the Mohammedan Law, it
was not open to Hamid Ali Khan, defendant No.1 to act in fiduciary capacity
to sell the property and bind shares of others. It is not mentioned in sale
deed that Hamid Ali Khan had sold for any legal necessity or for the
benefit of the entire estate. The recital in sale deed has the evidentiary
value and Bala Mallaiah and his successors are bound by what has been
mentioned therein. Thus, no case is made out on the basis of the aforesaid
submission also to make an interference.
(x) In re : the effect of proceedings under the Tenancy Act, 1950 :
84. It was contended on behalf of the respondents that with respect to
the disputed property the proceedings were initiated by Boddam Narsimha
under the Act of 1950. Boddam Mallaiah was a lessee for 3 years. He was
inducted in the aforesaid lands under a koul dated 1.3.1953 executed by
Hamid Ali Khan, who was defendant No.1 in the partition suit. Initially, it
was for one year and was renewed each year later on. Hamid Ali Khan
executed a sale deed in favour of Bala Mallaiah on 23.11.1959. After the
sale deed, Bala Mallaiah became a pattedar in place of Hamid Ali Khan in
respect of the suit land. Bala Mallaiah was the paternal uncle of Boddam
Narsimha. An application was filed by Boddam Narsimha under section 37A of
the Tenancy Act on the ground that Late Bala Mallaiah was a protected
tenant and prayed for issuance of ownership certificate under section 38E
of the Act of 1950. The tribunal vide order dated 24.8.1999 held that Bala
Mallaiah never protested the omission of entry of tenancy from the revenue
records as deemed tenant, and it was found that there were no protected
tenants in Madhapur village. The order was questioned in the appeal under
section 90 of the Act which was dismissed by the Joint Collector on
13.3.2000. Thereafter, Writ Petition No.2229/2000 was preferred before the
High Court of Judicature at Andhra Pradesh which was also dismissed by the
High Court on 16.4.2001 and the same was questioned before this Court which
dismissed appeal in Boddam Narsimha (supra).
85. However, on behalf of the respondents it has been submitted that Bala
Mallaiah has become pattedar vide conveyance deed dated 23.11.1959. The
case set up by Bala Mallaiah that he was jointly cultivating the suit land
along with his two brothers Komaraiah and Agaiah was found to be meritless
and negatived for the period between 1952 and 1959. On 1.1.1973 when the
notification came to be issued, Bala Mallaiah was not the protected tenant.
The case set up by Boddam Narsimha regarding protected tenancy and issuance
of ownership certificate was negatived. This Court noted that even for the
sake of arguments if it is accepted that Bala was a protected tenant on
12.2.1956, he still became a pattedar vide conveyance deed dated
23.11.1959, and in any event assumed protected tenancy did not continue up
to 1.1.1973, and therefore, the appellant was not entitled to ownership
certificate under section 38E. Section 38E of the Act of 1950 had no
application to the facts of the case. This Court has discussed the matter
thus :
“13. Bala was a kaul who had taken an annual lease from Hamid Ali Khan. He
was a tenant at will. This was during the pendency of the partition suit.
He became a pattedar vide conveyance dated 23-11-1959. The kaul itself
indicates, that Bala was to cultivate in his individual capacity; that at
the end of the year, Bala had to return the lands to the owner; that Bala
was not given the right to include any other cultivator. Therefore, there
is no merit in the contention of the appellant that Bala was jointly
cultivating the suit lands with his two brothers Agaiah (father of the
appellant) and Komaraiah. Further, between tenancy and the conveyance,
there was a time-gap. Hamid Ali Khan was a pattedar. His rights were
purchased by Bala vide conveyance dated 23-11-1959, therefore, on 1-1-1973,
when the notification came to be issued, Bala was not the tenant. He was a
pattedar. Moreover, the appellant herein is not the LR of Bala. Bala was
his paternal uncle. At no point of time, even the LRs of Bala had claimed
that Bala was a protected tenant. It is evident from Section 38-E that the
said section has been enacted for those protected tenants who are declared
to be protected tenants and included in the register prepared for that
purpose. A person becomes a protected tenant when he is a holder on the
dates or for the periods mentioned in Sections 35, 37 and 37-A. Once a
person becomes a protected tenant, he is entitled to an ownership
certificate under Section 38-E. In Sada v.Tahsildar AIR 1988 AP 77 Full
Bench of the Andhra Pradesh High Court held that a person “holds” the land
as protected tenant if he is still a protected tenant on the notified date
i.e. 1-1-1973, though out of possession. As long as his right as protected
tenant has not been determined by the date of notification in a manner
known to the Act, he holds the land as a protected tenant, whether
physically in possession or not. For the vesting of ownership of land held
by a protected tenant under Section 38-E, it is not necessary that the
protected tenant should be in physical possession on 1-1-1973. It is
sufficient if he continues to hold the status of a protected tenant on the
notified date, even if he is not in physical possession. The Act does not
merely regulate the relationship of landlord and tenant but deals with the
alienation of agricultural land and includes transfer of the landholder’s
interest to the protected tenants. Therefore, the grant of pattedari
(ownership rights) also finds place in the Act.
14. On the facts and circumstances of the present case, Bala had become a
pattedar (owner) under the conveyance deed dated 23-11-1959. His name was
shown as a pattedar even prior to 1-1-1973. The benefit of Section 38-E is
given to persons who hold the lands as protected tenants and who continue
to hold the lands as protected tenants on 1-1-1973. The protected tenancy
has to be enforced on 1-1-1973. Under Section 38-E, ownership rights are
conferred only upon persons who continue to be protected tenants as on 1-1-
1973. They form a special class. In the present case, as stated above, Bala
became a pattedar in 1959. In Sada (supra) it has been held that protected
tenants are covered by Chapter IV of the Act. They fall under a limited
category. They are referred to in Sections 34, 37 and 37-A. In the said
judgment, it has been held that Section 37-A, introduced by Act 3 of 1956
deals with a separate class of persons deemed to be protected tenants. This
class of persons is different from the category of protected tenants who
fall under Sections 34 and 37 respectively. Section 37-A refers to persons
who are holders of the land at the commencement of amending Act of 1955 (12-
3-1956). These persons were required to be tenants on 12-3-1956 and that
they should continue to be tenants till 1-1-1973. Only such category of
persons are entitled to ownership certificate under Section 38-E. In the
present case, even for the sake of argument, if we were to proceed on the
basis that Bala was a protected tenant on 12-3-1956, still Bala became a
pattedar vide conveyance deed dated 23-11-1959, therefore, in any event,
the assumed protected tenancy did not continue up to 1-1-1973. In our
opinion, therefore, in any view of the matter, the appellant herein was not
entitled to the ownership certificate under Section 38-E of the Act.
Section 38-E has no application to the facts of the present case.”
86. This Court in aforesaid case has only decided the question about
protected tenancy which was claimed and issuance of ownership certificate
by Boddam Narsimha under section 38E. No other question was involved for
consideration in the proceedings under the Act of 1950. Thus, the decision
cannot be taken to be an authority on a question which was not agitated.
Boddam Narsimha who filed the said proceedings had lost up to this Court
and in that there was a mere mention of the fact that by virtue of the
conveyance deed, Bala Mallaiah became pattedar vide registered sale deed
dated 23.11.1959. There was no adjudication on the various issues as to the
legality or validity of the said rights which could be conferred by sale
deed and to what extent Hamid Ali Khan could have alienated to Bala
Mallaiah and issue about lis pendens etc. never came up for consideration.
Thus, the decision is of no help and cannot be taken to be an adjudication
by this Court with respect to the rights of Hamid Ali Khan or Bala Mallaiah
in matruka properties which was not an issue in the aforesaid case. The
scope of the proceedings and the issue involved were totally different.
Thus, no sustenance can be derived by the respondents by relying upon the
aforesaid decision in which Boddam Narsimha in fact had lost.
87. It was also contended that Hamid Ali Khan was recorded as pattedar
after the death of Nawab Jung. The plaintiffs and other heirs of Late
Nawab Jung were aware that the name of Hamid Ali Khan had been recorded in
the revenue records. The transfer was made with the permission of the
Collector under section 47 of the 1950 Act. Any person affected by any
entry in such record of rights under Regulation 4 of the Hyderabad Record
of Rights in Land Regulations, 1948 was required to question the same
within two years. Bala Mallaiah was in possession. Thus, the decree which
has been passed ignoring the rights of the pattedar is bad in law. In our
opinion, admittedly, it was a matruka property of Late Nawab Jung. The suit
for partition was pending w.e.f. 1935 and mutation simpliciter in the name
of Hamid Ali Khan conferred no right, title or interest. The mutation is
only for the fiscal purpose and is not decisive of right, title or interest
in the property which is within the domain of the civil court. The grant of
patta from 1953 onwards by Hamid Ali Khan to Bala Mallaiah was on yearly
basis and the execution of sale deed and the grant of land on yearly basis
were during lis pendens. Thus, the transactions are covered by the doctrine
of lis pendens and were clearly subject to the outcome of the pending
partition proceedings. In Venkatrao Anantdeo Joshi & Ors. v. Malatibai &
Ors. (2003) 1 SCC 722, a question came up for consideration assuming that
pending suit for partition, a batai patra was executed on the basis of
which tenancy rights were claimed. It was held that such batai patra would
not confer any right on the person. It being hit by the principle of lis
pendens. This Court has held thus :
“8. At the time of hearing of this appeal, learned counsel for the
appellants submitted that the plea of tenancy raised by Baburao is on the
face of it, bogus so as to defeat the rights of the appellants which are
crystallised at the time of passing of the preliminary decree. Presuming
that pending the suit for partition, even if batai patra is executed, it
would not confer any rights on Baburao as it is hit by principles of lis
pendens. In any case, as the preliminary decree becomes final, it was not
open for Baburao to raise such contention at the time of passing of final
decree for partition.
9. With regard to lis pendens, learned counsel for the appellants rightly
referred to the judgment and decree passed in Regular Civil Suit No. 51 of
1973 and contended that presuming that the so-called batai patra was at all
executed by Anantdeo, it was not open to him to execute the same pending
disposal of the suit filed by Appellant 1 for partition of the property. In
that suit, Appellant 1 and his mother had challenged the transfer of land
out of Survey No. 60/A and also for partition of the suit property. By
elaborate judgment and order, the suit filed by the appellants was decreed
to the extent that they were entitled to 2/3rd share in the suit
properties. The court had also directed mesne profits. Till the date of the
decree, it was contended by Anantdeo that he was in possession of portion
of the suit land and the remaining portion was in possession of Malatibai,
in view of the sale deed in her favour. It has also been specifically
contended that for some time, property was in possession of Baburao prior
to marriage of Shakuntala Bai and then in possession of one Pandurang
Saokar and lastly it was in possession of Malatibai and himself. The court
specifically arrived at the conclusion that Anantdeo was in possession of
the suit property and the so-called transfer was without any legal and
family necessity as alleged and, therefore, the appellants were entitled to
2/3rd share in the suit property. In the revenue records also, there is no
mutation in favour of Baburao. Further, the so-called compromise decree in
Civil Suit No. 288 of 1981 against Anantdeo and Malatibai would not confer
any title against the appellant.
10. Further, in a suit for partition where preliminary decree is passed, at
the time of passing of the final decree it was not open to the respondent
to raise the contention that he was a tenant of the suit premises. Section
97 CPC specifically provides that where any party aggrieved by the
preliminary decree does not appeal from the said decree, he is precluded
from disputing its correctness in any appeal which may be preferred from
the final decree.”
In view of the aforesaid, we find no force in the submissions raised
on behalf of the respondents based upon pattedar rights as it was subject
to section 52 of T.P. Act and the same is hereby rejected.
(xi) In re : what is the effect of decision of this Court and High Court
with respect to final decree proceedings in Item No. 2 of Schedule ‘B’
property :
88. With respect to item No.2 of Plaint ‘B’ schedule property one Padmini
Co-operative Housing Society Ltd. filed an objection in the final decree
proceedings. The trial court vide order dated 29.3.1996 rejected the
objection which was preferred. First appeal preferred was also dismissed by
a Single Judge on 23.4.1997. LPA No.104/1997 was filed which was dismissed
by a Division Bench of the High Court on 20.11.1998. Then SLP [C]
No.3558/1999 was filed in this Court which has been dismissed by a speaking
order affirming the judgment and order passed by the executing court and
the High Court. A perusal of the judgment of the High Court in LPA
indicates that the High Court had held that in Mohammedan Law there is no
recognition for a sale by a co-sharer of the entire estate and that the
other co-sharers are not bound by such sale and said decision even went to
the extent of saying that even when the sale was meant for discharging the
debts of ancestor, whose property had devolved upon the sharers, the said
sale without the consent of other co-sharers is invalid and does not confer
any right on the purchaser with regard to such co-sharers who do not join
the said sale. The decision has been affirmed by this Court vide order
dated 1.10.1999 in SLP [C] No.3558/1999. Following order was passed by this
Court :
“After hearing arguments exhaustively for more than two hours and after
considering the preliminary decree dated 24.11.70, the modified preliminary
decree passed by the High Court, the Commissioner’s report dated 14.7.95,
final decree passed by the City Civil Court dated 11.2.96, the judgment of
the learned Single Judge dated 23.4.97, the judgment of the Division Bench
dated 24.11.93 and the other passed by the High Court in CRP.No. 700/94
dated 30.8.94 and after considering the various rulings of the Courts cited
before us by the learned senior counsel on both sides, we are not inclined
to interfere with in SLP. The SLP is dismissed.”
At least on point of law the decision of this Court being a reasoned
order has relevance and the decision in the aforesaid matter in same case
also supports the view which has been taken by us on merits.
(xii) In re : whether there is waiver of right by appellants :
89. It was also submitted that on behalf of the respondents that there is
waiver of rights by the plaintiff and other heirs of Late Nawab Jung with
respect to disputed property, and they cannot be permitted to approbate and
reprobate. In Boddam Narsimha (supra), stand was taken that Bala Mallaiah
was the pattedar, thus, they are bound by their said representation and
cannot wriggle out of it. They have relied upon the decision in C.
Beepathuma v. Velasari Shankaranarayana Kadambolithaya AIR 1965 SC 241 on
the principle of approbate and reprobate as also the decision in Mumbai
International Airport (P) Ltd. v. Golden Chariot Airport (2010) 10 SCC 422
in which it has been observed that the contesting respondent has blown hot
and cold by taking inconsistent stands which is not permissible.
90. In fact, during the pendency of the partition suit with respect to
ancestral property of Late Nawab Jang, Hamid Ali Khan – defendant No.1 –
had alienated the property treating it as his own whereas it was obviously
subject to the right of other co-shares finally declared in the preliminary
decree. Bala Mallaiah and his successors have filed several proceedings,
civil suit of 1993 in which they have failed. Boddam Narsimha, nephew of
Bala Mallaiah also filed proceedings under the Act of 1950 for issuance of
ownership certificate by virtue of their being protected tenants which case
was also dismissed. Thus, the stand which was taken by appellants under the
protected Tenancy Act was not at all inconsistent and did not amount to
approbation and reprobation on the part of the heirs of Late Nawab Jung.
Land grabbing proceedings were also instituted by LRs. of Bala Mallaiah and
his brothers. The proceedings were dismissed and W.P. No.15577/2001 filed
before the High Court was also dismissed vide order dated 30.1.2002. After
having lost in the aforesaid proceedings, belatedly the objection had been
preferred in the final decree proceedings for partition. The conduct of
purchasers makes it clear that they instituted multifarious proceedings,
and took inconsistent stands which were not accepted by this Court in
Boddam Narsimha (supra). The appellants or their predecessors had not taken
inconsistent stands. They were clearly protected by doctrine of lis
pendens.
(xiii) In re : whether appellants are guilty of delay or laches :
91. It was also submitted that a preliminary decree recognized the rights
of the transferees to be adjudicated at the time of final decree
proceedings and no steps were taken by the legal heirs after passing of the
preliminary decree way-back in 1970 to implead them. The proceedings for
final decree were initiated in the year 1984. The appellants have not taken
prompt steps, as such they are not entitled to any indulgence from this
Court. Reliance has been placed upon Municipal Council, Ahmednagar v. Shah
Hyder Beig (2000) 2 SCC 48 to contend that any delay on the part of the
parties defeats the rights.
92. We are not impressed by any of the aforesaid submissions. The
preliminary decree passed in 1970 was clearly against the interest of the
purchasers as their vendor was not found to have the rights which was not
assailed by them. The preliminary decree attained finality in the year 1976
and proceedings for final decree taken in 1984 were within the period of
limitation. As a matter of fact, LRs. of Bala Mallaiah and his brother etc.
took steps in the year 1993 and onwards by filing successive cases as
enumerated above. There was no delay on the part of the appellants
defeating their rights. It was the respondents who having lost in the three
proceedings one after the other, raised objection in the year 2004 in the
final decree proceedings. What prevented them from doing so in the year
1993, has not at all been explained. Thus, it is they who are responsible
to delay in the final decree proceedings in a partition case instituted in
the year 1935 and the matter is still pending in the shape of instant
appeals before this Court.
(xiv) In re : the effect under the Urban Land Ceiling Act :
93. It was also submitted that under the Urban Land Ceiling Act
proceedings, the land was not shown to be belonging to the heirs of Late
Nawab Jung. The orders passed in urban land ceiling case have not been
placed on record. That apart, it was stated that the proceedings lapsed due
to repeal of Urban Land Ceiling Act. Be that as it may. The respondents are
purchasers from branch of Bala Mallaiah whose vendor was defendant No.1.
The property has further exchanged hands. Since the orders have not been
placed on record, in the aforesaid factual scenario, we decline to examine
the aforesaid proposition further and we were not apprised how the
purchasers could claim a better right than the one possessed by their
vendor. We leave it open to the State Government to examine the question of
ceiling and effect of the decision.
94. A compromise petition has been filed with respect to area 18 acres 25
guntas. As per the compromise the division of the property has to take
place between the appellants and the newly added respondent Nos.87 to 127.
Same was objected to by one of heirs. It will involve transfer of the
property, hence, we leave the parties to have resort to an appropriate
remedy in this regard. It is found not to be recordable in the form of
transaction in which it has been filed.
95. Resultantly, the appeals are allowed. Impugned judgment and decree
passed by the High Court is set aside. The final decree of the Trial Court
is restored. Costs of Rs.1,00,000/- to be paid within two months from
today.
…………………………J.
(Arun Mishra)
New Delhi; …………………...……..J.
March 21, 2017. (Amitava Roy)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr. … Appellants
Vs.
B. Chinna Narasimha & Ors. etc. … Respondents
With
[Civil Appeal Nos.4733 of 2010, 4734-35 of 2010, 4736 of 2010, 4837-38 of
2010, 6536-37 of 2010, 4276-77 of 2011, Civil Appeal No. 4319-20 of 2017 (@
SLP(C) Nos.23864-23865 of 2011), Civil Appeal Nos.1196-97 of 2012 and Civil
Appeal Nos.7105-06 of 2010.]
J U D G M E N T
ARUN MISHRA, J.
1. Leave granted in S.L.P. (C) Nos. 23864-23865 of 2011.
2. In the appeals, the final decree which has been drawn up in a
partition suit with respect to item No.6 of Schedule ‘B’ pertaining to land
admeasuring 68 acres 10 guntas comprised in survey Nos. 63, 68, 69 and 70
situated at village Madhapur, District Ranga Reddy, Hyderabad is in
question.
3. The property was matruka property of Late Mohd. Nawab Jung who
passed away on 25.4.1935. Civil Suit No.82/1935 was instituted by Mohd.
Hashim Ali Khan, son of Mohd. Nawab, in Darul Qaza City Court, Hyderabad,
for partition of matruka properties of Late Nawab comprised in Schedules
‘A’, ‘B’ and ‘C’. The suit was contested, inter alia, by defendant No. 1.
Darul Qaza Court was abolished in the year 1951. On abolition of original
jurisdiction of the High Court, the case was assigned to the City Civil
Court. It appears that later on as the file was not received by the City
Civil Court from the Custodian, it passed order dated 8.1.1955 to the
effect that the file of the case was not yet received, the plaintiff was
also absent, as such the case be closed for the time being and be revived
only on receipt of the file and on an application to be filed by the
plaintiff. The city civil court understood the order to be of dismissal of
suit in default. The plaintiff moved an application for revival of the
suit. The city civil court directed the plaintiff vide order dated
1.12.1955 to deposit Rs.50 towards costs and if the costs were not paid by
15.12.1955, the suit shall stand dismissed. The plaintiff could not pay the
cost within the stipulated time and prayed for extension of time which was
not extended. The order was questioned by the plaintiff in the High Court
by way of filing an appeal. The High Court decided the appeal vide order
dated 23.1.1962 and held that vide order dated 8.1.1955, the suit was not
dismissed for default. It was an order adjourning the suit with a direction
that it may be revived only on receipt of the file from the Custodian,
therefore, there was no necessity for the plaintiff to file an application
under Order 9 Rule 9 CPC for restoration. Thus the trial court had no
jurisdiction to direct the plaintiff vide order dated 1.12.1955 to pay the
cost of Rs.50 to the defendants on or before 15.12.1955 as a condition
precedent. The appeal was allowed and the order dated 1.12.1955 was set
aside. The order passed by the High Court attained finality. Thereafter,
the suit was re-numbered as Civil Suit No.42/1962 in the city civil court.
Hamid Ali Khan, defendant No.1 sold Item No.6 of Schedule ‘B’ property in
area 68 acres 10 guntas on 23.11.1959 to Bala Mallaiah vide registered sale
deed. He sold the share inherited by other co-heirs also to Bala Mallaiah.
It was found in the preliminary decree for partition dated 24.11.1970 that
defendant No.1, Hamid Ali Khan, was having only 14/104th share in matruka
properties. The plaintiff, and defendant Nos.2, 3 and 12 were also having
14/104th share each. Defendant Nos.4 to 6, daughters of Nawab had 7/104th
share in matruka properties. Nurunnisa Begum, widow of Late Nawab,
defendant No.7 was entitled to 13/104th share in matruka properties.
4. Aggrieved by the preliminary decree for partition determining the
shares to the aforesaid extent, the plaintiff and legal heirs of defendant
No.1 i.e. defendant Nos.23 to 25 and defendant No.27 preferred appeal in
the year 1972 before the High Court. Cross-objections were also preferred
by defendant No.6 – Shareefunnisa Begum. The High Court dismissed the
appeals and allowed the cross-objections of defendant No.6 with respect to
item No.4 of Schedule ‘A’ property. The plaintiff questioned the decision
by way of filing LPA No.199/1977 and the same was dismissed vide order
dated 12.11.1976, the decision with respect to preliminary decree has
attained finality.
5. Defendant No.25 – daughter of defendant No.1 – filed IA No.854/1984
for passing a final decree in terms of the preliminary decree passed in the
partition suit. During the pendency of the final decree proceedings, an
Advocate-Commissioner was appointed to divide the suit schedule land by
metes and bounds as per the preliminary decree passed on 24.11.1970 for
which an application (IA No.31/1989) was filed on 16.1.1989. He submitted a
report in December, 1993 in respect of item No.6 of Schedule ‘B’ of
preliminary decree dated 24.11.1970. The Advocate-Commissioner divided the
suit schedule property on 28.11.1993. He also noticed that third parties
were in possession of the land and he had also seen a signboard of Surya
Enclave Developers. The sale transaction took place during the pendency of
the preliminary decree proceedings on 23.11.1959. The LRs. of Bala Mallaiah
were entitled to the share of Hamid Ali Khan, defendant No.1. On 6.10.1997,
pending final decree proceedings, plaintiff and defendant Nos.4 and 14 to
17 i.e. LRs. of defendant No.5 assigned their interest in item No. 6 of
plaint ‘B’ schedule properties in favour of D.A.P. Containers Pvt. Ltd. The
assignees were brought on record as defendant Nos.99 to 112 in the final
decree proceedings vide order dated 22.4.1999 passed by the Senior Civil
Judge, City Civil Court, Hyderabad.
6. On 16.7.2001, L.Rs. of Bala Mallaiah filed IA No.978/2001 and sought
impleadment to contest the matter in respect of item No.6 of plaint ‘B’
Schedule properties. Vide order dated 14.10.2003, LRs. of Bala Mallaiah
were impleaded. On 2.4.2004, subsequent purchasers of the disputed property
filed an application (IA No. 544/2004) under Order VII Rule 11 CPC for
rejection of the final decree proceedings. It was resisted by appellants
and rejected by the court vide order dated 5.7.2005 and ultimately the
final decree came to be passed on 7.7.2005 in terms of the preliminary
decree dated 24.11.1970. In the final decree proceedings initiated by IA
No.854/1984, share of each heir was recognized in the disputed property
being Item No.6 of Schedule ‘B’ plaint. The rights of Hamid Ali, vendor of
Bala Mallaiah and subsequent purchaser’s share was recognized to the extent
of 14/104th share. Rights of the assignees/appellants were also recognized
in terms of the assignment deed and separate possession was given to them.
The final decree was questioned in Appeal Nos.385 and 386 of 2006 which
were filed by LRs. of Bala Mallaiah and purchasers from them with respect
to item No.6 of plaint ‘B’ schedule property. The appeals were dismissed on
27.4.2007. Aggrieved thereby, Second Appeal No.410/2008 was preferred.
Appeal had been allowed by the impugned judgment and decree dated
15.4.2010.
7. Before the final decree could be passed in the case, civil suit being
OS No.294/1993 was filed for perpetual injunction by L.Rs. of Bala Mallaiah
against Hashim Ali Khan and others on the basis of sale deed dated
23.11.1959. The suit was dismissed by Junior Civil Judge, Hyderabad West &
South vide judgment and decree dated 8.6.1998. It was held that the
plaintiffs were not entitled to claim adverse possession over the suit
schedule property and that their purchase and possession was subject to the
result of the partition suit, O.S. No.42/1962. It was also held that the
possession of the plaintiff could not be said to be rightful possession and
they could claim only to the extent of their vendor’s share and not over
the entire property, and thus, they were not entitled to the relief of
injunction against the defendants. As against the judgment and decree of
the trial court, an appeal was preferred in the Court of Additional
District Judge, NTR Nagar, Hyderabad and the same was dismissed on
20.7.2000. Second Appeal No.465/2001 preferred against the same in the High
Court was dismissed vide judgment and order dated 26.9.2001.
8. Land grabbing proceedings under the Andhra Pradesh Land Grabbing
(Prohibition) Act, 1982 initiated by the L.Rs. of Bala Mallaiah were
dismissed by the Special Court in LGC No.148/1996 vide order dated
13.5.1997. It was held that the application was not maintainable. The court
took cognizance of the preliminary decree proceedings, appointment of the
Commissioner and also held that it was not open to contend that the
doctrine of lis pendens had no application. The application was ultimately
dismissed. The order was questioned by way of filing W.P. No.15577/2001 in
the High Court of Andhra Pradesh. The High Court simply observed that the
observations made by the special court would not come in the way of the
petitioners to work out their rights in accordance with law in the
partition suit, that is to say in the final decree proceedings.
9. There was yet another litigation initiated by Boddam Narsimha, nephew
of Bala Mallaiah. On 16.12.1998 an application was filed before the
Tribunal, Ranga Reddy District, seeking declaration of protected tenancy
under section 37A of the A.P. (Telangana Area) Tenancy and Agricultural
Lands Act, 1950. The same was dismissed vide order dated 24.8.1999. The
appeal preferred to the Joint Collector was also dismissed on 13.3.2000.
CRP No.2229/2000 before the High Court of Judicature at Andhra Pradesh was
dismissed by the Single Judge vide order dated 16.4.2001. Aggrieved
thereby, C.A. No.3429/2002 - Boddam Narsimha v. Hasan Ali Khan (dead) by
LRs. & Ors. - (2007) 11 SCC 410 was filed, and the same was also dismissed
by this Court.
10. The High Court while passing the impugned judgment and decree under
appeal has held that the sale deed dated 23.11.1959 was not hit by the
principle of lis pendens under section 52 of the Transfer of Property Act.
During the pendency of the suit, defendant No.1 had leased out the land to
Bala Mallaiah and later on had alienated the same on 23.11.1959. The
decision of this Court in Boddam Narsimha (supra) had been relied upon to
hold that Bala Mallaiah was declared as Pattedar, that would bind all the
parties. It was necessary for the plaintiff to take steps to get the sale
deed dated 23.11.1959 cancelled in accordance with law. It has also been
held that as the sale by defendant No. 1 to Bala Mallaiah was not effected
during lis pendens, in the absence of challenge to the sale deed and due to
non-impleadment in the suit, by virtue of adverse possession, title has
been perfected. At the same time, the High Court has held that till the
final decree is passed the suit is said to be pending and the preliminary
decree only determines the rights of the parties. Thus, the final decree
which has been passed by the trial court with respect to item No.6 of
plaint ‘B’ schedule property was impracticable.
11. It was submitted by learned senior counsel appearing on behalf of the
appellants that in fact there was no dismissal of the suit in 1955 as held
by the High Court in the year 1962. Thus, the sale deed dated 23.11.1959
was clearly during lis pendens. The suit was filed in the year 1935 and the
preliminary decree for partition was passed in the year 1970 and final
decree has been passed in 2005. It was further contended that it was not
open to defendant No.1 to sell more than his share. He had no authority to
sell the land belonging to the share of other co-heirs as Muslims inherit
the property as tenants-in-common and not as joint tenants. It was further
submitted that there was no necessity of questioning the sale deed as it
was subject to the provisions of lis pendens contained in section 52 of
T.P. Act. The High Court has gravely erred in law in holding that the title
had been perfected by virtue of adverse possession. It was also contended
that this Court in Boddam Narsimha (supra) did not adjudicate the question
of title of Bala Mallaiah. Thus, the High Court has gravely erred in law in
reversing the judgment and decree passed by the trial court as affirmed by
the first appellate court. The High Court has also erred in law in holding
that it was impracticable to pass the decree with respect to item No.6 of
schedule ‘B’ property.
Learned senior counsel appearing on behalf of the appellants
submitted that the decision in Civil Suit No.289/1993 for permanent
injunction which was based upon title, operates as res judicata on various
issues. The plea of estoppel has also been raised on behalf of the
appellants. It was further submitted that the plea of equity with respect
to partition of property was not available to Bala Mallaiah or to the
purchasers from him.
It was also submitted on behalf of the appellants that the final
decree proceedings qua other item No.2 of schedule ‘B’ property have
attained finality in which the order passed by the Division Bench of the
High Court of Andhra Pradesh in LPA No.104/1997 has been affirmed by this
Court by a speaking order passed in SLP [C] No.3558/1999 decided on
1.10.1999. Thus, the decision of this Court is binding upon the parties and
the findings recorded by the High Court therein on questions of law in its
judgment have attained finality. Thus, the High Court has erred in law in
holding otherwise.
12. Learned senior counsel appearing on behalf of respondents have
submitted that the sale deed dated 23.11.1959 in favour of Bala Mallaiah is
valid and binding as disputed land could have been alienated even during
the pendency of the suit for partition. It was strenuously submitted on
behalf of the respondents that the sale in question could not be said to be
during lis pendens as the suit in fact stood dismissed in 1955 and was
later on revived by the High Court in 1962. The decision of this Court in
Boddam Narsimha (supra) is binding in which foundational basis for the
judgment was the fact that Bala Mallaiah was a pattedar of the land, and it
was necessary to avoid the sale deed in question by getting it cancelled in
accordance with law within the period of limitation and that by virtue of
adverse possession, the right and interest had been perfected by the
purchasers. It was also submitted that even otherwise, the equities
available to a purchaser ought to have been applied in the present case as
the principle of equitable adjustment is applicable to Mohammedan Law and
the disputed property ought to have been allotted to the share of defendant
No.1 in order to adjust the equities without affecting the rights of other
co-heirs.
It was further urged that in view of the decision in Civil Suit No.
294/1993, various questions were left open to be agitated in the final
decree proceedings. It was also submitted that in the judgment dated
24.11.1970 with regard to preliminary decree in para 93, purchasers were
given the liberty to raise the question of equity in the final decree
proceedings. Thus, the High Court has rightly interfered with the final
decree with respect to the disputed property. Even if section 52 of the
T.P. Act is applicable, the transactions hit by lis pendens are not void.
Bala Mallaiah had acquired the rights of a pattedar, no decree could have
been passed in favour of L.Rs. of Late Nawab Jung. Considering the conduct
of the appellants, no case for interference is made out. They cannot
approbate and reprobate.
13. Following questions arise for consideration under the appeals:-
Whether the decision in Original Suit No.294 of 1993 operates as res
judicata, if yes to what extent?
Whether the sale deed dated 23.11.1959 executed by defendant no.1 in favour
of Bala Mallaiah is hit by doctrine of lis pendens?
Whether section 52 of T.P. Act renders a transfer pendente lite void ?
What is the effect of preliminary decree for partition and the extent to
which it is binding ?
Whether it was necessary to file a suit for cancellation of sale deed dated
23.11.1959?
Whether Bala Mallaiah, his heirs and purchasers had perfected their right,
title and interest by virtue of adverse possession?
Whether under the Muslim law, defendant no.1 being a co-sharer could have
alienated the share of other co-sharers in the disputed property?
Whether the purchaser has a right to claim equity for allotment of Item
No.6 of Schedule ‘B’ property in final decree proceedings in suit for
partition? If yes, to what extent ?
Whether sale was for legal necessity, and thus binding ?
What is the effect of proceedings under the Tenancy Act, 1950 ?
What is the effect of decision of this Court and High Court with respect to
final decree proceedings in Item No.2 of Schedule ‘B’ property ?
Whether there is waiver of right by appellants ?
Whether appellants are guilty of delay or laches ?
What is the effect of the decision of the Court under the Urban Land
Ceiling Act?
(i) In re : whether the decision in Original Suit No.294 of 1993 operates
as res judicata, if yes, to what extent?
14. Twelve LRs. of Bala Mallaiah filed the aforesaid suit against
Mohd. Hasim Ali Khan and 13 other heirs of Late Nawab Jung. The suit was
with respect to Item No.6 of Schedule ‘B’ that is with respect to survey
Nos.63 and 68 to 70 comprised in area 68 acres 10 guntas situated at
village Madhapur in erstwhile West Taluk, Hyderabad district now known as
Serilingampally Mandal.
15. It was averred in the plaint that Hamid Ali Khan had sold the
land to Bala Mallaiah by sale deed dated 23.11.1959 after obtaining due
permission under the Andhra Pradesh Tenancy and Agricultural Lands Act,
1950 (hereinafter referred to as ‘the Act of 1950’). Though the land was
purchased in the name of Bala Mallaiah but it was his joint family property
along with two brothers, namely, Komaraiah and Agaiah. Bala Mallaiah died
in the year 1975. His undivided 1/3rd share devolved upon plaintiff Nos.1
and 2. Plaintiff Nos.3 and 4 are sons of plaintiff No.1 and plaintiff No.5
is the son of plaintiff No.2. Komaraiah, brother of Bala Mallaiah also died
and his 1/3rd interest had devolved upon plaintiff Nos.6 and 7. Agaiah –
plaintiff No.8 is the brother of Bala Mallaiah and plaintiff Nos.9 to 12
are his sons.
It was further averred that the plaintiff entered into a
developer’s agreement with respect to residential plots with M/s. Surya
Land Developers & Promoters with respect to 13 acres 17 guntas forming part
of survey No.68 and 12 acres 31 guntas in survey No.69. Another agreement
was entered into with Bapuji Estates with respect to 6 acres of area out of
survey No.69. Plots comprised in survey Nos.68 & 69 were also sold to
various persons. Survey No.69 was also sold in entirety. A preliminary
decree for partition was passed in O.S. No. 42/1962 in the year 1970 which
comprised of disputed property also. Bala Mallaiah or the plaintiffs and
other heirs were not impleaded as parties in the aforesaid suit for
partition and under the guise of decree the defendants were claiming
ownership and threatening to dispossess the plaintiffs forcibly. In the
suit for partition, during final decree proceedings, an Advocate-
Commissioner had been appointed who visited the disputed property on
15.8.1993. Hence, suit No.294/1993 was filed for perpetual injunction.
16. The defendants in their written statement contended that the
suit was not maintainable. The preliminary decree for partition dated
24.11.1970 was binding in which shares of respective parties had been
declared. Suit for partition was filed in the year 1935. The sale
transaction between Hamid Ali Khan and Bala Mallaiah was void and conferred
no right, title or interest upon the plaintiffs. Plaintiffs had no right to
interfere in the shares allotted to other co-heirs in the suit for
partition. The property in question was ancestral property. The findings
recorded in preliminary decree against defendant No.1, vendor of Bala
Mallaiah are binding upon the plaintiffs, and as such they are not entitled
for any relief.
17. It is apparent that the suit for permanent injunction was filed
by the plaintiffs on the basis of sale deed dated 23.11.1959 in which it
was also submitted that it was not during lis pendens. Plea of adverse
possession had also been raised which was negatived. They claimed
injunction on the basis of possession under the sale deed dated 23.11.1959.
The trial court in the aforesaid civil suit gave the following findings
against the plaintiff : (i) that the purchase was hit by doctrine of lis
pendens so that they are not entitled for relief of injunction against the
defendants who are co-sharers as per the preliminary decree dated
24.11.1970 passed in the partition suit; (ii) it was also held that the
possession of the plaintiff could not be said to be a rightful possession.
It is not open to the plaintiff to claim right on the basis of sale deed on
the ground that they were not parties to the partition suit. It was also
held that whatever their vendors would get in the suit for partition, to
that extent they would be entitled to and they could not claim rights over
the entire property; (iii) the plea of adverse possession was also
negatived by the trial court on the ground that the purchase was during lis
pendens and there was no pleading or evidence regarding adverse possession.
18. The judgment was affirmed in the first appeal vide judgment and
decree dated 8.6.1988 passed by the Court of II Additional District Judge,
NTR Nagar, Hyderabad in A.S. No.72/1998. It was held that the sale deed was
hit by doctrine of lis pendens. The first appellate court also held that
the vendor of Bala Mallaiah namely, Hamid Ali Khan, defendant 1, had no
right to sell the entire dispute property to Bala Malliah as absolute
owner. The plaintiffs could claim right over the property to the extent of
vendor of Bala Mallaiah. It was also held that the land grabbing case LGC
No.148/1996 was dismissed which order had attained finality and barred the
present suit. Injunction could not be granted in view of the preliminary
decree for partition which had been passed as it would tantamount to
granting injunction against the decree-holders for enforcing their lawful
decree. Being a purchaser lis pendens, it is open to the plaintiff to
approach the court where the final decree proceedings were pending to work
out available equity to the extent of vendor’s share. Against the said
decision in first appeal, Second Appeal No.465/2011 was filed in the High
Court of Andhra Pradesh at Hyderabad which was dismissed in limine vide
order dated 26.9.2011 as no substantial question of law was found involved
in the appeal. Judgment and decrees of courts below were thus affirmed.
19. In view of the categorical findings recorded by the trial court
and first appellate court it is apparent that the sale deed dated
23.11.1959 was hit by doctrine of lis pendens and secondly on the basis of
the said sale deed, L.Rs. of Bala Mallaiah could have claimed only to the
extent of the share of his vendor and not the entire land, i.e. only to the
extent of 14/104th share of defendant No.1.
20. With respect to effect of suit for permanent injunction based
upon title, effect of negativing title has been considered by this Court.
In Sajjadanashin Sayed Md. B.E. Edr. (D) by LRs. v. Musa Dadabhai Ummer &
Ors. (2000) 3 SCC 350, it has been held :
“24. Before parting with this point, we would like to refer to two more
rulings. In Sulochana Amma v. Narayanan Nair (1994) 2 SCC 14 this Court
held that a finding as to title given in an earlier injunction suit would
be res judicata in a subsequent suit on title. On the other hand, the
Madras High Court, in Vanagiri Sri Selliamman Ayyanar
Uthirasomasundareswarar Temple v. Rajanga Asari AIR 1965 Madras 355 held
(see para 8 therein) that the previous suit was only for injunction
relating to the crops. Maybe, the question of title was decided, though not
raised in the plaint. In the latter suit on title, the finding in the
earlier suit on title would not be res judicata as the earlier suit was
concerned only with a possessory right. These two decisions, in our
opinion, cannot be treated as being contrary to each other but should be
understood in the context of the tests referred to above. Each of them can
perhaps be treated as correct if they are understood in the light of the
tests stated above. In the first case decided by this Court, it is to be
assumed that the tests above-referred to were satisfied for holding that
the finding as to possession was substantially rested on title upon which a
finding was felt necessary and in the latter case decided by the Madras
High Court, it must be assumed that the tests were not satisfied. As stated
in Mulla, it all depends on the facts of each case and whether the finding
as to title was treated as necessary for grant of an injunction in the
earlier suit and was also the substantive basis for grant of injunction. In
this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, p.
229) where a similar aspect in regard to findings on possession and
incidental findings on title were dealt with. It is stated:
“Where title to property is the basis of the right of possession, a
decision on the question of possession is res judicata on the question of
title to the extent that adjudication of title was essential to the
judgment; but where the question of the right to possession was the only
issue actually or necessarily involved, the judgment is not conclusive on
the question of ownership or title.”
25. We have gone into the above aspects in some detail so that when a
question arises before the Courts as to whether an issue was earlier
decided only incidentally or collaterally, the Courts could deal with the
question as a matter of legal principle rather than on vague grounds. Point
1 is decided accordingly.” (emphasis added by us)
In Commissioner of Endowments & Ors. v. Vittal Rao & Ors. (2005) 4
SCC 120, it has been held thus :
“28. In support of his submission, the learned counsel for Respondent 1
contended that as long as an issue arises substantially in a litigation
irrespective of the fact whether or not a formal issue has been framed or a
formal relief has been claimed, a finding on the said issue would operate
as res judicata, strongly relied on the decision of this Court
in Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer (supra). Paras
18 and 19 of the said judgment read : (SCC pp.359-60)
"18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p.
104). The learned author says: a matter in respect of which relief is
claimed in an earlier suit can be said to be generally a matter ‘directly
and substantially’ in issue but it does not mean that if the matter is one
in respect of which no relief is sought it is not directly or substantially
in issue. It may or may not be. It is possible that it was ‘directly and
substantially in issue and it may also be possible that it was only
collaterally or incidentally in issue, depending upon the facts of the
case. The question arises as to what is the test for deciding into which
category a case falls? One test is that if the issue was ‘necessary’ to be
decided for adjudicating on the principal issue and was decided, it would
have to be treated as ‘directly and substantially’ in issue and if it is
clear that the judgment was in fact based upon that decision, then it would
be res judicata in a latter case (Mulla, p. 104). One has to examine the
plaint, the written statement, the issues and the judgment to find out if
the matter was directly and substantially in issue (Isher Singh v. Sarwan
Singh AIR 1965 SC 948 and Syed Mohd. Salie Labbai v. Mohd. Hanifa (1976) 4
SCC 780). We are of the view that the above summary in Mulla is a correct
statement of the law.
19. We have here to advert to another principle of caution referred to by
Mulla (p. 105):
‘It is not to be assumed that matters in respect of which issues have been
framed are all of them directly and substantially in issue. Nor is there
any special significance to be attached to the fact that a particular issue
is the first in the list of issues. Which of the matters are directly in
issue and which collaterally or incidentally, must be determined on the
facts of each case. A material test to be applied is whether the court
considers the adjudication of the issue material and essential for its
decision.’ "
(emphasis in original and supplied)
29. In the light of what is stated above, in the case on hand, in our view,
it was necessary for the Court in the earlier round of litigation to decide
the nature and scope of gift deed Ext. A-1. Accordingly, the courts decided
that the gift made in favour of ancestors of Respondent 1 of the land was
absolute and it was not an endowment for a public or charitable purpose. On
the facts of the case, it is clear that though an issue was not formally
framed, the issue was material and essential for the decision of the case
in the earlier proceeding. Hence, the bar of res judicata applies to the
facts of the present case.”
21. Reliance has been placed by learned senior counsel for the
respondents on a decision in Anathula Sudhakar v. P. Buchi Reddy (dead) by
LRs. & Ors. (2008) 4 SCC 594 wherein the Court had summarized the
conclusions thus: :
“21. To summarise, the position in regard to suits for prohibitory
injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff’s title and he does not have
possession, a suit for declaration and possession, with or without a
consequential injunction, is the remedy. Where the plaintiff’s title is not
in dispute or under a cloud, but he is out of possession, he has to sue for
possession with a consequential injunction. Where there is merely an
interference with the plaintiff’s lawful possession or threat of
dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession,
normally the issue of title will not be directly and substantially in
issue. The prayer for injunction will be decided with reference to the
finding on possession. But in cases where de jure possession has to be
established on the basis of title to the property, as in the case of vacant
sites, the issue of title may directly and substantially arise for
consideration, as without a finding thereon, it will not be possible to
decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction,
unless there are necessary pleadings and appropriate issue regarding title
(either specific, or implied as noticed in Annaimuthu Thevar v. Alagammal
(2005) 6 SCC 202. Where the averments regarding title are absent in a
plaint and where there is no issue relating to title, the court will not
investigate or examine or render a finding on a question of title, in a
suit for injunction. Even where there are necessary pleadings and issue, if
the matter involves complicated questions of fact and law relating to
title, the court will relegate the parties to the remedy by way of
comprehensive suit for declaration of title, instead of deciding the issue
in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and
appropriate issue relating to title on which parties lead evidence, if the
matter involved is simple and straightforward, the court may decide upon
the issue regarding title, even in a suit for injunction. But such cases,
are the exception to the normal rule that question of title will not be
decided in suits for injunction. But persons having clear title and
possession suing for injunction, should not be driven to the costlier and
more cumbersome remedy of a suit for declaration, merely because some
meddler vexatiously or wrongfully makes a claim or tries to encroach upon
his property. The court should use its discretion carefully to identify
cases where it will enquire into title and cases where it will refer to the
plaintiff to a more comprehensive declaratory suit, depending upon the
facts of the case.”
22. It was submitted on behalf of respondents that the findings in
O.S. No.294/1993 do not operate as res judicata as it was left ultimately
to raise the objections in the final decree proceedings. We are unable to
accept the aforesaid submission as there was clear inability to grant
injunction and the submission of the plaintiffs that they were having title
on entire land on the basis of sale deed dated 23.11.1959, had been
negatived. It was found that Bala Mallaiah could have purchased only the
share of his vendor Hamid Ali and not the entire disputed property and the
purchase was affected by lis pendens. We are of the considered opinion that
the finding with respect to purchase being made during lis pendens had
attained finality and was not open to question in the present proceedings.
Besides, the validity of the sale deed to the extent of the share of the
vendor which was sought to be re-agitated in the final decree proceedings,
was also not open to be raised in view of clear findings recorded in the
suit of 1993. Though we have held so, however nothing turns on the
aforesaid finding as to res judicata as we propose to examine both aspects
on merits afresh, in view of the conclusions which we propose to record
hereinafter.
(ii) In re : Whether the sale deed dated 23.11.1959 executed by defendant
No.1 in favour of Bala Mallaiah is hit by doctrine of lis pendens?
23. In the instant case, a suit for partition was filed in the year
1935. On abolition of Darul Qaza Court in 1951 the case was transferred to
the High Court. On abolition of original jurisdiction of the High Court,
file was sent to the city civil court. It appears that when the file from
Custodian did not reach the city civil court, hence order dated 8.1.1955
was passed to the following effect :
8.1.1955 - “This file summoned by the Custodian is not yet received. As
the plaintiff too is absent and the file not yet received the case be
closed. It may be revived only on the receipt of the file and the
application of the plaintiff.”
It is apparent from the aforesaid order that it was clearly an order
of keeping the case sine die to be taken up only on receipt of the file on
being informed by filing an application by the plaintiff. The file was not
before the court. Thus, there was no question of dismissal of the case in
default nor was it so dismissed by the court. However the plaintiff
laboured under wrong impression, as such filed application under Order 9
Rule 9 CPC and prayed for restoration of the suit. An order was passed on
1.12.1955 by the city civil court, restoring the suit on the basis of
payment of Rs.50 as costs to be paid on or before 15.12.1955. Costs could
not be deposited by the plaintiff by 15.12.1955. The prayer was made to
accept the costs on 16.12.1955 by extending time under section 148 CPC.
However, the city civil court dismissed the said application. The order was
questioned in the High Court in appeal filed by the plaintiff in which the
Division Bench of the High Court vide order dated 5.2.1962 had held that
the suit in fact was not dismissed for default on 8.1.1955 by the trial
court. It was an order adjourning the suit with a direction to be revived
only on the file being received from the Custodian. Therefore, there was no
necessity for the plaintiff to file an application under Order 9 Rule 9
CPC. The High Court had set aside the order dated 8.1.1955 and also held
that there was no jurisdiction with the city civil court to pass an order
on 1.12.1955 to impose and pay costs of Rs.50. The following order was
passed in the year 1962 by the Division Bench of the High Court :
“It is clear from the order dated 8-1-55, that the suit was not dismissed
for default. Virtually, it is an order adjourning the suit with a
direction that it may be revived only on the receipt of the file from the
Custodian. Therefore there was no necessity for the plaintiff to file the
application under Or. 9, Rule 9, CPC, praying that the suit be restored to
its original number after setting aside the order dated 8-1-55. The
plaintiff could have merely asked the court to take up the suit and to
proceed with the trial. The learned Judge has no jurisdiction to direct
the plaintiff by his order dated 1-12-55 to pay day costs viz., Rs.50/- to
the defendants on or before 15-12-55 as a condition precedent. This order
is clearly illegal and has to be set aside.
In the result, the appeal is allowed, and the order dated 1-12-55 directing
the plaintiff to pay the defendants Rs.50/- on or before 15-12-55 as
a condition precedent to restraining the suit is set aside. As a
consequence, the order dated 7-1-56 is vacated. Since this is a suit of
1951 which has been pending for a long time, the lower court will dispose
of the same as expeditiously as possible. The contesting respondents shall
pay the costs of the appellant.”
24. A preliminary objection has been raised on behalf of the respondents
as to very applicability of doctrine of lis pendens to Mohammedan law based
upon provisions contained in section 2 of T.P. Act. Section 2 is extracted
hereunder :
“2. Repeal of Acts.--Saving of certain enactments, incidents, rights,
liabilities, etc. --- In the territories to which this Act extends for the
time being the enactments specified in the Schedule hereto annexed shall be
repealed to the extent therein mentioned. But nothing herein contained
shall be deemed to affect---
(a) the provisions of any enactment not hereby expressly repealed;
(b) any terms or incidents of any contract or constitution of property
which are consistent with the provisions of this Act, and are allowed by
the law for the time being in force;
(c) any right or liability arising out of a legal relation constituted
before this Act comes into force, or any relief in respect of any such
right or liability; or
(d) save as provided by section 57 and Chapter IV of this Act, any transfer
by operation of law or by, or in execution of, a decree or order of a Court
of competent jurisdiction,
and nothing in the second Chapter of this Act shall be deemed to affect any
rule of Muhammadan law.”
No doubt about it that section 2 of T.P. Act protects rule of
Mohammedan law by excluding the provisions of Chapter II containing
sections 5 to 53A thereof. In our opinion, exclusion is conditional upon
existence of rule of Mohammedan law in that regard, that is to say if
principle/rule of Mohammedan law provides as to transfers lis pendens, the
same would prevail and nothing in section 52 of T.P. Act shall be deemed to
affect any such rule. However, we have not been shown any such rule of
Mohammedan law containing provision as to lis pendens and thus, in the
absence whereof the provisions of section 52 T.P. Act would be attracted.
The submission as to non-applicability of section 52 of T.P. Act to
Mohammedan law is hereby rejected.
25. It was submitted on behalf of the respondents that the sale deed had
been executed after dismissal of the suit on 16.12.1955 in terms of the
order dated 1.12.1955 as such doctrine of lis pendens was not attracted.
Thus, it was submitted that between 15.12.1955 and 23.1.1962 no suit was
pending. Reliance has been placed on a decision in Bhutnath Das & Ors. v.
Sahadeb Chandra Panja AIR 1962 Cal. 485 :
“4. … The real question, therefore, is whether in a case like this where
an order has been made for the payment of certain money within a certain
time for the purpose of getting specific performance and at the same time
an order has also been made that if the money is not paid the suit will
stand dismissed, the court retains jurisdiction. Though not without
hesitation, I have reached the conclusion that in such a case it will be
unrealistic and unjust to say that the court retains jurisdiction. Whether
the court has retained jurisdiction or not will, in my view, depend very
much on the substance of the directions given….. Where….. the court makes
also an order that if the amount is not deposited within the time specified
the suit will stand dismissed, I find it difficult to agree that the court
retains any jurisdiction whatsoever.
6. …..the trial court lost jurisdiction in the suit as soon as it made the
order directing the payment within a certain time and further directing
that on failure of the deposit being made within the time limited the case
should stand dismissed.”
26. The decision of this Court in Vareed Jacob v. Sosamma Geevarghese &
Ors. (2004) 6 SCC 378 has been relied upon in which it has been laid down
thus :
“18. In the case of Saranatha Ayyangar v. Muthiah Moopanar AIR 1934 Mad 49
it has been held that on restoration of the suit dismissed for default all
interlocutory matters shall stand restored, unless the order of restoration
says to the contrary. That as a matter of general rule on restoration of
the suit dismissed for default, all interlocutory orders shall stand
revived unless during the interregnum between the dismissal of the suit and
restoration, there is any alienation in favour of a third party.
Even the dissenting judgment of S.B. Sinha, J. had on this point noted:
62. It is also of some importance that there exists a view that an order of
dismissal of a suit does not render an order of attachment void ab initio
as a sale of property under order of attachment would be invalid even after
the date of such sale and the order of attachment is withdrawn.
63. A converse case may arise when the property is sold after the suit is
dismissed for default and before the same is restored. Is it possible to
take a view that upon restoration of suit the sale of property under
attachment before judgment becomes invalid? The answer to the said question
must be rendered in the negative. By taking recourse to the interpretation
of the provisions of the statute, the court cannot say that although such a
sale shall be valid but the order of attachment shall revive. Such a
conclusion by reason of a judge-made law may be an illogical one.”
27. It was submitted on behalf of the appellants that the sale was
subject to the doctrine of lis pendens under section 52 of the T.P. Act. It
was further submitted that the said provision is clear and unambiguous and
the statutory explanation to the provision makes it clear that the pendency
of the suit or proceeding shall be deemed to commence from the date of
presentation of the plaint or the institution of the proceeding in the
court of competent jurisdiction, and to continue until the suit or
proceeding has been disposed of by a decree or an order and complete
satisfaction of order or discharge of such order or decree has been
obtained or has become unobtainable by reason of the expiration of any
period of limitation prescribed for the execution thereof. Thus, the
transfer if any made in contravention of Section 52 renders it subservient
to the rights of the parties in litigation so that the rights would
eventually be determined in a suit. Thomson Press (India) Ltd. v. Nanak
Builders and Investors Pvt. Ltd. & Ors. (2013) 5 SCC 397, has been relied
on in which this Court has laid down thus :
“26. It would also be worth discussing some of the relevant laws in order
to appreciate the case on hand. Section 52 of the Transfer of Property Act
speaks about the doctrine of lis pendens. Section 52 reads as under:
“52. Transfer of property pending suit relating thereto.—During the
pendency in any court having authority within the limits of India excluding
the State of Jammu and Kashmir or established beyond such limits by the
Central Government of any suit or proceeding which is not collusive and in
which any right to immovable property is directly and specifically in
question, the property cannot be transferred or otherwise dealt with by any
party to the suit or proceeding so as to affect the rights of any other
party thereto under the decree or order which may be made therein, except
under the authority of the court and on such terms as it may impose.
Explanation.—For the purposes of this section, the pendency of a suit
or proceeding shall be deemed to commence from the date of the presentation
of the plaint or the institution of the proceeding in a court of competent
jurisdiction, and to continue until the suit or proceeding has been
disposed of by a final decree or order and complete satisfaction or
discharge of such decree or order has been obtained, or has become
unobtainable by reason of the expiration of any period of limitation
prescribed for the execution thereof by any law for the time being in
force.”
It is well settled that the doctrine of lis pendens is a doctrine based on
the ground that it is necessary for the administration of justice that the
decision of a court in a suit should be binding not only on the litigating
parties but on those who derive title pendente lite. The provision of this
section does not indeed annul the conveyance or the transfer otherwise, but
to render it subservient to the rights of the parties to a litigation.
27. Discussing the principles of lis pendens, the Privy Council in Gouri
Dutt Maharaj v. Sk. Sukur Mohammed AIR 1948 PC 147 observed as under: (IA
p. 170)
“… The broad purpose of Section 52 is to maintain the status quo unaffected
by the act of any party to the litigation pending its determination. The
applicability of the section cannot depend on matters of proof or the
strength or weakness of the case on one side or the other in bona fide
proceedings. To apply any such test is to misconceive the object of the
enactment and, in the view of the Board, the learned Subordinate Judge was
in error in this respect in laying stress, as he did, on the fact that the
agreement of 8-6-1932, had not been registered.”
28. In Kedar Nath Lal v. Ganesh Ram AIR 1970 SC 1717, this Court referred
the earlier decision in Samarendra Nath Sinha v. Krishna Kumar Nag AIR 1967
SC 1440 and observed: (Kedar Nath Lal case (supra), SCC p. 792, para 17)
“17. … ‘16. … The purchaser pendente lite under this doctrine is bound by
the result of the litigation on the principle that since the result must
bind the party to it so must it bind the person deriving his right, title
and interest from or through him. This principle is well illustrated in
Radhamadhub Holder v. Monohur Mookerji (1887-88) 15 IA 97 where the facts
were almost similar to those in the instant case. It is true that Section
52 strictly speaking does not apply to involuntary alienations such as
court sales but it is well established that the principle of lis pendens
applies to such alienations. (See Nilakant Banerji v. Suresh Chunder
Mullick (1884-85) 12 IA 171 and Moti Lal v. Karrab-ul-Din (1896-97) 24 IA
170)’ (Samarendra Nath case (supra), AIR p. 1445, para 16)”
29. The aforesaid Section 52 of the Transfer of Property Act again came up
for consideration before this Court in Rajender Singh v. Santa Singh AIR
1973 SC 2537 and Their Lordships with approval of the principles laid down
in Jayaram Mudaliar v. Ayyaswami (1972) 2 SCC 200 reiterated: (Rajender
Singh case (supra), SCC p. 711, para 15)
“15. The doctrine of lis pendens was intended to strike at attempts by
parties to a litigation to circumvent the jurisdiction of a court, in which
a dispute on rights or interests in immovable property is pending, by
private dealings which may remove the subject-matter of litigation from the
ambit of the court’s power to decide a pending dispute or frustrate its
decree. Alienees acquiring any immovable property during a litigation over
it are held to be bound, by an application of the doctrine, by the decree
passed in the suit even though they may not have been impleaded in it. The
whole object of the doctrine of lis pendens is to subject parties to the
litigation as well as others, who seek to acquire rights in immovable
property, which are the subject-matter of a litigation, to the power and
jurisdiction of the court so as to prevent the object of a pending action
from being defeated.””
28. Reliance has been placed on A. Nawab John v. V.N. Subramaniyam (2012)
7 SCC 738, laying down thus :
“18. It is settled legal position that the effect of Section 52 is not to
render transfers effected during the pendency of a suit by a party to the
suit void; but only to render such transfers subservient to the rights of
the parties to such suit, as may be, eventually, determined in the suit. In
other words, the transfer remains valid subject, of course, to the result
of the suit. The pendente lite purchaser would be entitled to or suffer the
same legal rights and obligations of his vendor as may be eventually
determined by the court.
“12. … The mere pendency of a suit does not prevent one of the parties from
dealing with the property constituting the subject-matter of the suit. The
section only postulates a condition that the alienation will in no manner
affect the rights of the other party under any decree which may be passed
in the suit unless the property was alienated with the permission of the
court.” (Sanjay Verma v. Manik Roy (2006) 13 SCC 608, SCC p. 612, para
12.)””
29. Reliance has been placed on Sanjay Verma v. Manik Roy and Ors.,
(2006) 13 SCC 608, in which this Court laid down :
“10. Bibi Zubaida Khatoon case (2004) 1 SCC 191 on which learned counsel
for the respondents had placed reliance in fact goes against the stand of
the respondents. Though a casual reading of para 9 supports the stand taken
by the respondents, it is to be noted that the factual position was
entirely different. In fact a cross-suit had been filed in the suit in that
case. The respondents being transferees pendente lite without leave of the
court cannot as of right seek impleadment in the suit which was in the
instant case pending for a very long time. In fact in para 10 of the
judgment this Court has held that there is absolutely no rule that the
transferee pendente lite without leave of the court should in all cases
contest the pending suit. In Sarvinder Singh v. Dalip Singh (1996) 5 SCC
539 it was observed in para 6 as follows: (SCC pp. 541-42, para 6)
“6. Section 52 of the Transfer of Property Act envisages that:
‘During the pendency in any court having authority within the limits
of India … of any suit or proceeding which is not collusive and in which
any right to immovable property is directly and specifically in question,
the property cannot be transferred or otherwise dealt with by any party to
the suit or proceeding so as to affect the rights of any other party
thereto under the decree or order which may be made therein, except under
the authority of the court and on such terms as it may impose.’
It would, therefore, be clear that the defendants in the suit were
prohibited by operation of Section 52 to deal with the property and could
not transfer or otherwise deal with it in any way affecting the rights of
the appellant except with the order or authority of the court. Admittedly,
the authority or order of the court had not been obtained for alienation of
those properties. Therefore, the alienation obviously would be hit by the
doctrine of lis pendens by operation of Section 52. Under these
circumstances, the respondents cannot be considered to be either necessary
or proper parties to the suit.”
12. The principles specified in Section 52 of the TP Act are in accordance
with equity, good conscience or justice because they rest upon an equitable
and just foundation that it will be impossible to bring an action or suit
to a successful termination if alienations are permitted to prevail. A
transferee pendente lite is bound by the decree just as much as he was a
party to the suit. The principle of lis pendens embodied in Section 52 of
the TP Act being a principle of public policy, no question of good faith or
bona fide arises. The principle underlying Section 52 is that a litigating
party is exempted from taking notice of a title acquired during the
pendency of the litigation. The mere pendency of a suit does not prevent
one of the parties from dealing with the property constituting the subject-
matter of the suit. The section only postulates a condition that the
alienation will in no manner affect the rights of the other party under any
decree which may be passed in the suit unless the property was alienated
with the permission of the court.”
30. It was also submitted on behalf of the appellants that the expression
in section 52 of the T.P. Act “suit or proceedings” is also applicable to
the applications. An application seeking extension of time is also a
proceeding within the meaning of the said provision and appeal filed is
also continuation of the suit or proceedings but comes within the meaning
of the proceedings. The legislative intent behind the amendment of section
52 was not only to cover the suit but also to cover appeals and proceedings
and same would include all applications/appeals under the CPC. An
application under Order 9 Rule 9 would also be covered within the meaning
of the expression suit or other proceedings to which the doctrine of lis
pendens would apply. It was also submitted that section 52 prior to
amendment prohibited transfer made during the “active prosecution” of a
suit. Section 52 of the Transfer of Property Act, embodies the rule of lis
pendens, which prior to its amendment only prohibited a transfer made
during the “active prosecution” of a suit or a proceeding in which any
right to immoveable property was directly and specifically in question. The
expression “active prosecution”, which existed in the section before its
amendment in 1929, led to much uncertainty in the application of the rule,
and caused a divergence of judicial opinion. It was felt that the standard
of diligence, which would constitute “active prosecution”, could not be
defined with precision. To remove this uncertainty, the law was amended in
1929, and the Amending Act XX of 1929 substituted the word “pendency” for
the phrase “active prosecution”; and there can now be no difficulty in
deciding whether the transfer was made during the pendency of a suit or
proceeding. In Parmeshari Din v. Ram Charan & Ors. AIR 1937 PC 260, it was
held :
“2. It is clear that the question of the active prosecution of a suit is
one of fact, but it was not suggested in either of the Courts in India that
the plaintiffs had not actively prosecuted the suit, and were consequently
debarred from availing themselves of the rule of lis pendens. The learned
Judges of the Court of Appeal had, therefore, no opportunity to express
their opinion on this point; and their Lordships cannot entertain an
objection, which depends upon a question of fact not dealt with below.
Upon the record before them, there is no indication of any delay or
remissness in the prosecution of the suit, for which the plaintiffs can be
held responsible. Their Lordships, therefore, agree with the High Court
that the transfer relied upon by the appellant cannot prejudice the rights
of the decree-holders, and that he cannot resist the decree obtained by
them.”
The abovesaid principle of law settled in the year 1937 by the Privy
Council is still valid as discerned from the latest judgment of this Court
rendered in the case of Kirpal Kaur v. Jitender Pal Singh & Ors. (2015) 9
SCC 356 :
“21. The execution of the alleged gift deed by the deceased first
defendant in favour of the second defendant is also hit by Section 52 of
the Transfer of Property Act, 1882, as the said deed was executed during
the pendency of the proceedings and before the expiry of the period of
limitation for filing SLP. Further, during the pendency of these
proceedings, the second defendant, who has claimed to be the alleged
beneficiary of the suit Schedule “B” property on the basis of alleged gift
deed should have sought leave of this Court as the donee and brought the
aforesaid fact of execution of the alleged gift deed in respect of “B”
schedule property by the deceased first defendant, which property has been
devolved in his favour, to the notice of this Court as provided under Order
22 Rule 10 of the CPC and defended his right as required under the law as
laid down by this Court in a catena of cases.
x x x x x
26. The legality of the alleged gift deed executed in favour of the
second defendant by the deceased first defendant in respect of the Schedule
'B' property has been further examined by us and the same is hit by
Section 52 of the Transfer of Property Act, 1882, in the light of the
decision of this Court in the case of Jagan Singh v. Dhanwanti (2012) 2
SCC 628, wherein this Court has laid down the legal principle that under
Section 52 of the Transfer of Property Act, 1882, the 'lis' continues so
long as a final decree or order has not been obtained from the Court and a
complete satisfaction thereof has not been rendered to the aggrieved party
contesting the civil suit. It has been further held by this Court that it
would be plainly impossible that any action or suit could be brought to a
successful termination if alienations pendente lite were permitted to
prevail.”
wherein the factum of the alleged gift deed was not made known to the
Court. This has been extrapolated in the case of Jagan Singh (dead)
through LRs. v. Dhanwanti & Anr. (2012) 2 SCC 628 thus :
“32. The broad principle underlying Section 52 of the TP Act is to
maintain the status quo unaffected by the act of any party to the
litigation pending its determination. Even after the dismissal of a suit, a
purchaser is subject to lis pendens, if an appeal is afterwards filed, as
held in Krishanaji Pandharinath v. Anusayabai AIR (1959) Bom 475. In that
matter the respondent (original plaintiff) had filed a suit for maintenance
against her husband and claimed a charge on his house. The suit was
dismissed on 15.7.1952 under Order 9 Rule 2, of the Code of Civil Procedure
1908, for non-payment of process fee. The husband sold the house
immediately on 17.7.1952. The respondent applied for restoration on
29.7.1952, and the suit was restored leading to a decree for maintenance
and a charge was declared on the house. The plaintiff impleaded the
appellant to the darkhast as purchaser. The Appellant resisted the same by
contending that the sale was affected when the suit was dismissed.
Rejecting the contention the High Court held in para 4 as follows:
“..In Section 52 of the Transfer of Property Act, as it stood before it was
amended by Act 20 of 1929, the expression ‘active prosecution of any suit
or proceeding’ was used. That expression has now been omitted, and the
Explanation makes it abundantly clear that the 'lis' continues so long as a
final decree or order has not been obtained and complete satisfaction
thereof has not been rendered. At p. 228 in Sir Dinshah Mulla's "Transfer
of Property Act", 4th Edn., after referring to several authorities, the law
is stated thus:
“Even after the dismissal of a suit a purchaser is subject to 'lis
pendens', if an appeal is afterwards filed.”
If after the dismissal of a suit and before an appeal is presented, the
'lis' continues so as to prevent the defendant from transferring the
property to the prejudice of the plaintiff, I fail to see any reason for
holding that between the date of dismissal of the suit under Order 9 Rule 2
of the Civil Procedure Code and the date of its restoration, the 'lis' does
not continue.”
33. It is relevant to note that even when Section 52 of TP Act was not so
amended, a Division Bench of Allahabad High Court had following to say in
Moti Chand v. British India Corpn. Ltd. AIR (1932) All 210:
‘10, ….The provision of law which has been relied upon by the appellants is
contained in Section 52, TP Act. The active prosecution in this section
must be deemed to continue so long as the suit is pending in appeal, since
the proceedings in the appellate court are merely continuation of those in
the suit …’(see Gobind Chunder Roy v. Guru Churn Kurmokar ILR 1988 15 Cal.
94).”
34. If such a view is not taken, it would plainly be impossible that any
action or suit could be brought to a successful termination if alienations
pendente lite were permitted to prevail. The Explanation to this section
lays down that the pendency of a suit or a proceeding shall be deemed to
continue until the suit or a proceeding is disposed of by final decree or
order, and complete satisfaction or discharge of such decree or order has
been obtained or has become unobtainable by reason of the expiration of any
period of limitation prescribed for the execution thereof by any law for
the time being in force.
35. In the present case, it would be canvassed on behalf of the
respondent and the applicant that the sale has taken place in favour of the
applicant at a time when there was no stay operating against such sale, and
in fact when the second appeal had not been filed. We would however, prefer
to follow the dicta in Krishanaji Pandharinath AIR 1959 Bom 475 to cover
the present situation under the principle of lis pendens since the sale was
executed at a time when the second appeal had not been filed but which came
to be filed afterwards within the period of limitation. The doctrine of lis
pendens is founded in public policy and equity, and if it has to be read
meaningfully such a sale as in the present case until the period of
limitation for second appeal is over will have to be held as covered under
Section 52 of the TP Act.”
31. The doctrine of lis pendens would be applicable even to the
proceedings in the nature of an appeal as has been emphasized in the case
of Krishanaji Pandharinath v. Anusayabai AIR 1959 Bom 475 thus :
“3. It is true that in this case the sale effected by Sidram was after
the dismissal of the suit filed by Anusayabai and before the suit was
restored, but the alienation being before, the final decree or order was
passed and complete satisfaction or discharge of the decree was obtained,
it must be regarded as pendente lite. In s. 52 of the Transfer of Property
Act, as it stood before it was amended by Act XX of 1929, the expression
“active prosecution of any suit or proceeding” was used. That expression
has now been omitted, and the Explanation makes it abundantly clear that
the lis continues so long as a final decree or order has not been obtained
and complete satisfaction thereof has not been rendered. At page 228 in
Sir Dinshah Mulla’s “Transfer of Property Act”, 4th edn., after referring
to several authorities, the law is stated thus:
“... Even after the dismissal of a suit a purchaser is subject to lis
pendens, if an appeal is afterwards filed.”
32. We are unable to accept the submissions raised on behalf of the
respondents that there was hiatus between 10.12.1955 and 1962 till the
order was passed by the High Court as it was misunderstood by the parties
that the suit had been dismissed. In our opinion, when the suit itself had
not been dismissed vide order dated 8.1.1955, the events subsequent thereto
i.e. the trial court vide order dated 1.12.1955 treated it as having been
dismissed or that the plaintiff also was left under a wrong impression that
the suit had been dismissed in default and cost was imposed on 1.12.1955
and it was not paid up to 15.12.1955, would make no difference. Due to non-
payment of costs, by order dated 1.12.1955 the suit stood dismissed, cannot
be accepted, as the order was non est in the eye of law. It was an illegal
order of treating a pending suit as having been dismissed. No legal fiction
can be created so as to treat the suit as having been dismissed when in
fact it had not been dismissed at all and as a matter of fact suit had not
been dismissed on 8.1.1955. Subsequent order or imposition of costs for its
restoration was non est and illegal and was rightly set aside by the High
Court. When suit had not been dismissed at all in the eye of law, it is to
be treated as pending only. No legal fiction can be created in favour of
the respondents that the suit itself had been dismissed on 15.12.1955 due
to non-payment of costs for restoration; whereas it was not dismissed at
all and the High Court has also held that the order dated 1.12.1955 was
without jurisdiction. The said order has to be ignored and was in fact set
aside by the High Court. Thus the suit was in fact pending and was wrongly
treated as having been dismissed. The High Court has rightly held that it
was never dismissed. Thus, in our opinion, the sale deed in question dated
23.11.1959 was executed during lis pendens and the High Court has erred in
law in holding otherwise in the judgment impugned herein.
(iii) In re: whether section 52 of T.P. Act renders a transfer pendente
lite void?
33. Reliance has been placed by learned senior counsel for the
respondents on Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1 in which this
Court has laid down that the doctrine of lis pendens does not affect the
conveyance by a party to the suit but only renders it subservient to the
rights of other parties to the litigation. Section 52 will not therefore
render a transaction void. This Court has laid down thus :
“42. It is well settled that the doctrine of lis pendens does not annul the
conveyance by a party to the suit, but only renders it subservient to the
rights of the other parties to the litigation. Section 52 will not
therefore render a transaction relating to the suit property during the
pendency of the suit void but render the transfer inoperative insofar as
the other parties to the suit. Transfer of any right, title or interest in
the suit property or the consequential acquisition of any right, title or
interest, during the pendency of the suit will be subject to the decision
in the suit.
43. The principle underlying Section 52 of the TP Act is based on justice
and equity. The operation of the bar under Section 52 is however subject to
the power of the court to exempt the suit property from the operation of
Section 52 subject to such conditions it may impose. That means that the
court in which the suit is pending, has the power, in appropriate cases, to
permit a party to transfer the property which is the subject-matter of the
suit without being subjected to the rights of any part to the suit, by
imposing such terms as it deems fit. Having regard to the facts and
circumstances, we are of the view that this is a fit case where the suit
property should be exempted from the operation of Section 52 of the TP Act,
subject to a condition relating to reasonable security, so that the
defendants will have the liberty to deal with the property in any manner
they may deem fit, in spite of the pendency of the suit.”
34. Reliance has also been placed on A. Nawab John v. V.N. Subramaniyam
(2012) 7 SCC 738 in which this Court has laid down thus :
“18. It is settled legal position that the effect of Section 52 is not to
render transfers effected during the pendency of a suit by a party to the
suit void; but only to render such transfers subservient to the rights of
the parties to such suit, as may be, eventually, determined in the suit. In
other words, the transfer remains valid subject, of course, to the result
of the suit. The pendente lite purchaser would be entitled to or suffer the
same legal rights and obligations of his vendor as may be eventually
determined by the court.
“12. … The mere pendency of a suit does not prevent one of the parties from
dealing with the property constituting the subject-matter of the suit. The
section only postulates a condition that the alienation will in no manner
affect the rights of the other party under any decree which may be passed
in the suit unless the property was alienated with the permission of the
court.” (Sanjay Verma v. Manik Roy, (2006) 13 SCC 608, SCC p. 612, para
12.)”
35. In Thomson Press (India) Ltd. v. Nanak Builders & Investors (P) Ltd.
(2013) 5 SCC 397, this Court has laid down thus :
“53. There is, therefore, little room for any doubt that the transfer of
the suit property pendente lite is not void ab initio and that the
purchaser of any such property takes the bargain subject to the rights of
the plaintiff in the pending suit. Although the above decisions do not deal
with a fact situation where the sale deed is executed in breach of an
injunction issued by a competent court, we do not see any reason why the
breach of any such injunction should render the transfer whether by way of
an absolute sale or otherwise ineffective. The party committing the breach
may doubtless incur the liability to be punished for the breach committed
by it but the sale by itself may remain valid as between the parties to the
transaction subject only to any directions which the competent court may
issue in the suit against the vendor.”
36. In our opinion the sale deed is not void but only valid to the extent
of the share of vendor of Bala Mallaiah i.e. it is valid to the extent of
14/104th share which has been found in the preliminary decree and affirmed
in the final decree. The sale deed was subject to the outcome of the suit
which was to the aforesaid effect.
(iv) In re : What is the effect of preliminary decree for partition and the
extent to which it is binding :
37. In the instant case preliminary decree was passed in the year 1970
and the shares were declared to the aforesaid extent of the respective
parties therein who were the heirs of Late Nawab Jung. Hamid Ali Khan,
defendant No.1, had only 14/104th share in the disputed property.
Preliminary decree dated 24.11.1970 has attained finality which was
questioned in appeal on limited extent in the High Court which has attained
finality by dismissal of LPA on 12.10.1977. Thus the determination of
shares as per preliminary decree has attained finality, shares of the
parties had been crystallised in each and every property. Purchaser
pendente lite is bound by the preliminary decree with respect to the shares
so determined and it cannot be re-opened and whatever equity could have
been claimed in the final decree proceedings to the extent of vendor’s
share has already been extended to the purchasers.
38. In Venkata Reddy & Ors. v. Pethi Reddy AIR 1963 SC 992, it has been
laid down that the preliminary decree for partition is final. It also
embodies the final decision of the court. The question of finality has been
discussed thus :
“6. The new provision makes it clear that the law is and has always been
that upon the father's insolvency his disposing power over the interest of
his undivided sons in the joint family property vests in the Official
Receiver and that consequently the latter has a right to sell that
interest. The provision is thus declaratory of the law and was intended to
apply to all cases except those covered by the two provisos. We are
concerned here only with the first proviso. This proviso excepts from the
operation of the Act a transaction such as a sale by an Official Receiver
which has been the subject of a final decision by a competent Court. The
short question, therefore, is whether the preliminary decree for partition
passed in this case which was affirmed finally in second appeal by the High
Court of Madras can be regarded as a final decision. The competence of the
court is not in question here. What is, however, contended is that in a
partition suit the only decision which can be said to be a final decision
is the final decree passed in the case and that since final decree
proceedings were still going on when the Amending Act came into force the
first proviso was not available to the appellants. It is contended on
behalf of the appellants that since the rights of the parties are
adjudicated upon by the court before a preliminary decree is passed that
decree must, in so far as rights adjudicated upon are concerned, be deemed
to be a final decision. The word 'decision' even in its popular sense means
a concluded opinion (see Stroud's Judicial Dictionary - 3rd ed. Vol. I, p.
743). Where, therefore, the decision is embodied in the judgment which is
followed by a decree finality must naturally attach itself to it in the
sense that it is no longer open to question by either party except in an
appeal, review or revision petition as provided for by law. The High Court
has, however, observed :
"The mere declaration of the rights of the plaintiff by the preliminary
decree, would, in our opinion not amount to a final decision for it is well
known that even if a preliminary decree is passed either in a mortgage suit
or in a partition suit, there are certain contingencies in which such a
preliminary decree can be modified or amended and therefore would not
become final.”
It is not clear from the judgment what the contingencies referred to by the
High Court are in which a preliminary decree can be modified or amended
unless what the learned Judges meant was modified or amended in appeal or
in review or in revision or in exceptional circumstances by resorting to
the powers conferred by Sections 151 and 152 of the Code of Civil
Procedure. If that is what the High Court meant then every decree passed by
a Court including decrees passed in cases which do not contemplate making
of a preliminary decree are liable to be modified and amended. Therefore,
if the reason given by the High Court is accepted it would mean that no
finality attaches to decree at all. That is not the law. A decision is said
to be final when, so far as the Court rendering it is concerned, it is
unalterable except by resort to such provisions of the Code of Civil
Procedure as permit its reversal, modification or amendment. Similarly, a
final decision would mean a decision which would operate as res judicata
between the parties if it is not sought to be modified or reversed by
preferring an appeal or a revision or a review application as is permitted
by the Code. A preliminary decree passed, whether it is in a mortgage suit
or a partition suit, is not a tentative decree but must, in so far as the
matters dealt with by it are concerned, be regarded as conclusive. No
doubt, in suits which contemplate the making of two decrees - a preliminary
decree and a final decree - the decree which would be executable would be
the final decree. But the finality of a decree or a decision does not
necessarily depend upon its being executable. The legislature in its wisdom
has thought that suits of certain types should be decided in stages and
though the suit in such cases can be regarded as fully and completely
decided only after a final decree is made the decision of the court arrived
at the earlier stage also has a finality attached to it. It would be
relevant to refer to S. 97 of the Code of Civil Procedure which provides
that where a party aggrieved by a preliminary decree does not appeal from
it, he is precluded from disputing its correctness in any appeal which may
be preferred from the final decree. This provision thus clearly indicates
that as to the matters covered by it, a preliminary decree is regarded as
embodying the final decision of the court passing that decree.”
39. Moreover, it is provided in section 97 of the C.P.C. as under :
“97. Appeal from final decree where no appeal from preliminary
decree.—Where any party aggrieved by a preliminary decree passed after the
commencement of this Code does not appeal from such decree, he shall be
precluded from disputing its correctness in any appeal which may be
preferred from the final decree.”
It is apparent from the aforesaid Section that the matters which are
concluded by preliminary decree cannot be re-agitated in an appeal against
the final decree. No appeal was preferred by the purchasers or by defendant
No.1 as against the preliminary decree.
(v) In re : whether it was necessary to file a suit for cancellation of
sale deed dated 23.11.1959 ?
40. In our opinion, when the sale deed had been executed during the
pendency of suit the purchaser pendente lite is bound by the outcome of the
suit. The provisions of section 52 prevent multiplicity of the proceedings.
It was not at all necessary to file a suit for cancellation of the sale
deed as the vendor had no authority to sell land of other co-sharers. He
had right to alienate his own share only which he had in the property to
the extent of 14/104th. As such the right, title and interest of Bala
Mallaiah were subject to the pending suit for partition in which a
preliminary decree was passed in the year 1970 which had attained finality
in which vendor of Bala Mallaiah, defendant No.1 was found to be having
share only to the extent of 14/104th. The preliminary decree was not based
upon fraud or collusion. The sale deed was not under the authority of the
court and the pendency of the suit under section 52 commenced from the date
of presentation of the plaint and continued until the suit or proceedings
were disposed of by a final decree, and on a complete satisfaction of the
discharge of such decree, an order had been obtained. The lis pendens
operates during execution also. Bala Mallaiah, his L.Rs. and purchasers
from them are bound by the decision of the case. They cannot circumvent the
jurisdiction of the court and wriggle out of the decree. The transfer
remained valid subject to the result of the suit and pendente lite
purchaser is subject to the legal rights and obligations of his vendor as
decided by the court. Our conclusion is buttressed by decision in K.N.
Aswathnarayana Setty (dead) through LRs. & Ors. v. State of Karnataka &
Ors. (2014) 15 SCC 394, question has been discussed by this Court thus :
“11. The doctrine of lis pendens is based on legal maxim ut lite pendente
nihil innovetur (during a litigation nothing new should be introduced).
This doctrine stood embodied in Section 52 of the Transfer of Property Act,
1882. The principle of “lis pendens” is in accordance with the equity, good
conscience or justice because they rest upon an equitable and just
foundation that it will be impossible to bring an action or suit to a
successful termination if alienations are permitted to prevail. A
transferee pendente lite is bound by the decree just as much as he was a
party to the suit. A litigating party is exempted from taking notice of a
title acquired during the pendency of the litigation. However, it must be
clear that mere pendency of a suit does not prevent one of the parties from
dealing with the property constituting the subject-matter of the suit. The
law simply postulates a condition that the alienation will, in no manner,
affect the rights of the other party under any decree which may be passed
in the suit unless the property was alienated with the permission of the
court. The transferee cannot deprive the successful plaintiff of the fruits
of the decree if he purchased the property pendente lite. (Vide K. Adivi
Naidu v. E. Duruvasulu Naidu (1995) 6 SCC 150, Venkatrao Anantdeo Joshi v.
Malatibai (2003) 1 SCC 722, Raj Kumar v. Sardari Lal (2004) 2 SCC 601 and
Sanjay Verma v. Manik Roy (2006) 13 SCC 608.)”
(vi) In re: whether Bala Mallaiah, his heirs and purchasers had perfected
their right, title and interest by virtue of adverse possession ?
41. The High Court has held that there was no lis pendens, and as such it
was necessary to question the sale deed and for want of questioning the
sale deed, the plaintiffs had perfected their title by virtue of adverse
possession. The same is clearly a perverse finding. Firstly, in the earlier
civil suit of 1993 submission was raised with respect to adverse possession
which was negatived. Secondly, in our opinion as we have held that the sale
deed was hit by the doctrine of lis pendens, the purchasers were bound by
the result of the suit. Thus there was no question of perfecting the title
by adverse possession during pendency of suit. Section 52 negates the very
plea of adverse possession. Trial court and first appellate court have
rightly held that there was no question of adverse possession. The High
Court has simply without any discussion held that the title was perfected
by adverse possession. Merely a bald statement that there was adverse
possession is not enough to set up a plea of adverse possession. It has to
be clearly set out from which date it commenced, and became hostile when
there was repudiation of the title. No such plea has been raised. There are
3 classic requirements of plea of adverse possession i.e. “nec vi, nec
clam, nec precario” i.e., peaceful, open and continuous. No such pleading
has been raised much less there is question of any proof and moreover, this
plea was not available to be raised in view of doctrine of lis pendens.
Possession never became adverse in the instant case as the property was
purchased subject to the outcome of the litigation. In Karnataka Board of
Wakf v. Government of India & Ors. (2004) 10 SCC 779 it was held that when
litigation was pending it could not be said that the possession was
peaceful or hostile in any view of the matter. It was held thus :
“11. In the eye of the law, an owner would be deemed to be in possession
of a property so long as there is no intrusion. Non-use of the property by
the owner even for a long time won’t affect his title. But the position
will be altered when another person takes possession of the property and
asserts a right over it. Adverse possession is a hostile possession by
clearly asserting hostile title in denial of the title of the true owner.
It is a well-settled principle that a party claiming adverse possession
must prove that his possession is “nec vi, nec clam, nec precario”, that
is, peaceful, open and continuous. The possession must be adequate in
continuity, in publicity and in extent to show that their possession is
adverse to the true owner. It must start with a wrongful disposition of the
rightful owner and be actual, visible, exclusive, hostile and continued
over the statutory period. (See S.M. Karim v. Bibi Sakina AIR 1964 SC 1254,
Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of
Karnataka (1997) 7 SCC 567.) Physical fact of exclusive possession and the
animus possidendi to hold as owner in exclusion to the actual owner are the
most important factors that are to be accounted in cases of this nature.
Plea of adverse possession is not a pure question of law but a blended one
of fact and law. Therefore, a person who claims adverse possession should
show: (a) on what date he came into possession, (b) what was the nature of
his possession, (c) whether the factum of possession was known to the other
party, (d) how long his possession has continued, and (e) his possession
was open and undisturbed. A person pleading adverse possession has no
equities in his favour. Since he is trying to defeat the rights of the true
owner, it is for him to clearly plead and establish all facts necessary to
establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari
Sharma (1996) 8 SCC 128.]
12. A plaintiff filing a title suit should be very clear about the origin
of title over the property. He must specifically plead it. (See S.M. Karim
v. Bibi Sakina (Supra).) In P. Periasami v. P. Periathambi (1995) 6 SCC 523
this Court ruled that: (SCC p. 527, para 5)
“Whenever the plea of adverse possession is projected, inherent in the plea
is that someone else was the owner of the property.”
The pleas on title and adverse possession are mutually inconsistent and the
latter does not begin to operate until the former is renounced. Dealing
with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to
the case in hand, this Court held: (SCC pp. 640-41, para 4)
“4. As regards the first plea, it is inconsistent with the second plea.
Having come into possession under the agreement, he must disclaim his right
thereunder and plead and prove assertion of his independent hostile adverse
possession to the knowledge of the transferor or his successor in title or
interest and that the latter had acquiesced to his illegal possession
during the entire period of 12 years i.e. up to completing the period his
title by prescription nec vi, nec clam, nec precario. Since the appellant’s
claim is founded on Section 53-A, it goes without saying that he admits by
implication that he came into possession of land lawfully under the
agreement and continued to remain in possession till date of the suit.
Thereby the plea of adverse possession is not available to the appellant.””
42. In our opinion, the High Court has erred in law in holding that the
plaintiffs perfected their title by virtue of adverse possession. The
finding is perverse and has no foundational basis.
(vii) In re: whether under the Muslim Law, defendant No.1 being a co-sharer
could have alienated the share of other co-sharers in the disputed property
?
43. In the instant case, the property was ancestral property of Late
Nawab Jung. It is not in dispute that Nawab Jung died intestate. The legal
heirs of Late Nawab Jung succeeded to the estate as tenants in common and
not as joint-tenants. The heirs succeeded to the estate in specific shares.
In Outlines of Muhammadan Law by Asaf A.A. Fyzee, 4th Edn, it has been
observed that general principles of Islamic jurisprudence do not
contemplate administration, but a mere distribution of the estate as per
the principles laid down in Sirajiyyah. As per the Sunni law, a testator
can leave a legacy to an heir only to the extent of 1/3rd of estate and not
exceeding that. After death of a person the first step is to make payment
of funeral expenses, debts and legacies. Thereafter, distribution of estate
among legal heirs, firstly to sharers, in the absence thereof, to
residuaries, and in case of absence of both to distant kindred. As per
Mulla, distribution takes place in the following manner :
“61. Classes of heirs There are three classes of heirs, namely, (1)
Sharers, (2) Residuaries, and (3) Distant Kindred:
“Sharers” are those who are entitled to a prescribed share of the
inheritance;
“Residuaries” are those who take no prescribed share, but succeed to the
“residue” after the claims of the sharers are satisfied;
“Distant Kindred” are all those relations by blood who are neither Sharers
nor Residuaries.”
Sharers take in the following manner :
“63. Sharers After payment of funeral expenses, debts, and legacies,
the first step in the distribution of the estate, of a deceased Mahomedan
is to ascertain which of the surviving relations belong to the class of
sharers, and which again of these are entitled to a share of the
inheritance, and, after this is done, to proceed to assign their respective
shares to such of the sharers as are, under the circumstances of the case,
entitled to succeed to a share. The first column in the accompanying table
(p.66A) contains a list of Sharers; the second column specifies the normal
share of each sharer; the third column specifies the conditions which
determine the right of each sharer to a share, and the fourth column sets
out the shares as varied by special circumstances.”
44. Residuaries take if there are no sharers or if there are sharers,
after satisfying their claims. As per Mulla, they will take in the
following manner :
“65. Residuaries If there are no Sharers, or if there are Sharers, but
there is a residue left after satisfying their claims, the whole
inheritance or the residue, as the case may be, devolves upon Residuaries
in the order set forth in the annexed table (p.74A).
The Residuaries or Agnatic heirs were the principal heirs before Islam;
they continue to remain the principal heirs in Sunni law. Their premier
position is, in Islam, always subject to the claims of near relations
mentioned as the Koranic heirs. First they are satisfied by giving them
their Koranic shares. Residuaries are the relations whose rights were also
recognized by tribal laws in Saudi Arabia before Islam.
The rights of residuaries are recognized by the Holy Quran (by implication)
and by the traditions of the prophet (PBUH) in very specific terms.
The Holy Quran declares:
“from what is left by parents and near kindred, there is a share for men
and a share for woman, whether the property be small or large-a determinate
share”.
“To (benefit) every one, we have appointed shares and heirs to property
left by parents and near relatives…”
“Allah directs you concerning your children (their inheritance), to the
male a portion equal to that of two females..”
“They ask thee for a legal decision. Say: Allah directs (thus) about those
who leave no descendants or ascendants as heir. If it is a man that dies,
leaving a sister but no child, she shall have half the inheritance. If
(such a deceased was) a woman who left no child, her brother takes her
inheritance... If they are brothers and sisters, (they share), the male
having twice the share of the female.”
The first two verses are clear proof that blood relations are entitled to
inherit. Blood relations definitely include residuaries (the male
agnates).” [see, Mohammad Mustafa Ali Khan, Islamic Law of Inheritance, 1st
edition.]”
45. The “distant kindred” is dealt with in section 67 in Mulla’s
Principles of Mahomedan Law thus :
“67. Distant Kindred (1) If there be no shares or Residuaries, the
inheritance is divided amongst Distant Kindred.
(2) If the only sharer be a husband or wife, and there be no relation
belonging to the class of Residuaries, the husband or wife will take his or
her full share, and the remainder of the estate will be divided among
Distant Kindred.”
46. Incidents of tenancy in common have been cited from Halsbury’s Laws
of England, 5th Edn., vol. 87 in which nature of such tenancy has been
discussed before 1925 in para 220. In para 221 nature of such tenancy since
1925 has been discussed. It has been observed that tenants in common have
several interests, where joint tenants, whether at law or in equity, have
one interest. The tenants in common may be entitled to equitable shares in
the land in unequal shares and for interests which may be unequal in
duration; different shares would be subject to different limitations and
the limitations may include entailed interests. No new entailed interests
can be created either in real or personal property, but this does not
affect any entailed interests created before 1.1.1997 considering the
provisions of the Trusts of Land and Appointment of Trustees Act, 1996 as
applicable in the area for which it has been enacted. There is no right of
survivorship and on the death of a tenant-in-common, his share passes
according to its own limitation. In para 224 the modes of effecting
partition of tenancies-in-common have been dealt with in general and the
position before 1925 and subsequent thereto has been taken into
consideration considering the enactments which have been made applicable
from time to time.
Thus, it is apparent that the incidents of such joint tenancy and
tenants in common are further subject to the law by which parties are
governed and in that context, we have to examine a case. There is no
dispute with the general principles of joint tenancy and tenants in common
but the same would also depend upon in their application with respect to
the law by which the parties and the lis in question are governed. In a
case belonging to Muslims, incidents of Muslim Law, their law of
inheritance has to be considered, in particular with respect to rights of
tenants in common. Right of disposition by a testament is also different in
the Muslim law. There cannot be testamentary disposition for more than
1/3rd of the property held by testator. The power of alienation in Muslim
law is different from Hindu law. In Hindu law, there is difference in
Dayabhaga and Mitakshra school of law. Muslim law may be akin in some
respect to Dayabhaga law but not with Mitakshara Law. However, in Mitakshra
Law in Bombay School and in Banaras School, power of alenation is
different. A co-parcener cannot alienate without consent of other co-
parceners in Banaras School of Mitakshara Law. In Bombay School of
Mitakshara Law, a co-parcener can alienate for value his undivided interest
or his co-parcenery property without consent of other co-parceners. However
in the area which is governed by the Banaras School of Mitakshara Law, sale
of his undivided share in a co-parcenery property without consent of other
co-parceners is voidable at the instance of non-alienating co-parcener.
47. A Full Bench of the M.P. High Court in Ramdayal v. Manaklal AIR 1973
MP 222 has made certain observations with respect to applicability of
Mitakshara law as administered in Bombay, Madras and M.P. A co-parcener may
sell, mortgage or otherwise alienate for value his undivided interest in co-
parcenery property without the consent of other co-parceners. Decision in
Ramdayal’s case (supra) has been explained by a decision of another Full
Bench of the M.P. High Court in Diwan Singh v. Bhaiya Lal AIR 1997 MP 210.
It has been held that in Madhya Bharat, Vindhya Pradesh etc. of Madhya
Pradesh, Banaras School of Hindu Law applies. Thus the applicability of the
law at the place in question and certain customs which would be prevailing
in certain areas are also relevant. As in certain parts of A.P. or
elsewhere there may be different customs prevailing in Muslims which are to
be taken into consideration while deciding a matter. In Halsbury also
distinction has been made between the law which was applicable before 1925
and the law which is applicable after 1925 and the discussion of law is
with respect to various Acts on the basis of which the decisions have been
referred herein.
48. When we consider the incidents of disposition of property under
different laws, we have to consider the personal law and then to apply the
general principles of tenancy law to the permissible non-conflict zone to
personal law which holds the field for the parties to arrive at a decision.
The Privy Council in the case of Imambandi & Ors. v. Mutsaddi & Ors. (1918)
L.R. 45 I.A. 73 considering the distinction between the law which is
applicable to Mohammedans, has held that there is a sharp distinction
which has to be drawn with other laws with respect to its special nature.
The Court cautioned to apply the foreign decisions which are on
considerations and conditions totally differing from those applicable to or
prevailing in India. The Privy Council has observed thus :
“45. Their Lordships cannot help deprecating the practice which seems to
be growing in some of the Indian Courts of referring largely to foreign
decisions. However useful in the scientific study of comparative
jurisprudence, reference to judgments of foreign Courts, to which Indian
practitioners cannot be expected to have access, based often on
considerations and conditions totally differing from those applicable to or
prevailing in India, is only likely to confuse the administration of
justice.”
Thus, in our opinion, courts have to be careful to apply the decision
of Muslim law to a case relating to Hindu law and the foreign decisions
and vice versa. There cannot be universal application of principles of law
on a particular subject. Special laws by which parties are governed are
also to be taken into consideration so as to arrive at a just conclusion.
49. Keeping in view aforesaid principle we proceed to consider the
question further. In Syed Shah Ghulam Ghouse Mohiuddin & Ors. v. Syed Shah
Ahmed Mohiuddin Kamisul Quadri (died) by l.rs. & Ors. (1971) 1 SCC 597,
this Court has laid down that Muslim heirs are tenants in common and they
succeed to their definite fraction of every part of estate of the deceased.
The shares of the heirs are definite and known before actual partition.
Therefore, on partition of the properties there is division by metes and
bounds in accordance with specific shares of each sharer which have already
been determined by law. This Court has observed thus :
“20. The cause of action for partition of properties is said to be a
“perpetually recurring one” (See Monsharam Chakravarty and Others v. Ganesh
Chandra Chakravarty & Ors., 17 CWN 521. In Mohammedan law the doctrine of
partial partition is not applicable because the heirs are tenants-in-common
and the heirs of the deceased Muslim succeed to the definite fraction of
every part of his estate. The shares of heirs under Mohammedan law are
definite and known before actual partition. Therefore on partition of
properties belonging to a deceased Muslim there is division by metes and
bounds in accordance with the specific share of each heir being already
determined by the law.”
50. In P.N. Veetil Narayani v. Pathumma Beevi & Ors. (1990) 4 SCC 672,
it was reiterated that since heirs succeed to the estate as tenants in
common, thus, the liability of heirs of a Muslim dying intestate or that of
the deceased is to the extent of his share of debt proportionate to his
share of estate. If that is proportionate to share of the deceased as
inheritance is as tenants-in-common and as independent debtors, not co-
debtors or joint debtors. Co-sharers can hardly be classified as joint
contractors, partners, executors or mortgagees. They are independent
debtors and the debt having been split by operation of law. This Court has
laid down thus :
“10. These observations in Jafri Begam case ILR (1885) 7 All 822 are prime
roots of the theory as to the divisibility of the debt in the hands of
heirs of a Muslim intestate. So it would be right to treat it settled that
Muslim heirs are independent owners of their specific shares simultaneously
in the estate and debts of the deceased, their liability fixed under the
personal law proportionate to the extent of their shares. In this state of
law it would be unnecessary to refer to other decisions of various High
Courts touching the subject. So we proceed on the footing that as many
heirs as are defending this cause, there are debts in that number.
14. The heirs of a Muslim dying intestate on whom falls the liability to
discharge the debt, proportionate to their respective shares in the estate
devolved, can hardly be classified as joint contractors, partners,
executors or mortgagees. As held above they are by themselves independent
debtors; the debt having been split by operation of law. Inter se they have
no jural relationship as co-debtors or joint debtors so as to fall within
the shadow of contractors, partners, executors or mortgagees or in a class
akin to them. They succeed to the estate as tenants-in-common in specific
shares. Even a signed written acknowledgment by the principal or through
his agent would bind the principal and not anyone else standing in jural
relationship with the principal in accordance with Section 20(2). The
Muslim heirs inter se have no such relationship. In this view of the
matter, we take the view that the High Court was right in confining the
acknowledgment of the debts only to respondent 2 and not extending the
acknowledgment to the other co-heirs for their independent position.
16. In the context, if the debt is one and indivisible, payment by one will
interrupt limitation against all the debtors unless they come within the
exception laid down in Section 20(2) which has been taken note of earlier.
And if the debt is susceptible of division and though seemingly one
consists really of several distinct debts each one of which is payable by
one of the obligors separately and not by the rest, Section 20 keeps alive
his part of the debt which has got to be discharged by the person who has
made payment of interest. It cannot affect separate shares of the other
debtors unless on the principal (sic principle) of agency, express or
implied, the payment can be said to be a payment on their behalf also. See
in this connection Abheswari Dasya v. Baburali Shaikh AIR 1937 Cal 191. The
payment made on account of debt by defendant-respondent 2 as an independent
debtor, and not as an agent, express or implied, on behalf of other co-
heirs could hardly, in the facts established, here be said to be a payment
on behalf of all so as to extend period of limitation as against all. We
are thus of the considered view that the High Court was right in confining
the extension of limitation on payment of a part of debt only against
defendant-respondent 2, proportionate to his share of the estate devolved
on him which was one-fourth. We are further of the view that the High Court
was right in holding the suit against other co-heirs to be barred by
limitation relating to their shares of the debt.”
This Court has also laid down that in that case payment made on
account of debt by defendant-respondent 2 as an independent debtor, and not
as an agent, express or implied, on behalf of other co-heirs, in the facts
established, could not be said to be a payment on behalf of all.
51. This Court again in Kasambhai Sheikh v. Abdulla Kasambhai Sheikh
(2004) 13 SCC 385 has held that succession in Mohammedan Law is in specific
shares as tenants in common.
52. It was observed in Ram Awalamb v. Jata Shankar AIR 1969 All. 526 that
a joint tenancy connotes unity of title, possession, interest and
commencement of title; in tenancy in common there may be unity of
possession and commencement of title but the other two features as to unity
of title and interest are missing.
53. In Mansab Ali Khan v. Mt. Nabiunnisa & Ors. AIR 1934 All 702, a suit
was filed by the plaintiffs who had acquired rights in 12/24 sihams in the
property in dispute. They claimed possession over the share of the whole
property on the ground that one of the defendant-respondents, Mt.
Nabiunnissa, had sold certain property to the defendant-respondents Nos.2
and 3. There was an agreement that Mt. Nabiunnisa should remain in
possession on the condition that she became liable to pay all the debts due
from the deceased. Though the agreement was not proved, the trial court
found that certain debts were paid by Mt. Nabiunnisa. It was held that one
of the heirs of a deceased Mohamedan was perfectly entitled to alienate his
share of the property without getting it partitioned provided he had paid
the proportionate share of debt on assessment of property.
54. Muhammadan Law does not recognize the right of any one of the
shareholders being tenants-in-common, for acting on behalf of co-heirs as
laid down in Abdul Majeeth Khan Sahib v. C .Krishnamachariar AIR 1918 Mad
1049 (FB). It has been laid down that one heir has no authority in law to
deal with the share of his co-heirs. Relevant portion is extracted
hereunder :
“This is absolutely clear authority in proof of the position that one heir
has no authority, in law, to deal with the shares of his co-heirs. In face
of it, it is not necessary to refer to other original text-books. It is
stated, however, in Pathummabi v. Vittil Ummachabi I.L.R. 26 Mad. 734 that,
"if the creditor of the deceased can seek his relief against one of several
co-heirs in a case where all the effects of the deceased are in the hands
of that heir, it can make no difference whether the heir meets the demand
by a bona fide voluntary sale, or the property is brought to sale in
execution of a decree obtained against him." To the same effect is a
decision of the Allahabad High Court in Hasan Ali v. Medhi Husain I.L.R. 1
All. 533. The statement in Pathummabi v. Vittil Ummachabi I.L.R.
(supra) was purely by way of obiter dictum and with all respect to the
learned Judges, they failed to bear in mind that, the provision of the
Muhammadan Law, that a decree against one heir in possession of all the
effects of the deceased, is binding on all if obtained after contest, is
part of the processual law of that system and is not based on the ground
that a single heir, if he happens to be in possession of the estate of the
deceased, represents the rest of the heirs for the purposes of
administration generally. The ground on which a decree against one of the
heirs, in such circumstances, is treated as res judicata is, as stated in
the books, that the decree in such cases is, in law, against the deceased
and not against the particular heir who is made defendant in the suit.
xxx xxx xxx
So far as voluntary alienations are concerned, which alone form the subject-
matter of reference, the Muhammadan Law is clear that one of the heirs of a
deceased person is not competent to bind the other heirs by his acts,
Spencer, J. -- I agree with the judgment of Mr. Justice Abdur Rahim just
now pronounced.
Srinivasa Aiyangar, J.-- I agree. In the absence of any right in one of
the heirs to represent the co-heirs, one of several co-heirs can only deal
with his or her interest in the ancestor's property inherited by them. My
learned brother has shown that there is nothing in the Muhammadan Law
giving such a right to one of the co-heirs who may happen to be in actual
possession of the whole of the ancestor's estate; such possession, it must
be remembered, is presumably on behalf of all the co-heirs. He is not
constituted the representative of the deceased and cannot administer his
property even for the limited purpose of paying off his debts. In
Khiarajmal v. Daim L.R., 32 Ind. App., 23, Lord Davey referring to a sale
by one of the heirs of a Muhammadan for discharging the debt due by the
ancestor said "prima facie his conveyance would pass only his share", See.
p.37. Representation in a suit may conceivably stand on a different footing
for as stated by their Lordships in the same judgment at page 35, "The
Indian Courts have exercised a wide discretion in allowing the estate of a
deceased debtor to be represented by one member of the family, and in
refusing to disturb judicial sales on the mere ground that some members of
the family, who were minors, were not made parties to the proceedings, if
it appears that there was a debt justly due from the deceased, and no
prejudice is shown to the absent minors. But these are usually cases where
the person named as defendant is de facto manager of a Hindu family
property, or has the assets out of which the decree is to be satisfied
under his control;" and they applied this principle in that very case to
the estate of Nabibaksh. However, that is not the question here.”
55. In Mohammad Afzal Khan, Haji v. Abdul Rahman, Malik & Ors. AIR 1932
PC 235, the Privy Council has held that in case one of two or more co-
sharers had mortgaged an undivided share, the mortgagee takes the security
subject to rights of other co-sharers, and the partition if effected, the
mortgaged properties are allotted to the other co-sharers, they take those
properties in the absence of fraud, free from the mortgage and the
mortgagee can proceed only against the properties allotted to the mortgagor
in substitution of his undivided share. The principle that emanates from
the aforesaid decision is that co-sharer can bind his property and cannot
create charge on the property of other co-sharers. The Privy Council had
relied upon the decision in the case of Byjnath Lall v. Ramoodeen Chowdry
(1874) L R 1 Ind. App. 106, the relevant portion of Mohammad Afzal Khan,
Haji (supra) is extracted hereunder:
“As regards the first point, their Lordships are of opinion that where one
of two or more co-sharers mortgages his undivided share in some of the
properties held jointly by them, the mortgagee takes the security subject
to the right of the other co-sharers to enforce a partition and thereby to
convert what was an undivided share of the whole into a defined portion
held in severalty. If the mortgage, therefore, is followed by a partition
and the mortgaged properties are allotted to the other co-sharers, they
take those properties, in the absence of fraud, free from the mortgage, and
the mortgagee can proceed only against the properties allotted to the
mortgagor in substitution of his undivided share. This was the view taken
by the Board in Byjnath Lall v. Ramoodeen Chowdry (1874) LR 1 Ind. App.
106. In that case the partition was made by the Collector under Regulation
XIX of 1814 (Bengal), and the mortgagee was seeking to enforce his remedy
not against the properties mortgaged to him, but against the properties
which had been allotted to the mortgagor in lieu of his undivided share;
but the Board held that not only he had a right to do so, but that it was
in the circumstances of the case his sole right, and that he could not
successfully have sought to charge any other parcel of the estate in the
hands of any of the former co-sharers. Their Lordships think that the
principle enunciated in that case applies equally to a partition by
arbitration such as the one in the present case. Their Lordships are
therefore of opinion that the appellant is not entitled to enforce his
charge against the properties allotted to the first and second respondents.
The third respondent (the mortgagor) has not appeared before their
Lordships, and their Lordships express no opinion as to any other rights
which the appellant may have in respect of his mortgage.”
56. It was submitted on behalf of the appellants that in Mohammedan law
the doctrine of partial partition is not applicable because the heirs are
tenants-in-common. Reliance has been placed upon the decision of this
Court in Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin
Kamisul (supra). In S.M.A. Samad & Ors. v. Shahid Hussain & Ors. AIR 1963
Patna 375, the Patna High Court referring to the various decisions
indicated that it would be inexpedient to allow suits for partition of a
portion of the properties, because it would lead to a multiplicity of
suits. It is merely a rule of procedural law. Mohammedans are never joint
in estate but only tenants-in-common. It has been observed that the rule
with respect to the partial partition is not so rigid, it can be allowed in
certain circumstances. Reliance has also been placed on a decision of the
High Court of Madhya Pradesh in Abdul Karim & Ors. v. Hafij Mohammad & Ors.
(1989) MP LJ 178, in which it had been held that suit for partial partition
was maintainable. Reference has also been made to the case of A.J. Pinto &
Anr. v. Smt. Sahebbi Kom Muktum Saheb (Dead) by LRs & Ors. (1972) 4 SCC
238, wherein this Court has left open the question whether partial
partition is possible under Muslim Law and no opinion was expressed. The
aforesaid decision as to the partial partition had been cited to emphasize
that when Muslims inherit in specific share, their share is determined.
However, the question of partial partition is not involved in the instant
case, as such, we need not go into the aforesaid question as to the
permissibility of the partial partition, as the suit in the instant case
was filed for partition of the entire matruka property.
57. A Full Bench decision of the High Court of Sind in Vazir alias Dino &
Anr. v. Dwarkamal & Ors. AIR 1922 Sind 41 has also been referred to,
wherein referring to the case of Mangaldas v. Abdul Razak (1916) 16 Bombay
L.R. 224, it has been observed that the notions of joint family, joint
family property and joint family business are utterly unknown to Mohammedan
Law.
58. A decision in Jan Mahomed v. Dattu Jaffer (1913) 38 Bombay 449 has
also been referred to and it has been held that Mohammedans under their own
law are never joint in estate whether they live together or whether they do
not. On death of a Muslim his heirs at once become vested with the shares
to which the Islamic Law entitles them. They have not to wait until the
property is divided by metes and bounds. It has also been observed that
sometime an error is caused by application of Hindu law to the case of
Mohammedan law. It has also been further observed that a Mohammedan heir
is not a co-parcener. He has not merely a right to a defined and
immediate share in each portion of the estate but if any portion of the
estate is in any case marked off and divided from the rest of the estate,
he has a right to an immediate share in that portion.
59. Reliance has also been placed upon the decision in Ghumanmal Lokumal
& Ors. v. Faiz Muhammad Haji Khan & Ors. AIR 1948 Sind 83 in which it has
been observed thus:
“15. It may be conceded that the question of adjustment of equities between
the vendor and vendee upon a suit by a Muslim co-sharer for partition of
the entire property held in co-ownership might properly arise, but we
cannot accept the position that, while a Muslim co-sharer elects to sue for
partition of some of the properties only held in co-ownership, a vendee can
compel him to sue for a general partition, for the purpose of adjusting
equities between the co-sharer- vendor and himself. If Mr. Kimatrai's
contention were to prevail, it would put fetters upon what this Court in
second Appeal No. 64 of 1942 has held to be an unfettered right of a Muslim
co-sharer to claim partition of some of the properties only held in co-
ownership, while retaining his co-ownership in the remaining properties.
16. If, then, a vendee cannot require a Muslim co-sharer to sue for a
general partition, much less can he institute a suit for the sole purpose
of adjusting equities between himself and his Muslim co-sharer-vendor in
regard to property which has not been alienated to him, as is sought to be
done in the case before us.”
It has been observed that a vendee cannot compel a Muslim to sue for
a general partition for the purpose of adjusting equities between the co-
sharer-vendor and himself. The logic behind this is that specific share
is inherited by a co-sharer in a specific property.
60. Right of pre-emption under Mohammedan Law has been relied upon to
invalidate the sale to stranger even to the extent of vendor’s share. A
Full Bench of the Allahabad High Court in Inayatullah v. Gobind Dayal
(1885) ILR 7 All 775 has observed that right of pre-emption is closely
connected with the Mohammedan law of inheritance. The following is the
observation made with respect to the right of pre-emption in the aforesaid
decision:
“7. Upon the present occasion it is unnecessary to consider whether "gift"
can properly be described as a "religious usage or institution" within the
meaning of Section 24. I am here concerned only with the question whether
preemption can be so described. My own opinion is that it can, and although
I cannot add much to the reasons given by SPANKIB, J., I may observe that
preemption is closely connected with the Muhammadan Law of inheritance.
That law was founded by the Prophet upon republican principles, at a time
when the modern democratic conception of equality and division of property
was unknown even in the most advanced countries of Europe. It provides
that, upon the death of an owner, his property is to be divided into
numerous fractions, according to extremely rigid rules, so rigid as to
practically exclude all power of testamentary disposition, and to prevent
any diversion of the property made even with the consent of the heirs,
unless that consent is given after the owner's death, when the reason is,
not that the testator had power to defeat the law of inheritance, but that
the heirs, having become owners of the property, could deal with it as they
liked, and could therefore ratify the act of their ancestor. No Muhammadan
is allowed to make a will in favour of any of his heirs, and a bequest to a
stranger is allowed only to the extent of one-third of the property. Under
these circumstances, to allow the Muhammadan Law of inheritance, and to
disallow the Muhammadan Law of pre-emption, would be to carry-out the law
in an imperfect manner; for the latter is in reality the proper complement
of the former, and one department of the law cannot be administered without
taking cognizance of the other…...”
It has also been observed that under the Mohammedan law, the rule of
pre-emption proceeds upon a principle analogous to the maxim “sic utere tuo
ut alienum non leadas”. The right of preemption is based upon the fact
that there can be large number of co-sharers, the preference has to be
given to pre-emptor as a right of substitution, but not as a re-purchase in
Mohammedan law to cut short the litigation.
61. For the purpose of pre-emption, reliance has also been placed on the
decision in Zamir Ahmad v. S. Haidar Nazar & Ors. AIR 1952 All 541, in
which it has been observed that where there is a custom relating to pre-
emption, the rule of Mohammedan law of pre-emption is not to be applied
even on the ground of equity and good conscience. In view of the entry in
Wajibularz the custom is complete by itself and can be enforced. The
plaintiff being a relative and a co-sharer, accordingly, had a preferential
right of pre-emption as against the vendees and was entitled to pre-empt.
62. The decision in Nagammal & Ors. v. Nanjammal & Anr. (1970) 1 MLJ 358
has also been referred to, wherein it has been observed that the
preferential right to acquire the share of a co-heir who proposes to
transfer his interest in the property or business of the propositus is
limited to cases of simultaneous succession and devolution of property upon
two or more heirs belonging to Class I. Obviously, the section has been
aimed at reducing to some extent at least the inconvenient effects of
simultaneous succession by several persons at one and the same time as
members of Class I leading to fragmentation and parcelling up, of even
small holdings of property. To a degree the section enables a co-heir to
retain the property in the family and avoid the introduction of a stranger
in the enjoyment of family property if he so desired. Relying upon
Inayatullah (supra), it has been observed that it is not lawful for anyone
to sell his own share till he has informed his co-sharer who may take or
leave it as he wishes; and if he has sold without such information, the co-
sharer has a preferential right to the share. It has also been observed
that the existence of right of pre-emption is patent and the burden is on
the purchaser to establish that other co-heirs declare or waive their
preferential right when occasion arose. It is not pretended that
purchaser made any reference to non-alienating co-heirs before his
purchase. It follows that plaintiffs have not lost their preferential
right of purchase by sale and are entitled to have property conveyed to
them.
63. On the basis of the aforesaid decisions with respect to the
preferential right it is sought to be contended on behalf of the appellants
that there is no equity in favour of the purchaser, but under Muslim law co-
heirs have the right of preferential purchase and in this case even it is
not pretended by the purchaser that he had offered to the co-heirs before
purchasing the same vide sale deed dated 23.11.1959. We decline to accept
the submission as the property in question is capable of division and it is
not a small fraction of property, but partition is of huge property, and as
the property admittedly has exchanged several hands by now, we are not
inclined to invalidate the sale deed executed by defendant No. 1 in favour
of Bala Mallaiah even to the extent of his share i.e. 14/104th on the basis
of principle of pre-emption of Muslim law. It would be too late and
iniquitous to invoke the principle of pre-emption in such a case,
particularly when no such plea was raised at the relevant time and in the
courts below. In case heirs were desirous of raising it, they should have
raised their plea timely.
64. In Shaik Mohd. Ali Ansari v. Shaik Abdul Samed (Died) per LRs (2012)
4 ALD 680 (DB), the question of fiduciary relationship has been discussed,
but in the instant case it is not the case set up by the
objectors/purchasers that the sale deed was the outcome of fiduciary
relationship.
65. The parties have been litigating since 1935 for partition of
property. In the instant case sale by Hamid Ali Khan, defendant No.1 is not
of undivided share but that of a specific property i.e. 68 acres 10 guntas
in which he had only 14/104th share. Thus being a tenant in common he had
no authority or right to sell the share of other co-owners. The vendor had
the right to sell to the extent of his own share considering the nature of
succession amongst Mohammedans. Thus the sale of property of other co-
sharers was illegal and void.
66. Similar question arose in Mansab Ali Khan (supra) in which it has
been laid down that if partition has not been effected the heir can only
sell his undivided share and cannot sell a particular plot. It was
submitted that though the specific plot has been alienated but in the whole
undivided property it would amount to less than the share of an alienating
co-sharer i.e. defendant No.1. He had share of approximately 250 acres in
the matruka properties left by Late Nawab Jung. Similar submission was
repelled by the Allahabad High Court and it was held that to the extent of
the share of vendor only in the specific property, the sale could be
enforced and the vendor had no right to sell the specific property which
belonged to other co-sharers. The sale of a specific part of the property
which was not in the vendor’s exclusive ownership, was set aside. Allahabad
High Court has laid down thus :
“3. The simple question that I have to decide is whether in these
circumstances the plaintiff-appellants are entitled to a decree for
possession of their share in the property in suit, including that portion
of it which was transferred in 1920 and 1922 by Mt. Nabiunnissa to
defendants Nos. 2 and 3, or to any other relief. It is not quite clear what
the lower appellate Court meant by saying that the sale deed was not
challenged by the plaintiffs in the plaint on the ground that it dealt with
one specific plot, or in expressing the opinion that such a sale deed is
only voidable at the opinion of a joint owner within six years of the
transfer. The whole of the plaint shows that the plaintiffs claimed to be
owners of 12 out of 24 sihams in the property which had been left by Mt.
Wasiunnisa. They also claim to have been in joint possession with Mt.
Nabiunnissa although the latter's name alone had been recorded in the
revenue papers. Their cause of action was that Mt. Nabiunnissa had
transferred part of the property and whether their grievance was that she
had transferred more than her proper share or that she had transferred a
specific part of the property which was not in her own exclusive ownership,
it is quite clear that the plaintiffs' object was to dispel the cloud on
their title to 12/24 sihams of the whole property which had arisen owing to
the sale deeds of 1920 and 1922. It has not been clearly proved that the
plaintiffs have been in joint possession of the whole of the property and
they have therefore paid the Court fees necessary for a decree for
possession. What is wanted, however, is a declaration that they are
entitled to joint possession, and in the circumstances it appears to me
that they ought to obtain such a decree. In the case of Jafri Begam v. Amir
Mohammad Khan (1885) 7 All. 822, it was held that in somewhat similar
circumstances a plaintiff could recover from the auction purchaser his
share in the property sold on condition that he paid a proportionate share
of the ancestor's debt for which the decree (in execution of which the
property had been sold) was passed.
4. As regards the question of the amount which is said to have been paid by
Mt. Nabiunnissa in liquidation of her mother's debts, the trial Court found
that she paid a sum of Rs.1,800 and that the plaintiffs were liable to pay
a proportionate amount viz. Rs. 853-14-0. The lower appellate Court has
found that so far as Rs.1,000 is concerned it has not been proved that the
debt was due or that Mt. Nabiunnissa has liquidated it. There is, however
no finding as regards the balance of Rs.800. Mr. Mohd. Husain, who
appeared in this Court on behalf of Mt. Nabiunnissa, has argued that he is
not bound by the findings of the lower appellate Court with regard to these
debts at all, because the decree of the lower appellate Court was in his
favour and these findings were therefore irrelevant. Mt. Nabiunnissa was
however one of the parties to the appeal in the lower appellate Court where
these questions as to the debts were agitated and decided, and so far as
the findings of the lower appellate Court are findings of fact they must be
held to be binding on Mt. Nabiunnissa.”
67. In Abdul Majeeth Khan Sahib v. C. Krishnamachariar (1917) 5 LW 767, a
Full Bench of the Privy Council was faced with the issue that if one of the
co-heirs of a deceased Muhammadan in possession of the whole estate of the
deceased or of any part of it sells the property in his possession forming
part of the estate for discharging the debts of the deceased, is such sale
binding on other co-heirs or creditors of the deceased, and if so, to what
extent ? It was held that property of a deceased Muhammadan vests in his
heir upon his death in specified share. Heirs of the deceased take their
shares in severalty, as tenants-in-common and under Muhammadan Law one heir
of the deceased cannot bind shares to his co-heirs.
68. In our opinion, sale beyond 14/104th share by Hamid Ali to Bala
Malliah was void. The Mohammedan Law does not recognize the right of one of
shareholders being tenants-in-common for acting on behalf of others. While
discharging debt also they act as independent debtors. A co-sharer cannot
create charge on property of co-heir. The right of Muslim heir is
immediately defined in each fraction of estate. Notion of joint family
property is unknown to Muslim law. Co-heir does not act as agent while
discharging debt but is an independent debtor not as co-debtor or joint
debtor. Co-sharers are not defined as joint contractors, partners,
executors or mortgagees.
(viii) In re: whether the purchaser has a right to claim equity for
allotment of Item No. 6 of Schedule ‘B’ property in final decree
proceedings in suit for partition ? If yes, to what extent ?
69. It was contended on behalf of the respondents that in respect of
transactions which are hit by section 52 can be looked into at the time of
final decree proceedings. However, preliminary decree in the instant case
identifies different modes and manners under which equities could be
adjusted at the time of final decree proceedings. Reliance has been placed
upon following paragraphs 81 and 93 of the judgment of the trial court
while passing the preliminary decree in the year 1970 :
“81. It is fact established that the deceased had gifted the land to D-1
but the next point for consideration is, whether the entire land measuring
24 bigas and 10 bams was gifted to him or a portion of it for the
construction of the house. The learned counsel for D-25 argued that the
entire land was given to D-1 and even including S. No.22/2 another item
about which I will deal later. The learned counsels for D-6 and plaintiff
contended that the house of D-1 was only on portion of land and that it
cannot be presumed that the entire land of more than 18 acres would be
given for the construction of the house. As already observed the house of
D-1 around the house. There is no evidence on record to show the extent of
land within the compound. One of the witness stated that it was 4 or 5
acres and another stated that it was about 15 acres. The plan of the
compound and the area of the house is not made the record of the suit. Of
course Ex. Alif 2 while giving permission for the construction of the
compound mentioned about the plan but it did not give the area covered by
it. Subsequently, i.e. after the institution of the suit D-1 had built a
cinema house and the hotel and malgi. Another witness said that there was
no open land between the compound and the road. There is no clear picture
about the location for want of sufficient material on record. The
principles can be worked out in the final decree proceedings. In my view
the deceased did not gift the entire land situated in Asifnagar but only
such portion of land on which D-1 had built the house and the compound. As
already stated by me that the land was given for purpose of constructing
residential house. It is a fact that in Ex. Alif 4 he gave the boundaries
and stated that a plan was also prepared after survey and settlement but it
is not filed and nothing can be made out from the boundaries given in Ex.
Alif 4 and also Ex. Alif. I am not inclined to believe that only that
portion of land was gifted to him on which the house stands excluding the
compound but in my view all that portion of land was given to D-1 on which
the house stands and the land was given for the purpose of construction the
house and if more land was given to him he could have enclosed it with the
compound or with some fence. My conclusion is that the land covered by the
residential house and the compound wall was gifted to D-1 and the remaining
land outside the compound is matruka property. If the cinema house was
built on the land outside the compound, it can be adjusted towards the
share of D-1 in the final decree proceedings.
x x x x x
93. It is a fact and also admitted in some cases that D-1 had sold some
lands in some villages. Ex.B-2 to B-9 are such sale deeds executed by D-1.
It was explained by D-1 that he was to pay the land revenue to the
Government and for that purpose he had to sell the lands. I need not go
into the question about the lands sold by D-1 and about the sale amounts
realized. In the final decree proceedings these facts can be taken into
consideration. D-1 would be liable to account for the monies realized.”
It is apparent that the sale deed in question was not referred to in
para 93. Even if the aforesaid observations had not been made, it was open
to the executing court to adjust equity of purchasers to the permissible
extent as purchasers pendente lite can work out the equities in accordance
with law in the final decree proceedings.
70. Reliance has been placed by the respondents on a decision in Jayaram
Mudaliar v. Ayyaswami & Ors. (1972) 2 SCC 200 :
“47. It is evident that the doctrine, as stated in Section 52, applies not
merely to actual transfers or rights which are subject-matter of litigation
but to other dealings with it “by any party to the suit or proceeding, so
as to affect the right of any other party thereto”. Hence, it could be
urged that where it is not a party to the litigation but an outside agency,
such as the tax collecting authorities of the Government, which proceeds
against the subject-matter of litigation, without anything done by a
litigating party, the resulting transaction will not be hit by Section 52.
Again, where all the parties which could be affected by a pending
litigation are themselves parties to a transfer or dealings with property
in such a way that they cannot resile from or disown the transaction
impugned before the Court dealing with the litigation, the Court may bind
them to their own acts. All these are matters which the Court could have
properly considered. The purpose of Section 52 of the Transfer of Property
Act is not to defeat any just and equitable claim but only to subject them
to the authority of the Court which is dealing with the property to which
claims are put forward.”
(emphasis added by us)
Reliance has also been placed on Vinodan v. Vishwanathan (2009) 4
SCC 66 thus :
“11. In the facts and circumstances of the case, while balancing the
equities and for keeping peace and happiness in the family, we think it
would be just and proper to direct the appellant to pay Rs 5,50,000 to the
respondent within a period of four months. On receiving the said amount,
the respondent may construct a suitable house in his portion of the land
and for that purpose we grant one year’s time from the date of payment of
Rs 5,50,000 to the respondent to vacate the portion of the building which
is presently in his possession and give vacant and peaceful possession of
his portion of the building to the appellant in lieu of payment of Rs
5,50,000. We are granting a long time to the respondent to vacate the
portion of the building in his possession to avoid any inconvenience to the
respondent.”
Decision in Dhanlakshmi & Ors. v. P. Mohan & Ors., (2007) 10 SCC 719
has been referred laying down that :
“5. Section 52 deals with a transfer of property pending suit. In the
instant case, the appellants have admittedly purchased the undivided shares
of Respondents 2, 3, 4 and 6. It is not in dispute that the first
respondent P. Mohan has got an undivided share in the said suit property.
Because of the purchase by the appellants of the undivided share in the
suit property, the rights of the first respondent herein in the suit or
proceeding will not affect his right in the suit property by enforcing a
partition. Admittedly, the appellants, having purchased the property from
the other co-sharers, in our opinion, are entitled to come on record in
order to work out the equity in their favour in the final decree
proceedings. In our opinion, the appellants are necessary and proper
parties to the suit, which is now pending before the trial court. We also
make it clear that we are not concerned with the other suit filed by the
mortgagee in these proceedings.”
71. Though it is true that purchasers can work out the equity in the
final decree proceedings but it is only to the legally permissible extent
and not beyond that. The preliminary decree declared the shares in item
No.6 of Schedule ‘B’ property in specified shares. The preliminary decree
is binding and even otherwise the sale was valid only to the extent of the
share of defendant No.1 i.e. 14/104th share in the specific property and
not beyond it. This Court in K. Adivi Naidu & Ors. v. E. Duruvasulu Naidu &
Ors. (1995) 6 SCC 150, has laid down that when a specific property
comprising of undivided share in joint family properties is purchased by
appellants from alienee of Karta of the joint family prior to partition
suit and where the preliminary decree in partition suit directed that
properties be divided by metes and bounds, taking the good and bad
qualities thereof, then the preliminary decree was allowed to become final.
This Court held that the trial court should give effect to the preliminary
decree, and though the appellants had no equities, the restrictive share to
which the principal alienator was entitled, should be allotted to them as a
special case. In the instant case, preliminary decree has declared the
share only to the extent of 14/104th in the disputed property in item No.6,
schedule ‘B’. Thus, by no equitable principle the purchaser can claim the
entire property to be allotted to him.
72. The respondents have placed reliance on a decision of the High Court
of Madras in Khatoon Bibi v. Abdul Wahab Sahib & Ors. AIR 1939 Mad. 306 so
as to contend that the sale deed in favour of Bala Mallaiah dated
23.11.1959 is valid and binding on defendant No.1, Hamid Ali Khan
notwithstanding the pendency of the partition suit. In Muslim law property
can be alienated by heir during the pendency of the suit for its partition.
In Khatoon Bibi (supra) it has been observed that inheritance vests
immediately, in Mohammedan law, in his heir and is not suspended by reason
of debts being due from the estate of the deceased and against the other co-
heirs, the claim of bona fide purchasers to have the share in the
particular plot is not absolute. It is well recognized principle of law
relating to co-owners or tenants in common that an alienation by a co-owner
or a tenant in common of a share in any item of the property is subject to
the rights and equities of the other co-owners or tenants in common. It has
also been observed on the basis of Cooper v. Fisher (1841) 10 LJ Ch 221
that if persons deal in such interests as undivided shares, they do so with
the liability of having something assigned to them different from what they
might originally possess. The alienee of part of an undivided estate must
take his interest subject to a bill of partition being filed against him.
The court further observed that :
“11. A co-owner or a tenant-in-common can always file a suit for partition
and have his share defined and delivered to him. The Court in effecting a
partition is bound to adjust all the equities existing between the parties
and arising out of their relation to the property to be divided. The
equities to be adjusted would involve every matter relating to the common
property with reference to which one tenant-in-common may equitably demand
anything of the other such as contribution for repairs or improvements to
the common property, accounting for waste of the common property and the
enforcement of any lien or charge which a tenant-in-common may claim
against the other in respect of any matter concerning the common property.
In regard to the method of division the Court is not bound to allot an
aliquot share of each species of property to each of the parties. It is
enough if each tenant-in-common has an equal share of the whole. This is
subject to the other equities which may have to be adjusted. In this case
the plaintiff is admittedly entitled to a half share in the estate but she
is not able to get her due and legitimate share by virtue of the fact that
defendants 1 to 3 have dissipated a major portion of the estate consisting
of the moveable property. The plaintiff is therefore justly entitled to
demand that all the immovable property should be assigned to her and that
no portion of the immovable property should be claimed by defendants 1 to
3. Freeman on "Co-tenancy and Partition" dealing with equities which may be
enforced in a suit for partition observed at page 676 thus :
If one of the co-tenants has wasted any part of the lands of the co-
tenancy, the Court may take that fact into consideration and do justice
between the parties by assigning to the wrongdoer the part which he has
wasted.
x x x x x
13. The question now arises, should any portion of the property by virtue
of the alienation by defendants 1 to 3 pendente lite be allotted to the
share of the defendants in order to give effect to the alleged equitable
right in favour of the alienees? Ordinarily it would be just and proper to
allocate properties which have been alienated to the shares of the alienor.
But where it is not practicable or equitable, the Court is not bound to
allot those properties but might allot any other properties and the
alienees’ only right is to have recourse to the properties so allotted. It
may be that the substituted property or security may prove worthless but it
is a risk every alienee of an undivided interest of a tenant-in-common in a
specific item of property takes as a necessary incident of the alienation.
Therefore there is nothing to preclude a Court from awarding to the
plaintiff the immovable properties and awarding to the defendants the
moveable properties which have been wasted by them, the only remedy of the
alienee being to proceed against the moveable properties in their hands.
But what is alleged in this case is that the alienees are bona fide
alienees and they have got therefore an equity in their favour. But it
seems to me the equity of the plaintiff in this case is paramount to the
equity in favour of the alienees. She has been unjustly deprived of her
legitimate share in the property by the wrongful act of defendants 1 to 3
aided by defendant 4, and the property was converted and appropriated for
their use during her minority. She lost no time in enforcing her claim as
soon as she attained majority and the alienations were pendente lite. The
alienees allege that they were ignorant of the institution of the suit but
that fact is in my opinion immaterial as they cannot get higher rights than
their alienors, i.e. an alienee from a co-tenant takes his interest subject
to the equities of the other co-tenants. But this is a case in which, if
the alienees were not parties, they will be affected by the doctrine of lis
pendens. The title to the immovable property is specifically in question
within the meaning of Section 52 of the Transfer of Property Act.
14. A question of title has been raised, namely whether the property in the
suit belonged solely to Abdul Rahiman or was the joint property of
defendants 1 to 3 and Abdul Rahiman. This issue would be quite sufficient
to attract the operation of lis pendens. No doubt a suit for administration
has been held not to attract the operation of lis pendens until a
preliminary decree for administration has been passed. But in this case the
plaintiff has also prayed for partition and delivery of her share and for
an account on the basis that defendants 1 to 3 have wrongfully possessed
themselves of her father's property and misappropriated the bulk of it and
this suit cannot therefore be viewed as a bare administration suit. But
since the alienees are formally on record and they will be bound by any
decree passed in the suit, there is no need to consider the applicability
of Section 52 of the Transfer of Property Act. But the principle underlying
the Section will have to be applied in favour of the plaintiff, i.e. the
Court in making the adjustment of equities in giving relief to her ought to
confine itself to the legal rights of the co-heirs on the date of the
institution of the suit without reference to the equitable rights of
persons who derived title from them pendente lite as her rights should not
be prejudiced by any intervening equity in the alienees. The plaintiff is
entitled to say that so far as she is concerned, she is not bound to take
any notice of a title acquired since the filing of the suit and "as to them
it is as if no such title existed."
The Court has reiterated the principle that an alienee from a co-
tenant takes subject to the equities from other co-tenants and in case
alienees were not parties they would be affected by the doctrine of lis
pendens. The decision is of no application in the facts of the instant case
as alienation made was beyond the interest in the property of alienating co-
sharer and in the proceedings for final decree itself, no such equitable
right has been claimed by purchaser as discussed hereinafter. To claim such
an equity separate bundle of facts was required to be pleaded and
established. Thus, in absence thereof, it is not possible in the instant
case to work out the equities of the purchasers in other properties
allotted to the share of the vendor.
73. Reliance has been placed on a decision of the High Court of M.P. in
Abdul Rahman & Anr. v. Hamid Ali Shah & Ors. AIR 1959 MP 190. The main
question for consideration was with respect to maintainability of the suit
for partial partition or the suit has to be filed for general partition of
all the properties. It has been observed that an alienee of specific item
of property has also to be given a right to sue for general partition so as
to claim equitable right against his vendor. In the instant case the
proposition has no application firstly for the reason that no such equity
has been claimed by the purchasers in the objections filed in the final
decree proceedings. The claim was to retain only the specific property
which had been alienated by defendant No.1.
74. Reliance has also been placed on Tikam Chand Lunia v. Rahim Khan
Ishak Khan & Ors. AIR 1971 MP 23. Following the aforesaid decision of the
M.P. High Court in Abdul Rahman (supra), law to the similar effect has been
laid down. In the latter decision it has been held that when specific
property cannot be allotted to the share of the alienor, sale must be
construed to be sale of so much portion as can justly be given to the share
of the alienor. In the instant case the alienor had only 14/104th share and
that has been rightly allotted to him.
75. Reliance has also been placed on T.G. Ashok Kumar v. Govindammal &
Anr. (2010) 14 SCC 370 in which it has been laid down that in the case of
pendente lite transfer of property during the pendency of the partition
suit held by the other co-owner, sale pendente lite is not void but subject
to the decree in partition suit. The title of the vendee would depend upon
the decision in the partition suit in regard to the title of vendor. If the
vendor has title only in respect of a part of the property, vendee’s title
would be saved only to that extent. The sale of the remaining portion which
fell to the share of other co-owner would be ineffective. On the basis of
the aforesaid decision, Bala Mallaiah, his heirs and purchasers can get
what can be allotted to vendor Hamid Ali Khan’s share. That precisely is
the preliminary as well as the final decree. This Court in T.G. Ashok Kumar
(supra) has laid down thus and the relevant portion is extracted hereunder
:
“14. On the other hand, if the title of the pendente lite transferor is
recognised or accepted only in regard to a part of the transferred
property, then the transferee’s title will be saved only in regard to that
extent and the transfer in regard to the remaining portion of the
transferred property to which the transferor is found not entitled, will be
invalid and the transferee will not get any right, title or interest in
that portion.
15. If the property transferred pendente lite, is allotted in entirety to
some other party or parties or if the transferor is held to have no right
or title in that property, the transferee will not have any title to the
property. Where a co-owner alienates a property or a portion of a property
representing to be the absolute owner, equities can no doubt be adjusted
while making the division during the final decree proceedings, if feasible
and practical (that is, without causing loss or hardship or inconvenience
to other parties) by allotting the property or portion of the property
transferred pendente lite, to the share of the transferor, so that the bona
fide transferee’s right and title are saved fully or partially.”
It is apparent from the aforesaid decision that a transferee may lose
the entire property also though equities can be worked out by making
allotment of property which has been transferred pendente lite but in the
instant case such equity is not permissible in view of the provisions of
Mohammedan Law as well as the fact that no such equity has been claimed for
allotment out of other properties fallen to the share of the vendor.
76. Reliance has also been placed on Khemchand Shankar Chaudhari & Anr.
v. Vishnu Hari Patil & Ors. (1983) 1 SCC 18 in which this Court has laid
down thus :
“6. Section 52 of the Transfer of Property Act no doubt lays down that a
transferee pendente lite of an interest in an immovable property which is
the subject-matter of a suit from any of the parties to the suit will be
bound insofar as that interest is concerned by the proceedings in the suit.
Such a transferee is a representative in interest of the party from whom he
has acquired that interest. Rule 10 of Order 22 of the Code of Civil
Procedure clearly recognises the right of a transferee to be impleaded as a
party to the proceedings and to be heard before any order is made. It may
be that if he does not apply to be impleaded, he may suffer by default on
account of any order passed in the proceedings. But if he applies to be
impleaded as a party and to be heard, he has got to be so impleaded and
heard. He can also prefer an appeal against an order made in the said
proceedings but with the leave of the appellate court where he is not
already brought on record. The position of a person on whom any interest
has devolved on account of a transfer during the pendency of any suit or a
proceeding is somewhat similar to the position of an heir or a legatee of a
party who dies during the pendency of a suit or a proceeding, or an
Official Receiver who takes over the assets of such a party on his
insolvency. An heir or a legatee or an Official Receiver or a transferee
can participate in the execution proceedings even though their names may
not have been shown in the decree, preliminary or final. If they apply to
the court to be impleaded as parties they cannot be turned out. The
Collector who has to effect partition of an estate under Section 54 of the
Code of Civil Procedure has no doubt to divide it in accordance with the
decree sent to him. But if a party to such a decree dies leaving some heirs
about whose interest there is no dispute should he fold up his hands and
return the papers to the civil court? He need not do so. He may proceed to
allot the share of the deceased party to his heirs. Similarly he may, when
there is no dispute, allot the share of a deceased party in favour of his
legatees. In the case of insolvency of a party, the Official Receiver may
be allotted the share of the insolvent. In the case of transferees pendente
lite also, if there is no dispute, the Collector may proceed to make
allotment of properties in an equitable manner instead of rejecting their
claim for such equitable partition on the ground that they have no locus
standi. A transferee from a party of a property which is the subject-matter
of partition can exercise all the rights of the transferor. There is no
dispute that a party can ask for an equitable partition. A transferee from
him, therefore, can also do so. Such a construction of Section 54 of the
Code of Civil Procedure advances the cause of justice. Otherwise in every
case where a party dies, or where a party is adjudicated as an insolvent or
where he transfers some interest in the suit property pendente lite the
matter has got to be referred back to the civil court even though there may
be no dispute about the succession, devolution or transfer of interest. In
any such case where there is no dispute if the Collector makes an equitable
partition taking into consideration the interests of all concerned
including those on whom any interest in the subject-matter has devolved, he
would neither be violating the decree nor transgressing any law. His action
would not be ultra vires. On the other hand, it would be in conformity with
the intention of the legislature which has placed the work of partition of
lands subject to payment of assessment to the Government in his hands to be
carried out “in accordance with the law (if any) for the time being in
force relating to the partition or the separate possession of shares.”
There is no dispute on the aforesaid principle. The aforesaid
principle has been followed in the instant case and permissible share has
been allotted. Thus the decision is of no further assistance to the cause
espoused.
77. In Jayaram Mudaliar v. Ayyaswami & Ors. (1972) 2 SCC 200, it has been
laid down thus :
“47. It is evident that the doctrine, as stated in Section 52, applies not
merely to actual transfers or rights which are subject-matter of litigation
but to other dealings with it “by any party to the suit or proceeding, so
as to affect the right of any other party thereto”. Hence, it could be
urged that where it is not a party to the litigation but an outside agency,
such as the tax collecting authorities of the Government, which proceeds
against the subject-matter of litigation, without anything done by a
litigating party, the resulting transaction will not be hit by Section 52.
Again, where all the parties which could be affected by a pending
litigation are themselves parties to a transfer or dealings with property
in such a way that they cannot resile from or disown the transaction
impugned before the Court dealing with the litigation, the Court may bind
them to their own acts. All these are matters which the Court could have
properly considered. The purpose of Section 52 of the Transfer of Property
Act is not to defeat any just and equitable claim but only to subject them
to the authority of the Court which is dealing with the property to which
claims are put forward.
48. In the case before us, the Courts had given directions to safeguard
such just and equitable claims as the purchaser-appellant may have obtained
without trespassing on the rights of the plaintiff-respondent in the joint
property involved in the partition suit before the Court. Hence, the
doctrine of lis pendens was correctly applied.”
78. In Marirudraiah & Ors. v. B. Sarojamma & Ors. (2009) 12 SCC 710, a
Constitution Bench of this Court set aside an order passed by the High
Court directing allotment of Item No.9 sold pendente lite to purchaser and
compensation to the co-sharers of his predecessor in interest in terms of
money based on the market value of the property which was alienated to him.
This Court has laid down that courts are not supposed to encourage pendente
lite transactions, and regularizing their conduct by showing equity in
their favour at the cost of co-sharers.
79. In Kammana Sambamurthy (Dead) by LRs. v. Kalipatnapu Atchutamma
(Dead) & Ors. (2011) 11 SCC 153, this Court has laid down that when the
vendor was having only ½ share in the property but executed the contract
for sale of the entire property, the vendee would be entitled to decree for
specific performance only to the extent of ½ share of the vendor and not
beyond it.
80. In Nova Ads v. Metropolitan Transport Corporation & Ors. (2015) 13
SCC 257, this Court has considered various decisions like Raja Ram Mahadev
Paranjype v. Aba Maruti Mali AIR 1962 SC 753, P.M. Latha v. State of Kerala
(2003) 3 SCC 541, Raghunath Raj Bareja v. Punjab National Bank (2007) 2 SCC
230, Madamanchi Ramappa v. Mothaluru Bojjappa AIR 1963 SC 1633,
Laxminarayan R. Bhattad v. State of Maharashtra (2003) 5 SCC 413,
Nasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577, E. Palanisamy v.
Palanisamy (2003) 1 SCC 123, India House v. Kishan N. Lalwani (2003) 9 SCC
393 and has observed that law will prevail over the equity principle when
they cannot be harmonized thus :
“45. In Raja Ram Mahadev Paranjype v. Aba Maruti Mali AIR 1962 SC 753, a
three-Judge Bench has opined that: (AIR p. 756, para 9)
“9. ... Equity does not operate to annul a statute. This appears to
us to be well established but we may refer to White and Tudor’s Leading
cases on Equity (9th Edn., p. 238), where it is stated:
‘Although, in cases of contract between parties, equity will often
relieve against penalties and forfeitures, where compensation can be
granted, relief can never be given against the provisions of a statute.”
46. In P.M. Latha v. State of Kerala (2003) 3 SCC 541, it has been
opined: (SCC p. 546, para 13)
“13. Equity and law are twin brothers and law should be applied and
interpreted equitably but equity cannot override written or settled law.”
47. In Raghunath Raj Bareja v. Punjab National Bank (2007) 2 SCC 230, the
Court observed that it is well settled that when there is a conflict
between law and equity, it is the law which has to prevail. The Court
further ruled that equity can supplement the law, but it cannot supplant or
override it. In this context, reliance was also placed upon Madamanchi
Ramappa v. Muthaluru Bojjappa AIR 1963 SC 1633, Laxminarayan R. Bhattad v.
State of Maharashtra (2003) 5 SCC 413, Nasiruddin v. Sita Ram Agarwal
(2003) 2 SCC 577, E. Palanisamy v. Palanisamy (2003) 1 SCC 123, and India
House v. Kishan N. Lalwani (2003) 9 SCC 393.”
81. Reliance has been placed on Raghunath Rai Bareja & Anr. v. Punjab
National Bank & Ors. (2007) 2 SCC 230, in which the Latin maxim “dura lex
sed lex” which means “the law is hard, but it is the law” was applied.
Relying upon that it has been observed that equity can only supplement the
law, but it cannot supplant or override it. But when there is a conflict
between law and equity, it is the law which has to prevail.
82. In the instant case, equitable right of allotment of some land other
than which was purchased out of some other properties allotted to the share
of vendor Hamid Ali Khan, D-1 has not been claimed in the objections filed
during the final decree proceedings filed by the purchasers. The property
admittedly has exchanged hands a number of times during the pendency of
suit from 1935 till date and how the equity is to be worked out is always a
question of fact in every case, how much share has been allotted to the
share of one vendor and how much property he had already alienated till
that time and what are the debts or charges on the property that are
legally permissible, would be some of the relevant considerations. Nothing
of that sort has been pleaded by the purchasers in the objections filed in
the final decree proceedings. Though in the absence of claiming equitable
right in the share of vendor’s other properties, it cannot be worked out
and it is doubtful when undivided share has not been sold and the specific
property had been purchased, such equitable right can be enforced. Even
assuming that the purchaser could work out the equity, however in the
absence of pleadings and evidence required for the purpose, it would amount
to misadventure. We do not propose to give any finding on submission and
its correctness, made on behalf of the appellants that defendant No.1 had
gone on a selling spree like anything and before executing the sale deed on
23.11.1959 he had already sold more than 1000 acres of land which was in
excess of his entitlement, in the absence of pleading by appellants or
purchasers on the basis of oral submissions made before us. In the absence
of requisite data, pleadings and evidence, question of working out equity
in aforesaid manner, cannot be examined or gone into by this Court at this
stage. The claim of equity is outcome of ingenuity of arguments made only
in this Court like a drowning fish trying to catch last straw. We are not
at all impressed by the submission, and consequently the same is repelled,
more so considering the provisions of the Mohammedan Law that sale beyond
the extent of the share of the vendor in specific property was void.
(ix) In re : whether sale was for legal necessity, and thus binding :
83. It was submitted that sale was for legal necessity for benefit of
estate. It has been averred in the objections preferred by the purchasers
that sale was made by Hamid Ali Khan, defendant No.1, for payment of land
revenue. Thus it was contended that the payment of land revenue has enured
for the benefit of the entire estate. Thus sale would be valid and binding
on co-heirs. Except making the aforesaid bald statement, nothing has been
placed on record to indicate that the sale was for payment of land revenue.
On the other hand, when we peruse the sale deed, recital of it makes it
clear that the sale was effected by Hamid Ali Khan for his ‘personal
necessity’. He had not executed the sale deed for payment of land revenue
as its recital is otherwise which would prevail. Nor the sale deed had been
executed in the fiduciary capacity acting on behalf of co-sharers rather he
has claimed in the sale deed that he was the exclusive owner of 68 acres 10
guntas area of property and was in possession thereof. He had sold the land
for a consideration of Rs.2000 in view of his personal necessity. The sale
was made after taking permission from the Deputy Collector Division, Distt.
West, Hyderabad. Thus, the sale deed negates the aforesaid bald averment
made in the objection petition. Even otherwise under the Mohammedan Law, it
was not open to Hamid Ali Khan, defendant No.1 to act in fiduciary capacity
to sell the property and bind shares of others. It is not mentioned in sale
deed that Hamid Ali Khan had sold for any legal necessity or for the
benefit of the entire estate. The recital in sale deed has the evidentiary
value and Bala Mallaiah and his successors are bound by what has been
mentioned therein. Thus, no case is made out on the basis of the aforesaid
submission also to make an interference.
(x) In re : the effect of proceedings under the Tenancy Act, 1950 :
84. It was contended on behalf of the respondents that with respect to
the disputed property the proceedings were initiated by Boddam Narsimha
under the Act of 1950. Boddam Mallaiah was a lessee for 3 years. He was
inducted in the aforesaid lands under a koul dated 1.3.1953 executed by
Hamid Ali Khan, who was defendant No.1 in the partition suit. Initially, it
was for one year and was renewed each year later on. Hamid Ali Khan
executed a sale deed in favour of Bala Mallaiah on 23.11.1959. After the
sale deed, Bala Mallaiah became a pattedar in place of Hamid Ali Khan in
respect of the suit land. Bala Mallaiah was the paternal uncle of Boddam
Narsimha. An application was filed by Boddam Narsimha under section 37A of
the Tenancy Act on the ground that Late Bala Mallaiah was a protected
tenant and prayed for issuance of ownership certificate under section 38E
of the Act of 1950. The tribunal vide order dated 24.8.1999 held that Bala
Mallaiah never protested the omission of entry of tenancy from the revenue
records as deemed tenant, and it was found that there were no protected
tenants in Madhapur village. The order was questioned in the appeal under
section 90 of the Act which was dismissed by the Joint Collector on
13.3.2000. Thereafter, Writ Petition No.2229/2000 was preferred before the
High Court of Judicature at Andhra Pradesh which was also dismissed by the
High Court on 16.4.2001 and the same was questioned before this Court which
dismissed appeal in Boddam Narsimha (supra).
85. However, on behalf of the respondents it has been submitted that Bala
Mallaiah has become pattedar vide conveyance deed dated 23.11.1959. The
case set up by Bala Mallaiah that he was jointly cultivating the suit land
along with his two brothers Komaraiah and Agaiah was found to be meritless
and negatived for the period between 1952 and 1959. On 1.1.1973 when the
notification came to be issued, Bala Mallaiah was not the protected tenant.
The case set up by Boddam Narsimha regarding protected tenancy and issuance
of ownership certificate was negatived. This Court noted that even for the
sake of arguments if it is accepted that Bala was a protected tenant on
12.2.1956, he still became a pattedar vide conveyance deed dated
23.11.1959, and in any event assumed protected tenancy did not continue up
to 1.1.1973, and therefore, the appellant was not entitled to ownership
certificate under section 38E. Section 38E of the Act of 1950 had no
application to the facts of the case. This Court has discussed the matter
thus :
“13. Bala was a kaul who had taken an annual lease from Hamid Ali Khan. He
was a tenant at will. This was during the pendency of the partition suit.
He became a pattedar vide conveyance dated 23-11-1959. The kaul itself
indicates, that Bala was to cultivate in his individual capacity; that at
the end of the year, Bala had to return the lands to the owner; that Bala
was not given the right to include any other cultivator. Therefore, there
is no merit in the contention of the appellant that Bala was jointly
cultivating the suit lands with his two brothers Agaiah (father of the
appellant) and Komaraiah. Further, between tenancy and the conveyance,
there was a time-gap. Hamid Ali Khan was a pattedar. His rights were
purchased by Bala vide conveyance dated 23-11-1959, therefore, on 1-1-1973,
when the notification came to be issued, Bala was not the tenant. He was a
pattedar. Moreover, the appellant herein is not the LR of Bala. Bala was
his paternal uncle. At no point of time, even the LRs of Bala had claimed
that Bala was a protected tenant. It is evident from Section 38-E that the
said section has been enacted for those protected tenants who are declared
to be protected tenants and included in the register prepared for that
purpose. A person becomes a protected tenant when he is a holder on the
dates or for the periods mentioned in Sections 35, 37 and 37-A. Once a
person becomes a protected tenant, he is entitled to an ownership
certificate under Section 38-E. In Sada v.Tahsildar AIR 1988 AP 77 Full
Bench of the Andhra Pradesh High Court held that a person “holds” the land
as protected tenant if he is still a protected tenant on the notified date
i.e. 1-1-1973, though out of possession. As long as his right as protected
tenant has not been determined by the date of notification in a manner
known to the Act, he holds the land as a protected tenant, whether
physically in possession or not. For the vesting of ownership of land held
by a protected tenant under Section 38-E, it is not necessary that the
protected tenant should be in physical possession on 1-1-1973. It is
sufficient if he continues to hold the status of a protected tenant on the
notified date, even if he is not in physical possession. The Act does not
merely regulate the relationship of landlord and tenant but deals with the
alienation of agricultural land and includes transfer of the landholder’s
interest to the protected tenants. Therefore, the grant of pattedari
(ownership rights) also finds place in the Act.
14. On the facts and circumstances of the present case, Bala had become a
pattedar (owner) under the conveyance deed dated 23-11-1959. His name was
shown as a pattedar even prior to 1-1-1973. The benefit of Section 38-E is
given to persons who hold the lands as protected tenants and who continue
to hold the lands as protected tenants on 1-1-1973. The protected tenancy
has to be enforced on 1-1-1973. Under Section 38-E, ownership rights are
conferred only upon persons who continue to be protected tenants as on 1-1-
1973. They form a special class. In the present case, as stated above, Bala
became a pattedar in 1959. In Sada (supra) it has been held that protected
tenants are covered by Chapter IV of the Act. They fall under a limited
category. They are referred to in Sections 34, 37 and 37-A. In the said
judgment, it has been held that Section 37-A, introduced by Act 3 of 1956
deals with a separate class of persons deemed to be protected tenants. This
class of persons is different from the category of protected tenants who
fall under Sections 34 and 37 respectively. Section 37-A refers to persons
who are holders of the land at the commencement of amending Act of 1955 (12-
3-1956). These persons were required to be tenants on 12-3-1956 and that
they should continue to be tenants till 1-1-1973. Only such category of
persons are entitled to ownership certificate under Section 38-E. In the
present case, even for the sake of argument, if we were to proceed on the
basis that Bala was a protected tenant on 12-3-1956, still Bala became a
pattedar vide conveyance deed dated 23-11-1959, therefore, in any event,
the assumed protected tenancy did not continue up to 1-1-1973. In our
opinion, therefore, in any view of the matter, the appellant herein was not
entitled to the ownership certificate under Section 38-E of the Act.
Section 38-E has no application to the facts of the present case.”
86. This Court in aforesaid case has only decided the question about
protected tenancy which was claimed and issuance of ownership certificate
by Boddam Narsimha under section 38E. No other question was involved for
consideration in the proceedings under the Act of 1950. Thus, the decision
cannot be taken to be an authority on a question which was not agitated.
Boddam Narsimha who filed the said proceedings had lost up to this Court
and in that there was a mere mention of the fact that by virtue of the
conveyance deed, Bala Mallaiah became pattedar vide registered sale deed
dated 23.11.1959. There was no adjudication on the various issues as to the
legality or validity of the said rights which could be conferred by sale
deed and to what extent Hamid Ali Khan could have alienated to Bala
Mallaiah and issue about lis pendens etc. never came up for consideration.
Thus, the decision is of no help and cannot be taken to be an adjudication
by this Court with respect to the rights of Hamid Ali Khan or Bala Mallaiah
in matruka properties which was not an issue in the aforesaid case. The
scope of the proceedings and the issue involved were totally different.
Thus, no sustenance can be derived by the respondents by relying upon the
aforesaid decision in which Boddam Narsimha in fact had lost.
87. It was also contended that Hamid Ali Khan was recorded as pattedar
after the death of Nawab Jung. The plaintiffs and other heirs of Late
Nawab Jung were aware that the name of Hamid Ali Khan had been recorded in
the revenue records. The transfer was made with the permission of the
Collector under section 47 of the 1950 Act. Any person affected by any
entry in such record of rights under Regulation 4 of the Hyderabad Record
of Rights in Land Regulations, 1948 was required to question the same
within two years. Bala Mallaiah was in possession. Thus, the decree which
has been passed ignoring the rights of the pattedar is bad in law. In our
opinion, admittedly, it was a matruka property of Late Nawab Jung. The suit
for partition was pending w.e.f. 1935 and mutation simpliciter in the name
of Hamid Ali Khan conferred no right, title or interest. The mutation is
only for the fiscal purpose and is not decisive of right, title or interest
in the property which is within the domain of the civil court. The grant of
patta from 1953 onwards by Hamid Ali Khan to Bala Mallaiah was on yearly
basis and the execution of sale deed and the grant of land on yearly basis
were during lis pendens. Thus, the transactions are covered by the doctrine
of lis pendens and were clearly subject to the outcome of the pending
partition proceedings. In Venkatrao Anantdeo Joshi & Ors. v. Malatibai &
Ors. (2003) 1 SCC 722, a question came up for consideration assuming that
pending suit for partition, a batai patra was executed on the basis of
which tenancy rights were claimed. It was held that such batai patra would
not confer any right on the person. It being hit by the principle of lis
pendens. This Court has held thus :
“8. At the time of hearing of this appeal, learned counsel for the
appellants submitted that the plea of tenancy raised by Baburao is on the
face of it, bogus so as to defeat the rights of the appellants which are
crystallised at the time of passing of the preliminary decree. Presuming
that pending the suit for partition, even if batai patra is executed, it
would not confer any rights on Baburao as it is hit by principles of lis
pendens. In any case, as the preliminary decree becomes final, it was not
open for Baburao to raise such contention at the time of passing of final
decree for partition.
9. With regard to lis pendens, learned counsel for the appellants rightly
referred to the judgment and decree passed in Regular Civil Suit No. 51 of
1973 and contended that presuming that the so-called batai patra was at all
executed by Anantdeo, it was not open to him to execute the same pending
disposal of the suit filed by Appellant 1 for partition of the property. In
that suit, Appellant 1 and his mother had challenged the transfer of land
out of Survey No. 60/A and also for partition of the suit property. By
elaborate judgment and order, the suit filed by the appellants was decreed
to the extent that they were entitled to 2/3rd share in the suit
properties. The court had also directed mesne profits. Till the date of the
decree, it was contended by Anantdeo that he was in possession of portion
of the suit land and the remaining portion was in possession of Malatibai,
in view of the sale deed in her favour. It has also been specifically
contended that for some time, property was in possession of Baburao prior
to marriage of Shakuntala Bai and then in possession of one Pandurang
Saokar and lastly it was in possession of Malatibai and himself. The court
specifically arrived at the conclusion that Anantdeo was in possession of
the suit property and the so-called transfer was without any legal and
family necessity as alleged and, therefore, the appellants were entitled to
2/3rd share in the suit property. In the revenue records also, there is no
mutation in favour of Baburao. Further, the so-called compromise decree in
Civil Suit No. 288 of 1981 against Anantdeo and Malatibai would not confer
any title against the appellant.
10. Further, in a suit for partition where preliminary decree is passed, at
the time of passing of the final decree it was not open to the respondent
to raise the contention that he was a tenant of the suit premises. Section
97 CPC specifically provides that where any party aggrieved by the
preliminary decree does not appeal from the said decree, he is precluded
from disputing its correctness in any appeal which may be preferred from
the final decree.”
In view of the aforesaid, we find no force in the submissions raised
on behalf of the respondents based upon pattedar rights as it was subject
to section 52 of T.P. Act and the same is hereby rejected.
(xi) In re : what is the effect of decision of this Court and High Court
with respect to final decree proceedings in Item No. 2 of Schedule ‘B’
property :
88. With respect to item No.2 of Plaint ‘B’ schedule property one Padmini
Co-operative Housing Society Ltd. filed an objection in the final decree
proceedings. The trial court vide order dated 29.3.1996 rejected the
objection which was preferred. First appeal preferred was also dismissed by
a Single Judge on 23.4.1997. LPA No.104/1997 was filed which was dismissed
by a Division Bench of the High Court on 20.11.1998. Then SLP [C]
No.3558/1999 was filed in this Court which has been dismissed by a speaking
order affirming the judgment and order passed by the executing court and
the High Court. A perusal of the judgment of the High Court in LPA
indicates that the High Court had held that in Mohammedan Law there is no
recognition for a sale by a co-sharer of the entire estate and that the
other co-sharers are not bound by such sale and said decision even went to
the extent of saying that even when the sale was meant for discharging the
debts of ancestor, whose property had devolved upon the sharers, the said
sale without the consent of other co-sharers is invalid and does not confer
any right on the purchaser with regard to such co-sharers who do not join
the said sale. The decision has been affirmed by this Court vide order
dated 1.10.1999 in SLP [C] No.3558/1999. Following order was passed by this
Court :
“After hearing arguments exhaustively for more than two hours and after
considering the preliminary decree dated 24.11.70, the modified preliminary
decree passed by the High Court, the Commissioner’s report dated 14.7.95,
final decree passed by the City Civil Court dated 11.2.96, the judgment of
the learned Single Judge dated 23.4.97, the judgment of the Division Bench
dated 24.11.93 and the other passed by the High Court in CRP.No. 700/94
dated 30.8.94 and after considering the various rulings of the Courts cited
before us by the learned senior counsel on both sides, we are not inclined
to interfere with in SLP. The SLP is dismissed.”
At least on point of law the decision of this Court being a reasoned
order has relevance and the decision in the aforesaid matter in same case
also supports the view which has been taken by us on merits.
(xii) In re : whether there is waiver of right by appellants :
89. It was also submitted that on behalf of the respondents that there is
waiver of rights by the plaintiff and other heirs of Late Nawab Jung with
respect to disputed property, and they cannot be permitted to approbate and
reprobate. In Boddam Narsimha (supra), stand was taken that Bala Mallaiah
was the pattedar, thus, they are bound by their said representation and
cannot wriggle out of it. They have relied upon the decision in C.
Beepathuma v. Velasari Shankaranarayana Kadambolithaya AIR 1965 SC 241 on
the principle of approbate and reprobate as also the decision in Mumbai
International Airport (P) Ltd. v. Golden Chariot Airport (2010) 10 SCC 422
in which it has been observed that the contesting respondent has blown hot
and cold by taking inconsistent stands which is not permissible.
90. In fact, during the pendency of the partition suit with respect to
ancestral property of Late Nawab Jang, Hamid Ali Khan – defendant No.1 –
had alienated the property treating it as his own whereas it was obviously
subject to the right of other co-shares finally declared in the preliminary
decree. Bala Mallaiah and his successors have filed several proceedings,
civil suit of 1993 in which they have failed. Boddam Narsimha, nephew of
Bala Mallaiah also filed proceedings under the Act of 1950 for issuance of
ownership certificate by virtue of their being protected tenants which case
was also dismissed. Thus, the stand which was taken by appellants under the
protected Tenancy Act was not at all inconsistent and did not amount to
approbation and reprobation on the part of the heirs of Late Nawab Jung.
Land grabbing proceedings were also instituted by LRs. of Bala Mallaiah and
his brothers. The proceedings were dismissed and W.P. No.15577/2001 filed
before the High Court was also dismissed vide order dated 30.1.2002. After
having lost in the aforesaid proceedings, belatedly the objection had been
preferred in the final decree proceedings for partition. The conduct of
purchasers makes it clear that they instituted multifarious proceedings,
and took inconsistent stands which were not accepted by this Court in
Boddam Narsimha (supra). The appellants or their predecessors had not taken
inconsistent stands. They were clearly protected by doctrine of lis
pendens.
(xiii) In re : whether appellants are guilty of delay or laches :
91. It was also submitted that a preliminary decree recognized the rights
of the transferees to be adjudicated at the time of final decree
proceedings and no steps were taken by the legal heirs after passing of the
preliminary decree way-back in 1970 to implead them. The proceedings for
final decree were initiated in the year 1984. The appellants have not taken
prompt steps, as such they are not entitled to any indulgence from this
Court. Reliance has been placed upon Municipal Council, Ahmednagar v. Shah
Hyder Beig (2000) 2 SCC 48 to contend that any delay on the part of the
parties defeats the rights.
92. We are not impressed by any of the aforesaid submissions. The
preliminary decree passed in 1970 was clearly against the interest of the
purchasers as their vendor was not found to have the rights which was not
assailed by them. The preliminary decree attained finality in the year 1976
and proceedings for final decree taken in 1984 were within the period of
limitation. As a matter of fact, LRs. of Bala Mallaiah and his brother etc.
took steps in the year 1993 and onwards by filing successive cases as
enumerated above. There was no delay on the part of the appellants
defeating their rights. It was the respondents who having lost in the three
proceedings one after the other, raised objection in the year 2004 in the
final decree proceedings. What prevented them from doing so in the year
1993, has not at all been explained. Thus, it is they who are responsible
to delay in the final decree proceedings in a partition case instituted in
the year 1935 and the matter is still pending in the shape of instant
appeals before this Court.
(xiv) In re : the effect under the Urban Land Ceiling Act :
93. It was also submitted that under the Urban Land Ceiling Act
proceedings, the land was not shown to be belonging to the heirs of Late
Nawab Jung. The orders passed in urban land ceiling case have not been
placed on record. That apart, it was stated that the proceedings lapsed due
to repeal of Urban Land Ceiling Act. Be that as it may. The respondents are
purchasers from branch of Bala Mallaiah whose vendor was defendant No.1.
The property has further exchanged hands. Since the orders have not been
placed on record, in the aforesaid factual scenario, we decline to examine
the aforesaid proposition further and we were not apprised how the
purchasers could claim a better right than the one possessed by their
vendor. We leave it open to the State Government to examine the question of
ceiling and effect of the decision.
94. A compromise petition has been filed with respect to area 18 acres 25
guntas. As per the compromise the division of the property has to take
place between the appellants and the newly added respondent Nos.87 to 127.
Same was objected to by one of heirs. It will involve transfer of the
property, hence, we leave the parties to have resort to an appropriate
remedy in this regard. It is found not to be recordable in the form of
transaction in which it has been filed.
95. Resultantly, the appeals are allowed. Impugned judgment and decree
passed by the High Court is set aside. The final decree of the Trial Court
is restored. Costs of Rs.1,00,000/- to be paid within two months from
today.
…………………………J.
(Arun Mishra)
New Delhi; …………………...……..J.
March 21, 2017. (Amitava Roy)
