Page 1

1

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.

Page 2

2

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

Page 3

3

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 7/104 th

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

Page 4

4

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

Page 5

5

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.

Page 6

6

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

Page 7

7

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

Page 8

8

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

Page 9

9

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

Page 10

10

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

Page 11

11

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:-

(i) Whether the decision in Original Suit No.294 of 1993 operates as  res

judicata, if yes to what extent?

(ii) 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?

(iii) Whether section 52 of T.P. Act renders a transfer pendente lite void ?

(iv) What is the effect of preliminary decree for partition and the extent to

which it is binding ?

(v) Whether it was necessary to file a suit for cancellation of sale deed dated

23.11.1959?

Page 12

12

(vi) Whether Bala Mallaiah, his heirs and purchasers had perfected their right,

title and interest by virtue of adverse possession?  

(vii) 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?

(viii) 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 ?   

(ix) Whether sale was for legal necessity, and thus binding ?

(x) What is the effect of proceedings under the Tenancy Act, 1950 ?

(xi) 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 ?  

(xii) Whether there is waiver of right by appellants ?   

(xiii) Whether appellants are guilty of delay or laches ?  

(xiv) 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

Page 13

13

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.

Page 14

14

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

Page 15

15

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

Page 16

16

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

Page 17

17

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.”

Page 18

18

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

Page 19

19

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:

Page 20

20

(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

Page 21

21

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

Page 22

22

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

Page 23

23

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

Page 24

24

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.

Page 25

25

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

Page 26

26

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

Page 27

27

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

Page 28

28

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

Page 29

29

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

Page 30

30

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

Page 31

31

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

Page 32

32

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

Page 33

33

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

Page 35

35

“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

Page 36

36

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

Page 37

37

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

Page 38

38

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

Page 39

39

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

Page 40

40

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

Page 41

41

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 :

Page 43

43

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

Page 44

44

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

Page 45

45

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

Page 46

46

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

Page 47

47

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.””

Page 48

48

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 1/3 rd 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:

Page 49

49

(1) “Sharers” are those who are entitled to a prescribed share of the inheritance;

(2)  “Residuaries” are those who take no prescribed share, but succeed to the “residue” after the claims of the sharers are satisfied;

(3) “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.

Page 50

50

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

Page 51

51

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

Page 52

52

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

Page 53

53

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

Page 54

54

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

Page 55

55

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

Page 56

56

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

Page 57

57

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

Page 58

58

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

Page 59

59

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.”

Page 60

60

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

Page 61

61

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

Page 62

62

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

Page 63

63

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

Page 64

64

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

Page 65

65

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

Page 66

66

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

Page 67

67

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 14/104 th

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.

Page 68

68

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

Page 69

69

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

Page 70

70

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

Page 71

71

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

Page 72

72

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

Page 73

73

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

Page 74

74

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.

Page 75

75

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

Page 76

76

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

Page 77

77

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

Page 78

78

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

Page 79

79

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

Page 80

80

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

Page 81

81

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.

Page 82

82

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

Page 83

83

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

Page 84

84

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)

Page 85

85

“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

Page 86

86

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

Page 87

87

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

Page 88

88

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

Page 89

89

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

Page 90

90

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

Page 91

91

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

Page 92

92

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

Page 93

93

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

Page 94

94

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.

Page 95

95

(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

Page 96

96

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.

Page 97

97

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.

Page 98

98

(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

Page 99

99

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

Page 100

100

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)    

Page 101

101