TaxTMI 
TaxTMI 
2017 (3) TMI 1924
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....mar, Anjani Aiyagari, M.V. Ramana Rao, Mahesh 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 Moh....
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.... Khan, was having only 14/104th share in matruka properties. The Plaintiff, and Defendant Nos. 2, 3 and 12 were also having 14/104th share each. Defendant Nos. 4 to 6, daughters of Nawab had 7/104th share in matruka properties. Nurunnisa Begum, widow of Late Nawab, Defendant No. 7 was entitled to 13/104th share in matruka properties. 4. Aggrieved by the preliminary decree for partition determining the shares to the aforesaid extent, the Plaintiff and legal heirs of Defendant No. 1 i.e. Defendant Nos. 23 to 25 and Defendant No. 27 preferred appeal in the year 1972 before the High Court. Cross-objections were also preferred by Defendant No. 6 - Shareefunnisa Begum. The High Court dismissed the appeals and allowed the cross-objections of Defendant No. 6 with respect to item No. 4 of Schedule 'A' property. The Plaintiff questioned the decision by way of filing LPA No. 199/1977 and the same was dismissed vide order dated 12.11.1976, the decision with respect to preliminary decree has attained finality. 5. Defendant No. 25 - daughter of Defendant No. 1 - filed IA No. 854/1984 for passing a final decree in terms of the preliminary decree passed in the partition suit. During ....
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....urchasers from them with respect to item No. 6 of plaint 'B' Schedule property. The appeals were dismissed on 27.4.2007. Aggrieved thereby, Second Appeal No. 410/2008 was preferred. Appeal had been allowed by the impugned judgment and decree dated 15.4.2010. 7. Before the final decree could be passed in the case, civil suit being OS No. 294/1993 was filed for perpetual injunction by L.Rs. of Bala Mallaiah against Hashim Ali Khan and others on the basis of sale deed dated 23.11.1959. The suit was dismissed by Junior Civil Judge, Hyderabad West & South vide judgment and decree dated 8.6.1998. It was held that the Plaintiffs were not entitled to claim adverse possession over the suit Schedule property and that their purchase and possession was subject to the result of the partition suit, O.S. No. 42/1962. It was also held that the possession of the Plaintiff could not be said to be rightful possession and they could claim only to the extent of their vendor's share and not over the entire property, and thus, they were not entitled to the relief of injunction against the Defendants. As against the judgment and decree of the trial court, an appeal was preferred in the Cour....
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.... 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 ....
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....a) is binding in which foundational basis for the judgment was the fact that Bala Mallaiah was a pattedar of the land, and it was necessary to avoid the sale deed in question by getting it cancelled in accordance with law within the period of limitation and that by virtue of adverse possession, the right and interest had been perfected by the purchasers. It was also submitted that even otherwise, the equities available to a purchaser ought to have been applied in the present case as the principle of equitable adjustment is applicable to Mohammedan Law and the disputed property ought to have been allotted to the share of Defendant No. 1 in order to adjust the equities without affecting the rights of other co-heirs. It was further urged that in view of the decision in Civil Suit No. 294/1993, various questions were left open to be agitated in the final decree proceedings. It was also submitted that in the judgment dated 24.11.1970 with regard to preliminary decree in para 93, purchasers were given the liberty to raise the question of equity in the final decree proceedings. Thus, the High Court has rightly interfered with the final decree with respect to the disputed property. Even....
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....uated at village Madhapur in erstwhile West Taluk, Hyderabad district now known as Serilingampally Mandal. 15. It was averred in the plaint that Hamid Ali Khan had sold the land to Bala Mallaiah by sale deed dated 23.11.1959 after obtaining due permission under the Andhra Pradesh Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as 'the Act of 1950'). Though the land was purchased in the name of Bala Mallaiah but it was his joint family property along with two brothers, namely, Komaraiah and Agaiah. Bala Mallaiah died in the year 1975. His undivided 1/3rd share devolved upon Plaintiff Nos. 1 and 2. Plaintiff Nos. 3 and 4 are sons of Plaintiff No. 1 and Plaintiff No. 5 is the son of Plaintiff No. 2. Komaraiah, brother of Bala Mallaiah also died and his 1/3rd interest had devolved upon Plaintiff Nos. 6 and 7. Agaiah - Plaintiff No. 8 is the brother of Bala Mallaiah and Plaintiff Nos. 9 to 12 are his sons. It was further averred that the Plaintiff entered into a developer's agreement with respect to residential plots with M/s. Surya Land Developers & Promoters with respect to 13 acres 17 guntas forming part of survey No. 68 and 12 acres 31 guntas in s....
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.... deed on the ground that they were not parties to the partition suit. It was also held that whatever their vendors would get in the suit for partition, to that extent they would be entitled to and they could not claim rights over the entire property; (iii) the plea of adverse possession was also negatived by the trial court on the ground that the purchase was during lis pendens and there was no pleading or evidence regarding adverse possession. 18. The judgment was affirmed in the first appeal vide judgment and decree dated 8.6.1988 passed by the Court of II Additional District Judge, NTR Nagar, Hyderabad in A.S. No. 72/1998. It was held that the sale deed was hit by doctrine of lis pendens. The first appellate court also held that the vendor of Bala Mallaiah namely, Hamid Ali Khan, Defendant 1, had no right to sell the entire dispute property to Bala Malliah as absolute owner. The Plaintiffs could claim right over the property to the extent of vendor of Bala Mallaiah. It was also held that the land grabbing case LGC No. 148/1996 was dismissed which order had attained finality and barred the present suit. Injunction could not be granted in view of the preliminary decree for part....
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....sts above-referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, p. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated: Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title. 25. We have gone into the above aspects in some detail so that when a question arises b....
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....ssues 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 fo....
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....tion. But such cases, are the exception to the normal Rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the Plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. 22. It was submitted on behalf of Respondents that the findings in O.S. No. 294/1993 do not operate as res judicata as it was left ultimately to raise the objections in the final decree proceedings. We are unable to accept the aforesaid submission as there was clear inability to grant injunction and the submission of the Plaintiffs that they were having title on entire land on the basis of sale deed dated 23.11.1959, had been negatived. It was found that Bala Mallaiah could have purchased only the share of his vendor Hamid Ali and not the entire disputed property and the p....
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.... 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 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....
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....rovides as to transfers lis pendens, the same would prevail and nothing in Section 52 of T.P. Act shall be deemed to affect any such rule. However, we have not been shown any such Rule of Mohammedan law containing provision as to lis pendens and thus, in the absence whereof the provisions of Section 52 T.P. Act would be attracted. The submission as to non-applicability of Section 52 of T.P. Act to Mohammedan law is hereby rejected. 25. It was submitted on behalf of the Respondents that the sale deed had been executed after dismissal of the suit on 16.12.1955 in terms of the order dated 1.12.1955 as such doctrine of lis pendens was not attracted. Thus, it was submitted that between 15.12.1955 and 23.1.1962 no suit was pending. Reliance has been placed on a decision in Bhutnath Das 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. Tho....
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.... 27. It was submitted on behalf of the Appellants that the sale was subject to the doctrine of lis pendens Under Section 52 of the T.P. Act. It was further submitted that the said provision is clear and unambiguous and the statutory explanation to the provision makes it clear that the pendency of the suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in the court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a decree or an order and complete satisfaction of order or discharge of such order or decree has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof. Thus, the transfer if any made in contravention of Section 52 renders it subservient to the rights of the parties in litigation so that the rights would eventually be determined in a suit. Thomson Press (India) Ltd. v. Nanak Builders and Investors Pvt. Ltd. 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 ....
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.... of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact that the agreement of 8-6-1932, had not been registered. 28. In Kedar Nath Lal v. Ganesh Ram AIR 1970 SC 1717, this Court referred the earlier decision in Samarendra Nath Sinha v. Krishna Kumar Nag AIR 1967 SC 1440 and observed: (Kedar Nath Lal case (supra), SCC p. 792, para 17) 17. ... '16. ...The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder v. Monohur Mookerji (1887-88) 15 IA 97 where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations. (See Nilakant Banerji v. Suresh Chunder Mullick (1884-85) 12 IA 171 and Moti Lal v. Karrab-ul-Din (1896-97) 24 IA 170)' (Samarendra Nath case (supra) AIR p. 1445, ....
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....nce 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 wh....
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....thin the meaning of the proceedings. The legislative intent behind the amendment of Section 52 was not only to cover the suit but also to cover appeals and proceedings and same would include all applications/appeals under the Code of Civil Procedure. 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 ....
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.... of the alleged gift deed executed in favour of the second Defendant by the deceased first Defendant in respect of the Schedule 'B' property has been further examined by us and the same is hit by Section 52 of the Transfer of Property Act, 1882, in the light of the decision of this Court in the case of Jagan Singh v. Dhanwanti (2012) 2 SCC 628, wherein this Court has laid down the legal principle that Under Section 52 of the Transfer of Property Act, 1882, the 'lis' continues so long as a final decree or order has not been obtained from the Court and a complete satisfaction thereof has not been rendered to the aggrieved party contesting the civil suit. It has been further held by this Court that it would be plainly impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail. wherein the factum of the alleged gift deed was not made known to the Court. This has been extrapolated in the case of Jagan Singh (dead) through 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....
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....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 di....
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....s, by order dated 1.12.1955 the suit stood dismissed, cannot be accepted, as the order was non est in the eye of law. It was an illegal order of treating a pending suit as having been dismissed. No legal fiction can be created so as to treat the suit as having been dismissed when in fact it had not been dismissed at all and as a matter of fact suit had not been dismissed on 8.1.1955. Subsequent order or imposition of costs for its restoration was non est and illegal and was rightly set aside by the High Court. When suit had not been dismissed at all in the eye of law, it is to be treated as pending only. No legal fiction can be created in favour of the Respondents that the suit itself had been dismissed on 15.12.1955 due to non-payment of costs for restoration; whereas it was not dismissed at all and the High Court has also held that the order dated 1.12.1955 was without jurisdiction. The said order has to be ignored and was in fact set aside by the High Court. Thus the suit was in fact pending and was wrongly treated as having been dismissed. The High Court has rightly held that it was never dismissed. Thus, in our opinion, the sale deed in question dated 23.11.1959 was executed d....
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....uring 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 propert....
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....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....
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....ts which contemplate the making of two decrees-a preliminary decree and a final decree-the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree. 39. Moreover, it is provided in Section 97 of the Code of Civil Procedure as under: 97. Appeal from final decree where no appeal from preliminary decree.--Where any party aggrieved by ....
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....ndente nihil innovetur (during a litigation nothing new should be introduced). This doctrine stood embodied in Section 52 of the Transfer of Property Act, 1882. The principle of "lis pendens" is in accordance with the equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. A litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. However, it must be clear that mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The law simply postulates a condition that the alienation will, in no manner, affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court. The transferee cannot deprive the successful Plaintiff of the fruits of the decree if he purchased the property pendente lite. (Vide K. Adivi Naidu v. E. Duruvasulu N....
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....another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, ....
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...., the property was ancestral property of Late Nawab Jung. It is not in dispute that Nawab Jung died intestate. The legal heirs of Late Nawab Jung succeeded to the estate as tenants in common and not as joint-tenants. The heirs succeeded to the estate in specific shares. In Outlines of Muhammadan Law by Asaf A.A. Fyzee, 4th Edn, it has been observed that general principles of Islamic jurisprudence do not contemplate administration, but a mere distribution of the estate as per the principles laid down in Sirajiyyah. As per the Sunni law, a testator can leave a legacy to an heir only to the extent of 1/3rd of estate and not exceeding that. After death of a person the first step is to make payment of funeral expenses, debts and legacies. Thereafter, distribution of estate among legal heirs, firstly to sharers, in the absence thereof, to residuaries, and in case of absence of both to distant kindred. As per Mulla, distribution takes place in the following manner: 61. Classes of heirs There are three classes of heirs, namely, (1) Sharers, (2) Residuaries, and (3) Distant Kindred: (1) "Sharers" are those who are entitled to a prescribed share of the inheritance; ....
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.... Allah directs you concerning your children (their inheritance), to the male a portion equal to that of two females.... They ask thee for a legal decision. Say: Allah directs (thus) about those who leave no descendants or ascendants as heir. If it is a man that dies, leaving a sister but no child, she shall have half the inheritance. If (such a deceased was) a woman who left no child, her brother takes her inheritance... If they are brothers and sisters, (they share), the male having twice the share of the female. The first two verses are clear proof that blood relations are entitled to inherit. Blood relations definitely include residuaries (the male agnates)." [see, Mohammad Mustafa Ali Khan, Islamic Law of Inheritance, 1st edition.] 45. The "distant kindred" is dealt with in Section 67 in Mulla's Principles of Mahomedan Law thus: 67. Distant Kindred (1) If there be no shares or Residuaries, the inheritance is divided amongst Distant Kindred. (2) If the only sharer be a husband or wife, and there be no relation belonging to the class of Residuaries, the husband or wife will take his or her full share, and the remainder of the estat....
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....ras School, power of alienation is different. A co-parcener cannot alienate without consent of other co-parceners in Banaras School of Mitakshara Law. In Bombay School of Mitakshara Law, a co-parcener can alienate for value his undivided interest or his co-parcenery property without consent of other co-parceners. However in the area which is governed by the Banaras School of Mitakshara Law, sale of his undivided share in a co-parcenery property without consent of other co-parceners is voidable at the instance of non-alienating co-parcener. 47. A Full Bench of the M.P. High Court in Ramdayal v. Manaklal AIR 1973 MP 222 has made certain observations with respect to applicability of Mitakshara law as administered in Bombay, Madras and M.P. A co-parcener may sell, mortgage or otherwise alienate for value his undivided interest in co-parcenery property without the consent of other co-parceners. Decision in Ramdayal's case (supra) has been explained by a decision of another Full Bench of the M.P. High Court in Diwan Singh v. Bhaiya Lal AIR 1997 MP 210. It has been held that in Madhya Bharat, Vindhya Pradesh etc. of Madhya Pradesh, Banaras School of Hindu Law applies. Thus the appl....
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.... and Ors. (1971) 1 SCC 597, this Court has laid down that Muslim heirs are tenants in common and they succeed to their definite fraction of every part of estate of the deceased. The shares of the heirs are definite and known before actual partition. Therefore, on partition of the properties there is division by metes and bounds in accordance with specific shares of each sharer which have already been determined by law. This Court has observed thus: 20. The cause of action for partition of properties is said to be a "perpetually recurring one" (See Mansaram Chakravarty and Ors. v. Ganesh Chandra Chakravarty and 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 and Ors. (1990)....
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.... 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 d....
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.... 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 purpos....
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.... 55. In Mohammad Afzal Khan, Haji v. Abdul Rahman, Malik and 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) LR 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 parti....
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....in circumstances. Reliance has also been placed on a decision of the High Court of Madhya Pradesh in Abdul Karim and Ors. v. Hafij Mohammad and Ors. (1989) MP LJ 178, in which it had been held that suit for partial partition was maintainable. Reference has also been made to the case of A.J. Pinto and Anr. v. Smt. Sahebbi Kom Muktum Saheb (Dead) by L.Rs. and 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 and Anr. 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....
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....usting equities between the co-sharer-vendor and himself. The logic behind this is that specific share is inherited by a co-sharer in a specific property. 60. Right of pre-emption under Mohammedan Law has been relied upon to invalidate the sale to stranger even to the extent of vendor's share. A Full Bench of the Allahabad High Court in Inayatullah v. Gobind Dayal (1885) ILR 7 All 775 has observed that right of pre-emption is closely connected with the Mohammedan law of inheritance. The following is the observation made with respect to the right of pre-emption in the aforesaid decision: 7. Upon the present occasion it is unnecessary to consider whether "gift" can properly be described as a "religious usage or institution" within the meaning of Section 24. I am here concerned only with the question whether preemption can be so described. My own opinion is that it can, and although I cannot add much to the reasons given by SPANKIB, J., I may observe that preemption is closely connected with the Muhammadan Law of inheritance. That law was founded by the Prophet upon republican principles, at a time when the modern democratic conception of equality and division of prope....
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....ess of the propositus is limited to cases of simultaneous succession and devolution of property upon two or more heirs belonging to Class I. Obviously, the Section has been aimed at reducing to some extent at least the inconvenient effects of simultaneous succession by several persons at one and the same time as members of Class I leading to fragmentation and parcelling up, of even small holdings of property. To a degree the Section enables a co-heir to retain the property in the family and avoid the introduction of a stranger in the enjoyment of family property if he so desired. Relying upon Inayatullah (supra), it has been observed that it is not lawful for anyone to sell his own share till he has informed his co-sharer who may take or leave it as he wishes; and if he has sold without such information, the co-sharer has a preferential right to the share. It has also been observed that the existence of right of pre-emption is patent and the burden is on the purchaser to establish that other co-heirs declare or waive their preferential right when occasion arose. It is not pretended that purchaser made any reference to non-alienating co-heirs before his purchase. It follows that Pla....
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....nt 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 ....
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....l in the lower appellate Court where these questions as to the debts were agitated and decided, and so far as the findings of the lower appellate Court are findings of fact they must be held to be binding on Mt. Nabiunnissa. 67. In Abdul Majeeth Khan Sahib v. C. Krishnamachariar (1917) 5 LW 767, a Full Bench of the Privy Council was faced with the issue that if one of the co-heirs of a deceased Muhammadan in possession of the whole estate of the deceased or of any part of it sells the property in his possession forming part of the estate for discharging the debts of the deceased, is such sale binding on other co-heirs or creditors of the deceased, and if so, to what extent? It was held that property of a deceased Muhammadan vests in his heir upon his death in specified share. Heirs of the deceased take their shares in severalty, as tenants-in-common and under Muhammadan Law one heir of the deceased cannot bind shares to his co-heirs. 68. In our opinion, sale beyond 14/104th share by Hamid Ali to Bala Malliah was void. The Mohammedan Law does not recognize the right of one of shareholders being tenants-in-common for acting on behalf of others. While discharging debt also they ....
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....here is no clear picture about the location for want of sufficient material on record. The principles can be worked out in the final decree proceedings. In my view the deceased did not gift the entire land situated in Asifnagar but only such portion of land on which D-1 had built the house and the compound. As already stated by me that the land was given for purpose of constructing residential house. It is a fact that in Ex. Alif 4 he gave the boundaries and stated that a plan was also prepared after survey and settlement but it is not filed and nothing can be made out from the boundaries given in Ex. Alif 4 and also Ex. Alif. I am not inclined to believe that only that portion of land was gifted to him on which the house stands excluding the compound but in my view all that portion of land was given to D-1 on which the house stands and the land was given for the purpose of construction the house and if more land was given to him he could have enclosed it with the compound or with some fence. My conclusion is that the land covered by the residential house and the compound wall was gifted to D-1 and the remaining land outside the compound is matruka property. If the cinema house was....
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....009) 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 and Ors. v. P. Mohan and 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 ha....
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.....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 t....
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....ly 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 t....
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....ty 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 and Anr. v. Hamid Ali Shah and Ors. AIR 1959 MP 190. The main question for consideration was with respect to maintainability of the suit for partial partition or the suit has to be filed for general partition of all the properties. It has been observed that an alienee of specific item of property has also to be given a right to sue for general partition so as to claim equitable right against his vendor. In the instant case the proposition has no application firstly for the reason that no such equity has been claimed by the purchasers in the objections filed in the final decree proceedings. The claim was to retain only the specific property which had been alienated by Defendant No. 1. 74.....
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....al decree proceedings, if feasible and practical (that is, without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bona fide transferee's right and title are saved fully or partially. It is apparent from the aforesaid decision that a transferee may lose the entire property also though equities can be worked out by making allotment of property which has been transferred pendente lite but in the instant case such equity is not permissible in view of the provisions of Mohammedan Law as well as the fact that no such equity has been claimed for allotment out of other properties fallen to the share of the vendor. 76. Reliance has also been placed on Khemchand Shankar Chaudhari and Anr. v. Vishnu Hari Patil and 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 ....
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....r 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 princip....
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....Sambamurthy (Dead) by L.Rs. v. Kalipatnapu Atchutamma (Dead) and Ors. (2011) 11 SCC 153, this Court has laid down that when the vendor was having only 1/2 share in the property but executed the contract for sale of the entire property, the vendee would be entitled to decree for specific performance only to the extent of 1/2 share of the vendor and not beyond it. 80. In Nova Ads v. Metropolitan Transport Corporation and 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....Equi....
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....ble, 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 ....
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....erty the proceedings were initiated by Boddam Narsimha under the Act of 1950. Boddam Mallaiah was a lessee for 3 years. He was inducted in the aforesaid lands under a koul dated 1.3.1953 executed by Hamid Ali Khan, who was Defendant No. 1 in the partition suit. Initially, it was for one year and was renewed each year later on. Hamid Ali Khan executed a sale deed in favour of Bala Mallaiah on 23.11.1959. After the sale deed, Bala Mallaiah became a pattedar in place of Hamid Ali Khan in respect of the suit land. Bala Mallaiah was the paternal uncle of Boddam Narsimha. An application was filed by Boddam Narsimha Under Section 37A of the Tenancy Act on the ground that Late Bala Mallaiah was a protected tenant and prayed for issuance of ownership certificate Under Section 38E of the Act of 1950. The tribunal vide order dated 24.8.1999 held that Bala Mallaiah never protested the omission of entry of tenancy from the revenue records as deemed tenant, and it was found that there were no protected tenants in Madhapur village. The order was questioned in the appeal Under Section 90 of the Act which was dismissed by the Joint Collector on 13.3.2000. Thereafter, Writ Petition No. 2229/2000 was....
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....cted tenants who are declared to be protected tenants and included in the register prepared for that purpose. A person becomes a protected tenant when he is a holder on the dates or for the periods mentioned in Sections 35, 37 and 37-A. Once a person becomes a protected tenant, he is entitled to an ownership certificate Under Section 38-E. In Sada v. Tahsildar AIR 1988 AP 77 Full Bench of the Andhra Pradesh High Court held that a person "holds" the land as protected tenant if he is still a protected tenant on the notified date i.e. 1-1-1973, though out of possession. As long as his right as protected tenant has not been determined by the date of notification in a manner known to the Act, he holds the land as a protected tenant, whether physically in possession or not. For the vesting of ownership of land held by a protected tenant Under Section 38-E, it is not necessary that the protected tenant should be in physical possession on 1-1-1973. It is sufficient if he continues to hold the status of a protected tenant on the notified date, even if he is not in physical possession. The Act does not merely regulate the relationship of landlord and tenant but deals with the alienation of a....
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....aken 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 ....
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....as 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 ....
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.... After hearing arguments exhaustively for more than two hours and after considering the preliminary decree dated 24.11.70, the modified preliminary decree passed by the High Court, the Commissioner's report dated 14.7.95, final decree passed by the City Civil Court dated 11.2.96, the judgment of the learned Single Judge dated 23.4.97, the judgment of the Division Bench dated 24.11.93 and the other passed by the High Court in CRP. No. 700/94 dated 30.8.94 and after considering the various rulings of the Courts cited before us by the learned Senior Counsel on both sides, we are not inclined to interfere with in SLP. The SLP is dismissed. At least on point of law the decision of this Court being a reasoned order has relevance and the decision in the aforesaid matter in same case also supports the view which has been taken by us on merits. (xii) In re: whether there is waiver of right by Appellants: 89. It was also submitted that on behalf of the Respondents that there is waiver of rights by the Plaintiff and other heirs of Late Nawab Jung with respect to disputed property, and they cannot be permitted to approbate and reprobate. In Boddam Narsimha (supra), stand was take....
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.... 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, L.Rs. of Bala Mallaiah and his brother etc. took steps in the year 1993 and onwards by filing successive cases as enumerated above. There was no delay on the part of the Appellants defeating their rights. It was the Respondents who having lost in the three proceedings one after the other, raised objection in the year 2004 in the final decree proceedings. What prevented them from doing so in the year 1993, has not at all been explained. Thus, it is they who are responsible to delay in the final decree procee....