TaxTMI 
TaxTMI 
2017 (3) TMI 1924
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....h Agrawal, Abhinav Agrawal, Munjaal Bhatt, Rekha Pandey, Uttara Babbar, Akanksha Choudhary, Manoj Saxena, Ram Krishna, Vipin Kumar Jain, A. Ramesh, Syed Ahmad Naqvi, Srikant Navin M., R. Chandrachud, Shilpi Gupta, Ganni Krishna, S. Madhusudhan Babu, Ritu Bhalla, Raghav Gupta, Yajur Mittal, Nipun Saxena, Apoorv Tripathi, Abhishek Gupta, Rohini Musa, Zafar Inayat, Akanksha Kaur, Kailash Chand, T.V. Ratnam, Gaurav Agarwal, Wajid Ali Kamil, E. George Thomas, Ejaz Maqbool, T. Anamika, Ajay Choudhary, Manoj C. Mishra, Nikhil Swami, Prabha Swami, Archana Sahadeva and B. Ramana Murthy, Advs. JUDGMENT ARUN MISHRA, J. 1. Leave granted in S.L.P. (C) Nos. 23864-23865 of 2011. 2. In the appeals, the final decree which has been drawn up in a partition suit with respect to item No. 6 of Schedule 'B' pertaining to land admeasuring 68 acres 10 guntas comprised in survey Nos. 63, 68, 69 and 70 situated at village Madhapur, District Ranga Reddy, Hyderabad is in question. 3. The property was matruka property of Late Mohd. Nawab Jung who passed away on 25.4.1935. Civil Suit No. 82/1935 was instituted by Mohd. Hashim Ali Khan, son of Mohd. Nawab, in Darul Qaza City Court, Hyderabad, for par....
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....rties. The Plaintiff, and Defendant Nos. 2, 3 and 12 were also having 14/104th share each. Defendant Nos. 4 to 6, daughters of Nawab had 7/104th share in matruka properties. Nurunnisa Begum, widow of Late Nawab, Defendant No. 7 was entitled to 13/104th share in matruka properties. 4. Aggrieved by the preliminary decree for partition determining the shares to the aforesaid extent, the Plaintiff and legal heirs of Defendant No. 1 i.e. Defendant Nos. 23 to 25 and Defendant No. 27 preferred appeal in the year 1972 before the High Court. Cross-objections were also preferred by Defendant No. 6 - Shareefunnisa Begum. The High Court dismissed the appeals and allowed the cross-objections of Defendant No. 6 with respect to item No. 4 of Schedule 'A' property. The Plaintiff questioned the decision by way of filing LPA No. 199/1977 and the same was dismissed vide order dated 12.11.1976, the decision with respect to preliminary decree has attained finality. 5. Defendant No. 25 - daughter of Defendant No. 1 - filed IA No. 854/1984 for passing a final decree in terms of the preliminary decree passed in the partition suit. During the pendency of the final decree proceedings, an Advocate-....
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....9;B' Schedule property. The appeals were dismissed on 27.4.2007. Aggrieved thereby, Second Appeal No. 410/2008 was preferred. Appeal had been allowed by the impugned judgment and decree dated 15.4.2010. 7. Before the final decree could be passed in the case, civil suit being OS No. 294/1993 was filed for perpetual injunction by L.Rs. of Bala Mallaiah against Hashim Ali Khan and others on the basis of sale deed dated 23.11.1959. The suit was dismissed by Junior Civil Judge, Hyderabad West & South vide judgment and decree dated 8.6.1998. It was held that the Plaintiffs were not entitled to claim adverse possession over the suit Schedule property and that their purchase and possession was subject to the result of the partition suit, O.S. No. 42/1962. It was also held that the possession of the Plaintiff could not be said to be rightful possession and they could claim only to the extent of their vendor's share and not over the entire property, and thus, they were not entitled to the relief of injunction against the Defendants. As against the judgment and decree of the trial court, an appeal was preferred in the Court of Additional District Judge, NTR Nagar, Hyderabad and the s....
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.... 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-....
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.... Bala Mallaiah was a pattedar of the land, and it was necessary to avoid the sale deed in question by getting it cancelled in accordance with law within the period of limitation and that by virtue of adverse possession, the right and interest had been perfected by the purchasers. It was also submitted that even otherwise, the equities available to a purchaser ought to have been applied in the present case as the principle of equitable adjustment is applicable to Mohammedan Law and the disputed property ought to have been allotted to the share of Defendant No. 1 in order to adjust the equities without affecting the rights of other co-heirs. It was further urged that in view of the decision in Civil Suit No. 294/1993, various questions were left open to be agitated in the final decree proceedings. It was also submitted that in the judgment dated 24.11.1970 with regard to preliminary decree in para 93, purchasers were given the liberty to raise the question of equity in the final decree proceedings. Thus, the High Court has rightly interfered with the final decree with respect to the disputed property. Even if Section 52 of the T.P. Act is applicable, the transactions hit by lis pend....
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....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 variou....
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....to and they could not claim rights over the entire property; (iii) the plea of adverse possession was also negatived by the trial court on the ground that the purchase was during lis pendens and there was no pleading or evidence regarding adverse possession. 18. The judgment was affirmed in the first appeal vide judgment and decree dated 8.6.1988 passed by the Court of II Additional District Judge, NTR Nagar, Hyderabad in A.S. No. 72/1998. It was held that the sale deed was hit by doctrine of lis pendens. The first appellate court also held that the vendor of Bala Mallaiah namely, Hamid Ali Khan, Defendant 1, had no right to sell the entire dispute property to Bala Malliah as absolute owner. The Plaintiffs could claim right over the property to the extent of vendor of Bala Mallaiah. It was also held that the land grabbing case LGC No. 148/1996 was dismissed which order had attained finality and barred the present suit. Injunction could not be granted in view of the preliminary decree for partition which had been passed as it would tantamount to granting injunction against the decree-holders for enforcing their lawful decree. Being a purchaser lis pendens, it is open to the Plainti....
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....igh Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, p. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated: Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title. 25. We have gone into the above aspects in some detail so that when a question arises before the Courts as to whether an issue was earlier decided only incidentally or collaterally, the Courts could deal with the question as a matter of legal principle rather than on vague grounds. Point 1 is decided ac....
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....hich 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 L.Rs. and 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 ....
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....cause 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 ven....
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....he Custodian. Therefore, there was no necessity for the Plaintiff to file an application under Order 9 Rule 9 Code of Civil Procedure. 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 Order 9, Rule 9, Code of Civil Procedure, 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 as....
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....cability 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 and 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 ....
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.... 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. and 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 ....
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....this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder v. Monohur Mookerji (1887-88) 15 IA 97 where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations. (See Nilakant Banerji v. Suresh Chunder Mullick (1884-85) 12 IA 171 and Moti Lal v. Karrab-ul-Din (1896-97) 24 IA 170)' (Samarendra Nath case (supra) AIR p. 1445, para 16) 29. The aforesaid Section 52 of the Transfer of Property Act again came up for consideration before this Court in Rajender Singh v. Santa Singh AIR 1973 SC 2537 and Their Lordships with approval of the principles laid down in Jayaram Mudaliar v. Ayyaswami (1972) 2 SCC 200 reiterated: (Rajender Singh case (supra), SCC p. 711, para 15) 15. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisd....
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....ansferees pendente lite without leave of the court cannot as of right seek impleadment in the suit which was in the instant case pending for a very long time. In fact in para 10 of the judgment this Court has held that there is absolutely no Rule that the transferee pendente lite without leave of the court should in all cases contest the pending suit. In Sarvinder Singh v. Dalip Singh (1996) 5 SCC 539 it was observed in para 6 as follows: (SCC pp. 541-42, para 6) 6. Section 52 of the Transfer of Property Act envisages that: During the pendency in any court having authority within the limits of India ... of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. It would, therefore, be clear that the Defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise....
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....it. 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 and Ors. AIR 1937 PC 260, it was held: 2. It is clear that the question of the active prosecution of a suit is one of fact, but it was not suggested in either of the Courts in India that the Plaintiffs had not actively prosecuted the suit, and were consequently debarred from a....
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....a complete satisfaction thereof has not been rendered to the aggrieved party contesting the civil suit. It has been further held by this Court that it would be plainly impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail. wherein the factum of the alleged gift deed was not made known to the Court. This has been extrapolated in the case of Jagan Singh (dead) through L.Rs. v. Dhanwanti and Anr. (2012) 2 SCC 628 thus: 32. The broad principle underlying Section 52 of the TP Act is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed, as held in Krishanaji Pandharinath v. Anusayabai AIR (1959) Bom 475. In that matter the Respondent (original Plaintiff) had filed a suit for maintenance against her husband and claimed a charge on his house. The suit was dismissed on 15.7.1952 under Order 9 Rule 2, of the Code of Civil Procedure 1908, for non-payment of process fee. The husband sold the house immediately on 17.7.1952. The Respondent applied for re....
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.... decree or order, and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. 35. In the present case, it would be canvassed on behalf of the Respondent and the applicant that the sale has taken place in favour of the applicant at a time when there was no stay operating against such sale, and in fact when the second appeal had not been filed. We would however, prefer to follow the dicta in Krishanaji Pandharinath AIR 1959 Bom 475 to cover the present situation under the principle of lis pendens since the sale was executed at a time when the second appeal had not been filed but which came to be filed afterwards within the period of limitation. The doctrine of lis pendens is founded in public policy and equity, and if it has to be read meaningfully such a sale as in the present case until the period of limitation for second appeal is over will have to be held as covered Under Section 52 of the TP Act. 31. The doctrine of lis pendens would be applicable even to the proceedings in the nature of an appeal ....
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....vour of the Respondents that the suit itself had been dismissed on 15.12.1955 due to non-payment of costs for restoration; whereas it was not dismissed at all and the High Court has also held that the order dated 1.12.1955 was without jurisdiction. The said order has to be ignored and was in fact set aside by the High Court. Thus the suit was in fact pending and was wrongly treated as having been dismissed. The High Court has rightly held that it was never dismissed. Thus, in our opinion, the sale deed in question dated 23.11.1959 was executed during lis pendens and the High Court has erred in law in holding otherwise in the judgment impugned herein. (iii) In re: whether Section 52 of T.P. Act renders a transfer pendente litew 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....
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....he rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court." (Sanjay Verma v. Manik Roy (2006) 13 SCC 608, SCC p. 612, para 12.) 35. In Thomson Press (India) Ltd. v. Nanak Builders & Investors (P) Ltd. (2013) 5 SCC 397, this Court has laid down thus: 53. There is, therefore, little room for any doubt that the transfer of the suit property pendente lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the Plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent court may issue in the suit against the vendor. 36. In our opini....
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....ded as a final decision. The competence of the court is not in question here. What is, however, contended is that in a partition suit the only decision which can be said to be a final decision is the final decree passed in the case and that since final decree proceedings were still going on when the Amending Act came into force the first proviso was not available to the Appellants. It is contended on behalf of the Appellants that since the rights of the parties are adjudicated upon by the court before a preliminary decree is passed that decree must, in so far as rights adjudicated upon are concerned, be deemed to be a final decision. The word 'decision' even in its popular sense means a concluded opinion (see Stroud's Judicial Dictionary - 3rd ed. Vol. I, p. 743). Where, therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. The High Court has, however, observed: The mere declaration of the rights of the Plaintiff by the preliminary decree, would, in our opinio....
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.... he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree. 39. Moreover, it is provided in Section 97 of the Code of Civil Procedure 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 pr....
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.... the property constituting the subject-matter of the suit. The law simply postulates a condition that the alienation will, in no manner, affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court. The transferee cannot deprive the successful Plaintiff of the fruits of the decree if he purchased the property pendente lite. (Vide K. Adivi Naidu v. E. Duruvasulu Naidu (1995) 6 SCC 150, Venkatrao Anantdeo Joshi v. Malatibai (2003) 1 SCC 722, Raj Kumar v. Sardari Lal (2004) 2 SCC 601 and Sanjay Verma v. Manik Roy (2006) 13 SCC 608.) (vi) In re: whether Bala Mallaiah, his heirs and purchasers had perfected their right, title and interest by virtue of adverse possession? 41. The High Court has held that there was no lis pendens, and as such it was necessary to question the sale deed and for want of questioning the sale deed, the Plaintiffs had perfected their title by virtue of adverse possession. The same is clearly a perverse finding. Firstly, in the earlier civil suit of 1993 submission was raised with respect to adverse possession which was negatived. Secondly, in our opinion as we have hel....
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....nkatarayappa v. State of Karnataka (1997) 7 SCC 567.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128.] 12. A Plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina (Supra).) In P. Periasami v. P. Periathambi (1995) 6 SCC 523 this Court ruled that: (SCC p....
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....al 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: (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 S....
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.... (1) If there be no shares or Residuaries, the inheritance is divided amongst Distant Kindred. (2) If the only sharer be a husband or wife, and there be no relation belonging to the class of Residuaries, the husband or wife will take his or her full share, and the remainder of the estate will be divided among Distant Kindred. 46. Incidents of tenancy in common have been cited from Halsbury's Laws of England, 5th Edn., vol. 87 in which nature of such tenancy has been discussed before 1925 in para 220. In para 221 nature of such tenancy since 1925 has been discussed. It has been observed that tenants in common have several interests, where joint tenants, whether at law or in equity, have one interest. The tenants in common may be entitled to equitable shares in the land in unequal shares and for interests which may be unequal in duration; different shares would be subject to different limitations and the limitations may include entailed interests. No new entailed interests can be created either in real or personal property, but this does not affect any entailed interests created before 1.1.1997 considering the provisions of the Trusts of Land and Appointment of Trustees Act, 1....
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.... 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 and Ors. v. Mutsaddi and Ors. (1918)....
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....ion. 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 and 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 decease....
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....ablished, here be said to be a payment on behalf of all so as to extend period of limitation as against all. We are thus of the considered view that the High Court was right in confining the extension of limitation on payment of a part of debt only against Defendant-Respondent 2, proportionate to his share of the estate devolved on him which was one-fourth. We are further of the view that the High Court was right in holding the suit against other co-heirs to be barred by limitation relating to their shares of the debt. This Court has also laid down that in that case payment made on account of debt by Defendant-Respondent 2 as an independent debtor, and not as an agent, express or implied, on behalf of other co-heirs, in the facts established, could not be said to be a payment on behalf of all. 51. This Court again in Kasambhai Sheikh v. Abdulla Kasambhai Sheikh (2004) 13 SCC 385 has held that succession in Mohammedan Law is in specific shares as tenants in common. 52. It was observed in Ram Awalamb v. Jata Shankar AIR 1969 All. 526 that a joint tenancy connotes unity of title, possession, interest and commencement of title; in tenancy in common there may be unity of possession a....
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....after contest, is part of the processual law of that system and is not based on the ground that a single heir, if he happens to be in possession of the estate of the deceased, represents the rest of the heirs for the purposes of administration generally. The ground on which a decree against one of the heirs, in such circumstances, is treated as res judicata is, as stated in the books, that the decree in such cases is, in law, against the deceased and not against the particular heir who is made Defendant in the suit. xxx xxx xxx So far as voluntary alienations are concerned, which alone form the subject-matter of reference, the Muhammadan Law is clear that one of the heirs of a deceased person is not competent to bind the other heirs by his acts, Spencer, J. -- I agree with the judgment of Mr. Justice Abdur Rahim just now pronounced. Srinivasa Aiyangar, J.-- I agree. In the absence of any right in one of the heirs to represent the co-heirs, one of several co-heirs can only deal with his or her interest in the ancestor's property inherited by them. My learned brother has shown that there is nothing in the Muhammadan Law giving such a right to one of the co-heirs who may h....
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.... co-sharers mortgages his undivided share in some of the properties held jointly by them, the mortgagee takes the security subject to the right of the other co-sharers to enforce a partition and thereby to convert what was an undivided share of the whole into a defined portion held in severalty. If the mortgage, therefore, is followed by a partition and the mortgaged properties are allotted to the other co-sharers, they take those properties, in the absence of fraud, free from the mortgage, and the mortgagee can proceed only against the properties allotted to the mortgagor in substitution of his undivided share. This was the view taken by the Board in Byjnath Lall v. Ramoodeen Chowdry (1874) LR 1 Ind. App. 106. In that case the partition was made by the Collector under Regulation XIX of 1814 (Bengal), and the mortgagee was seeking to enforce his remedy not against the properties mortgaged to him, but against the properties which had been allotted to the mortgagor in lieu of his undivided share; but the Board held that not only he had a right to do so, but that it was in the circumstances of the case his sole right, and that he could not successfully have sought to charge any other ....
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..... v. Dwarkamal and Ors. AIR 1922 Sind 41 has also been referred to, wherein referring to the case of Mangaldas v. Abdul Razak (1916) 16 Bombay L.R. 224, it has been observed that the notions of joint family, joint family property and joint family business are utterly unknown to Mohammedan Law. 58. A decision in Jan Mahomed v. Dattu Jaffer (1913) 38 Bombay 449 has also been referred to and it has been held that Mohammedans under their own law are never joint in estate whether they live together or whether they do not. On death of a Muslim his heirs at once become vested with the shares to which the Islamic Law entitles them. They have not to wait until the property is divided by metes and bounds. It has also been observed that sometime an error is caused by application of Hindu law to the case of Mohammedan law. It has also been further observed that a Mohammedan heir is not a co-parcener. He has not merely a right to a defined and immediate share in each portion of the estate but if any portion of the estate is in any case marked off and divided from the rest of the estate, he has a right to an immediate share in that portion. 59. Reliance has also been placed upon the decision i....
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....itance. That law was founded by the Prophet upon republican principles, at a time when the modern democratic conception of equality and division of property was unknown even in the most advanced countries of Europe. It provides that, upon the death of an owner, his property is to be divided into numerous fractions, according to extremely rigid rules, so rigid as to practically exclude all power of testamentary disposition, and to prevent any diversion of the property made even with the consent of the heirs, unless that consent is given after the owner's death, when the reason is, not that the testator had power to defeat the law of inheritance, but that the heirs, having become owners of the property, could deal with it as they liked, and could therefore ratify the act of their ancestor. No Muhammadan is allowed to make a will in favour of any of his heirs, and a bequest to a stranger is allowed only to the extent of one-third of the property. Under these circumstances, to allow the Muhammadan Law of inheritance, and to disallow the Muhammadan Law of pre-emption, would be to carry-out the law in an imperfect manner; for the latter is in reality the proper complement of the form....
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....ight when occasion arose. It is not pretended that purchaser made any reference to non-alienating co-heirs before his purchase. It follows that Plaintiffs have not lost their preferential right of purchase by sale and are entitled to have property conveyed to them. 63. On the basis of the aforesaid decisions with respect to the preferential right it is sought to be contended on behalf of the Appellants that there is no equity in favour of the purchaser, but under Muslim law co-heirs have the right of preferential purchase and in this case even it is not pretended by the purchaser that he had offered to the co-heirs before purchasing the same vide sale deed dated 23.11.1959. We decline to accept the submission as the property in question is capable of division and it is not a small fraction of property, but partition is of huge property, and as the property admittedly has exchanged several hands by now, we are not inclined to invalidate the sale deed executed by Defendant No. 1 in favour of Bala Mallaiah even to the extent of his share i.e. 14/104th on the basis of principle of pre-emption of Muslim law. It would be too late and iniquitous to invoke the principle of pre-emption in ....
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.... ground that it dealt with one specific plot, or in expressing the opinion that such a sale deed is only voidable at the opinion of a joint owner within six years of the transfer. The whole of the plaint shows that the Plaintiffs claimed to be owners of 12 out of 24 sihams in the property which had been left by Mt. Wasiunnisa. They also claim to have been in joint possession with Mt. Nabiunnissa although the latter's name alone had been recorded in the revenue papers. Their cause of action was that Mt. Nabiunnissa had transferred part of the property and whether their grievance was that she had transferred more than her proper share or that she had transferred a specific part of the property which was not in her own exclusive ownership, it is quite clear that the Plaintiffs' object was to dispel the cloud on their title to 12/24 sihams of the whole property which had arisen owing to the sale deeds of 1920 and 1922. It has not been clearly proved that the Plaintiffs have been in joint possession of the whole of the property and they have therefore paid the Court fees necessary for a decree for possession. What is wanted, however, is a declaration that they are entitled to jo....
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....he right of one of shareholders being tenants-in-common for acting on behalf of others. While discharging debt also they act as independent debtors. A co-sharer cannot create charge on property of co-heir. The right of Muslim heir is immediately defined in each fraction of estate. Notion of joint family property is unknown to Muslim law. Co-heir does not act as agent while discharging debt but is an independent debtor not as co-debtor or joint debtor. Co-sharers are not defined as joint contractors, partners, executors or mortgagees. (viii) In re: whether the purchaser has a right to claim equity for allotment of Item No. 6 of Schedule 'B' property in final decree proceedings in suit for partition? If yes, to what extent? 69. It was contended on behalf of the Respondents that in respect of transactions which are hit by Section 52 can be looked into at the time of final decree proceedings. However, preliminary decree in the instant case identifies different modes and manners under which equities could be adjusted at the time of final decree proceedings. Reliance has been placed upon following paragraphs 81 and 93 of the judgment of the trial court while passing the prelimi....
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....all 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 and Ors. (1972) 2 SCC 20....
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....and 6. It is not in dispute that the first Respondent P. Mohan has got an undivided share in the said suit property. Because of the purchase by the Appellants of the undivided share in the suit property, the rights of the first Respondent herein in the suit or proceeding will not affect his right in the suit property by enforcing a partition. Admittedly, the Appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the Appellants are necessary and proper parties to the suit, which is now pending before the trial court. We also make it clear that we are not concerned with the other suit filed by the mortgagee in these proceedings. 71. Though it is true that purchasers can work out the equity in the final decree proceedings but it is only to the legally permissible extent and not beyond that. The preliminary decree declared the shares in item No. 6 of Schedule 'B' property in specified shares. The preliminary decree is binding and even otherwise the sale was valid only to the extent of the share of Defendant No. 1 i.e. 14/....
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....rtition being filed against him. The court further observed that: 11. A co-owner or a tenant-in-common can always file a suit for partition and have his share defined and delivered to him. The Court in effecting a partition is bound to adjust all the equities existing between the parties and arising out of their relation to the property to be divided. The equities to be adjusted would involve every matter relating to the common property with reference to which one tenant-in-common may equitably demand anything of the other such as contribution for repairs or improvements to the common property, accounting for waste of the common property and the enforcement of any lien or charge which a tenant-in-common may claim against the other in respect of any matter concerning the common property. In regard to the method of division the Court is not bound to allot an aliquot share of each species of property to each of the parties. It is enough if each tenant-in-common has an equal share of the whole. This is subject to the other equities which may have to be adjusted. In this case the Plaintiff is admittedly entitled to a half share in the estate but she is not able to get her due and legi....
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....lege that they were ignorant of the institution of the suit but that fact is in my opinion immaterial as they cannot get higher rights than their alienors, i.e. an alienee from a co-tenant takes his interest subject to the equities of the other co-tenants. But this is a case in which, if the alienees were not parties, they will be affected by the doctrine of lis pendens. The title to the immovable property is specifically in question within the meaning of Section 52 of the Transfer of Property Act. 14. A question of title has been raised, namely whether the property in the suit belonged solely to Abdul Rahiman or was the joint property of Defendants 1 to 3 and Abdul Rahiman. This issue would be quite sufficient to attract the operation of lis pendens. No doubt a suit for administration has been held not to attract the operation of lis pendens until a preliminary decree for administration has been passed. But in this case the Plaintiff has also prayed for partition and delivery of her share and for an account on the basis that Defendants 1 to 3 have wrongfully possessed themselves of her father's property and misappropriated the bulk of it and this suit cannot therefore be vie....
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....efendant No. 1. 74. Reliance has also been placed on Tikam Chand Lunia v. Rahim Khan Ishak Khan and 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 and Anr. (2010) 14 SCC 370 in which it has been laid down that in the case of pendente lite transfer of property during the pendency of the partition suit held by the other co-owner, sale pendente lite is not void but subject to the decree in partition suit. The title of the vendee would depend upon the decision in the partition suit in regard to the title of vendor. If the vendor has title only in respect of a part of the property, vendee's title would be saved only to that extent. The sale of the remaining portion which fell to the share of other co....
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....ings 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 t....
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....d 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 and Ors. (1972) 2 SCC 200, it has been laid down thus: 47. It is evident that the doctrine, as stated in Section 52, applies not merely to actual transfers or rights which are subject-matter of litigation but to other dealings with it "by any party to the suit or proceeding, so as to affect the right of any other party thereto". Hence, it could be urged that where it is not a party to the litigation but an outside agency, such as the tax collecting authorities of the Government, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation, the Court may bind them to their own acts. All these are matters which the Court could have p....
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.... to us to be well established but we may refer to White and Tudor's Leading cases on Equity (9th Edn., p. 238), where it is stated: Although, in cases of contract between parties, equity will often relieve against penalties and forfeitures, where compensation can be granted, relief can never be given against the provisions of a statute. 46. In P.M. Latha v. State of Kerala (2003) 3 SCC 541, it has been opined: (SCC p. 546, para 13) 13. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law. 47. In Raghunath Raj Bareja v. Punjab National Bank (2007) 2 SCC 230, the Court observed that it is well settled that when there is a conflict between law and equity, it is the law which has to prevail. The Court further ruled that equity can supplement the law, but it cannot supplant or override it. In this context, reliance was also placed upon Madamanchi Ramappa v. Muthaluru Bojjappa AIR 1963 SC 1633, Laxminarayan R. Bhattad v. State of Maharashtra (2003) 5 SCC 413, Nasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577, E. Palanisamy v. Palanisamy (2003) 1 SCC 123, and India House v. Kishan N. Lalwani (2003)....
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....g to catch last straw. We are not at all impressed by the submission, and consequently the same is repelled, more so considering the provisions of the Mohammedan Law that sale beyond the extent of the share of the vendor in specific property was void. (ix) In re: whether sale was for legal necessity, and thus binding: 83. It was submitted that sale was for legal necessity for benefit of estate. It has been averred in the objections preferred by the purchasers that sale was made by Hamid Ali Khan, Defendant No. 1, for payment of land revenue. Thus it was contended that the payment of land revenue has enured for the benefit of the entire estate. Thus sale would be valid and binding on co-heirs. Except making the aforesaid bald statement, nothing has been placed on record to indicate that the sale was for payment of land revenue. On the other hand, when we peruse the sale deed, recital of it makes it clear that the sale was effected by Hamid Ali Khan for his 'personal necessity'. He had not executed the sale deed for payment of land revenue as its recital is otherwise which would prevail. Nor the sale deed had been executed in the fiduciary capacity acting on behalf of co-sh....
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.... the High Court on 16.4.2001 and the same was questioned before this Court which dismissed appeal in Boddam Narsimha (supra). 85. However, on behalf of the Respondents it has been submitted that Bala Mallaiah has become pattedar vide conveyance deed dated 23.11.1959. The case set up by Bala Mallaiah that he was jointly cultivating the suit land along with his two brothers Komaraiah and Agaiah was found to be meritless and negatived for the period between 1952 and 1959. On 1.1.1973 when the notification came to be issued, Bala Mallaiah was not the protected tenant. The case set up by Boddam Narsimha regarding protected tenancy and issuance of ownership certificate was negatived. This Court noted that even for the sake of arguments if it is accepted that Bala was a protected tenant on 12.2.1956, he still became a pattedar vide conveyance deed dated 23.11.1959, and in any event assumed protected tenancy did not continue up to 1.1.1973, and therefore, the Appellant was not entitled to ownership certificate Under Section 38E. Section 38E of the Act of 1950 had no application to the facts of the case. This Court has discussed the matter thus: 13. Bala was a kaul who had taken an annua....
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....refore, 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....
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....on 47 of the 1950 Act. Any person affected by any entry in such record of rights under Regulation 4 of the Hyderabad Record of Rights in Land Regulations, 1948 was required to question the same within two years. Bala Mallaiah was in possession. Thus, the decree which has been passed ignoring the rights of the pattedar is bad in law. In our opinion, admittedly, it was a matruka property of Late Nawab Jung. The suit for partition was pending w.e.f. 1935 and mutation simpliciter in the name of Hamid Ali Khan conferred no right, title or interest. The mutation is only for the fiscal purpose and is not decisive of right, title or interest in the property which is within the domain of the civil court. The grant of patta from 1953 onwards by Hamid Ali Khan to Bala Mallaiah was on yearly basis and the execution of sale deed and the grant of land on yearly basis were during lis pendens. Thus, the transactions are covered by the doctrine of lis pendens and were clearly subject to the outcome of the pending partition proceedings. In Venkatrao Anantdeo Joshi and Ors. v. Malatibai and Ors. (2003) 1 SCC 722, a question came up for consideration assuming that pending suit for partition, a batai p....
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....t 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 Code of Civil Procedure specifically provides that where any party aggrieved by the preliminary decree does not appeal from the said decree, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. In view of the aforesaid, we find no force in the submissions raised on behalf of the Respondents based upon pattedar rights as it was subject to Section 52 of T.P. Act and the same is hereby rejected. (xi) In re: what is the effect of decision of this Court and High Court with respect to final decree proceedings in Item No. 2 of Schedule 'B' property: 88. With respect to item No. 2 of Plaint 'B' Schedule property one Padmini Co-operative Housing Society Ltd. filed an objection in the final decree proceedings. The trial court vide order dated 29.3.1996 rejected the objection which was preferred. First appeal preferred wa....
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....n in C. Beepathuma v. Velasari Shankaranarayana Kadambolithaya AIR 1965 SC 241 on the principle of approbate and reprobate as also the decision in Mumbai International Airport (P) Ltd. v. Golden Chariot Airport (2010) 10 SCC 422 in which it has been observed that the contesting Respondent has blown hot and cold by taking inconsistent stands which is not permissible. 90. In fact, during the pendency of the partition suit with respect to ancestral property of Late Nawab Jang, Hamid Ali Khan - Defendant No. 1 - had alienated the property treating it as his own whereas it was obviously subject to the right of other co-shares finally declared in the preliminary decree. Bala Mallaiah and his successors have filed several proceedings, civil suit of 1993 in which they have failed. Boddam Narsimha, nephew of Bala Mallaiah also filed proceedings under the Act of 1950 for issuance of ownership certificate by virtue of their being protected tenants which case was also dismissed. Thus, the stand which was taken by Appellants under the protected Tenancy Act was not at all inconsistent and did not amount to approbation and reprobation on the part of the heirs of Late Nawab Jung. Land grabbing pr....