# 3 S.C.R. I T. RAVI & ANR v. B. CHINNA NARASIMHA & ORS. ETC

- **Citation:** [2017] 3 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2017-03-21
- **Case number:** Civil Appeal Nos. 4731-4732 of2010
- **Bench:** Arun Mishra, Amitava Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/3-s-c-r-i-t-ravi-anr-v-b-chinna-narasimha-ors-etc-31884
- **Pages:** 95

## Headnote

· Res judicata - Decision in suit for injunction, if operates
as res judicata - Matruka properties - Sui/ by owners son for
partition of properties comprised in Schedule A, B, C - Son sold
property lo BM by sale deed - Also sold share inherited by other
co-heirs to BM - Preliminary decree for partition determining shares
of the legal heirs whereby, defendant no: 1 ll'as having only 141
I 04'1' share in matruka properties - Before passing of final decree,
suit for injunction by purchasers on the basis of sale deed which
was dismissed - Judgment affirmed in first appeal and also held
that land grabbing case was dismissed which attained finality and
barred the present suit - Held: Submission that the finding in suit
for injunction did not operate as res judicata as it was lefl ultimately
to raise the objections in the final decree proceedings cannot be
accepted - There was clear inability to grant injunction - BM could
have purchased only the share of his vendor and not the entire
disputed property and the purchase was affected by lis pendens -
Finding with respect to purchase being made during lis pendens had
attained finality and was not open to question in the present
proceedings.
Doctrines/Principles - Doctrine of lis pendens - Execution of
sale deed dated 23.11.1959 by defendant no.1 in favour of
purchase1; if affected by doctrine of lis pendens - Held: Partition
suit had not been dismissed at all in the eyes of law - lt is to be
treated as pending only ~ No legal fiction can be created that the
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~·uit itself had been dismissed 011 15.12.1955 due to non-payment of G
costs for restoration; whereas ii was not dismissed at all - High
Court also held that the order dated 1.12.1955 dismissiizg suit for
non-payment of cost, was without jurisdiction - Suit was pending
and wrongly treated as dismissed - Thus, the sale deed was executed
during lis pendens.
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SUPREME COURT REPORTS.
[2017]3 S.C.R.
Trans.fer of Property Act, 1882:
s. 52 - Trans.fer of property pending suit relating thereto -
s. 52, if renders a trans.fer pendente lile void - Held: Doctrine o.f 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
litiga1io11 - Thus, s. 52 will not render a transaction void - On facts.
sale deed not void but only valid to the extent of the share o.f vendor
of BM which has been found in the preliminmy decree and affirmed
in the final decree.
s. 52 - Execution of sale deed during pendency of suit -
Owners son sold his share as also share of other co-share -
Necessity of filing suit for cancellation of sale deed - Held: Not
necessary - Provisions of s. 52 prevent multiplicity of the
proceedings - When sale deed had been executed during the
pendency of suit the purchaser pendente lite is bound by the outcome
of the suit - Vendor had no authority to sell land of other co-sharers
- He had right to alienate his own share only - As such the right,
title and interest of BM were subject to the pending suit for partition
in which a preliininary decree was passed.
Decree - Preli111i11a1y decree for partition - Effect of and the
extent of bindingness - Preliminary decree passed - Declaration o.f
shares to the said extent of the re~pective parties-legal heirs of the
owner - Held: Preliminary decree allained .finality - Thus, the
determination of shares as per preliminary decree has attained
finality, shares of the parties had been· crystallised in each and
ei;ery property - Purchaser pendente lite is bound by the preliminmy
decree ivith re~pect to the shares so determined and it cannot be reopened and whatever equity could have been claimed in the final
decree proceedings lo the extent of vendors share has already been
extended to the purchasers - Furthe1~ s.97 CPC stales that the matters
concluded by preliminary decree cannot be re-agitated in an appeal
against the final decree.
Adverse possession:
Plea of - Suit for partition - During pe

## Text

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(2017] 3 S.C.R. I
T. RAVI & ANR.
v.
B. CHINNA NARASIMHA & ORS. ETC.
(Civil Appeal Nos. 4731-4732 of2010)
MARCH 21, 2017
[ARUN MISHRA AND AMITAVA ROY, JJ.]
· Res judicata - Decision in suit for injunction, if operates
as res judicata - Matruka properties - Sui/ by owners son for
partition of properties comprised in Schedule A, B, C - Son sold
property lo BM by sale deed - Also sold share inherited by other
co-heirs to BM - Preliminary decree for partition determining shares
of the legal heirs whereby, defendant no: 1 ll'as having only 141
I 04'1' share in matruka properties - Before passing of final decree,
suit for injunction by purchasers on the basis of sale deed which
was dismissed - Judgment affirmed in first appeal and also held
that land grabbing case was dismissed which attained finality and
barred the present suit - Held: Submission that the finding in suit
for injunction did not operate as res judicata as it was lefl ultimately
to raise the objections in the final decree proceedings cannot be
accepted - There was clear inability to grant injunction - BM could
have purchased only the share of his vendor and not the entire
disputed property and the purchase was affected by lis pendens -
Finding with respect to purchase being made during lis pendens had
attained finality and was not open to question in the present
proceedings.
Doctrines/Principles - Doctrine of lis pendens - Execution of
sale deed dated 23.11.1959 by defendant no.1 in favour of
purchase1; if affected by doctrine of lis pendens - Held: Partition
suit had not been dismissed at all in the eyes of law - lt is to be
treated as pending only ~ No legal fiction can be created that the
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~·uit itself had been dismissed 011 15.12.1955 due to non-payment of G
costs for restoration; whereas ii was not dismissed at all - High
Court also held that the order dated 1.12.1955 dismissiizg suit for
non-payment of cost, was without jurisdiction - Suit was pending
and wrongly treated as dismissed - Thus, the sale deed was executed
during lis pendens.
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SUPREME COURT REPORTS.
[2017]3 S.C.R.
Trans.fer of Property Act, 1882:
s. 52 - Trans.fer of property pending suit relating thereto -
s. 52, if renders a trans.fer pendente lile void - Held: Doctrine o.f 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
litiga1io11 - Thus, s. 52 will not render a transaction void - On facts.
sale deed not void but only valid to the extent of the share o.f vendor
of BM which has been found in the preliminmy decree and affirmed
in the final decree.
s. 52 - Execution of sale deed during pendency of suit -
Owners son sold his share as also share of other co-share -
Necessity of filing suit for cancellation of sale deed - Held: Not
necessary - Provisions of s. 52 prevent multiplicity of the
proceedings - When sale deed had been executed during the
pendency of suit the purchaser pendente lite is bound by the outcome
of the suit - Vendor had no authority to sell land of other co-sharers
- He had right to alienate his own share only - As such the right,
title and interest of BM were subject to the pending suit for partition
in which a preliininary decree was passed.
Decree - Preli111i11a1y decree for partition - Effect of and the
extent of bindingness - Preliminary decree passed - Declaration o.f
shares to the said extent of the re~pective parties-legal heirs of the
owner - Held: Preliminary decree allained .finality - Thus, the
determination of shares as per preliminary decree has attained
finality, shares of the parties had been· crystallised in each and
ei;ery property - Purchaser pendente lite is bound by the preliminmy
decree ivith re~pect to the shares so determined and it cannot be reopened and whatever equity could have been claimed in the final
decree proceedings lo the extent of vendors share has already been
extended to the purchasers - Furthe1~ s.97 CPC stales that the matters
concluded by preliminary decree cannot be re-agitated in an appeal
against the final decree.
Adverse possession:
Plea of - Suit for partition - During pendency, execution of
sale deed by owners son in favour of BM - 1.f BM, his heirs and
purchasers pe1fected their right, title and interest by virtue of adverse
possession - Held: Jn an earlier suit plea of adverse possession
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC.
had been negative - Sale deed was hit by the doctrine of /is pendens,
the purchasers were bound by the result of the suit - s: 52 negates
the very plea of adverse possession - Thus, there was no question
of perfecting the .title by adverse possession during pendency of
suit - High Court erred in law in holding that the plaintiffs perfected
their title by virtue of adverse possession.
Adverse possession - Plea ~ Requirements of - Held: Three
requirements of plea of adverse possession i.e. '"nee vi, nee clam,
nee preeario" i.e., peaceful, open and continuous - A1erely a bald
statement .that the 1·e was adverse possession is not enough to set up
the plea - It has t'"; be clearly set out from which date it commenced,
and became hostile when there was repudiation of the title.
Muslim law - Nature of succession - Co-sharer, a Muslim,
alienating share of other co-sharers in the disputed property -
Legality of - Held: Sale by co-sharer is not of undivided share but
that of a specific property in which he had only specific share -
Thus , being a tenant-in-common he. had no authority or right to
sell the share of other co-owners - Vendor had the right to sell to
the extent of his own share considering the nature of succession
amongst Mohammedans and sale beyond his specific share was
void - Thus, the sale of property of other co-sharers was illegal
and void.
Equity - Suit for partition - Claim of equity by purchaser for
allotment of property in final decree proceedings - Held: It was
open to the executing court lo 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 -
Though purchasers can work out the equity in the final decree
proceedings but it is only to the legalZy permissible extent and not
beyond that - Preli111inary decree declared the shares in the property
in specified shares - Preliminary decree is binding and even
otherwise the sale was valid only to the extent of the share of vendor
- Thus, by no equitable principle the purchaser can claim the entire
.. property to be allotted to him - Also as per the Mohammedan Law
sale beyond the extent of the share of vendor was void.
Legal necessity- Sale of properly, whether for legal necessity,
and thus, binding - Execution of sale deed during pendency of suit
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- Owners son sold his share as also share of other co-share -
Held: Recital of sale deed makes it clear that the sale was effected
by the co-sharer for his 'personal necessity' - He had not executed
the sale deed for payment of land revenue as its recital is otherwise
which would prevail - Nor the sale deed had been executed in the
fiduciary capacity acting on behalf of co-sharers - Even otherwise
under the Mohammedan Law. it was not open to co-sharer to act in
fiducimy capacity to sell the property and bind shares of others.
Land Laws - Pattedar rights - Effect of proceedings under
the Tenancy Act, 1950 - Matruka property - Suit for partition -
During pendency. sale of property by one heir to BM - BM, whether
pattedar vide conveyance deed - Held: It was A1atruka properly
and suit for partition 11·a.~ pending w.e.f 1935 and mutation
simpliciter in the name of ve11dvr conferred no right, title or interest
- Mutation is only for the fiscal purpose and is not decisive of
right, title or i/1/erest in the property which is within the domain of
the civil court - Grant of patta from 1953 onwards by co-sharer to
purchaser was 011 yearly basis and the execution of sale deed and
the grant of land on yearly basis were during /is pende11s - Thus,
the transactions are covered by the doctrine of /is pi&lens and
were subject tu the outconie of the pending partition proceedings -
No force in the submissions based upon palledar rights as it was
subject to s. 52 of the T.P Act.
Allowing the appeals, the Court
HELD: (i) Whether the decision in Original Suit operates
as re.~ jutlic:ata, if yes, to what extent:
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1.1 The submission that the finding in the suit for injunction
did not operate as res j udicata as it was left ultimately to raise
the objections in the final decree proceedings cannot be accepted
as there was clear inability to grant injunction and the submission
of the plaintiffs that they were having title on entire land on the
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basis of sale deed had been negatived. It was found that BM
could have purchased only the share of his vendor HA and not
the entire dis1mted property and the purchase was affected by /is
pem/e11s. The finding with respect to purchase being made during
/is pe11de11s had attained finality anti was not 011en to question in
the present proceedings. Besides, the validity of the sale deed
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T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC.
to the extent of the share of the vendor which was sought to be
re-agitated in the final decree ·proceedings, was also not OJ>en to
be raised in view of clear findings recorded in the suit of 1993.
Though it is held so, however nothing turns on the said finding
as to res juclic"tt1. [Para 22](33-D-F)
· Sajjadanashin Sayed Md B.E. Edi: (D) by LRs. v. Musa
. Dadabhai Ummer & Ors. (2000) 3 SCC 350 : (2000] 1
. SCR 1095; Co111111issioner of Endoll'mwnts & Ors v Vinal
Rao & Ors. (2005) 4 SCC 120; Anathula Sudhakar v.
P. Buchi Reddy (dead) by LRs. & Ors. (2008) 4 SCC
594: [2008] 5 SCR331 - referred to.
(ii) Whether the sale deed executed by defctulant no.1 in
favour of BM is hit by doctrine of /is ve111/em:
1.2 When the suit itself had not been dismissed vidc order
dated 8.1.1955, the events subsequent thereto i.e. the trial court
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vide order dated 1.12.1955 treated it as having been dismissed
o.
or that the plaintiff also was left under a wrong impression that
the suit bad been dismissed in default and cost was imposed on
1.12.1955 and it was not paid up to 15.12.1955, would make no
difference. Due to non-payment of costs, by order dated 1.12.195~
the suit stood dismissed, cannot be accepted, as the order was
"°''est in the eye oflaw~ It was an illegal order of treating a pending
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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 bad not been
dismissed on 8.1.1955. Subscque11t order or imposition of costs
for its restoration was 1w11 est and illegal and was rightly set aside
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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
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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
rightly held that it was never dismissed. Thus, the sale deed in
question dated 23.11.1959 was executed during /is pemle11s and
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the High Court has erred in law in holding otherwise in the
impugned judgment. [Para 32][46-:F-H; 47"A-C]
Bhutnath Das & Ors. v. Sahadeb Chandra Panja AIR
1%2 Cal. 485; Vareed Jacob v. Sosa111111a Geevarghese
& Ors. (2004) 6 SCC 378 : [2004] 1 Su11pl. SCR 534;
Thomson Press (India) Ltd. v. Nanak Builders and
Investors Pvt. Ltd. & Ors. (2013) 5 SCC 397 : [2013] 2
SCR 74; A. Nawab John v. VN Subra111aniya111 (2012)
7 SCC 738 : [2012] 6 SCR 369; Sanjay Verma v. Manik
Roy and Ors .• (2006) 13 SCC 608 : [2006] IO Suppl.
SCR 469; Parmeshari Din v. Ram Charan & Ors. AIR
1937 PC 260; Kirpal Kaur v. Jitender Pal Singh & Ors.
(2015) 9 SCC 356 : [2015] 8 SCR 51; Jagan Singh.
(dead) through LRs. v. Dha11wanti & Anr. (2012) 2 SCC
628 : [2012] 2 SCR 303; Krishanaji Pa11dhari11ath v.
Anusayabai AIR 1959 Bom 475. - referred to.
(iii) Whether section 52 or T.P. Act renders a transfer.
pemlente lite void:
L3 The doctrine of /is pe11de11s do.es 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. The sale deed is not void
but only valid to the extent of the share of vendor of BM i.e. it is
valid to the extent of 14/104'h share which has been found in the
preliminary decree and affirmed in the final decree. The sale deed
was subject to the outcome of the suit which was to the said effect.
[Para 36)[47-E;49-C]
Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1 : [2010]
7 SCR 424; Thomson Press (India) Ltd. v. Nanak
Builders and Investors Pvt. Ltd. & Ors. (2013) 5 SCC
397 : [2013] 2 SCR 74; A. Nawab John v. V.N.
Subramaniyam (2012) 7 SCC 738 : 12012] 6 SCR 369
- referred to.
fiv) What is the effect of preliminary decree for partition
and the extent to which it is binding:
1.4 In the instant case, preliminary decree was passed in
?-~..._ ...... ;
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC.
the year 11)70 and the shares were declared to the said extent of
the respective parties therein who were the heirs of Late NW.
His son, defendant No.1, had only 14/104'" share in the disputed
property. Preliminary decree dated 24.11.1970 has attained finality.
'.fhus, the determination of shares as per preliminary decree. has
attained finality, shares of the parties had been crystallised in
each and every property. Purchaser pe1u/e11te lite is bound by the
preliminary decree with respect to the shares so determined and
it cannot be re-opened and whatever equity could have been
claimed in the final decree proceedings to the extent of vendor's
share has already been extended to the purchasers. It is apparent
from Section 97 CPC that the matters which are concluded by
preliminary decree cannot be re-agitated in an appeal against the
final decree. No appeal was 1nefcrred by the purchasers or by
defendant No.1 as against the preliminary decree. [Paras 37,
39][49-D-F; 52-A]
Venkata Reddy & Ors. v. Pethi Reddy AIR 1963 SC
992 : [1963] Suppl. SCR 616 - referred to.
(v) Whether it was necessary· to file a suit for cancellation
of sale deed dated 23.11.1959 ?
·
1.5 When the sale deed had been executed during the
pendency of suit the purchaser pe11de11te lite is bound by the
outcome of the suit. Tl1e provisions of section 52 prevent
multiplicity of the proceedings. It was not at all necessary to file
a suit for cancellation of the sale deed as the vendor had no
authority to sell land of other co-sharers. Ile had right to alienate
his own share only which he had in the property to the extent of
14/1041h, As such the right, title and interest of BM were subject
to lhe pending suit for partition in which a preliminary decree
was passed in the year 1970 which had attained finality in which
vendor of BM was found to be having share only to the extent of
14/104'h. The preliminary decree was not based upon fraud or
collusion. The sale deed was not under the authority of the court
and the pendency of the suit u/s. 52 commenced from the date of
presentation of the plaint and continued until the suit or
proceedings. were disposed of by a final decree, and on a complete
satisfaction of the discharge of such decree; an order had been
obtained. The /is pe11de11s operates during execution also. BM,
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SUPREME COURT REPORTS
(2017] 3 S.C .R.
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his L.Rs. and purchasers from them are bound by the decision or
the case. They ci111i1ot circumvent the jurisdiction of the court
and wriggle out of the-decree. The transfer remained valid subject
to the result of the suit and 11emlente lite purchaser is subject to
the legal rights and obligations of his vendor. [Para 40][52-B-J<']
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K.N. Aswathnarayana Setty (dead) through LRs. & Ors.
v. State of Karnataka & Ors. (2014) IS SCC
394 : [2013) 11 SCR 1029 - referred to.
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(vi) Whether BM his heirs and purchasers had perfected
their righ1, title and interest by virtue or adverse possession ?
1.6 The High Court 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 advci-sc possession. The same is clearly a perverse
finding. J!'irstly, in the earlier civil suit of 1993 submission with
respect to adverse possession was negatived. Secondly, the sale
deed was hit by the doctrine of /is pemlem, the purchasers were
bound by the result of the suit. Thus, there was no question of
perfecting the title by adverse possession during pcndency of
suit. Section 52 negates the very pica of adverse possession.
Trial court and first appellate court have rightly held that there
was no c1uestion of adverse possession. The High Court simply
without any discussion held that the title was perfected by
adverse possession. Merely a bald statement that there was
adverse possession is not enough to set up a ()lea of adverse
possession. It has to be clearly set out from which date it
commenced, and became hostile when there was repudiation of
the title. No such plea has been raised. There are 3 classic
requirements of pica of adverse possession i.e. "11ee vi, nee clam,
nee precurio" i.e., peaceful, open and continuous. No such
J)leading has been raised much less there is question of any proof
ai1d moreover, this plea was not available to be raised in view of
doctrine of /is pe111/e11s. Possession never became adverse in the
instant case as the property was purchased subject to the outcome
of the litigation. The High Court erred in law in holding that the
plaintiffs perfected their title by virtue of adverse possession.
[Paras 41, 42][53-E-II; 54-A; 55-J!')
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC.
9
Karnataka Board of Wakf v. Government of India &
A
Ors. (2004) 10 SCC 779 : [2004] 1 Suppl. SCR 255 -
referred to.
(vii) Whether under the Muslim Law, defendant No.1 being
a co-sharer could have alienakd the share of other co-sharers in
the disputed property "!
1. 7 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 prope11y admittedly has exchanged several hands by
now. There is no inclination to invalidate the sale deed executed
by defendant No. 1 in favour of BM even to the extent of his
sha1·e i.e. 14/104'h on the basis of principle of pre-emption of
Muslim law. It would be too late and iniquitous to invoke the
principle of pre-emption in such a case, particularly when no such
plea was raised at the relevant time and in the courts below. In
case heirs were desirous of raising it, they should have raised
their pica timely. [Para 63](70-A-C]
1.8 The parties have been litigating since 1935 for partition
of pro1>erty. In the instant case, sale by dclcndant No.1 is not of
undivided share but. that of a specific property i.e. 68 acres 10
guntas in which he had only 14/1041• share. Thus, being a tenantin-common he had no authority or right to sell the share of other
co-owners. The vendor had the right to sell to the extent of his
own share considering the nature of succession amongst
Mohammedans. Thus, the sale of 1>roperty of other co-sharers
was illegal and void. The sale beyond 14/104
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• share by HA to
BM was void. The Mohammedan Law does not recognize the
right of one of shareholders being tenants-in-common for acting
on behalf of others. While discharging debt also they act as
independent debtors. A co-sharer cannot create charge on
properly 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, execnlors or mortgagees. [Paras 65, 68](70-D-E; 72J<'-GJ
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SUPREME COURT REPORTS
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Ramdayal v. Manaklal AIR 1973 MP 222; Dill'an Singh
v. Bhaiya Lal AIR 1997 MP 210; lmambandi & Ors. 1:
Mutsaddi & Ors. (1918) L.R. 45 I.A. 73; Syed Shah
Ghulam Glzouse Mohiuddin & Ors. v. Syed Shah Ahmed
Mohiuddi11 Kamisul Quadri (died) by I.rs. & Ors. (1971)
1 SCC 597; PN. Veetil Narayani v. Pathu111111a Beevi &
Ors. (1990) 4 SCC 672 : (1990] 1 Suppl. SCR 433;
Kasambhai Sheikh v. Abdulla Kasambhai Sheikh (2004)
13 SCC 385; Ram Awalamb v. Jata Shankar AIR 1969
All. 526; Mansab Ali Khan v. Mt. Nabiwmisa & Ors.
AIR 1934 All 702; Abdul Majeeth Khan Sahib v. C
.Krishnamachariar AIR 1918 Mad 1049 (l<'B);
Mohammad Afzal Khan, Haji v. Abdul Rahman, Malik
& Ors. AIR 1932 PC 235; Byjnath Lall v. Ramoodeen
Chowd1y (1874) LR l lnd. App. 106; S.MA. Samad &
Ors. v. Shahid Hussain & Ors. AIR 1963 Patna 375;
Abdul Karim & Ors. v. Haflj Mohammad & Ors. (1989)
MP LJ 178; A.J. Pinto & Am: v. Smt. Sahebbi Kom
Muktum Saheb (Dead) by LRs & Ors. (1972) 4 SCC
238 : [1971] Suppl. SCR 719; Vazir alias Dino & Am:
v. Dwarkamal & Ors. AIR 1922 Simi 41; Mangaldas v.
Abdul Razak (1916) 16 Bombay L.R. 124; Jan
Mahomed v. Dallu Jaffer (1913) 38 Bombay 449;
Ghumanmal Lokumal & Ors. v. Faiz Muha111mad Haji
Khan & Ors. AIR 1948 Sind 83 lnayatullah v. Gobind
Dayal (1885) ILR 7 All 775; Zamir Ah111ad v. S. Haidar
Nazar & Ors. AIR 1952 All 541; Naga111111al & Ors. v.
Nanjammal & Anr. (1970) 1 MLJ 358; Siwik Mohd.
Ali Ansari v. Shaik Abdul Smned (Died) per LRs (2012)
4 ALD 680 (DB); Abdul Majeeth Khan Sahib v. C.
Krishnamachariar (1917) 5 LW 767 - referred to.
Halsbury s Laws of England s•h Edn. Vol 87 - referred
to.
(viii) Whether the purchaser has a right to claim equity for
allotment of Item No. 6 of Schedule. 'B' property in final decree
proceedings in suit for partition anti if yes, to what extent:
1.9 It was open to the executing court to adjust equity of
purchasers to the permissible extent as purchasers {Je11de11te lite
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC.
can work out the equities in acconlance with law in the final decree
proceedings. 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 ·1irclirninary decree
declared the shares in item No.6 of Schedule 'B' property in
specified shares. The 1>reliminary decree is binding and even
otherwise the sale was valid only to the extent of the share of
defendant No.1 and not beyond it. Thus, by no equitable principle
the purchaser can claim the entire property to be allotted to him.
!Paras 69, 71, 72J174-E; 76-B-C,E]
1.11 A transferee may lose the entire property also though
equities can be worked out by making allotment of property which
has been h'ansferred pe11de11te 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.
[Para 75](81-B-C]
1.12 In the instant ·case, equitable right of allotment of some
land other than which was purchased out of some other properties
allotted to the share of vendor, D-1 has not been claimed in the
objections flied during the final decree proceedings flied by the
pnrchasers. The property admittedly has exchanged hands a
number of times during the pcndency of suit from 1935 till date
and how the equity is to be worked out is always a question of
fact in every case, how much share has been allotted to the share
of one vendor and how much property he had already alienated
till that time and what are the debts or charges on the property
that are legally permissible, would be some of the relevant
considerations. Nothing of that sort has been pleaded by the
purchasers in the objections filed in the final decree proceedings.
Though in the absence of claiming equitable right in the share of
vendor's other p.-operties, 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. In the absence
of requisite data, pleadings and evidence, question of working
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out equity in said mamier, cannot be examined or gone iiito by
this Court at this stage. The claim of e11uity is outcome of ingenuity
of arguments made only in this Court. The submission, is
repelled, more so considering the provisions of the Mohammedan
Law that sale beyond the extent of tlie share of the vendor in
specific property was void. !Para 82Jl85-D-ll; 86-A-.B)
Jayaram Mudaliar " Ayyaswami & Ors. (1972) .2 SCC
200 : (1973) 1 SCR 139; Vi11oda11 ": Vishwanathan
(2009) 4 SCC 66 : [2009] ~ SCR 100; Dhanlakshmi &
Ors. v. P. Mohan & Ors. (2007) 10 SCC 719 : (2007)
1 SCR 1076; K. Adivi Naidu & Ors. v. £. Duruvasulu
Naidu & Ors. (1995) 6 SCC 150: [1995) 3 Suppl. SCR
524; Khatoo11 Bibi v. Abdul Wahab Sahib & Ors. AIR
1939 Mad. 306; Abdzil Rahman & Am: v. Hamid Ali
Shah & Ors. AIR 1959 MP 190; Tikam Chand Lzmia ii
Rahim Khan Ishak Khan & Ors. AIR 1971 MP 23; T.G
As/wk Kumar v. Govindammal & Am: (2010) 14 SCC
370 : [2010) 14 SCR 560; Khe111clu111d Shankar
Chaudhuri & Anr: v. Vis/11111 Hari Patil & Ors. (1983) 1
SCC 18 : [1983) 1 SCR 898; Jayaram Mudaliar v.
Ayyaswami & Ors. (1972) 2 SCC 200 : (1973] 1 SCR
139; Marirudraiah & Ors. v. B. Sar<~jamma & Ors.
(2009) 12 SCC 710 : [2009] 5 SCR 491; Ka111111a11a
Sambamurlhy (Dead) by LRs.
v.
Kalipatnapu
Atchutamma (Dead) & Ors. (2011) 11 SCC 153 : (2010]
12 SCR 772; Nova Ads l·: Metropolitan Tran.sport
Corporation & Ors. (2015) 13 SCC 257; Raja Ram
Mahadev Paranjype v. Aba Maruti Mali AIR 1962 SC
753 : (1962) Suppl. SCR 739; P.M. Latha v. State of
~ ..._,
Kera/a (2003) 3 SCC 541 : (2003J 2 SCR 653;
Raglnmath Raj Bareju v. Punjab National Bank (2007)
2 SCC 230 : [2006] 10 Sup1il. SCR 287; Madamanchi
Ramappa v. Mothahwu Bojjappa AIR 1963 SC 1633 :
[1964) SCR 673; Lax111inaraya11 R. Bhattad v. State of
Maharashtra (2003) 5 SCC 413 : (2003) 3 SCR 409;
Nasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577 :
12003) 1 SCR 634; E. Pala11isa111y v. Pala11isamy (200~
1 SCC 123; India House v. Kisha11 N. Lalll'a11i (2003) 9
SCC 393 : [2002) 5 Su1lpl. SCR 522; Raghunath Rai
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC.
13
Bareja & Anr. v. Punjab National Bank & Ors. (2007)
A
2 SCC 230 : (2006) 10 Suppl. SCR 287 - referred to.
Cooper v. Fisher (1841) 10 LJ Ch 221 - refened to.
(ix) Whelhcr sale was for legal ucccssity, and thus binding :
1.13 The recital of sale deed makes it clear that the sale
B
was effected by 'HA' for his 'personal necessity'. He had not
executed the sale deed for payment of land revenue as its recital
is otherwise which would 1ircvail. Nor the sale deed had been
executed in the fiduciary capacily acling on behalf of co-sharers
rather he has claimed in the sale deed that he. was the exclusive
owner of 68 acres 10 guntas area of property and was in
C
possession thereof. He had sold the land for Rs.2000 in view of
his personal necessity, after taking permission from the Deputy · · ·
Collector Division. Thus, the sale deed negates the said bald ·
averment made in the objection petition. Even otherwise under
the Mohammedan Law, it was not open to defendant No.1 to act
D
in fiduciary capacity to sell the property and bind shares of others.
It is not mentioned in sale deed that 'llA' had sold for any legal
necessity or for the benefit of the enti1·e estate. The recital in
sale deed bas the evidentiary value and BM and his successors
are bound by it; [Para 831[86-E-HJ
(x) The effect or proceedings under the Tenancy Act, 1950 :
1.14 This Court in *Bot/d(lm Narsi111/1tt case only decided
the question about protected tenancy which was claimed and
issuance of ownership certificate by BN under section 38E. No
other question was involved for consideration in the proceedings
um.Jer the Act of 1950. BN who filed the said 1>roceedings lost n1>
to this Con rt and in that there was a mei-e mention of the fact that
by virtue of the conveyance deed, 'BM' became pattedar vide
registered sale deed. 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 HA could have
alienated to BM and issue about /is pent/em etc. never came up
for consideration. Thus, the decision is of no help and cannot be
taken to be an adju<lication by this Court with respect to the rights
of HA or 'BM' in matruka properties. The scope of the
1>roceedings and the issue were totally different. Thus, no
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sustenance can be derived by respondents by relying upon the
said decision. [Para 86] (89-G-II; 90-A-C]
1.15 It was a matruka property of Late NW. The suit for
partition was pending w.e.f. 1935 and mutation simpliciter in the
name of HA 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 HA to 'BM' was
on yearly basis and the execution of sale deed and the grant of
land on yearly basis were during iis pe11tle11s. Thus, the
transactions are covered by the doctrine of /is pemle11s and were
clearly subject to the outcome of the pending partition
proceedings. There is no force in the submissions based upon
pattedar rights as it was subject to section 52 of T.P. Act and is
rejectcd.[Para 87][90-E-II, G; 92-B]
*Roddam Narsimha v. Hasan Ali Khan (dead) by LRs.
& Ors. (2007) 11 SCC 410; Ve11ka1rao A11a111deo Joshi
& Ors. " Ma/a1ibai & Ors. (2003) 1 SCC 722 : [2002]
4 Suppl. SCR 211 - referred to.
(xi) What is the effect of decision of this Court and High
Court with respect to final decree proceedings in ltem No. 2 of
Schedule 'B' property :
1.16 With respect to item No.2 of Plaint 'B' schedule
projlerty one 'P' Co-operative Housing Society Ltd. filed an
objection in the final decree proceedings. The trial court rejected
the objection which was preferred. F'irst appeal preferred as also
LPA thereagainst were dismissed. Then SLP was filed in this
Court which was dismissed by a speaking order affirming the
judgment and order passed by the executing court and the High
Court. A 1>erusal of the judgment of the High Court in LPA
indicates that the High Court had held that in Mohammedan Law
there is no recognition for a sale by a co-sharer of the entire
estate and that the other co-sharers are not bound by such sale
and said decision even went to the extent of saying that even
when the sale was meant for discharging the debts of ancestor,
whose property had devolved upon the sharers, the said ·sale
without the consent of other co-sharers is invalid and docs not
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC.
15
confer any right on the purchaser with regard to such co-sharers
A
who did not join the said sale. The decision has been affirmed by
this Court. [Para 88][92-C-F]
(xii) Whether there is waiver of right by appellants :
1.17 During the pendency of the partition suit with respect
to ancestral property of Late NW, 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. 'BM' and his successors filed several proceedings, civil
snit of 1993 in which they failed. 'BN', nephew of 'BM' also filed
proceedings under the Act of 1950 for issuance of ownership
certificate by virtue of their being protected tenants whic~ 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 'NW'. Land grabbing proceedings were also
instituted by LRs. of 'BM' and his brothers. The proceedings
were dismissed and W.P. filed before the High Court was also
dismissed. After having lost in the said proceedings, belatedly
the objection had been preferred in the final decree proceedings
for partition. ·The conduct of purchasers makes it clear that they
instituted multifarious proceedings, and took inconsistent stands
which were not accepted by this Court in Botltlam Narsimlut case.
The appellants or their predecessors had not taken inconsistent
stands. They were dearly protected by doctrine of /is pemleus.
[Para 90Jl93-E-II; 94-A)
C. Beepalhuma v.
Velasari Shankaranarayana
Kadambolithaya AiR 1965 SC 241 : (1964) SCR 836;
Mumbai International Airport (P) Ltd. v. Golden Chariot
Airport (2010) 10 SCC 422 : [2010) 12 SCR 326 -
referred to.
(xiii) Whether appellants are guiltv or delay or !aches :
1.18 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 yj'.a151976 and
proceedings for final decree taken in 1984 were within the period
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of limitation. As a matter of fact, LRs. of 'UM' and his brother
etc. took steps .in the year 1993 and onwards by filing successive
cases. There. was no delay 011 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 11rocccdings. What prevented them from doing
so in the Yl'ar 1993, has not at all been explained. Thus, it is they
who arc responsible to delay in the final decree proceedings in a
partition case insl.iluted in the year 1935 and the matter is still
pending befo1·e this Court. [Para 92Jl94-D-I<']
Municipal Cou11ci!, Ah111ed11agar v. Shah Hyder Beig
(2000) 2 SCC 48: (1999] 5 Sup11l. SCR 197 - referred
to.
(Xi\') The effect under the Urban Land Ceiling Act :
1.19 It was stated that the proceedings lapsed due to re(Mlal
of Urban Land Ceiling Act Be that as it may. The respondents ·
arc purchasers from branch of 'UM' whose vendor was defendant
No.1. The pro11erty further exchanged hands. Since .the orders
ha\'c not been placed on record, in the said factual scenario, the
said 1>roposition is not examined further and this Court is not
apprised how the purchasers could claim a better right than the
one possessed by their vendor. H is left open to the State
Government to examine the question of ceiling and effect of the
decision. [Para 93Jl94-G-H; 95-A-ll]
1.20 A compromise petition has been filed with respect to
area 18 acres 25 guntas. As per the compromise the division of
the property has to take )!lace between the a1>pellants and the
newly added respondents, which was olljectcd to by one of heirs.
It would involve transfer of the property, hence, it is left to the
parties to have resort to an appropriate remedy iu this regard.
Impugned judgment and decree passed Lly the High Court is set
aside. The final decree of the trial court is restored. [Paras 94,
. 95 ][ 95-ll-D I
(2001) 11 sec 410
[2000] l SCR 1095
Case Law Ucfcrcuce
referred to
referred to
Para9
Para 20
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC.
17
c29os) 4 sec 120
referred to
J>ara 20
A
12Q08J 5 SCR 331
referretl to
Para 21
AIR 1962 Cal. 485
referred to
Para 25
{2004] 1 Supl'I. SCR 534
referred to
Para 26
(2013] 2 SCR 74
referred to
Para 27
B
12Ql21 6 SCR 369
referred to
Para 28
[2006) 10 Sul'pl. SCR 469
referred to
Para 29
AIR 1937 PC 260
referred to
Para 30
[2015) 8 SCR 51
referred to
Para 30
c
[2012) 2 SCR 303
referred to
Para30
AIR 1959 Bom 475
refened to
Para 31
{2010) 7 SCR 424
referre1I to
Para33
[~12) 6 SCR 369
referred to
Para 34
[2013) 2 SCR 74
referred to
Para 35
D
[1963) Suppl. SCR 616
referred to
Para 38
[2013) 11 SCR 1029
referred to
Para 40
[2004] 1 Suppl. SCR 255
referred to
Para 41
AIR 1973 MP 222
referred to
Para 47
E
AIR 1997 MP 210
referred to
Para47
(1918) L.R. 45 I.A. 73
referred to
Para 48
(1971) 1 sec 597
referred to
Para 49
(1990) 1 Suppl. SCR 433
referred to
Para SO
F
(2004) 13 sec 385
referred to
Para 51
AIR 1969 All. 526
referred to
Para 52
AIR 1934 All 702
1·eferred to
Para 53
A~R 1918 Mad 1049 (FB)
referred to
Para54
G
AIR 1932 PC 235
referred to
Para 55
(1874) L R 1 Jud. App. 106
referred to
Para 55
AIR 1963 Patna 375
referred to
Para 56
(1989) MP LJ 178
referred to
Para 56
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[2017] 3 S.C.R.
A
(197_1] Suppl. SCR 719
referred to
Para 56
AIR 1922 Sind 41
referred to
Para 57
(1916) 16 Bombay L.R. 224 referred. to
Para 57
(1913) 38 Bombay 449
referred to
Para 58
B
AIR 1948 Sind 83
referred to
Para 59
(1885) ILR 7 All 775
referred to
Para 60
AIR 1952 All 541
referred to
Para 61
(1970) 1 MLJ 358
referred to
Para 62
c
(2012) 4 ALD 680 (DB)
referred to
Para 64
(1917) 5 LW 767
referred to
Para 67
J1973J 1 SCR 139
referred to
Para 70
J2009J 2 SCR 100
referred to .
Para 70
D
r
(20071 1 SCR 1076
referred to
Para 70
[19951 3 Suppl. SCR 524
referred to
Para 71
AIR 1939 Mad. 306
referred to
Para 72
E
AIR 1959 MP 190
referred to
Para 73
AIR 1971 MP 23
referred to
Para 74
120101 14 SCR 560
referred. to
Para 75
J1983.J 1 SCR 898
referred to
Para 76
F
J1973J 1 SCR 139
referred to
Para 77
J2009J 5 SCR 491
referred to
Para 78
[2010] 12 SCR 772
referred to
Para 79
(2015) 13 sec 257.
referred to
Para 80
G
[l962J Sup1>l. SCR 739
referred to
Para 80
12003] 2 SCR 653
referred to
Para 80
(2006) 10 Suppl. SCR 287
referred to
Para 80
[1964] SCR 673
referred to
Para 80
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC.
19
[2003) 3 SCR 409
referred to
Para 80
12003] 1 SCR 634
referred to
Para 80
(2903) 1 sec 123
referred to
Para 80
[2002] 5 Sup1>l. SCR 522
referred to
Para80
[2006) 10 Suppl. SCR 287
refc'rred to.
Para 81
(20021 4 Suppl. SCR 211
referred to
Para 86
119641 SCR 836
referred to
l'ara 89
[2010] 12 SCR 326
referred to
Para 89
[1999] 5 Suppl. SCR 197
referred to
Para 91
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4 7314732of2010.
From the Judgment and Order dated 15.04.2010 of the High Court
of Judicature, Andhra Pradesh at Hyderabad in S. A. No. 410 and 411
A
B
c
~2008.
D
WITH
C. A. Nos. 4733, 4734-4735, 4736, 4837-4838, 6536-6537 and
7105-7106of2010
C. A. Nos. 4276-4277 of201 I
C. A. Nos. 1196-1197 of2012
C. A. Nos. 4319-4320 of2017.
Dushyant Dave, Salman Khurshid, Jayant Bhushan, VVS Rao,
A.K. Ganguli, V. Shekhar, C. A. Sundaram, Pallav Shishodia, Harin P.
Raval, Sr. Advs., Suk Sagar, Ms. Bina Madhavan, Krishna Ku111ar Singh,
M.A. Mokheem, Mritunjay Singh, Ms. Az1:a Reh111an, Ms. Roshni
W.Anand, Ms. Amir Nabi, Ms. Priyanka Gladson, Ms. Elizebeth Antony,
Mis. Lawyer S Knit & Co, Balasubra111anyam Kamarsu, Tadimalla
Bhaskar Gowtham, Abhijit Sengupta, B. Sluavanth Shanker, Ms.
Jayshree Shankar, Malluguri Sudarshan, Amit K. Nain, Hema! Kirti
Kumar Sheth, A. Venayagam Balan, B. K. Satija, Chaitanya Safaya,
Joseph Aristotle S, Mrs. PriyaAristotle, Ms. K. Priyadarshini, Bari Har,
Ram Lal Roy, Gudipati G. Kashyap, Ravindra Kumar, Mrs. Anjani
Aiyagari, M.V. Ramana, Mahesh Agrawal, Abhinav Agrawal, .Joseph
Aristotle, Munjal Bhatt, Ms. Rekha Pandey, Ms. Uttara Babbar,
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Ms. Akaksha Choudhary, Manoj Saxena, Ram Krishna, Vi pin Kumar
Jai, A.