Holding

A sale made during the pendency of a partition suit is subject to the doctrine of lis pendens and is only valid to the extent of the vendor's adjudicated share, rendering the sale deed non‑void but subservient to the preliminary decree, which operates as res judicata and precludes any claim of title by adverse possession.

Summary

The case concerned a long‑standing partition suit over the matruka property of the late Nawab Jung, in which Defendant No.1 (Hamid Ali Khan) sold his share of 68 acres 10 guntas to Bala Mallaiah on 23‑Nov‑1959. The sale was challenged on the grounds that it was made during the pendency of the partition suit, that the vendor had no authority to sell more than his 14/104 share, and that the purchasers had perfected title by adverse possession. The Supreme Court held that the suit was never dismissed, so the sale was effected during lis pendens and is only valid to the extent of the vendor's share as fixed by the preliminary decree of 24‑Nov‑1970, which has the force of res judicata. Consequently, the purchasers are bound by the preliminary decree, cannot claim the entire property, and the doctrine of adverse possession does not apply. The Court set aside the High Court’s judgment, restored the trial court’s final decree, and awarded costs.

Issues considered

Whether the decision in the original suit (1993) operates as res judicata and to what extent.
Whether the sale deed dated 23‑Nov‑1959 is hit by the doctrine of lis pendens.
Whether Section 52 of the Transfer of Property Act renders a transfer pendente lite void.
The effect and binding nature of the preliminary decree for partition.
Whether a suit for cancellation of the sale deed was necessary.
Whether the purchasers perfected title by adverse possession.
Whether a co‑sharer under Muslim law could alienate the shares of other co‑sharers.
Whether the purchaser can claim equity for allotment of Item No.6 of Schedule ‘B’ in the final decree.
Whether the sale was for legal necessity and thus binding.
The effect of proceedings under the Andhra Pradesh Tenancy Act, 1950.
The effect of the Supreme Court and High Court decisions on final decree proceedings for Item No.2 of Schedule ‘B’.
Whether there is a waiver of right by the appellants.
Whether the appellants are guilty of delay or laches.
The effect of the Urban Land Ceiling Act on the dispute.

Legislation cited

Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950s. 37A, s. 38E
Code of Civil Procedure, 1908s. 97
Transfer of Property Act, 1882s. 52
Urban Land Ceiling Act

Subjects

lis pendensres judicatapartition suitpreliminary decreeadverse possessionMuslim personal lawco‑sharerpattedar rightsTransfer of Property ActCivil Procedure CodeTenancy Act 1950equitydelaylachesurban land ceiling

Judgment

(2017] 3 S.C.R. I

T. RAVI & ANR. A
v.
B. CHINNA NARASIMHA & ORS. ETC.
(Civil Appeal Nos. 4731-4732 of2010)
MARCH 21, 2017 B

[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
c
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 D
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
E
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
F
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
~·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.
H
I
2 SUPREME COURT REPORTS. [2017]3 S.C.R.

A 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
B 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 -
c 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
D - 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
E 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
F decree ivith re~pect to the shares so determined and it cannot be re-
opened 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.
G
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
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 3

had been negative - Sale deed was hit by the doctrine of /is pendens, A
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.
B
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 ·e was adverse possession is not enough to set up
1

the plea - It has t'"; be clearly set out from which date it commenced,
and became hostile when there was repudiation of the title. c
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 D
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. E
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 - F
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 G
.. 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
H
4 SUPREME COURT REPORTS (2017] 3 S.C.R.

A - 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
B
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
c 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
D 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
E
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:
F 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
G 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
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 5

to the extent of the share of the vendor which was sought to be A
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 B
. 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.
c
(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
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 E
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 F
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 G
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 H
6 SUPREME COURT REPORTS [2017] 3 S.C.R.

A 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;
B 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
c 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.
D (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
E 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.
F [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
G
- 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
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 7

the year 11)70 and the shares were declared to the said extent of A
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
B
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 c
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 D
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 E
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 F
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 G
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, H
8 SUPREME COURT REPORTS (2017] 3 S.C .R.

A 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<']
B K.N. Aswathnarayana Setty (dead) through LRs. & Ors.
v. State of Karnataka & Ors. (2014) IS SCC
394 : [2013) 11 SCR 1029 - referred to.
(vi) Whether BM his heirs and purchasers had perfected
their righ1, title and interest by virtue or adverse possession ?
c 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
D 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
E 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
F 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
G 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!')
H
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 "! B
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 c
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] D

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 tenant-
in-common he had no authority or right to sell the share of other E
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 share by HA to
1
•

BM was void. The Mohammedan Law does not recognize the F
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 G
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; 72-
J<'-GJ
H
10 SUPREME COURT REPORTS [2017] 3 S.C.R.

A 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 &
8
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
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)
D
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
E 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.
.F
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.
G
(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
H purchasers to the permissible extent as purchasers {Je11de11te lite
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 11

can work out the equities in acconlance with law in the final decree A
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
B
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
c
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] D
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 E
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 F
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 G
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
H
12 SUPREME COURT REPORTS [2017) 3 S.C.R.

A 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)
8
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
c 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
D 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.
E (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
F 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 :
G [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
H 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
E
(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
F
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 G
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
H
14 SUPREME COURT REPORTS [2017) 3 S.C.R.

A 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
B 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
c 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.
D & 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
E 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
F 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
G
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
H
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 B
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 c
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 D
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 E
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 F
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 :
G
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
H
16 SUPREME COURT REPORTS [2017] 3 S.C.R ..

A 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
B
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
c (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
D 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
E 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
F 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
G aside. The final decree of the trial court is restored. [Paras 94,
. 95 ][ 95- ll-D I
Case Law Ucfcrcuce
(2001) 11 sec 410 referred to Para9
[2000] l SCR 1095 referred to Para 20
H
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
H
18 SUPREME COURT REPORTS · [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
AIR 1959 MP 190 referred to Para 73
E
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 A
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 B
(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
c
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4731-
4732of2010.
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
~2008. D
WITH
C. A. Nos. 4733, 4734-4735, 4736, 4837-4838, 6536-6537 and
7105-7106of2010
C. A. Nos. 4276-4277 of201 I
E
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, F
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 G
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,
H
20 SUPREME COURT REPORTS [2017] 3 S.C.R.

A Ms. Akaksha Choudhary, Manoj Saxena, Ram Krishna, Vi pin Kumar
Jai, A. Ramesh, Syed Ahmad Naqvi. Srikant Navin M., R. Chandrachud,
Ms. Shilpi Gupta, Ganni Krishna, S. Madhusudhan Babu, Ms. Ritu Bhalla,
Raghav Gupta, Yajur Mittal, N ipun Saxena, Apoorv Tripathi, Abhishek
Gupta, Ms. Rohini Musa, Zafar lnayat, Akanksha Kaur, Dr. Kailash
Chand, T. V. Ratnam, Gaurav Agarwal, Wajid A. Kami!, E. George
B
Thomas, Ejaz Maqbool, Ms. T. Anamika, Ajay Choudhary, Manoj C.
· Mishra, Nikhil Swami, Ms. Prabha Swami, Ms. Archana Sahadeva,
B. Ramana Murthy, Advs., for the appearing purtics.
The Judgment of the Court was delivered by
C ARUN MISURA, J. I. Leave granted in S.L.P. (C) Nos.
23864-23865of2011.
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' pe1taining to land
admeasuring 68 acres I0 guntas comprised in survey Nos. 63, 68, 69
D and 70 situated at village Madhapur, District Ranga Reddy, Hyderabad
is in question.
3. The property was malruka properly of Late Mohd. Nuwab
Jung who passed away on 25.4.1935. Civil Suit No.82/1935 was instituted
by Mohd. Hashim Ali Khan, son of Mohd. Nawab, in Darul Qaza City
E Cou11, Hyderabad, for partition of matruka properties of Late Nawab
comprised in Schedules 'A', 'B' and 'C'. The suit was contested, inter
alia, by defendant No. I. Darul Qaz.u Comt was abolished in the year
1951. On abolition of original jurisdiction of the High Comt, the case
, was assigned to the City Civil Court. It appears that later on as the file
was not received by the City Civil Court from the Custodian, it passed
F order dated 8.1. I955 to the effect that the file of the case was not yet
received, the plaintiff was also absent, as such the case be closed for
the time being and be revived only on receipt of the file and on an
application to be filed by the plaintiff. The city civil court understood the
order to be of dismissal of suit in default. The plaintiff moved an application
G for revival of the suit. The city civil court directed the plaintiff vide order
dated 1.12.1955 to deposit Rs.50 towards costs and if the costs were
not paid by I 5.1.2.1955, the suit shall stand dismissed. The plaintiff could
not pay the cost within the stipulated time and prayed for extension of
time which was not extended. The order was questioned by the plaintiff
in the High Cou11 by way of filing an appeal. The High Court decided
H the appeal vide order dated 23. I .1962 and held that vide order dated
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 21
[ARUN MISHRA, J.]

8.1.1955, the suit was not dismissed for default. It was an order adjourning A
the suit with a direction that it may be revived only on receipt of the file
from the Custodian, therefore, there was no necessity forthe plaintiff to
file an application under Order 9 Rule 9 CPC for restoration. Thus the
trial court had no jurisdiction to direct the plaintiff vide order dated
1.12.1955 to pay the cost of Rs.50 to the defendants on or before
B
15.12.1955 as a condition precedent. The appeal was allowed and the
order dated 1.12: 1955 was set aside. The order passed by the High·
Cou11 attained finality. Thereafter, the suit was re-numbered as Civil
Suit·No.42/J 962 in the city civil court. !·lam id Ali Khan, defendant No. I
sold Item No.6 of Schedule 'B' property in area 68 acres 10 guntas on
23.11.1959 to Bala Mallaiah vide registered sale deed. He sold the share c
inherited by other co-heirs also to Bala Mallaiah. It was found in the
preliminary decree for partition dated 24.11.1970 that defendant No. I,
Hamid Ali Khan, was having only 14/10411i share in matruka properties.
The plaintiff, and defendant Nos.2, 3 and 12 were also having ·14/J 04 11i
share each. Defendant Nos.4 to 6, daughters of Nawab had 7/1041h
D
share in matruka properties. Nurunnisa Begum, widow of Late Nawab,
defendant No. 7 was entitled to 13/1041h share in matruka prope11ies.
4. Aggrieved by the preliminary decree for partition determining
the shares to the aforesaid extent, the plaintiff and legal heirs of defendant
No. I i.e. defendant Nos.23 to 25 and defendant No.27 prefened appeal
in the year 1972 before the High Court. Cross-objections were also
E
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 F
. preliminary decree has attained finality.
5. Defendant No.25 - daughter of defendant No. I - filed IA
No.854/1984 for passing a final decree in terms of the preliminary decree
passed in the partition suit.. During the pcndency of the final decree
· proceedings, an Advocate-Commissioner was appointed to divide the G
suit schedule land by metes and bounds as per the preliminary decree
passed on 24.11.1970 for which an application (IA No.31/1989) was
filed on I 6. l.1989. He submitted a report in December, 1993 in respect
of item No.6 of Schedule 'B' of preliminary decree dated 24.11.1970 ..
The Advocate-Commissione1 divided the suit schedule prope11y on
H
22 SUPREME COURT REPORTS (2017] 3 S.C.R.

A 28.11.1993. He also noticed that third parties were in possession of the
laild and he had also seen a signboard of Surya Enclave Developers.
The sale transaction took place during the pendcncy of the preliminary
decree proceedings on 23.11.1959. The LRs. of Bala Mallaiah were
entitled to the share of Hamid Ali Khan, defendant No. I. On 6.10.1997,
pending final decree proceedings, plaintiff and defendant Nos.4 and 14
B
to 17 i.e. LRs. of defendant No.5 assigned their interest in item No. 6 of
plaint 'B' schedule properties in favour of D.A.P. Containers Pvt. Ltd.
The assignees were brought on record as defendant Nos.99 to 112 in
the final decree proceedings vide order dated 22.4.1999 passed by the
Senior Civil Judge, City Civil Court, Hyderabad.
c 6. On 16.7.2001. L.Rs. of Bala Mallaiah filed IA No.978/2001
and sought impleadment to contest the matter in respect of item No.6 of
plaint 'B' Schedule properties. Vi de order dated 14.10.2003, LRs. of
Bala Mallaiah were impleadcd. On 2.4.2004, subsequent purchasers of
the disputed property filed an application (IA No. 544/2004) under Order
D Vil Rule 11 CPC for rejection of the final decree proceedings. It was
resisted by appellants and rejected by the court vide order dated 5.7.2005
and ultimately the final decree came to be passed on 7.7.2005 in terms
of the preliminaty decree dated 24. I 1.1970. In the final decree proceedings
initiated by IA No.854/1984, share of each heir was recognized in the
disputed property being Item No.6 of Schedule' B' plaint. The rights of
E Hamid Ali, vendor of Bala Mallaiah and subsequent purchaser's share
was recognized to the extent of 14/104'h share. Rights of the assignees/
appellants were also recognized in terms of the assignment deed and
separate possession was given to them. The final decree w<;1s questioned
in Appeal Nos.385 and 386 of2006 which were filed by LRs. of Bala
F Mallaiah and purchasers from them with respect to item No.6 of plaint
'R' schedule property. The aµpeals 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 15.4.20 I 0.
7. Before the final decree could be passed in the case, civil suit
G. 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
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 23
fARUN MISHRA, J.l

was subject to the result of the partition suit, O.S. No.42/1962. It was A
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'.~
share and not over the entire prope1ty, and thus, they were not entitled to
the relief of injunction against the defendants. As against the judgment
and decree of the trial court, an appeal was preferred· in the Court of .
8
Additional District Judge, NTR Nagar, Hyderabad and the same was
dismissed on 20.7 .2000. Second Appeal No.465/2001 preferred against
the same in the High Court was dismissed vide judgment and order
dated 26.9.2001.
8. Land grabbing proceedings under the Andhra Pradesh Land
Grabbing (Prohibition) Act, 1982 initiated by the L.Rs. of Bala Mallaiah
c
were dismissed by the Special Court in LGC No.148/1996 vide order
dated 13.5.1997. It was held that the applii;;ation was not maintainable. ·
The court took cognizance of the preliminary decree proceedings,
appointment of the Commissioner and also held that it was not open to.
contend that the doctrine of /is pe11de11s had no application. The D
application was ultimately dismissed. The order was questioned by way
of filing W.P. No.15577/2001 in the High Court of Andhra Pradesh. The
High Court simply observed that the observations made by the special
court would not come in the way of the petitioners to work out their
rights in accordance with law in the partition suit, that is to say in the
final decree proceedings. E

9. There was yet another litigation initiated by Boddam Narsimha,
nephew of Bala Mallaiah. On 16.12.1998 an application was filed before
the Tribunal, Ranga Reddy District, seeking declaration of protected
tenancy under section 37 A of the A.P. (Telangana Area) Tenancy and
Agricultural Lands Act, 1950. The same was dismissed vide order dated F
24.8.1999. The appeal preferred to the Joint Collector was also dismissed
on 13.3.2000. CRP No.2229/2000 before the High Court of Judicature
at Andhra Pradesh was dismissed by the Single Judge vide order dated
16.4.200 l. Aggrieved thereby, C.A. No.3429/2002 - Boddwn Narsimha
v. Hasan Ali Kha11 (dead) by LRs. & Ors. - (2007) 11 SCC 410 was G
filed, and the same was also dismissed by this Court.
10. The High Court while passing the impugned judgment and
decree under appeal has held that the sale deed dated 23.11.1959 was
not hit by the principle of /is p<'ndens under section 52 of the Transfer
of Property Act. During the pendency of the suit, defendant No. I had H
24 SUPREME COURT REPORTS [2017] 3 S.C.R.

A leased out the land to Bala Mallaiah and later on had alienated the same
on 23.1 I .1959. The decision of this Court in Buddam Narsimha (supra)
had been relied upon to hold that Bala Mallaiah was declared as Pattcdar,
that would bind all the parties. It was necessary for the plaintiff to take
steps to get the sale deed dated 23.11. I959 cancelled in accordance
with law. It has also been held that as the sale by defendant No. I to
8
Bala Mallaiah was not effected during /i.1· pendens, in the absence of
challenge to the sale deed and due to non-impleadment in the suit, by
vi11ue of adverse possession, title has been perfected. At the same time,
the High Com1 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
c the parties. Thus, the final decree which has been passed by the trial
cou11 with respect to item No.6 of plaint '8' 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 I955 as
0 held by the High Cou11 in the year 1962. Thus, the sale deed dated
23.11.1959 was clearly during !is pendens. The suit was filed in the
year I 935 and the preliminary decree for partition was passed in the
year I970 and final decree has been passed in 2005. It was further
contended that it wi,s not open to defendant No. I to sell more than his
share. He had no authority to sell the land belonging to the share of other
E
co-heirs as Muslims inherit the property as tenants-in-common and not
as joint tenants. It was further submitted that there was no necessity of
questioning the sale deed as it was subject to the provisions of !is pendens
contained in section 52 ofT.P. Act. The High Court has gravely erred in
law in holding that the title had been perfected by virtue of adverse
F possession. It was also contended that this Court in Boddam Narsimha
(supra) did not adjudicate the question of title of Bala Mallaiah. Thus,
the High Court has gravely erred in law in reversing the judgment and
decree passed by the trial cot111 as affirmed by the first appellate com1.
The High Com1 has also erred in law in holding that it was impracticable
to pass the decree with respect to item No.6 of schedule 'B' property.
G
Learned senior counsel appearing on behalf of the appellants
submitted that the decision in Civil Suit No.289/1993 for permanent
i1tj unction which was based upon title, operates as res judicala on various
issues. The plea of estoppel has also been raised on behalf of the
appellants. It was further submitted that the pica of equity with respect
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 25
[ARUN MISHRA, J.]

to partition of property was not available to Bala Mallaiah or to the A
purchasers from him.
It was also submitted on behalf of the appellants that the final
decree proceedings qua other item No.2 of schedule 'B' prope11y have
attained finality in which the order passed by the Division Bench of the
High Court of Andhra Pradesh in LPA No. I04/1997 has been affirmed B
by this Court by a speaking order passed in SLP [CJ No.3558/1999
decided on 1.10.1999. Thus, the decision of this Court is binding upon
the parties and the findings recorded by the High Court therein on
questions of law in its judgment have attained finality. Thus, the High
Court has erred in law in holding otherwise.
c
12. Learned senior counsel appearing on behalf of respondents
have submitted that the sale deed dated 23.11.1959 in favour of Bala
Mallaiah is valid and binding as disputed land could have been alienated
even during the pend ency of the suit for pai1ition. It was strenuously
submitted on behalf of the respondents that the sale in question could not
be said to be during !is pe11de11s as the suit in fact stood dismissed in D
1955 and was later on revived by the High Court in 1962. The decision
of this Court in Boddam Narsimha (supra) is binding in which
foundational basis for the judgment was the fact that Bala Mallaiah was
a pattedar of the land, and it was necessary to avoid the sale deed in
question by getting it cancelled in accordance with law within the period E
oflimitation and that by vi11ue ofadverse 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 properly ought to have been
allotted to the share of defendant No. I in order to adjust the equities F
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 G
were given the libe11yto raise the question of equity in the final decree
proceedings. Thus, the High Court has rightly inte1fcred with the final
decree with respect to the disputed property. Even if section 52 of the
T.P. Act is applicable, the transactions hit by !is pe11de11s are not void .
. . Bala Mallaiah had acquired the rights of a pattedar, no decree could H
26 SUPREME COURT REPORTS [2017] 3 S.C.R.

A have been passed in favour of L.Rs. of Late Nawab Jung. Considering
the conduct Of the appellants, no case for interfere.nee is made out.
They cannot approbate and reprobate.
13. Following questions arise for consideration under the appeals:-
(i) Whether the decision in Original SuitNo.294of1993 operates
B as res judicata, if yes to what extent?
(ii) Whether the sale deed dated 23. I l .1959 executed by defendant
no. I in favour of Bala Mallaiah is hit by doctrine of /is pe11de11s?
(iii) Whether section 52 ofT.P. Act renders a transfer pe11de11te
c lite void?
(iv) What is the effect of preliminary decree for partition and the
extent to which it is binding?
(v) Whether it was necessary to file a suit for cai1cel lation of sale
deed dated 23 .11.1959? ·
D
(vi) Whether Bala Mallaiah, his heirs and purchasers had
perfected their right, title and interest by virtue of adverse possession?
(vii) Whether under the Muslim law, defendant no. I being a co-
sharer could have alienated the share of other co-sharers in the disputed
property?
E
(viii) Whether the purchaser has a right to claim equity for allotment
oflten1 No.6 of Schedule 'B' property in final decree proceedings in suit
for pa11itio11? If yes, to what extent ?
(ix) Whether sale wa> for legal necessity, and thus binding?
F (x) What is the effect of proceedings under the Tenancy Act,
1950?
(xi) What is the effect of decision of this Court and High Court
with re,spect to final decree proceedings in Item No.2 of Schedule 'B'
property?
G
(xii) Whether there is waiverofright by appellants?
(xiii) Whether appellants are guilty of delay or !aches?
(xiv) What is the effect of the decision of the Court under the
Urban Land Ceiling Act?
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 27
rARUN MISHRA, J.l

(i) In re : whether the decision in Original Suit No.. 294 of A
1993 operates as res j11dic11t11, if yes, to what extent?
\

I 4. Twelve LRs. of Bala Mallaiah filed the aforesaid suit against
Mohd. HasimAli Khan and 13 other heirs of Late Nawab Jung. The suit
was with respect to Item No.6 of Schedule 'B' that is with respect to
survey Nos.63 and 68 to 70 comprised in area 68 acres I0 guntas situated B
at village Madhapur in erstwhile West Taluk, Hyderabad district now
known as Serilingampally Mandril.
I 5. 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 ui1der the Andhra Pradesh Tenancy and Agricultural Lands c
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 I 975. His undivided I13rct share devolved
upon plaintiff Nos. I and 2. PlaintiffNos.3 and 4 are sons of plaintiff
No. I and plaintiffNo.5 is the son ofplaintiffNo.2. Komaraiah, brother D
of Bala Mallaiah also died and his 1/3'" interest had devolved upon plaintiff
Nos.6 and 7. Agaiah- plaintiffNo.8 is the brother of Bala Mallaiah and
plaintiffNos.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 E
Developers & Promoters with respect to 13 acres 17 guntas forming
part of survey No.68 and 12 acres 31 glintas in survey No.69. Another
agreement was entered into with Bapuji Estates with respect to 6 acres
of area out of survey No.69. Plots comprised in survey Nos.68 & 69.
were also sold to various persons. Survey No.69 was also sold in entirety. F
A preliminary decree for partition was passed in O.S. No. 42/1962 in the
year 1970 which comprised of disputed property also. Bala Mallaiah or
- the plaintiffs and other heirs were not imp leaded as parties in the aforesaid
suit for partition and under the guise of decree the defendants were
claiming ownership and threatening to dispossess the plaintiffs forcibly.
In the suit for partition, during final decree proceedings, an Advocate- G
Commissioner had been appointed who visited the disputed property on
15.8.1993. Hence, suit No.294/J 993 was filed for perpetual injunction.
16. The defendants in their written statement contended that the
suit was not maintainable. The preliminary decree for partition dated
H
28 SUPREME COURT REPORTS [2017] 3 S.C.R.

24.11.1970 was binding in which shares of respective parties had been
declared. Suit for partition was filed in the year 1935. The sale transaction
between Hamid Ali Khan and Bala Mallaiah was void and conferred no
right, title or interest upon the plaintiffs. Plaintiffs had no right'to interfere
i11 the shares allotted to other co-heirs in the suit for pa11ition. The prope11y
in question was ancestral property. The findings recorded in preliminary
B
decree against defendant No. I, vendor of Bala Mallaiah are binding
upon the plaintiffs, and as such they are not entitled for any relief.
17. It is apparent that the suit for permanent injunction was filed
by the plaintiffs on the basis of sale deed dated 23.11.1959 in which it
was also submitted that it was not during /is pendens. Plea of adverse
c possession had also been raised which was negatived. They claimed
injunction on the basis of possession under the sale deed dated 23.11.1959.
The trial court in the aforesaid civil suit gave the following findings against
the plaintiff: ( i) that the purchase was hit by doctrine of /is pendens so
that they are not entitled for relief of injunction against the defendants
D who are co-sharers as per the preliminaiy decree dated 24.11.1970 passed
in the pa11ition suit; (ii) it was also held that the possession of the plaintiff
_could not be said to be a rightful possession. It is not open to the plaintiff
to claim right on the basis of sale deed on the ground that they were not
pai1ies to the partition suit. It was also held that whatever their vendors
would get in the suit for pa11ition, to that extent they would be entitled to
E 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 /is pendens and there was no pleading or
evidence regarding adverse possession.
18. The judgment was affirmed in the first appeal vide judgment
F 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 tis pendcns. The first appellate court
also held that the vendor of Bala Mallaiah namely, Hamid Ali Khan,
defendant I, had no right to sell the entire dispute propc11y to Bala Malliah
G as absolute owner. The plaintiffs could claim right over the property to
the extent of vendor of Bala Mallaiah. It was also held that the land
grabbing case LGC No.148/1996 was dismissed which order had attained
finality and barred the present suit. Injunction could not be granted in
view of the preliminary decree for partition which had been passed as it
would tantamount to granting injunction against the decree-holders for
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 29
fARUN MISHRA, J.l

ei1forcing their lawful decree. Being a purchaser !is pendens, itis open A
to the plaintiff to approach the court where the final decree proceedings
were pending to work out available equity to the extent or" vendor's
share. Against the said decision in first appeal, Second Appeal No.465/
2011 was filed.in the High Court ofAndlira Pradesh at Hyderabad which
was dismissed i11 limine vide order dated 26.9.2011 as no substantial
B
question oflaw was found involved in the appeal. Judgment and decrees
of cou11s below were thus affirmed.
19. In view of the categorical findings recorded by the trial court
and first appellate court it is apparent that the sale deed dated 23 .11.1959
was hit by doctrine of !is pendens and secondly on the basis of the said
sale deed, L. Rs. of Bala Ma.llaiah could have clai111ed only to the extent c
of the share of his vendor and not the entire land, i.e. only to the extent
of 14/104•h share of defendant No. I.
20. With respect to effect of suit for permanent injunction based
upon title, effect of negativing title has been considered by this Court. In
Sajjadanashin Sayed Md. B.E. Edr. (DJ by LRs. v. Musa Dadabhai D
Ummer & Ors. (2000) 3 SCC 350, it has been held :
"24. Before patting with this point, we would like to refer to two
more rulings. In Suloclw11aA111111a i: Narayanan Nair ( 1994) 2
SCC 14 this Cou1t held that a finding as to title given in an earlier
injunction suit would be res judicata in a subsequent suit on title. E
On the other hand, the Madras High Court, in Va11agiri Sri
Sellia111111a11 Ayyanar Uthiraso111asundareswarar Te111p/e v.
Rajanga Asari AIR 1965 Madras 355 held (see para 8 therein)
that the previous suit was only for injunction relating to the crops.
Maybe, the question of title was decided, though not raised in the F
plaint. In the latter suit on title, the finding in the earlier suit on title
would not be res judicata as the earlier suit was concerned only
with a possessoty right. These two decisions, in our opinion, cannot
be treated as being contrary to each other but should be understood ·
in the context of the tests referred to above. Each of them can
perhaps be treated as correct if they are understood in the light of G
the tests stated above. In the first case decided by th is Com1, it is
to be assumed that the tests above-referred to were satisfi~d
for holding that the fi11di11g 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, ii must be H
, 30 SUPREME COURT REPORTS [2017] 3 S.C.R.

A assumed that the tests were not sati~fled. As stated in Mu/la, it
all depend~ 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 il?iunction. In this context, we may refer to Co17Jus Juris
Secu11du111 (Vol. 50. para 735. p. 229) where a similar aspect
B
in regard to .findings 011 possession and incidental findings
on title were dealt with. It is stated:
"Where title to property is the basis of the right ofpossession,
a decision on the question of possession is res judicata on
the question of title to the extent that adjudication of title was
c essential to the judg111e11t: but where the question of the right
to possession was the only issue actually or necessarily
ii1volved, the judgment is not conclusive 011 the question of
ownership or title."
25. We have gone into the above aspects in some detail so that
D when a question arises before the Courts as to whether an issue
was earlier decided only incidentally or collaterally, the Courts
could deal with the question as a matter of legal principle rather
than on vague grounds. Point l is decided accordingly."
(emphasis added by us)
E In Commissioner of Endowments & Ors. v. Vittal Rao & Ors.
(2005) 4 sec 120, it has been held thus :
"28. In support of his submission, the learned counsel for
Respondent I contended that as long as an issue arises
substantially in a litigation irrespective of the fact whether or not
F · a formal issue has been framed or a formal reliefhas been claimed,
a finding on the said issue would operate as res judicata, strongly
relied on the decision of this Court in Sajjadanashin Sayed Md.
B.E. Eclr. v. Musa Dadabhai U111111er (supra). Paras 18 and 19
of the said judgment read: (SCC pp.359-60)
G "18. In India, Mu Ila has reforrcd to similar tests (Mu/la, 15th
Edn., p. I04). The learned·author says: a matter in respect of
which relief is claimed in an earlier suit can be said to be
generally a matter 'directly and substantially' in issue but it
does not mean that ifthe matter is one in respect of which no
relief is sought it is not directly or substantially in issue. It may
H
T. R,AVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC 31
[A:RUN MISHRA; J.]

or may not be. It is possible that it was 'directly and substantially . A
in issue and it may also be possible that it was only collaterally
or incidentally in issue, depending upon the facts ofthe case.
The question arises as to what is the test for deciding into
which category a case falls? One test is that if the issue was
'necessary' to he decided for adjudicating on the principal
B
issue and was decided, it would have to be treated as
'directly and substantially' in issue and if it is clear that
the ju,dgment was in fact based upon that decision, then it
would be res judicata in a latter case (Mulla, p. I04). One
has to examine the plaint, the written statement, the issues and
the judgment to find out if the matter was directly and c
substantially in issue (!sher Sin~h v. Sar11•an Sin~h AIR 1965
SC 948 and Syed Mohd. Salie Labbai v. Mohd.
Hanifa ( 1976) 4 SCC 780). We are of the view that the above
summary in Mulla is a correct statement of the law.
·19: We have here to advert to another principle of caution referred D
to by Mu Ila (p. I05):
'It is not to be assumed that matters in respect of which issues
have been framed are all of them directly and substantially in
issue. Nor is there any special significance to be attached to
the fact that a particular issue is the first in the list of E
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. ' "
F
(emphasis in original and suppl icd)
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 G
Respondent I 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 ciear 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." H
32 SUPREME COURT REPORTS [2017] 3 S.C.R.

A 21. Reliance has been placed by learned senior counsel for the
respondents on a decision in Anat/mla Sudhakar v. P. Buchi Reddy
(dead) by LRs. & Ors. (2008) 4 SCC 594 wherein the Court had
summarized the conclusions thus: :
"21. To summarise, the position in regard to suits for prohibitory
B injunction relating to immovable properly, is as under:
(a) Where a cloud is raised over the plaintiff's title and he
does not have possession, a suit for declaration and possession,
with or without a consequential injunction, is thesemedy. Where
the plaintiff's title is not in dispute or under a cloud, but he is
c out of posse.ssion, he has to sue for possession with a
consequential injunction. Where there is merely an interference
with the plaintiff's lawful possession or threat of dispossession,
it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with
D possession, normally the issue of title will not be directly and
substantially in issue. The prayer for injunction will be decided
with reference to the finding on possession. But in cases where
de jure possession has to be established on the basis of title to
the property, as in the case of vacant sites, the issue of title
may directly and substantially arise for consideration, as without
E
. a finding thereon, it will not be possible to decide the issue of
possession.
(c) But a finding on title cannot be recorded in a suit for
injunction, unless there are necessary pleadings and appropriate
issue regarding title (either specific, or implied as noticed in
F
A1111ai111u1hu Thevar \' A/agammal (2005) 6 SCC 202. Where
the averments regarding title are absent in a plaint and where
there is no issue relating to title, the court will not investigate or
examine or render a finding on a question of title, in a suit for
injunction. Even where there are necessary pleadings and issue,
G if the matter involves complicated questions of fact and law
relating to title, the court will relegate the parties to the remedy
by way of comprehensive suit for declaration of title, instead
of deciding the issue in a suit for mere injunction.

H
T. RAVI & ANR. v. B. Cl-IINNA NARASIMl-IA & ORS. ETC. 33
fARUN MISHRA, J.]

(d) Where there are necessary pleadings regarding title, A
and appropriate issue relating to title on which parties lead
evidence, ifthe matter involved is simple and straightforward,
the comi may decide upcin the issue regarding title, even in a
suit for injunction. But such cases, are the exception to the
normal rule that question of title will not be decided in suits for
B
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. TI1e court should u.se its
discretion carefully to identify cases where it will enquire into c
· 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 subm~tted on behalf of respondents that the findings in
0.S~ No.294/1993 do not operate as resjudicata as it was left ultimately D
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. E
and the purchase was affected by /is pendens. We are of the considered
opinion that the finding with respect to purchase being made during /is
pendens had attained finality and was not open to question in the present
proceedings. Besides, the validity of the sale deed to the extent of the
share of the vendor which was sought to be re-agitated in the final decree F
proceedings, was also not open to be raised in view of clear findings
recorded in the suit of 1993. Though we have held SQ, however nothing
turns on the aforesaid finding as to resjudicata as we propose to examine
both aspects on merits afresh, in view of the conclusions which we
propose to record hereinafter.
G
(ii) ln .re: Whether the sale dl·ed dated 23.11.1959 executed
by defendant No.1 in favour of Bala Mallaiah is hit by doctrine of
/is pent/em?
23. In the instant case, a suit for partition was filed in the year
1935. On abolition of Darul Qaza Court in 1951 the case was transferred H
34 SUPREME COURT REPORTS [2017] 3 S.C.R.

A to the High Court. On abolition oforiginaljurisdiction of the High Court,
file was sent to the city civil court. It appears that when the file from
Custodian did not reach the city civil court, hence order dated 8.1.1955
was passed to the following effect :
8.1.1955 - "This file summoned by the Custodian is not yet received.
B As the plaintiff too is absent and the file not yet received the case
be closed. It may be revived only on the receipt of the file and
the application of the plaintiff."
It is apparent from the aforesaid order that it was clearly an order
of keeping the case sine die to be taken up only on receipt of the file on
c being informed by filing an application by the plaintiff. The file was not
before the court. Thus, there was no question of dismissal of the case in
default nor was it so dismissed by the cou1i. However the plaintiff
laboured under wrong impression, as such filed application under Order
9 Rule 9 CPC and prayed for restoration of the suit. An order was
passed on 1.12.1955 by the city civil court, restoring the suit on the basis
D of payment of Rs.50 as costs to be paid on or before 15.12.1955. Costs
could not be deposited by the plaintiff by 15.12.1955. The prayer was
. made to accept the costs on 16.12.1955 by extending time under section
148 CPC. However, the city civil court dismissed the said application.
The order was questioned in the High Court in appeal filed by the plaintiff
E 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 triai court. It was an order adjourning the suit with a direction to
be revived only on the file being received from the Custodian. Therefore,
there was no necessity for the plaintiff to file an application under Order
9 Rule 9 CPC. The High Cou1t had set aside the order dated 8.1.1955
F and also held that there was nojurisdiction 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
G dismissed for default. Virtually, it is an order adjourning the suit
with a direction that it may be revived only on the receipt of the
file from the Custodian. Therefore there was no necessity for
the plaintiff to file the application under Or. 9, Rule 9, CPC, praying
that the suit be restored to its original number after setting aside
H the order dated 8-1-55. The plaintiff could have merely asked
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 35
[ARUN MISHRA, J.]

the court to take up the suit and to proceed with the trial. The A
learned Judge has no jurisdiction to direct the plaintiff by his order
dated 1-12-55 to pay day costs viz., Rs.50/- to the defendants on
or before 15-12-55 as a condition precedent. This order is clearly
illegal and has to be set aside.
In the result, the appeal is allowed, and the order dated 1-12-55 B
directing the plaintiff to pay tile defendants Rs.50/- on or
before 15-12-55 as a condition precede1it to restraining the suit is
set aside. As a consequence, the order dated 7-1-56 is vacated.
Since this is a suit of 1951 which has been pending for a long time,
the lower court will dispose of the same as expeditiously as possible.
The contesting respondents shall pay the costs of the appellant." c
24. A preliminary objection has been raised on behalf of the
respondents as to very applicability of doctrine of /is pendens to
Moham1i1edan law based upon provisions contained in section 2 ofT.P.
Act. Section 2 is extracted hereunder :
D
"2. Repeal of Acts.--Saving of certain enactments, incidents,
rights, liabilities, etc. - In the territories to which this Act
extends for the time being the enactments specified in the Schedule
hereto annexed shall be repealed to the extent therein mentioned.
But nothing herein contained shall be deemed to affect-
E
(a) the provisions of any enactment not hereby expressly
repcakd;
(b) any terms or incidents of any contract or constitution of
property which are consistent with the provisions of this Act,
and are allowed by the law for the time being in force; F
(c) any right or liability arising out ofa legal relation constituted
before this Act comes into force, or any relief in respect of
any such right or liability; or
(d) save as provided by section 57 and Chapter IV of this Act,
any t1:ansfer by operation of law or by, or in execution of, a G
decree or order of a Court of competent jurisdiction,
and nothing in the second Chapterofthis Act shall be deemed to
.affect any rule of Muhammadan law."
No doubt about it that section 2 of T.P. Act protects rule of
H
36 SUPREME COURT REPORTS [2017) 3 S.C.R.

A Mohammedan law by excluding the provisions of Chapter II containing
sections 5 to 53A thereof. In our opinion, exclusion is conditional upon
existence of rule of Mohammedan law in that regard, that is to say if
principle/rule of Mohammedan law provides as to transfers !is pe11de11s,
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
13 .
such rule of Mohammedan law containing provision as to !is pendens
a·nd 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
ofT.P. Act to Mohammedan law is hereby rejected.
25. It was submitted on behalf of the respondents that the sale
c 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 !is 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 Bhulnalh Das & Ors. v. Sahadeb Chandra Pa11ja AIR 1962 Cal.
D 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 als? been made that if the
E money is not paid the suit will stand disinisscd, the court retaii1s
jurisdiction. Though not without hesitation, I have reached the
conclusion that in such a case it will be unrealistic and unjust to
~ay_ th~t t~1e court retaii~s ju~·isdictio~1. Wh1ther the cowt has retained
iunsdiction or not will, m my view, depend very much on the
substance of the directions given ..... Where ..... the court makes
F also an order that if the amount is not deposited within the time
specified the suit will stand dismissed, I find it difficult to agree
that the court retains any jurisdiction whatsoever.
6...... the trial court lost jurisdiction in the suit as soon as it made
the order directing the payment within a certain time and further
G directing that on failure of the deposit being made within the time
limited the case should stand dismissed."
26. The decision of this Court in Vareed Jacob v. Sosamma
Geevarghese & Ors. (2004) 6 SCC 378 has been relied upon in which
it has been laid down thus :
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 37
fARUN MISHRA, J.l

"18. In the case of Sam11atha Ayyangar v. Muthiah Moopanar A
AIR 1934 Mad 49 it has been held that on restoration of the suit
dismissed for defau It all interlocutory matters shall stand restored,
un les·s the order of restoration says to the contrary. That as a
matter of general rule on restoration of the suit dismissed for
default, all interlocutory orders shall stand revived unless during
B
the interregnum between the dismissal of the suit and restoration,
there is any alienation in favour ofa third party.
Even the dissenting judgment ofS.B. Sinha, J. had on this point
noted:
62. It is also of some importance that there exists a view that an C
order of dismissal of a suit does not render an order of attachment
void ab initio as a sale of property under order of attachment
would be in val id even after the date of such sale and the order of
attachment is withdrawn.
63. A converse case may arise when the prope11y is sold after D
the suit is dis111issed for default and before the same is restored.
Is it possible to take a view that upon restoration of suit the sale of
prope11y under attachment before judgment becomes invalid? The
. answer to the said question must be rendered in the negative. By
taking recourse to the interpretation of the provisions of the statute,
the court cannot say that although such a sale shall be valid but E
the orderof attachment shall revive. Such a conclusion by reason
of a judge-made law may be an illogical one."
27. lt was submitted on behalf of the appellants that the sale was
subject to the doctrine of /is pendens under section 52 of the T.P. Act. It
was further submitted that the said provision is clear and unambiguous F
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 juirisdiction, and to continue until the suit or
proceeding has been disposed of by a decree or an order and complete G
satisfaction of order or disdiarge of such order or decree has been
obtained or has become unobtainable by reason or the expiration of any
period of limitation prescribed for ·the execution thereof. Thus, the
transfer if any made in contravention ofSection 52 renders it subservient
to the rights of the parties in Iiti:;ation so that the rights would eventually
H
38 SUPREME COURT REPORTS [2017] 3 S.C.R.

A be determined in a suit. Thomso11 Press (/11dia) Ltd. 1' Na11ak Builders
and Investors Pvt. Ltd. & Ors. (2013) 5 SCC 397, has been relied on in
which this Court has laid down thus :
"26. lt would also be worth discussing some of the relevant laws
in order to appreciate the case on hand. Section 52 of the Transfer
B of Property Act speaks about the doctrine of I is pen dens. Section
52 reads as under:
"52. Tr1111~fer ofproperty pe11tli11g l"ttit relating thereto.-
During the pendency in any cou11 having authority within the
limits oflndia excluding the State of Jamnrn and Kashmir or
c estab\ished beyond such limits by the Central Government of
any suit or proceeding which is not collusive and in which any
right to immovable property is directly and specifically in
question, the property cannot be transferred or otherwise dealt
with by any party to the suit or proceeding so as to affect the
rights of any other pa11y thereto under the decree or order
D
which may be made therein, except under the authority of the
com1 and on such terms as it may impose.
Expla11atio11.--For the purposes of this section, the
pcndency of a suit or proceeding shall be deemed to commence
from the date of the presentation of the plaint or the institution
E
of the proceeding in a court of competent jurisdiction, and to
continue until the suit or proceeding has been disposed of by a
final decree or order and complete satisfaction or discharge of
such decree or order has been obtained, or has become
unobtainable by reason of the expiration of any period of
F limitation prescribed for the execution thereof by any law fur
the time being in force."
It is well settled that the doctrine oflis pendens is a doctrine based
on the ground that it is necessary for the administration of justice
that the decision of a court in a suit should be binding not only on
G the litigating pa11ies but on those who derive title pendente lite.
The provision of this section does not indeed annul the conveyance
or the transfer otherwise, but to render it subservient to the rights
of the pai1ies to a I itigation.
27. Discussing the principles oflis pcndens, the Privy Council in
H Gouri Dull Maharaj v. Sk. Sukur Mohammed AIR 1948 PC
T. RAVI & ANR. v. B. CHlNNA NARASlMHA & ORS. ETC. 39
fARUN MISHRA, J.l

14 7 observed as under: (IA p. 170) A
" ... The broad purpose of Section 52 is to maintain the status
quo unaffected by the act of any party lo the litigation pending
its determination. The applicability of the section cannot depend
on matters of proof or the strength or weakness of the case on
one side or the other in bona fide proceedings. To apply any B
such test is to misconceive the object of the enactment and, in
the view of the Board, the learned Subordinate Judge was in
error in this respect in laying stress, as he did, on the fact that
the agreement of 8-6-1932, had not been registered."
28. ln Kedar Nath Lal v. Ganesh Ram AIR 1970 SC 1717, this c
Cou11 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 D
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 Jvfookerji (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 ilwoluntary alienations E
such as cou11 sales but it is well established that the principle
oflis pendens applies to such alienations. (See Nilakant Banerji
v. Suresh C/11111der Mullick ( 1884-85) 12 IA 17 l ai1d Moti
Lal v. Karrab-11/-Din ( 1896-97) 24 IA 170)' (Samarendra
Nath case. (supra), AIR p. 1445, para 16)" F
29. The aforesaid Section 52 of the Transfer of Prope11y Act
again came up for consideration before this Court in Rajender
Singh v: Santa Singh AIR 1973 SC 2537 and Their Lordships
with approval of the principles laid down in Jayaram Mudaliar
v. Ayyaswami ( 1972) 2 SCC 200 reiterated: (Rajender Singh G
case (supra), sec p. 711, para 15)
"15. The doctrine of lis pendens was intended to strike at
attempts by parties to a litigation to circumvent the jurisdiction
of a cou11, in which a dispute on rights or interests in immovable
prope11y is pendinL, by private dealings which may remove the
H
~o SUPREME COURT REPORTS [20 I 7) 3 S.C.R.

A subject-matteroflitigation from the ambit of the court's power
to decide a pending dispute or frustrate its decree. Alienees
acquiring any immovable prope1iy during a litigation over it are
held to be bound, by an application of the doctrine, by the decree
passed in the suit even though they may not have been impleaded
in it. The whole object of the doctrine oflis pendens is to subject
B
parties to the litigation as well as others, who seek to acquire
rights in immovable property, which are the subject-matter of
a litigation, to the power and jurisdiction of the court so as to
prevent the object of a pending action from being defeated.""
28. Reliance has been placed on A. Nawab John v. V.N.
c Subramaniyam (2012) 7 SCC 738; laying down thus :
"18. lt is settled legal position that the effect of Section 52 is not
to render transfers effected during the pendency of a suit by a
party to the suit void; but only to render such transfers subservient
to the rights of the parties to such suit, as may be, eventually,
D 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 sanie legal rights and
obligations of his vendor as may be cventu~lly determined by the
court.
E "12 . ... The mere pend ency of a suit does not prevent one of
the parties from dealing with the prope11y constituting the
subject-matter of the suit. The section only postulates a
condition that the alienation wi II in no manner affect the rights
of the other party under any decree which may he passed in
F the suit un.less the property was alienated with the permission
of the court." (Sanjay Verma v. Manik Roy (2006) 13 SCC
608, sec p. 612, para 12. )'"'
29. Reliance has been placed on Sanjay Verma i' Manik Roy
and Ors., (2006) 13 SCC 608, in which this Court laid down :
G "10. Bibi Zubaida Khatoon case (2004) I 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 suppo11s the stand taken by the respondents, it is to be
noted that the factual position was entirely different. Jn fact a
cross-suit had been filed in the suit in that case. The respondents
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 41
fARUN MISHRA, J.l

being transferees pendente lite without leave of the court cannot A
as of right seek impleadment in the suit which was in the instant
case pending for a very long time. In fact in para I 0 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 Sarvi11der Singh v. Dalip Singh
B
(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 cou1t having authority within
the limits of India ... of any suit or proceeding which is not c
collusive and in which any right to immovable property is
directly and specifically in question, the property cannot be
transferred or otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other party thereto
under the decree or order-which may be made therein, except
under the authority of the cot111 and on such terms as it may D
impose.'
It would, therefore, be clear that the defendants in the suit were
prohibited by operation of Section 52 to deal with the property
· and could not transfer or otherwise deal with it in any way affecting .
.the rights of the appellant except with the orderor authority of the E
court. Admittedly, the authority or order of the coi1rt had not been·
obtained for alienation of those properties. Therefore, the alienation
obviously would be hit by the doctrine oflis pendens by operation
·of Section 52. Under these circumstances, the respondents cannot
be considered to be either necessary or proper parties to the suit." F
12. The principles specified in Section 52 of the TP Act are in
accordance with equity, good conscience or justice because they
rest upon an equiiable 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 G
the decree just as much as he was a party to the suit. The principle
of lis pendens embodied in Section 52 of the TP Act being a
principle of public policy, no question of good faith or bona fide
arises. The principle underlying Section 52 is that a Iitigating party
is exempted from Jaking notice of a title acquired during the
1-1
42 SUPREME COURT REPORTS [2017] 3 S.C.R.

A pendency of the litigation. The mere pendency ofa 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
B
of the court."
30. It was also submitted on behalf of the appellants that the
expression in section 52 of the T.P. Act "suit or proceedings" is also
applicable to the applications. An application seeking extension of time
is also a proceeding within the meaning of the said provision and appeal
c filed is also continuation of the suit or proceedings but comes within the
meaning of the proceedings. The legislative intent behind the amendment
of section 52 was not only to cover the suit but also to cover appeals and
proceedings and same would include all applications/appeals under the
CPC. An application under Order 9 Rule 9 would also be covered within
D the meaning of the expression suit or other proceedings to which the
doctrine of !is pe11de11s 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 !is pendens, which prior to its amendment only
prohibited a transfer made during the "active prosecution" of a suit or a
E
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 i11 the application of the rule, and caused a divergence of
judicial opinion. It was felt that the standard of diligence, which would
F constitute "active prosecution", could not be defined with precision. To
remove this unce1iainty, the law was amended in 1929,_ and the Amending
Act XX of 1929 substituted the word "pendency" for the phrase "active
prosecution"; and there can now be no difficulty in deciding whether the
transfer was made during the pen<lency of a suit or proceeding. In
Parmeshari Din v. Ram Charan & Ors. AIR 1937 PC 260, it was
G held:
"2. It is clear that the question of the active prosecution of a suit
is one of fact, but it was not suggested in either of the Courts in
India that the plaintiffs had not actively prosecuted the suit, and
were consequently debarred from availing themselves of the rule
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 43
[ARUN MISHRA, J.]

of/is pendens. The learned Judges of the Court of Appeal had, A
therefore, no oppotiunity to express their opinion on this point;
and their Lordships cannot entertain an objection, which depends.·
upon a question of fact not dealt with below. Upon the record
before them, there is no indication of any delay or remissness in
the prosecution of the suit, for which the plaintiffs can be held
B
responsible. Their Lordships, therefore, agree with the High Court
that the transfer relied upon by the appellant cannot prejudice the
rights of the decree-holders, and that he cannot resist the decree
obtained by them."
The abovesaid principle of law settled in the year 1937 by the
Privy Council is still valid as discerned from the latest judgment of this c
Couti rendered in the case of Kirpal Kaur v. Jitender Pal Sin~h &
Ors. (2015) 9 sec 356:
"21. The execution of the alleged gift deed by the deceased first
defendant in favour of the second defendant is also hit by
Section 52 of the Transfer of Property Act, 1882, as the said deed D
was· executed during the pendency of the proceedings and before
the expiry of the period oft imitation for filing SLP. Further, during
the pendency of these proceedings, the second defendant, who
has claimed to be the alleged beneficiary of the suit Schedule "B"
property on the basis of alleged gift deed should have sought leave E
of this Court as the donee and brought the aforesaid fact ~f
execution of the alleged gift deed in respect of "B" schedule
property by the deceased first defendant, which property has been
devolved in his favour, to the notice of this Court as provided
under Order 22 Rule I 0 of the CPC and defended his right as
required under the law as laid down by this Court in a catena of F
cases.
xxxxx
26. The legality of the alleged gift deed executed in favour of the
second defendant by the deceased first defendant in respect of G
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 Cou1t in the case of Jagan
Singh v. Dhanwanti (2012) 2 SCC 628, wherein this Comt has
laid down the legal principle that under Section 52 of the Transfer
1-1
44 SUPREME COURT REPORTS. (2017] 3 S.C.R.

A of Prope11y 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 pendenfe lite were
B
permitted to preva iI."
wherein the factum of the alleged gift deed was not made known
to the Cou11. This has been extrapolated in the case of Jagan Singh
(dead) through LRs. v. Dhanwanti & Am: (2012) 2 SCC 628 thus :

c "32. The broad principle underlying Section 52 of the TP Act is
to maintain the status quo unaffected by the act of any party to
the litigation pending its determination. Even a Iler the dismissal of
a suit, a purchaser is subject to lis pendens, if an appeal is
afterwards filed, as held in Krishalll!ii Pandharinath v.
Anusayabai AIR ( 1959) Bom 4 75. In that matter the respondent
D (original plaintiff) had filed a suil for maintenance against her
husband and claimed a charge on his house. The suit was dismissed
on 15.7.1952 under0rdcr9 Rulc2, ofthcCodcofCivil Procedure
1908, for non-payment of process fee. The husband sold the house
immediately on 17. 7.1952. The respondent applied for restoration
E on 29.7.1952, and the suit was restored leading to a decree for
maintenance and a charge was declared on the house. The plaintiff
implcadcd the appellant to the darkhast as purchaser. The Appellant
resisted the same by contending that the sale was affected when
the suit was dismissed. Rejecting the contention the High Court
held in para 4 as follows:
F
" ..lnSection 52 of the Transfer of Property Act, as it stood before
it was amended by Act 20 of 1929, the expression ·active
prosecution of any suit or proceeding· was used. That
expression has now been 0111i1ted, and the Exp/anal ion makes
ii abundantly clear that the '/is' continues so long as a final
G decree or order has not been obtained an_d complete satisfaction
thei·eofhas not been rendered. At p. 228 in Sir Dinshah Mulla's
'"Trans.fer of Property Act", 4th Edn., after referring to several
authorities, the law is stated thus:
'·Even after the dismissal ofa suit a purchaser is subject to '!is
H pendens'. if an appeal is afterwards filed."
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 45
rARUN MISHRA, J.l

If after the dismissal of a suit and before an appeal is presented, A
the 'lis' continues so as to prevent the defendant from
transferring the property to the prejudice of the plaintiff, I fail
to see any reason for holding that between the date of dismissal
of the suit under Order 9 Ruic 2 of the Civil Procedure Code
and the date of its restoration, the 'I is' does not continue."
B
33. It is relevant to note that even when Section 52 of TP Act
was not so amended, a Division Bench of Allahabad High Cou1t
had following to say in Moti Chand v. Brilish India Corprt.
Ltd. AIR (1932) All 210:
'l 0, .... The provision of law which has been relied upon by c
the appellants is contained in Section 52, TP Act. The active
prosecution in this section must be deemed to continue so long
· as the suit is pending in appeal, since the proceedings in the
appellate cou1t are merely continuation of those in ·the suit
... '(see Gob ind Ch under Roy li Guru Churn Kurmokar !LR
D
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 pennitted to prevail. The Explanation
to this section lays down that the pendency of a suit or a proceeding
E
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
wiobtainable by reason of the expiration ofany period oflimitation
prescribed for the execution thereof by any law for the time being
in force. F
35. In the present case, it would be canvassed on behalf of the
respondent and the applicant that the sale has taken place in favour
of the applicant at a time when there was no stay operating against
such sale, and in fact when the second appeal had not been filed.
We would however, prefer to follow the dicta in Krishanaji G
Pmidharinath AIR 1959 Born 4 75 to cover the present situation
under the principle of lis pendens since the sale was executed at
a time when the second appeal had not been filed but which came
to be filed afterwards within the period oflimitation. The doctrine
H
46 SUPREME COURT REPORTS [2017) 3 $.C.R.

A oflis pendens is founded in public policy and equity, and ifit has to
be read meaningfully such a sale as in the present case until the
period oflimitation for second appeal is over will have to be held
as covered under Section 52 of the TP Act."
3 I. The doctrine of /is pe11dens would be applicable even to the
B proceedings in the nature of an appeal as has been emphasized in the
case of Krishanaji Pandharinath v. Anusayubai AIR 1959 Born 4 75
thus :
"3. It is true that in this case the sale effected by Sidram was
after the dismissal of the suit filed by Anusayabai and before the
c suit was restored, but the alienation being before, the final decree
or order was passed and complete satisfaction or discharge of
the decree was obtained, it must be regarded as pendente lite. In
s. 52 of the Transfer of Property Act, as it stood before it was
.an1ended by Act XX of 1929, the expression "active prosecution
of any suit or proceeding" was used. That expression has now
D been omitted, and the Explanation makes it abundantly clear that
the !is continues so long as a final decree or order has not been
obtained and complete satisfaction thereof has not been rendered.
At page 228 in Sir Dinshah Mu Ila's "Transfer of Property Act",
4'h edn., after referring to several authorities, the law is stated
E thus:
" ... Even after the dismissal ofa suit a purchaser is subject to
lis pendens, if an appeal is afterwards filed."
32. We are unable to accept the submissions raised on behalf of
·the respondents that there was hiatus between 10. I 2.1955 aiid 1962 till
F the order was passed by the High Court as it was misunderstood by the
parties that the suit had been dismissed. In our opinion, when the suit
itself had not been dismissed vide order dated 8.1.1955, the events
subsequent thereto i.e. the trial court vide order dated 1.12.1955 treated
it as having been dismissed or that the plaintiff also was left under a
G wrong impression that the suit had been dismissed in default and cost
was imposed on 1.12.1955 and it was not paid up to 15. I2. l 955, would
make no difference. Due to non-payment of costs, by order dated
1.12.1955 the suit stood dismissed, cannot be accepted, as the order
was 11011 est in the eye of law. It was an illegal order of treating a
pei1ding suit as having been dismissed. No legal fiction can be created
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 47
fARUN MISHRA, J.]

so as to treat the suit as having been dismissed when in fact it had not A
been dismissed at al I 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 11011 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
B
respondents thatthe 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 c
held that it was never dismissed. Thus, in our opinion, the sale deed in
question dated 23.11.1959 was e·xecuted during /is pendens and the
High Court has erred in law in holding otherwise in the judgment impugned
herein.
(iii) In re: whether section 52 or T.P. Act renders a transfer D
pe11de11te lite void?
33. Reliance has been placed by learned senior counsel for the
respondents on Vinod Seth v. Devi11der Bajaj (20 I 0) 8 SCC I in which
this Court has laid down that the doctrine of/is pendens does not affect
the conveyance by a party to the suit but only renders it subservient to E
the rights of other parties to the litigation. Section 52 will not therefore
render a transaction void. This Cou1t has laid down thus :
"42. It is well settled that the doctrine of lis pendens does not
annul the conveyance by a party to the suit, but only renders it ,
subservientto the rights of the other paities to the litigation. Section · F
52 will not therefore render a transaction relating to the suit·
prope1ty during the pendency of the suit void but render the transfer
inoperative insofar as the other parties to the suit. Transfer of any
right, title or interest in the suit prope1ty or the consequential
acquisition of any right, title or interest, during the pendency of
the suit will be subject to the decision in the suit. G

43. The principle underlying Section 52 of the TP Act is based on
justice and equity. The operation ofthe bar under Section 52 is
however subject to the power of the court to exempt the suit
property from the operation of Section 52 subject to such conditions
H
. 18 SUPREME COURT REPORTS [2017] 3 S.C.R .

A it may impose. That means that the court in which the s~it is
pending, has the power, in appropriate cases. lo permit a party to
transfer the property which is the subject-matter of the suit without.
being subjected to the rights of any part to the suit, by imposing
j

such terms as it deems fit. Having regard to the facts and
circumstances, we are of the view that this is a fit case where the
B
suit property should be exempted from the operation of Section
52 of the TP Act, subject to a condition relating to reasonable
security, so that the defendants will have the liberty to deal with
the prope11y in any manner they may deem fit, in spite of the
pendeney of the suit."
c 34. Reliance has also been placed on A. Nall'ab John v. V.N
Subramaniyam (2012) 7 SCC 738 in which this Court has laid dow1~
thus:
"18. It is settled legal position that the effect of Section 52 is not
to render tran,fers effected during tl1e pcndency of a suit by a
D 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
E obligations of his vendor as may be eventually determined by the
cou11.
"12 . ... The mere pendency of a suit does not prevent one of
the parties from dealing with the property constituting the
subject-n}atter of the suit. The section only postulates a
F condition that the alienation will in no manner affect the rights
of the other pm1y under any decree which may be passed in
the suit unless the prope11y was alienated with the permission
of the COUii." (Swljl~V Verma v. Manik Roy, (2006) 13 sec
608, sec p. 612, para 12.)"

G
35 .. ln Thomson Press (India) Ltd. v. Nanak Builders &
Investors (P) Ltd. (2013) 5 SCC 397, this Court has laid downthus:
"53. There is, therefore, little room for any doubt that the transfer
of the suit prope1iy pendente Iite is not void ab in itio and that the
purchaser of any such property takes the bargain subject to the
rights of the plaintiff in the pending suit. Although the above
H.
T. RAVI & ANR. v. 8. CHINNA NARASIMHA & ORS. ETC .. 49
[ARUN MISHRA, J.]

decisions do not deal with a fact situation where the sale deed is A
executed in breach of an injunction issued by a competent court,
we do not see any reason why the breach of any such injunction
should render the transfer whether by way of an absolute sale or
otherwise ineffective. The party committing the breach may
doubtless incui"the liability to be punished for the breach committed
B
by it but the sale by itself may remain valid as between the pai1ies
·to the transaction subject only to any directions which the
competent com1 may issue in the suit against the vendor."
36. In our opinion the sale deed is not void but only valid to the
extent of the share o~vendor of Bala Mallaiah i.e. it is valid to the extent
of 14/104111 share which has been found in the preliminary decree and
c
affirmed in the final decree. The sale deed was subject to the outcome
of the suit which was to the aforesaid effect
(iv) In re : What is the effect of preliminary decree for
partition and the extent to which it is binding :
D
37. In the instant case preliminary decree was passed in the year
1970 and the shares were declared to the aforesaid extent of the
respective patties therein who were the heirs of Late Nawab Jung.
Hamid Ali Khan, defendant No.I, had only 14/104111 share in the disputed
prope11y. Preliminary decree dated 24.11.1970 has attained finality which
was questioned in appeal on limited extent in the High Cou11 which has E
attained finality by dismissal of LPA on 12.10.1977. Thus the
determination of shares as per preliminary decree has attained finality,
shares of the parties had been crystallised in each and every prope11y.
Purchaser pe11de111e file is bound by the preliminary decree with respect
to the shares so determined and it cannot be re-opened and whatever F
equity could have been claimed in the final decree proceedings to the
extent of vendor's share has already been extended to the purchasers.
38. In Venkata Reddy & Ors. v. Pelhi Reddy AIR 1963 SC 992,
it has been laid down that the preliminary decree for partition is final. It
also embodies the final decision of the cou11. The qucstion of finality has G
been discussed thus.:
"'6. The new provision makes it clear that the law is and has always
been that upon the father's insolvency his disposing power over
the interest of his undivided sons in the joint family prope11y vests
in the Official Receiver and that consequently the latter has a
H
50 SUPREME COURT REPORTS (2017) 3 S.C.R.

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 comµctent Court. The short
B
question, therefore, is whether the prelimina1y decree for partition
passed in this case which was affirmed finally in secoi1d 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 pa1iition suit. the only decision
c 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 canie 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 coUii before a preliminary decree is passed that decree
D
must, in so far as rights adjudicated upon are concerned, be deemed
to be a final decision. The word 'decision' even in its popular
sense means a concluded opinion (see Stroud's Judicial Dictiona1y
- 3rd ed. Vol. I, p. 743 ). Where, therefore, the decision is embodied
in the judgment which is followed by a decree finality must naturally
E attach itself to it in the sense that it is no longer open to question
by either party except in an appeal, review or revision petition as
provided for by law. The High Cou1i has, however, observed :
"The mere declaration of the rights of the plaintiff by the
preliminary decree, would, in our opinion not amount to a final
F decision for it is well known that even if a preliminary decree
is passed either in a mortgage suit or in a partition suit, there
are ce1tain contingencies in which such a preliminary decree
can be modified or amended and therefore would not become
final."
G It is not clear from the judgment what the contingencies referred
to by the High Cou1i arc in which a prcliminaiy decree can be
modified or amended unless what the learned Judges meant was
modified or amended in appeal or in review or in revision or in
exceptional circumstances by reso1ting to the powers conferred
by Sections 151 and 152 of the Code ofCivil Procedure. If that is
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 51
fARUN MISHRA, J.l

what the High Court meant then every decree passed by a Court A
including decrees passed in cases which do not contemplate
making of a preliminary decree are liable to be modified and
amended. Therefore, if the reason given by the High Court is
accepted it would mean that no finality attaches to decree at all.
That is not the law. A decision is said to be final when, so far as
B
the Court rendering it is concerned, it is unalterable except by
resort to such provisions of the Code of Civil Procedure as permit
its reversal, modification or amendment. Similarly, a final decision
would mean a decision which would operate as res judicata
between the parties if it is not sought to be modified or reversed
by preferring an appeal or a revision or a review application as is c
permitted by the Code. A preliminary decree passed, whether it is
in a mortgage suit or a partition suit, is not a tentative decree but
must, in so far as the matters dealt with by it are concerned, be
regarded as conclusive. No doubt, in suits which contemplate the
making of two decrees - a preli111inary decree and a final decree
D
- 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 E
of the court arrived at the earlier stage also has a finality attached
to it. It would be relevant to refer to S. 97 of the Code of Civil
Procedure which provides that where a party aggrieved by a
preliminary decree does not appeal from it, he is precluded from
disputing its correctness in any appeal which may be preferred
from the final decree. This provision thus clearly indicates that as
F
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 sedion 97 of the C.P.C. as under:
"97. Appeal from final decree where no appeal from G
preliminary decree.-Where any party aggrieved by a
prelimim;ry decree passed after the commencement of this Code
does not appeal from such di.:crec, he shall be precluded from
• disputing its correctness in any appeal which may be preferred
• from the final decree."
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52 SUPREME COURT REPORTS [2017] 3 S.C.R.

A It is apparent from the aforesaid Section that the matters which
are concluded by preliminary ckeree cannot be re-agitated in an appeal
against the final decree. No appeal was preferred by the purchasers or
by defendant No. I as against the preliminary decree.
(v) In re : whether it was necessary to file a suit for
B c:mcellation of sale deed dated 23. l 1. l 959 ? .
40. In our opinion. when the sale deed had been executed during
the p.:ndency of suit the purchaser pe11de111e lite is bound by the outcome
of the suit. The provisions of section 52 prevent multiplicity of the
proceedings. It was not at all necessary to file a suit for cancellation of
c the sale deed as the vendor had no authority to sell land of other co-
sharers. He had right to alienate his own share only which he had in the
property to the extent of 14/104111 • As such the right, title and interest of
Bala Mallaiah were subject to the pending suit for partition in which a
preliminary decree wns passed in the year 1970 which had attained
finality in which vendor of Bala Mallaiah, defendant No.1 was found to
D be having share only to the extent of 14/104 111 • The preliminary decree
was not based upon fraud or collusion. The sale deed was not under the
authority of the court and the pendency of the suit under section 52
commenced from the date of presentation of the plaint and continued
until the suit or proceedings were disposed of by a final decree, and.on a
E complete satisfaction of the discharge of such decree, an order had
been obtained. The /is pendem operates during execution also. Bala
Mallaiah, his L.Rs. and purchasers from them arc bound by the decision
of the case. They cannot circumvent the jurisdiction of the court and
wriggle out of the decree. The transfer remained valid subject to the
result of the suit and pende/1/e lite purchaser is subject to the legal
F rights and obligations of his vendor as decided by the court. Our
conclusion is buttressed by decision in KN. Aswathnarayana Seuy
(deaclj through LRv. & Ors. v. State of Kamal aka & Ors. (2014) 15
SCC 394, question has been discussed by this Court thus:
"11. The doctrine of lis pendens is based on legal maxim ut lite
G pendenle nihil innovelur (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 pendcns" is
in accordance with the equity, good conscience or justice because
they rest upon an equitable and just foundation that it will be
H impossible to bring an action or suit to a successful termination if
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 53
. [ARUN MISHRA, J.) .

alienations arc permitted to prevail. A transferee pendcntc lite is A
bound by the decree just as much as he was a pa11y to the suit. A
litigating party is exempted frC'm tah.ing notice of a title acquired
during the pl·!ldency of the litigation. However, it must be clear
that mere pcndency of a suit does not prevent one of the parties
from dealing with the prope11y constituting the subject-matter of
B
the suit. The law simply postulates a condition that the alienation
will, in no manner, affect the rights of the other party under any
dccree which may be passed in the suit unless the prope11y 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 pendentc lite. ( Vidc K. Adivi Naidu v. £. c
. Duruvasulu Naidu ( 1995) 6 SCC 150, Venkalrao A11a111deo
.Joshi"· Mulu1ibai (2003) I SCC 722, Raj Kumar v. Sardari Lal
(201J.I) 2 SCC 601 and Sa11jay Verma v. Manik Roy (2006) 13
sec 608.)"
(vi) ln re: whether Bala Mallaiah, his heirs and purchasers D
had perfocted their right, title and interest by virtue of adverse
possession ?
. 41. The 1-1 igh Court has held that there was no .lis pendens, and as
such it was necessary to question the sale (li;ed and for want of
questioning the sale deed, the plaintiffs had perfected their title by virtue E
of adverse possession. The same is clearly a perverse finding. Firstly, in
the earlier civil suit of 1993 submission was raised with respect to adverse
possession which was negatived. Secondly, in our opinion as we have
held that the sale deed was hit by the doctrine of /is pe11de11s, the
purchasers were bound by the result of the suit. Thus there was no
question of perfecting the title by adverse possession during pendency F
of suit. Section 52 negates the very plea of adverse possession. Trial
cow1 and first appellate court have rightly held that there was no question
ofadvcrsc possession. The High Court has simply without any discussion
held that the title was perfected by adverse possession. Merely a bald
statement that there was adverse possession is not enough to set up a G
plea of adverse posse :sion. 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. "11ec l'i, nee clum, nee precario" i.e.,
peaceful. open and continuous. No su~h pleading has been raised much
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54 SUPREME COURT REPORTS [2017] 3 S.C.R.

A less there is question of any proof and moreover. this plea was not
available to be raised in view of doctrine of !is pe11de11s. Possession
never became adverse in the instant case as the property was purchased
subjc..:t to the outcome of the litigation. In Kama/aka Board o(Wakf 1:
Clover11111ent of /11dia & Ors. (2004) I 0 SCC 779 it was held that when
Iitigation was pcud ing it cou Id not be said that the possession was pcacefu I
B
or hostile in any view of the matter. It was held thus:
"11. In the eye of the law. an owner would be deemed to be in
possession of a property so long as there is no iutrusion. Non-use
of the property by the owner even for a loug time won't affect his
title. But the position will be altered when another person takes
c possession of the proµcrty and asserts a right over it. Adverse
possession is a hostile possession by clearly asserting hostile title
in denial ofthe title of the truc·owncr. It is a well-settled principle
that a party claiming adverse possession must pmve that his
possession is "'11ec l'i. nee clam, 11ec precario", that is. peaceful,
I) 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 st.art with a wrongful
disposition of the rightful owner and be actual. visible. exclusive,
hostile and continued over the statutory period. (Sec S. M Karim
v. Bihi Saki11a AIR 1964 SC 1254, Parsi1111i v. Sukhi (1993) 4
E
SCC 3 75 and D.N. Ve11ka1arayappa v. Si ale of Kamal aka ( 1997)
7 SCC 567.) Physical fact of exclusive possession and the a11i111us
pussidendi to hold as owner in exclusion to the actual owner arc
the most important factors that are to be accounted in cases of
this nature. Pica of advo;;rse pos.,c:ssiun is not a pure question of
F or
law but a blended one fact and law. Thcr~fore, a person who
claims adverse possession should show: (a) on what date he came
into possession, (b) what was the nature of his possession. (c)
whether the factu111 of possession was known to the other pa11y,
(d) how long his possession has continued. and (e) his possession
was open and undisturbed. A person pleading adverse possession
G has no equities in his favour. Since he is tryi11g to dcll:at the rights
of the true owner, it is for him to clearly plead and establish all
facts necessary to establish his adverse possession. [Mahesh
Chand Sharma (Dr.) v. Rl!i Kwnari Sharma ( 1996) 8 SCC 128.)
12. A plaintiff filing a title suit should be very clear about the
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 55
[ARUN MISHRA, .I.]•

origin of title over the property. He must specifically plead it. (See A
SM. Kuri111 v. Bibi Saki11u (Supra).) In P. Periasami v. P.
Periathambi ( 1995) 6 SCC 523 this Court ruled that: (SCC p.
527. para 5)
"Whenever the plea of adverse possession is projected, inherent
in the plea j, that someone else was the owner of the property." B
The pleas on title and adverse possession are mutually inconsistent
and the latter does not begin to .operate unti I the former is
renounced. Dealing with Mohan Lal v. Mirza Abdul Gl{[far ( 1996)
I SCC 639 that is similar to the case in hand, this Cou11 held:
(SCC pp. 640-41, para 4) c
"4. As regards the first pica, it is inconsistent witl1 the second
pica. Having come into possession under the agreement, he
must disclaim his right thereunder and plead and prove assertion
of his independent hostile adverse possession to the knowledge
of the transferor or his successor in title or interest and that D
the latter had acquiesced to his illegal possession during the
entire period of 12 years i.e. up to completing the period his
title by prescription nee vi. 11ec clam, 11ec precario. Since the
appellant's claim is founded on Section 53-A, it goes without
saying that he admits by implication that he came into possession
of land lawfully under the agreement and continued to remain E
in possession till date of the suit. Thereby the plea of adverse
possession is not available to the appellant.""
42. In ouropinion, the High Court has erred in law in holding that
the plaintiffs perfe1.:ted their title by virtue of adverse possession. The
finding is perverse and has no foundational basis. F
(vii) In re: whether under the !Vfuslim Law, dcrcndant No.1
hciug a co-shan'r could ha"c alienated the share of other co-
sharers in the disputed pn11H'rty ?
43. In the instant case, the property was ancestral property of
G
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 Muhami1iadan Law by Asaf A.A. Fyzec.
4'" Edn, it has been observeri that general principles of Islamic
H
56 SUPRE!\ilE COURT REPORTS [2017] 3 S.C.R.

A · jurisprudenc:e 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 1I
3rJ of estate and not exceeding that. After death of a perso1i the first
step is to make payment of funeral expenses, debts and legacies.
Thereafter, distribution of estate among legal heirs, firstly to sharers, in
8
the absence thereof, to residuaries, and in case of absence of both to
distant kindred. As-per Mu Ila, distribution takes place in the following
manner:
"61. Classes of heirs There are three class1.:s of heirs. namely,
( 1) Sharers, (2) Residuaries, and (3) Distant Kindred:
c
( 1) "Sharers" are those who are entitled to a prescribed share
of the inheritance;
(2) "Residuaries" are those who take no prescribed share,
but succeed to the ''residue" after the claims of the sharers
I) are satisfied;
(3) ''Distant Kindred" are all those relations by blood who are
neither Sharers nor Residuaries."
Sharers take in the following manner:
"63. Sharers After payment of funeral expenses. debts, and
E
lcgacies,thc first step in !he di:;Lriliutiun oflhc estate. ofa deceased
Mahomedan is to ascertain which of the s11rviving relations belong
to the class of sharers, and which again of these arc e11litled to a
share of the inheritan'Ce, and, after this is done, to proceed to
assign their respective shares lo such of the sharers as arc, under
F the circumstances of the case, entitled to succeed to a share.
The first column in the accompanying table (p.66A) contains a
list of Sharers; the second column specifa:s the normal share of
each sharer; the third column specifics the conditions which
dctenn ine the right of each sharer to a :;hare, and the fou11h column
sets out the shares as varied by special circumstances."
G
44. Rcsiduarics take ifthere are no sharers or if there an.: sharers,
after satisfying their claims. As per Mu Ila, they will take in the following
rnanncr:

, Rcsi<luarics
''(l5. If there are no Sl1arcrs, or if there are Sharers.
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 57
fARUN MISHRA, J.]

but there is a residue left after satisfying their claims, the whole . A
inheritance or the residm: .. as the case may be. devolves upon
Residuaries in the order set forth in the annexed table (p.74A).
The Residuarics or Agnatic heirs were the principal heirs before
Islam; they continue to remain the principal heirs in Sunni law.
Their premier position is, in Islam, always subject to the claims of B
near relations mentioned as the Koranic heirs. First they are
satisfied by giving them their Koranic shares. Rcsi.duaries are
the relations whose rights were also recognized by tribal laws in
Saudi Arabia before Islam.
The rights of residuaries arc recognized by the Holy Quran (by C
implication) and by the traditions of the prophet (PBUH) in very
specific terms.
The Holy Quran declares:
"from what is left by parents and near ki11dred, there is a share
for men and a share for woman, whether the prope1iy be small D
or large-a determinate share".
"To (benefit) every one, we have appointed shares and heirs
to property left by parents and near relatives ... "
"Allah directs you concerning your children (their inheritance),
E
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 110 descendants or ascendants as hci r.
If it is a man that dies, leaving a sister but 110 child, she shall
h.ave half the inheritance. lf(such a deceased was) a woman
F
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 arc clear proof that blood relations are entitled
to inherit. Blood relations dcfinitclv include rcsiduarics (the inale
J . G
agnates)." [see, Mohammad Mustafa Ali Khan, ls/(Jl11ic Lall'<!(
l11herita11ce, I" edition.]"
•
45. The "distant kindred" is dealt with in section 67 in Mulla's
Principles ofMahomedan Law thus:

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58 SUPREME COURT REPORTS [2017] 3 S.c'.R.

A "67. Distant Kindred (I) If there be no shares or Residuaries,
the inheritance is divided amongst Distant Kindred.
(2) If the only sharer be a husband or wife. and there be no relation
belonging to the class of Residuaries. the husband or wife will
take his or her full share, and the remainder of the estate will be
B divided among Distant Kindrcu."
46. Incidents of tenancy in common have been cited from.
HalsbwJ' ~·Laws ofE11gla11d, 5'h Edn., vol. 87 in which nature of such
tenancy has been discussed bi.:fore 1925 in para220. lnpara 221 nature
of such tenancy since 1925 has been discussed. It has been observed
c that tenants in common have several interests, where joint tenants,
whether at law or in equity, have one interest. The tenants in common
may be entitled to equitable shares in the land in unequal shares and for
interests which may be unequal in duration; different shares would be
subject to different limitations and the limitations may include entailed
interests. No new entailed interests can be created either in real or
D personal property, but this docs not affect any entailed interests created
before 1.1.1997 considering the provisions of the Trusts of Land and
Appointment ofTrustees Act, 1996 as applicable in the area for which it
has been enacted. There is no right of survivorship and on the death of
a tenant-in-common, his share passes according to its own limitation. In
E para 224 the modes of effecting partition of tenancies-in-common have
been dealt with in general and the position before 1925 and subsequent
thercto·has been taken into consideration considering the enactments
which have been made applicable from time to time.
Thus, it is apparent that the i1icidcnts of such joint tenancy and
F tenants in common are further subject to the law by which parties are
governed and in that context, we have to examine a case. There is no
dispute with the general principles ofjointtcnancy and tenants in common
but the same would also depend upon in their application with respect to
the law by which the parties and the /is in question are governed. In a
case belonging to Muslims, incidents of Muslim Law, their law of
G inheritance has to be consiucred, in particular with respect to rights of
tenants in common. Right of disposition by a testament is also different
in the Muslim law. There cannot be testamentary disposition for more
than 1/3'd of the property held by testator. The power of alienation in
Muslim law is different from Hindu law. In Hindu law, there is difference
H
in Dayabhaga and Mitakshra school of law. Muslim law may be akin in
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 59
rARUN MISHRA, J.l

some respect to Dayabhaga law but not with Mitakshara Law. However, A
in Mitakshra Law in Bombay School and in Banaras School, power of
alenation is different. A co-parcener cannot alienate without consent of
other co-parceners in Banaras School of Mitakshara Law. In Bombay
School of Mitakshara Law, a co-parcener can alienate for value his
undivided interest or his co-parccnery property without consent of other
13
co-parceners. Eowever in the area which is governed by the Banaras
School ofMitakshara 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-parccner.
4 7. A Full Bench of the M.P. 1-1 igh Court in Ramdayal 1: lvfwwklul
AIR 1973 MP 222 has made certain observations with respect 1n
c
applicability ofMitakshara 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-parccne1y 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 D
Diwan Singh v. Bha~ya Lal AIR 1997 MP 210. It has been held that in
Madhya Bharat, Yindhya Pradesh etc. of Madhya Pradesh, Banaras
School of Hindu Law applies. Thus the applicability of the law at the
place in question and certain customs which would be prevailing in certain
areas are also relevant. As in certain parts of A.P. or elsewhere there
may be different customs prevailing in Muslims which are to be taken E
into consideration while deciding a matter. In Halsb111y also distinction
has been made between the law which was applicable before 1925 and
the law which is applicable after 1925 and the discussion of law is with
respect to various Acts on the basis of which the decisions have been
referred herein. F
48. When we consider the incidents of disposition of property
under different laws, we have to consider the personal law and then to
apply the general principles of tenancy law to the permissible non-conflict
zone to personal law which holds the field for the parties to arrive at a
decision. The Privy Council in the case of !111u111Da11di & Ors. v. G
Mutsaddi & Ors. ( 1918) L.R. 45 I.A. 73 considering the distinction
between the law which is applicable to Mohammedans, has held that
there is a sharp distinction which has to be drawn with other laws with
respect to its special nature. The Court cautioned to apply the foreign
decisions which arc on considerations and conditions totally differing
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60 SUPREME COURT REPORTS [2017) 3 S.C.R.

A from those applicable to or prevailing in India. The Privy Council has.
observed thus :
''45. Their Lordships cannot li<:lp Jcpn.:L.iting the practice which
seems to be growing in so111c or th<: Indian Courts of referring
largely to foreign decisions. However useful in the scientific study
B of comparative jurisprudence. reference to judgments of foreign
Comis, to which Indian practitioners cannot be expected to have
access. based often on considerations and conditions totally
differing from those applicable to or prevailing in India, is only
likely to confuse the adrninistration of justice."

c Thus, in our opinion. courts ha\'e to be careful to apply the decision
of Muslim law to a case relating to Hindu law and the foreign decisions
and rice versa. There cannot be universal application of principles of
law on a pai1icular subject. Special laws by which parties are governed
;ire also to be taken into consideration so as to arrive at a just conclusion.

D 49. Keeping in view aforesaid principle we proceed to consitlcr
the question further. In Syed Shah Ghulam Ghouse Mohi11ddi11 &
Ors. v. Syed Shah Ahmed Mohiuddi11 Kumisul Quadri (died) by I.rs.
& Ors. ( 1971) 1 SCC 597. this Cou11 has laid down that Muslim heirs
are tenants in common and they succeed to their definite fraction of
every pai1 of estate of the deceased. The shares of the heirs are definite
E and known before actual pa1tition. Therefore. on pmiition 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
F "perpetually recurring one" (See M1mslwra111 Chakravarty and
Others v. Ganesh Chandra Chakruvarty & Ors., 17 CWN
521. In Mohammedan law the doctrine of partial partition is not
applicable because the heirs are lenan1s-in-co111mo11 and the heirs
of the dcc1.:a,cd Muslim succeed to the definite fraction of every
G part of his estate. The shares of heirs under Mohammedan law
are definite and known belore actual partition. Therefore on
partition of properties bdonging to a deceased Muslim there is
division by 111e1cs and bounds in accordance with the specific share
of each heir being already determined by !he law."

H
T. RAVI & ANR. v. B. CHJNNA NARASIMHA & ORS. ETC. 61
[ARUN MISHRA. J.]

50. In P.N. Vee ti I Narnyani v. Pat/111111111a Bee vi & Ors. ( 1990) A
4 sec 672, it was reiterated tliat since heirs succeed to the estate as
tenants in common, thus, the liability ofhcirs of a Muslim dying intestate
or that of the deceased is to lhc extent of his share of debt proportionate
to his share of estate. If that is propo1iionate to share of the Jeceased as
inheritance is as tenants-in-common and as independent debtors, not co-
B
debtors or joint debtors. Co-sharers can hardly be classified as joint
contractors, partners, executors or mortgagees. They are independent'
de.bwrs and the debt having been split by operation of law. This Court
has laid down thus :
"10. These observations in ./(!fi·i Begam case ILR (1885) 7 All
822 are prime roots of the theory as tu the divisibility of the debt in
c
the hands of heirs of a Muslim intestate. So it would be right to
treat it settled that Muslim heirs are independent owners of their
specific shares simultaneously in the estate and debts of the
deceased, their liability fixed underthepersonal law proportionate
to the extent of their shares. In this state of law it would be D
unnecessary to refer to other decisions of various High Courts
touching the subject. So we proceed on the footing that as many
heirs as are defending this cause, there are debts in that number.
14. The heirs ofa Muslim dying intestate on whom falls the liability
to discharge the debt, propo1iionate to their respective shares in E
the estate devolved, can hardly be classified as joint contractors.
partners, executors or mo1igagees. As held above they are by
th\'!mselves independent debtors; the debt having been split by
operation of law. Inter se they have no jural relationship as co-
debtors or joint debtors so as to fall within the shadow of
contractors, partners, executors or mortgagees or in a class akin F
to them. They succeed to the estate as tenants-in-common in
specific shares. Even a signed written acknowledgment by the
principal or through his agent would bind the principal and not
anyone else standing in jural relationship with the principal in
accordance with Section 20(2). The Muslim heirs inter se have G
no such relationship. In this view of the matter, we take the view
that the High Cowi was right in confining the acknowledgment of
the debts only to respondent 2 and not extending the
acknowledgment to the other co-heirs for their independent
position.
H
62 SUPREME COURT REPORTS [201 7) 3 S.C.R.

A 16. In the context, ifthe debt is one and indivisible, payment by
one will inteITupt Iimitation 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
B
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
c in this connection Abhe.muri Dasyu 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
D
considered view that the High Cou1t was right in confining the
extension of limitation on payment of a part of debt only against
defendant-respondent 2. proportionate to his share of the estate
devolved on him which was one-fourth. We are further of the
view that the High Court was right in holding the suit against
E other co-heirs to be barred by limitation relating to their shares of
the debt."
This Court has also laid down that in that case payment made on
account of debt by defendant-respondent 2 as an independent debtor,
and not as an agent, express or implied, on behalf of other co-heirs, in
F the facts established, could not be said to be a payment on behalf of all.
51. This Court again in Kasa111bhai Sheikh v. Abdulla Kasa111bhai
Sheikh (2004) 13 SCC 385 has hdd that succession in Mohammedan
Law is in specific shares as tenants in common.
52. It was observed in Ram A1l'a!a111b i: .Jalc1 Slnmkar AIR 1969
G All. 526 that a joint tenancy connotes unity of title. possession, interest
and commencement of title; in tenancy in common there may be unity of
possession and commencement of title but the other two features as to
unity oftitk and interest are missing.
53. In Mu11sab Ali Khu11 v. Mt. Nobiw111isa & Ors. AIR 1934
H
T. RAV! & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 63
[ARUN MISHRA, J.]

.\II 702, a suit was filed by the plaintiffs who had acquired rights in 12/24 A
sihams in the property in dispute. They clai111ed possession over the
share of the whole property on the ground that one of the defendant-
respondents, Mt. Nabiunn issa, had sold certain property to the defendant-
respondents Nos.2 and 3. There was an agreement that Mt. Nabiunnisa
should re111ain in possession on the condition that she became liable to
B
pay al I the debts due from the deceased. Though the agreement was not
proved, the trial court found that certain debts were paid by Mt.
Nabiunnisa. It was held that one of the heirs of a deceased Mohamedan
was perfectly entitled to alienate his share of the property without getting
it partitioned provided he had paid the proportionate share of debt on
assessment of property. c
54. Muhammadan Law does not recognize the right ofany one of
the shareholders being tenants-in-common, for acting on behalf of co-
heirs as laid down in Abdul Majeeth Khan Sahib v. C
.Krislmamachariar AIR 1918 Mad I049 (FB). It has been laid down
that one heir has no authority in law to deal with the share of his co- D
heirs. Relevant portion is extracted hereunder:
"This is absolutely clear authority in proof of the position that one
heir has no authority, in law, to deal with the shares of his co-
heirs. In face of it, it is not necessary to refer to other original
text-books. It is stated, however, in Path11111111abi v. Villi! E
Ummachabi I.LR. 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 F
same effect is a decision of the Allahabad High Court in Hasan
Ali v. lvledhi Husain I.LR. I All. 533. The statement in
Pathummabi v. Villi! Ummac/wbi I.LR. (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 G
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 pa11
of the processual law of that syst<;:m and is not based on the ground
that a single heir, if he happens to be in possession of the estate of
the deceased, represents the rest of the heirs for the purposes of
H
64 SUPREME COURT REPORTS [2017] 3 S.C.R.

A administration generally. The ground on which a decree against
one of the heirs, in such circumstances, is treated as resjudica/a
is, as stated in the books, that the decree in such cases is, in law,
against the deceased and not against the paiticular heir who is
made defendant in the suit.
13 xxx xxx xxx
So far as voluntary alienations are concerned, which alone form
the subject-matter of reference. the Mllhammadan Law is clear
that one of the heirs of a deceased person is not competent to
bind the other heirs by his acts, "
c Spe11ce1; J. - I agree with the judgment of Mr. Justice Abdur
Rahim just now pronounced.·
Srinivasa A~yu11gur. .I.- I agree. In the absence of ai~y right in
one of the heirs to represent the co-heirs, one of several co-heirs
can only deal with his or her interest in the ancestor's property
D inherited by them. My learned brother has shown that there is
nothing in the Muhanlmadan Law giving such a right to one oft he
co-heirs who.may happen to be in actual possession of the whole
of the ancestor's estate; such possession, it must be remembered,
is presumably on behalf of all the co-heirs. He is not co1istituted
E the representative of the deceased and cannot administer his
prope1ty even for the limited purpose of paying off his debts. In
Khiarajmal v. Daiin. L.R., 32 Ind. App., 23, Lord Davey referring
to a sale by one of the heirs of a Muhammadan for discharging
the debt due by the ancestor said "prima facie his conveyance
would pass only his share", See. p.37. Representation in a suit
F may conceivably stand on a different footing for as stated by their
Lordships in the same judgment at page 35, "The Indian Courts
have exercised a wide discretion in allowing the estate of a
deceased debtor to be represented by one member of the family,
and in refusing to disturb judicial sales on the mere ground that
G
some members of the family, who were minors, were not made
parties to the proceedings, if it appears that there was a debt
· justly due from the deceased, and no prejudice is shown to the
absent minors. But these are usually cases ·where the person
named as defendant is de facto maiiagerofa Hindu familiprope1ty,
or has the assets out of which the decree is to be satisfied under
H
T. RAVI & ANR. v. B. CHlNNA NARASIMHA & ORS. ETC. 65
[ARUN MISHRA, J.]

his control;" and they applied this principle in that very case to the A
estate ofNabibaksh. However, that is not the question here."-· ·
55. In Moha11i111ad Afzal Khan, Haji v. Abdul Rahman, Malik
& Ors. AIR 1932 PC 235, the Privy Council has held that in case one of
two or more co-sharers had mortgaged an undivided share, the mortgagee
takes the security subject to rights of other co-sharers, aHd the partition B
if effected, the mortgaged properties are al lotted to the other co-sharers,
they take those properties in the absence of fraud, free from the 11101tgage
and the mortgagee can proceed only against the properti,es 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.
c
The Privy Council had relied upon the decision in the case of Byjnath
Lall v. Ramoodeen C.howdry ( 1874) L R I Ind. App. I06, 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 D
share in some of the properties held jointly by them, the mortgagee
takes the security subject to the right of the other co-sharers to
enforce a partition aiid thereby to convert what was an undivided
share of the whole into a defined portion held in severalty. If the
mortgage, therefore, is followed by a partition and the mortgaged E
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 prope1ties allotted to
the.mortgagor in substitution of his undivided share. This was the
view taken by the Board in Byjnath Lall\' Ramoodeen Chowd1y
(1874) LR I Ind. App. I06. In that case the partition was made F
by the Collector under Regulation XIX of 1814 (Bengal), and the
mortgagee was seeking to enforce his remedy not against the
properties mortgaged to him, but against the properties which had
been allotted to the mortgagor in lieu of his undivided share; but.
the Board held that not only he had a right to do so, but that it was G
in the circumstances of the case his sole right, and that he could
not successfully have sought to charge any other parcel of the
estate in tile hands of any of the former co-sharers. Their
Lordships think that the principle enunciated in that case applies
equally to a partition by arbitration such as the one in the present
H
66 SUPREME COURT REPORTS [2017] 3 S.C.R.

A case. Their Lordships are therefore of opinion that the appellant
is not entitled to enforce his charge against the properties allotted
to the first and second respondents. The third respondent (the
mo11gagor) has not appeared before the·ir Lordships, and their
Lordships express no opinion as to any other rights which the
appellant may have in respect of his mortgage."
B
56. It was submitted on behalf of the appellants that in
Mohammedan law the doctrine of partial pat1ition is not applicable because
the heirs are tenants-in-common. Reliance has been placed upon the
decision of this Court in Syed Shah Ghulam Ghouse Mohiuddin v.
Syed Shah Ahmed Mohiuddin Kamisul (supra). In S.MA. Samad &
c Ors. v. Shahid Hussain & Ors. AIR 196.3 Patna 375, the Patna High
Court referring to the various decisions indicated that it would be
inexpedient to allow suits for partition of a pot1ion of the properties,
because it would lead to a 1nultiplicity of suits. It is merely a rule of
procedural iaw. Mohammedans are never joint in estate but only tenants-
D in-common. It has been observed that the rule with respect to the partial
partition is not so rigid, it can be allowed in certain circumstances.
Reliance has also been placed on a decision of the High Court o.f Madhya
Pradesh in Abdul Karim & Ors. v. Haft} Mohammad & Ors. (1989)
MP LJ 178, in which it had been held that suit for partial partition was
maintainable. Reference has also been made to the case of A.J Pinto
E & Anr. v. Smt. Sahebbi Kom Muktwn Saheb (Dead) by LRs & Ors.
(1972) 4 SCC 238, wherein this Court has left open the question whether
partial partition is possible under Muslim Law and no opinion was
expressed. The aforesaid decision as to the pa11ial pat1ition had been
cited. to emphasize that when Muslims inherit in specific share, their
F share is determined. However, the question of partial partitioi1 is not
involved int.he instant case, as such, we need not go into the aforesaid
question as to the permissibility of the pa11ial 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 Cout1 ofSind in Vaziralias
G Dino & Am: v. Dwarkamal & Ors. AIR 1922 Sind 41 has also been
referred to, wherein referring to the case of Mangaldas v. Abdul Razak
(1916) 16 Bombay L.R. 224, it has been observed that the notions of
· joint family, joint family property and joint fainily business are utterly
. unknown to Mohammedan Law. ·

H 58. A decision in Jan Mal10111ed1' Da1tuJajfer ( 1913) 38 Bombay
T. RAVI & ANR. v. 8. CHJNNA NARASIMHA & ORS. ETC. 67
[ARUN MISHRA, ll

449 has also been referred to and it has been held that Mohammedans A
under their own law are never joint in estate whether they live together
or whether they do not. On death ofa Muslim his heirs at once become
vested with the shares to which the Islamic Law entitles them. They
have not to wait until the property is divided by metes and bounds. It has
also been observed that sometime an error is caused by application of
8
Hindu law to the case of Mohammedan law. It has also been further
observed that a Mohammedan heir is not a co-parcener. He has not .
merely a right to a defined and immediate share in each portion of the
estate but if any portion of the estate is in any case marked off and
divided from the rest of the estate, he has a right to an immediate share
in that portion. c
59. Reliance has also been placed upon the decision in Ghumamnal
Lokumal & Ors. v. Faiz Muhammad Haji Khan & Ors. AIR 1948 ·
Sind 83 in which it has been observed thus:
"15. It may be conceded that the question ofadjustment of equities
between the vendor and vendee upon a suit by a Muslim co- D
sharer for partition of the entire property held in co-ownership
might properly arise, but we cannot accept the position that, while
a Muslim co-sharer elects to sue for partition of some of the
properties only held in co-ownership, a vendee can compel him to
sue for a general partition, for the purpose of adjusting equities E
between the co-sharer- vendor and himself. If Mr. Kimatrai's
contention were to prevail, it would put fetters upon what this
Court in second Appeal No. 64of1942 has held to be an unfettered
right of a Muslim co-sharer to claim partition of some of the
properties 011ly held in cO-O\\'.nership, while retaining his co-
ownership in the remaining properties. F

16. If, then, a vendee cannot require a Muslim co-sharer to sue
for a general partition, much less can he institute a suit for the
sole purpose of adjusting equities between himself and his Muslim
co-sharer-vendor in regard to property which has not been
alienated to him, as is soughtto..be done in the _case before us." G
It has been observed that a vendee cannot compel a Muslim to
sue for a general partition for the purpose of adjusting equities between
the co-sharer-vendor and himself. The logic behind this is that speeific
share is inherited by a co-sharer in a specific property. ·
H
68 SUPREME COURT REPORTS (2017] 3 S.C.R.

A 60. Right of pre-emption under Mohammedan La\v 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 Cou11 in /11ayatullah v.
Gobi11d Dayal ( 1885) ILR 7 All 775 has observed that right of pre-
emption is closely connected with the Mohammedan law of inheritance.
· 'fhe following is the observation made with respect to the right of pr~~~·
B
emption in the aforesaid decision:
,.
"7. Upon the prese1it occasion. it is unnecessary to consider
whether "gift" can properly be described as a "religious usage or
institution" within the meaning of Section 24.1 am here concerned
only with the question whether preemption can be so described.
c My own opinion is that it can, and although 1cannot add much to
the reasons given by SPANKIB, J., I may observe that preemptiori
is closely connected with the Muhammadan Law of inheritance.
That Jaw was founded by the Prophet upon republican principles,
at a. time when the tilodern democratic conception of equality and
D division of property was unknown even in the most advanced
countries of Europe. It provides that, upon the death of an owner,
his property is to be divided into numerous fractions, according to
extremely rigid rules, so rigid as to practically exclude all power
of testamentary disposition, and to prevent any diversion of the
property made even with the consent of the heirs, unless that
E . consent is given after the owner's death, when the reason is, not
that the testator had power to defeat the law of inheritance, but
that the heirs, having become owners of the property, could deal
with it as they liked, and could therefore ratify the act of their
ancestor. No Muhammadan is allowed to make a will in favour of
F any of his heirs, and a bequest to a stranger is allowed only to the
· extent of one-third of the property. Under these circumstances,
to allow the Muhammadan Law of inheritance, and to disallow
the Muhammadan Law of pre-emption, would be to carry-out the
law in an imperfect manner; for the latter is in reality the proper
compleme11t of the former, and one depa11ment of the law cannot
G be' administered without taking cognizance of the other ...... "
It has also been observed that under the Mohammedan law, the
rule of pre-emption proceeds upon a principle analogous to the maxim
"sic utere tuo ul alienum 11011 leadas". The right of preemption is
based upon the fact that there can be large number of co-sharers, the
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 69
fARUN MISHRA, J.l

preference has to be given to pre-empror as 'a right of substitution, bu_t . A
not as a re-purchase in Mohammedan law to cut short the Iitigation.
61. For the purpose of pre-emption, reliance has also been placed
on the decision ip Zamir Ahmad v. S. Haidar Nazar & Ors. Al R 1952
All 541, in which it has been observed that where there is a custom
relating to pre-emption, the rule of Mohammedan law of pre-emption is B
not to be applied even on the ground of equity and good conscience. In
view of the entry in Wajibularz the custom is complete by itself and can
be enforced. The plaintiff being a relative and a co-sharer, accordingly,
had a preferential right of pre-emption as against the vendees and was
entitled to pre-empt.
c
62. The decision in NaKai111nal & Ors. v. Na11ja111111al & Am:
(1970) I MLJ 358 has also been referred to, wherein it has been observed
that the preferential right to acquire the share of a co-heir who proposes
to transfer his interest in the property or business of the propositus is
limited to cases of simultaneous succession and devolution of property
upon two or more heirs belonging to Class I. Obviously, the section has D
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 E
stranger in the enjoyment of family property if he so desired. Relying
upon Jnayatullah (supra), it has been observed that it is not lawful for
anyone to sell his owns.hare till he has informed his co-sharer who may
take or leave it as he wishes; and ifhe 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 F
burden is on ihe purchaser to establish that other co-heirs declare or
waive their preferential right when occasion arose. It is not pretended
that purchaser made any reference to non-alienating co-heirs before his
purchase. It follows that plaintiffs have not lost their preferential right
of purchase by sale and are entitled to have property conveyed to them. G
63. On the basis of the aforesaid decisions with respect to the
preferential right it is sought to be contended on behalf of the appellants ·
that there is no equity in favour of the purchaser, but under Muslim law
co-heirs have the right of preferential purchase and in this case even it is
not pretended by the purchaser that he had offere~ to the co-heirs before H
70 SUPREME COURT REPORTS [2017] 3 S.C.R.

A purchasing the same vide sale deed dated 23 .11 .1959. We decline to
accept the submission as the property in question is capable of division
and it is not a smal I fraction of property, but partition is of huge property,
and as the property admittedly has exchanged several hands by now; we
are not inclined to invalidate the sale deed executed by defendant No. 1
in favour of Bala Mallaiali even to the extent of his share i.e. 1411041h 011
B
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,
pa11icularly when no such plea was raised at the relevant time aiid in the
courts below. Jn case heirs were desirous of raising it, they should have
raised their plea timely.
c 64. In Siwik Mohd. Ali Ansari v. Siwik Abdul Samed (Died)
per LRs (2012) 4 ALD 680 (DB), the question of fiduciary relationship
has been discussed, but in the instant case_it is not the case set up by the
objectors/purchasers that the sale deed was the outcome of fiduciary
relationship.
D 65. The pa11ies have been litigating since 1935 for partition of
property. In the instant case sale by Hamid Ali Khan, defendant No. l is
not of undivided share but that of a specific property i.e. 68 acres 10
guntas in which he had only 14/I041h share. Thus being a tenant in
common he had no authority or right to sell the share of other co-owners.
E The vendor had the right to sell to the extent of his own share considering
the nature of succession am"ongst Mohammedans. Thus the sale of
prope11y of other co-sharers was illeg_al and void .
. 66. Similar question arose in Ma11.mb Ali Khan (supra) in which
it has been laid down that if pai1ition has not been effected the heir can
F only sell his undivided share a:nd cannot sell a pa11icular plot. It was
submitted that though the specific plot has been alienated but in the
whole undivided property it would amount to less than the share of an
alienating co-sharer i.e. defendant No. I. 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
G 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
pi·operty which belonged to other co~sharers. The sale of a specific part
of the ·prope11ywhich was not in the vendor's exclusive ownership, was
·set aside. Allahabad High Court has laid down thus:
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 71
(ARUN MISHRA, J.]

"3. The simple question that l have to decide is whether in these A
circumstances the plaintiff-appellants are entitled to a decree for
possession of their share in the prope1ty in sui.t, including that
portion of it which was transferred in 1920 and 1922 by Mt.
Nabiunnissa fo defendants Nos. 2 and 3, or to any other relief. It
is not quite clear what the lower appellate Court meant by saying
B
that the sale deed was not challenged by the plaintiffs in the plaint
on the ground that it dealt with one specific plot, or in expressing
the opinion that such a sale deed is only voidable at the opinion of
a joint owner within six years of the transfer. The whole of the
plaint shows that the.plaintiffs claimed to be owners of 12 out of
24 sihams in the property which had been left by Mt. Wasiunnisa. c
They also claim to have been in Joint possession with Mt.
Nabiunnissa although the latter's name alone had been recorded
in the revenue papers. Their cause of action was that Mt ..
Nabiunnissa had transferred part of the property and >1:he/her
their grievance was that she had transferred more than her
D
proper share or that she had transferred a specific part of
the property which·was not in her own exclusive ownership,. it
is quite clear that the plaintiffs' object was to dispel the cloud on
their title to 12/24 sihams of the whole prope1ty which had arisen
owing to the sale deeds of 1920 and 1922. ·It has not been clearly
proved that the plaintiffs have been in joint possession of the whole E
of the property. and they have therefore paid the Court fees
necessary for a dec°ree for possession. What is wanted, however,
is a declaration that they are entitled to joint possession, and in the
circumstances it appears to me that they ought to obtain such a
decree. In the case of Jafri Begam v. Amir Mohammad
F
Khan ( 1885) 7 All. 822, it was held that in somewhat similar
circumstances a plaintiff could recover from the auction purchaser
his share in the property sold on condition that he paid a
proportionate share of the ancestor's debt for which the decree ·
(in execution of which the property had been sold) was passed.
4. As regards the question of the amount which is said to have G
been paid by Mt. Nabiunnissa in liquidation of her mother's debts,
the trial Cou1t found that she paid a sum of Rs. 1,800 and that the
plaintiffs were liable to pay a proportionate amount viz. Rs. 853-
14-0. The lower appellate Court has found that so far as Rs.1,000
H
72 SUPREME COURT REPORTS [2017] 3 S.C.R.

A is concerned it has not been proved that the debt was due or that
Mt. Nabiunnissa-luis liquidated it. There is, 11owever no finding as
regards the balance ofRs.800. Mr. Mohd. Husain, who appeared
in this Court on behalf of Mt. Nabiunnissa, has argued that he is
not bound by the findings of the lower appellate Court with regard
to tliese debts at all, because the decree of the lower appellate
8 Court was in his favour and these findings were therefore
irrelevant. Mt. Nabiunnissa was however one of the parties to
the appeal in the lower appellate Cou1t 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
c to be binding on Mt. Nabiunnissa."
67. In Abdul Majeeth Khan Sahib v. C. Krishnamachariar
(I 917) 5 LW 767, a Full Bench of the Privy Council was faced with the
issu<: that ifone ofthe co-heirs ofa deceased Muhammadan in possession
of the whole estate of the deceased or of any part of it sells the property
D 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
E bind shares to his co-heirs.
68. In our opinion, sale beyond 14/J041h share by Hamid Ali to
Bala Malliah was void. The Mohammedan Law does not recognize the
right of one of shareholders being tenants-in-common for acting on behalf
of others. While discharging debt also they act as independent debtors.
F A co-sharer cannot create charge on property of co-heir. The right of
Muslim heir is immediately defined In each fraction ()f estate. Notion of
joint family prope1ty is unknown to Muslim law. Co-heir does not act as
agent while discharging debt but is an independent debtor not as co-
dcbtor or joint debtor. Co-sharers are not defined as joint contractors,
G partners, executors or mortgagees.
(viii) In re: whether the pun:haser has a right to claim equity
for allotment or Item No. 6 or Schedule' H' property in final decree
prol~ectlings in suit for partition ? H yes, to what extent '!

H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 73
fARUN MISHRA, J.]

69. It was contended on behalf of the respondents that in respect A
of transactions which are hit by section 52 can be looked into at the time.
of final decree proceedings. However, preliminary decree in the instant
case identifies different modes and manners under which equities could
be adjusted at the time of final decree proceedings. Relian~e hl).S been
placed upon following paragraphs 81 and 93 of the judgment of the trial
B
court while passing the preliminary decree in the year 1970 :
"81. It is fact established that the deceased had gifted the land to
D- I but the next pointfor consideration is, whether the entire land
measuring 24 bigas and I0 bams was gifted to him or a portion of
it for the construction of the house. The learned counsel for D-25
argued that the entire land was given to D-1 and even including S. c
No.22/2 another item about which I will deal later. The learned
counsels for D-6 and plaintiff contended that the house of D-1
was only on portion of land and that it cannot be presumed that
the entire land of more than l 8 acres would be given for the
construction of the house. As already observed the house of D- D
J' around the house. There is no evidence on record to show the
extent of land within the compound. One of the witness stated
that it was 4 or 5 acres and another stated that it was about I5
acres. The plan of the compound and the area of the house is not
made the record· of the suit. Of course Ex. Al if 2 while giving
permission for the construction of the compound mentioned about E
the plan but it did not give the area covered by it Subsequently,
i.e. after the institution of the suit D-1 had built a cinema house
and the hotel and malgi. Another witness said that there was no
open land between the co'mpound and the road. There is no clear
picture about the location for want of sufficient material on record. F
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 ofland 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. Al if 4 he gave the boundaries and stated that a G
plan was also prepared after survey and settlement but it is not
filed and nothing can ~e made out from the boundaries given in
Ex. Al if 4 and also Ex. Al if. I am not inclined to believe that only
that portion of land was gifted to him on which the house stands
H
74 SUPREME COURT REPORTS [2017] 3 S.C.R.

A 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
B
the remaining land outside the compound is matruka property. If
the cinema house was built on the land outside the compound, it
can be adjusted towards the share of D-1 in the final decree
proceedings.
xxxxx
c
93. It is a fact and also admitted in some cases that D-1 had sold
some lands in some villages. Ex.B-2 to B-9 are such sale deeds
executed by D-1. It was explained by D-1 that he was to pay the
land revenue to the Government and for that purpose he had to
sell the lands. I need not go into the question about the lands sold
D by D-1 and about the sale amounts realized. In the final decree
proceedings these facts can be taken into consideration. D-1 would
be liable to account for the monies realized."
It is apparent that the sale deed in question was not referred to in
para 93. Even if the aforesaid observations had not been made, it was
E open to the executii1g court to adjust equity of purchasers to the
permissible extent as purchasers pendente lite can work out the equities
in accordance with law in the final decree proceedings.
7fJ. Reliance has been placed by the respondents on a decision in
Jayaram Mudaliar v. Ayyaswami & Ors. ( 1972) 2 SCC 200 :
F
"47. It is evident that the doctrine, as stated in Section 52, applies.
not merely to actual transfers or rights which are subject-matter
oflitigation but to other dealings with it "by any paiiy to the suit or
proceeding, so as to affect the right of any other party thereto".
Hence, it could be urged that where it is not a paiiy to the litigation
G but an outside agency, such as the tax collecting authorities of the
Government, which proceeds against the subject-matter of
litigation, without anything done by a litigating party, the resulting
transaction will not be hit by Section 52. Again, where all the
parties which could be affected by a pending litigation are
themselves parties to a transfer or dealings with property in such
H
T. RAVI & ANR. v. 8. CHINNA NARASIMHA & ORS. ETC. 75
[ARUN MISHRA, J.]

a way that they cannot resile from or disown the transaction A
impugned before the Court dealing with the litigation, the Court
may bind them to their own acts. All these are matters which the
Court could have properly co1~sidered. The pwpose of Section
52 of the Tra11.1fer of Property Act is not to defeat any just
and equitable claim but only to subject them to the authority
8
of the Court which is dealing with the property to which claims
are put forward." (emphasis added by us)
Reliance has also been placed on Vinodan v. Vishwanathan
(2009) 4 sec 66 thus :
"11. In the facts and circumstances of the case, while balancing c
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 poi1ion 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 D
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 E
inconvenience to the respondent."
Decision in Dhanlakshmi & Ors. v. P. Mohan & Ors., (2007)
I0 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 F
undivided shares of Respondents 2, 3, 4 and 6. It is not in dispute
that the first respondent P.. Mohan has got an undivided share in
the said suit property. Because of the purchase by the appella11ts
of the undivided share in the suit property, the rights of the first
respondc1fr herein in the suit or proceeding will not affect his right G
in the suit property by enforcing a partition. Admittedly, the
appellants, having purchased the prope11y from the other co-
sharers, iii our opinion, are entitled to come on record in order to
work out the equity in their favour in the final decree proceedings.
In our opinion, the appellants are necessary and proper parties to
H
76 SUPREME COURT REPORTS [2017) 3 S.C.R.

A the suit, which is now pending before the trial court. We also
· .. ..._ make it clear that we are not concerned with the other suit filed
by the mortgagee in these proceedings."
71. Though it is true that purchasers can work out the equity in
the final decree proceedings but it is only to the legally permissible extent
B and not beyond that. The preliminary decree declared the shares in item
. No.6 of Schedule 'B' prope1iy in specified shares. The preliminary decree
is binding and even otherwise the sale was valid only to the extent of the
share of defendant No. I i.e. 141104'h share in the specific property and
not beyond it. This Court in K. Adivi Naidu & Ors. v. E. Duruvr1sulu
Naidu & Ors. ( 1995) 6 SCC 150, has laid down that when a specific
c property comprising of undivided share in joint family. properties· is
purchased by appellants from alienee ofKarta of the joint family prior to·
partition suit and where the preliminary decree in partition suit directed
that properties be divided by metes and bounds, taking the good and bad
qualities thereof, then the preliminary decree was allowed to become
D final. This Court held that the trial court should give effect to the
preliminary decree, and though the appellants had no equities, the
restrictive share to which the principal alienator was entitled, should be
allotted to them as a special case; In the instant case, preliminary decree
has declared th! share only to the extent of 14/104'11 in the disputed
property in item No.6, schedule 'B'. Thus, by no equitable pri1iciple the
E pui·chaser can claim the entire property to be allotted to him.

72. The respondents have placed reliance on a decision of the
High Cou11 of Madras in Khatoo11 Bibi 1( Abdul Wahab Sahib & Ors.
AIR 1939 Mad. 306 so as to contend that the sale deed in favour of Bala
Mallaiah dated 23.11, 1959 is valid and binding on defendant No. I, Hamid
F Ali Khan notwithstanding the pendency of the pa11ition suit. In Muslim
law property can be alienated by heir during the pendency of the suit for
its pa11ition. 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
G the other co-heirs, the claim of bona fide purchasers to have the share in
the pa1ticular plot is not absolute. It is well recognized principle oflaw
relating to co-owners or tenants in common thiit 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
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 77
fARUN MISHRA, J.]

( 1841) I 0 LJ Ch 221 that if persons deal in such interests as undivided
shares, they do so with the liability ofhaving 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 couit fu1ther observed that:
"11. A co~owner or a tenant-fo-common can always file a suit for B
partition and have his share defined and delivered tohim. The
Court in effecting a partition is bound to adjust all the equities
existing between the parties and arising out of their relation to the
property to be divided. The equities to be adjusted would invol\'.e
every matter relating to the common property wjtl!.reference to
which one tenant-in-common may equitably demand anything of c
the other such as contribution for repairs or improvements to the
common property, accounting for waste of the common property
. and the enforcement of any lien or charge which a tenant-in-
common may claim against the other in respect of any matter
concerning the common property. Jn regard to the method of D
division the Court is not bound to.allot'an aliquot share of each
species of property to each of the parties. It is enough if each
tenant-inccommon has an equal share of the whole. This is subject
to the other equities whic;h may have to be adjusted. In this case
the plaintiff is admittedly entitled to a half share in the estate but
she is not able to get her due and legitimate share by virtue of the
fact that defendants I to 3 have dissipated a major portion of the
estate consisting of the moveable property. The plaintiff is therefore
justly entitled to demand that all the immovable property should
be assigned to her and that no portion of the immovable property
should be claimed by defendants I to 3. Freeman on "Co-tenancy F
and Pmtition" dealing with equities which may be enforced in a
suit for partition observed at page 676 thus :
If one of the co-tenants has wasted any part of the lands of
the co-tena11cy, the Court may take that fact into consideration
and do justice between the parties by assigning to the G
wrongdoer the part which he has wasted.
·xxxxx
13. The question now arises, should any portion of the property
by virtue of the alienation by defendants. I to 3 pendente lite be
H
78 SUPREME COURT REPORTS [2017] 3 S.C.R.

A allotted to the share .of the defendants in order to give effect to
the alleged equitable right in favour of the alienees? Ordinarily it
would be just and proper to allocate properties which have been
alienated to the shares of the alienor. But where it is not practicable
or equitable, the Court is not bound to allot those properties but
might allot any other properties and the alienees' only right is to
B
have recourse to the properties so allotted. It may be that the
substituted property or security may prove worth less but it is a
risk every alienee ofan undivided interest ofa 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
c 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
D
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
I to 3 aided by defendant 4, and the prope11y was converted and
appropriated for their use during her minority. She Jost no time in
E enforcing her claim as soon as she attained majority and the
alienations were pendente lite. The alienees allege that they were
ignorant of the institution of the suit but that fact is in my opinion
immaterial as they cannot get higher rights than their alienors, i.e.
an alienee from a co-tenant takes his interest subject to the equities
of the other co-tenants. But this is a case in which, if the alienees
F
were not pa11ies, they will be affected by the doctrine of !is
pendens. The title to the immovable prope11y is specific:Jlly in
question within the meaning of Section 52 of the Transfer of
Property Act.
14. A question of title has been raised, namely whether the property
G in the suit belonged solely to Abdul Rahiman or was the joint
property of defendants 1 to 3 and Abdul Rahiman. This issue
would be quite sufficient to attract the operation of !is pendens.
No doubt a suit for administration has been held not to attract the
operation of !is pendens until a preliminary decree, for
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 79
[ARUN MISHRA, J.]

administration has been passed. But in this case the plaintiff has A
also prayed for pa1tition and delivery of her share and for an
account on the basis that defendants I to 3 have wrongfully
possessed themselves of her father's prope1iy and misappropriated
the bulk of it and this suit cannot therefore be viewed as a bare
administration suit. But since the alienees are formally on record
B
and they will be bound by any decree passed in the suit, there is
no need to consider the applicability ofSection 52 of the Transfer
of PropertyAct. But the principle underlying the Section will have
to be applied in favour of the plaintiff, i.e. the Court in making the
adjustment of equities in giving relief to her ought to confine itself
to the legal rights of the co~heirs on the date of the institution of c
the suit without reference to the equitable rights of persons who
derived title from them pendente lite as her rights ·should not be
prejudiced by any intervening equity in the ali~nees. The plaintiff
is entitled to say that so far as she is concerned, she is not bound
to take any notice of a title acquired since the filing of the suit and
D
"as to them it is as if no such title existed."
The Court has reiterated the principle that an alienee from a co-
tenant takes subject to the equities (rom other co-tenants and in case
alienees were not parties they would be affected by the doctrine of !is
pendens. The decision is of no application in the facts of the instant
case as alienation made was beyond the interest in the property of E
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 F
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 & Am: v. Humid Ali Shah & Ors. AIR 1959
MP 190. The main question for consideration was with respect to
maintainability of the suit for partial partition or the suit has to be filed G
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 pa1tition 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
H
80 SUPREME COURT REPORTS [2017] J S.C.R.

A in the final decree proceedings. The claim was to retain only the specific
property which had been alienated by defendant No. I..
74. Reliance has also been placed on Tikam Chand Lunia v.
Rahim Khan Ishak Khan & ()rs. AIR 1971 MP 23. Following the
aforesaid decision of the M.P. High Court in Abdul Rahman (supra),
B law to the similar effect has been laid down. In the latter decision it has
be.en held that when specific property cannot be allotted to the share of
the alien or, sale must be construed to be sale of so much portion as can
justly be given to the share of the alienor. In the instant case the alienor
had only 14/104m share and that has been rightly allotted to him. ·
c 75. Reliance has also been placed on IG Ashok Kumar "
Govindammal & Am: (2010) 14 SCC 370 in which iHias been laid
down that in the case of pendente lite transfer of property during the
pendency of the partition suit held by the other co-owner, sale pendente
lite is not void but subject to the decree in partition suit. J'he title of the
vendee would depend upon the decision in the partition suit in regard to
D the title of vendor. If the vendor has title only in respe~t of a part of the
property, vendee's title would be saved oi1ly to that extent. The sale of
the remaining portion which fell to the share of other co-owner would be
ineffective. On the basis of the aforesaid decision, Bala Mallaiah, his
heirs and purchasers can get what can be allotted to vendor Hamid Ali
E Khan's share. That precisely is the preliminary as well as the final decree.
This Court in IG Asl10k Kumar (supra) has laid down thus and the
.
relevant po1tion is extracted hereunder
.
:
"14. On the other hand, ifthe title of the pendente lite transferor
is recognised or accepted only in regard to a part of the transferred
'F prope1ty, then the transferee's title will be saved only in regard to
that extent and the transfer in regard to the remaining portion of
the transferred property to which the transferor is found not
entitled, will be invalid and the transferee will not getany right,
title or interest in that portion.

G 15. lfthe property transferred pendente lite, is allotted in entirety
to some other party or parties or if the transferor is held to have
no right or title in that property, the transferee will not have a11y
title to the property. Where a co-owner alienates a property or a
portion of a property representing to be the absolute owner, equities
can no doubt be adjusted while making the divisioii'Cl\iring the
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 81
fARUN MISHRA, J.l

.final decree proceedings, iffeasible and practical (that is, without A
causing loss or hardship or inconvenience to other parties) by
al lotting the prope1ty or po1tion 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 B
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. c
76. Reliance has also been placed on Khe11icha11d Shankar
Chaudhari & Am: v. Vishnu Hari Patil & Ors. ( 1983) I SCC 18 in
which this Court has laid down thus:
"6. Section 52 of the Transfer of Prope1ty Act no doubt lays D
down that a transferee pendente lite ofan interest in an immovable
prope1ty which is the subject-matter of a suit from any of the
parties to the suit will be bound insofar as that interest is concerned
by the proceedings in the suit. Such a transferee is a representative
in interest of the party from whom he has acquired that interest.
Rule I 0 of Order 22 of the Code of Civil Procedure clearly E
recognises the righ't of a transferee to be imp leaded as a party to
the proceedings and to be heard before any order is made. It may
be that if he does not apply to be imp leaded, he may suffer by
default on account of any order passed in the proceedings. But if
he applies to be impleaded as a party and to be heard, he has got F
to be so impleaded and heard. He can also prefer an appeal against
an order made in the said proceedings but with the leave of the
appellate cou11 where he is not already brought on record. The
position of a person on whom any interest has devolved on account
of a transfer during the pen<lency of any suit or a proceeding is
somewhat similar to the position of an heir or a legatee of a party G
who dies during the pen<lency of a suit or a proceeding, or an
/ Official Receiver who takes over the assets of such a pa1ty on
his insolvency. An heir or a legatee or an Official Receiver or a
transferee can participate in the execution proceedings even though
their names may not have been shown in the decree, preliminary H
82 SUPREME COURT REPORTS (2017] 3 S.C.R.

A or final. If they apply to the court to be impleaded as parties they
cannot be turned out. The Collector who has to effect partition of
an estate under Section 54 of the Code of Civil Procedure has no
doubt to divide it in accordance with the decree sent to him. But if
a party to such a decree dies leaving some heirs about whose
interest there is no dispute should he fold up his hands and return
B
the papers to the civil court? He need not do so. He may proceed
to allot the share of the deceased party to his heirs. Similarly he
may, when there is no dispute, allot the share of a deceased party
in favour of his legatees. In the case of insolvency of a party, the
Official Receiver may be allotted the share of the insolvent. In
c the case of transferees pendentc lite also, if there is no dispute,
the Collector may proceea to make allotment of properties in an
equitable manner instead ofrejecting their claim for such equitable
partition on the ground that they have no locus standi. A transferee
from a party of a property which is the subject-matter of partition
can exercise all the rights of the transferor. There is no dispute
D
that a party can ask for an equitable partition. A transferee from
him, therefore, can also do so. Such a construction of Section 54
of the Code of Civil Procedure advances the cause of justice.
Otherwise in every case where a party dies, or where a party is
adjudicated as an insolvent or where he transfers some interest in
E 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 CollectOI' makes an equitable
pattition taking into consideration the interests of all concerned
including those on whom any interest in the subject-matter has
F
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
G accordance with the law (ifany) for the time being iii force relating
to the partition or the separate possession of shares."
There is no dispute on the aforesaid principle. The aforesaid
principle has been followed in the instant case and permissible share has
been allotted. Thus the decision is of no futiher assistance to the cause
H espoused.
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 83
[ARUN MISHRA, J.]

77. In Jayaram Mudaliar v. Ayyaswami & Ors. (1972) 2 SCC A
200, it has been laid down thus :
"47. It is evident that the doctrine, as stated in Section 52, applies
not merely to actual transfers or rights which are subject-matter
of litigation but to other dealings with it "by any pai1yto the suit or
proceeding, so as to affect the right of any on1er party thereto". B
Hence, it could be urged that where it is not a party to the litigation
but an outside agency, such as the tax collecting authorities of the
Government, which proceeds against the subject-matter of
litigation, without anything done by a litigating party, the resulting
transaction will not be hit by ~ection 52. Again, where all the
parties which could be affected by a pending litigation are c
themselves parties to a transfer or dealings with property in such
a way that they cannot resile from or disown the transaction
impugned before the Court dealing with the litigation, the Court
may bind them to their own acts. All these are matters which the
. Court could have properly considered. The purpose of Section 52 D
of the Transfer of Prope11y Act is not to defeat any just and
equitable claim but only to _subject them to the authority of the
Court which is dealing with the property to which claims are put
forward.
48. In the case before us, the Courts had given directions to E
safeguard such just and equitable claims as the purchaser-appellant
may have obtained without trespassing on the rights of the plaintiff-
respondent in the joint property involved in the pai1ition suit before
the Court. Hence, the doctrine of lis pendens was correctly
applied." ·
F
78. In Marirudraiah & Ors. v. B. Sarojamma & Ors. (2009)
12 SCC 71 0, a Constitution Bench of th is. Court set aside an order passed
by the High ~ourt directing allotment of Item No.9 sold pendente lite to
purchaser and compensation tQ. the co-sharers of his predecessor in
interest in terms of money based on the market value of the property
which was alienated to him. This Cou11 has laid down that cou11s are not G
supposed.to encourage pendente lite transactions, and regularizing their
conduct by showing equity in their favour at the cost of co-sharers.
79. Jn Ka111111a11a Sambamurthy (Dead) by LRs. v. Kalipatnapu

H
84 SUPREME COURT .REPORTS [20 I 7) 3 S.C.R.

A Atchutamma (Dead) & Ors. (20 I I) I I SCC 153, this Cou11 has laid
down that when the vendor was having only Yi 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 Yi
share of the vendor and not beyond it.
B 80. In Nova Ads v. Metropolitan Ii-ansport Corporation &
Ors. (2015) 13 SCC 257, this Cou11 has considered various decisions
like Raja Ram Mahadev Paranjype 1: Aba Maruli Mali AIR 1962 SC
753, P.M Latha v. State of Ke1:ala (2003) 3 sec 541, Raghunath Raj
Bare.ja 1( Punjab National Bank (2007) 2 SCC 230, Madamanchi
Ramappa v. Mothaluru Bojjappa AIR 1963 SC 1633, Lax111i11arayan
c . R. Bhattad v. State of Maharashtra (2003) 5 SCC 413, Nasiruddin v.
Sita Ram Agarwal (2003) 2 SCC 577, E. Palanisamy v. Palanisamy
(2003) I SCC 123, India House v. Kishan N. Lalwani (2003) 9 SCC
393 and has observed th.at law will prevail over the equity principle
when they cannot be harmonized thus :
D "45. In Raja Ram Mahadev Paranjype v. Aba Maruti Mali
AIR 1962 SC 753, a three-Judge Bench has opined that: (AIR p.
756, para 9)
"9 .... Equity does not operate to annul a statute. This
appears to us to be well established but we may refer to 11"hite
E and Tudors Leading cases 011 Equity (9 111 Edn., p. 238), where
it is stated:
'Although, in cases of contract between pat1ies, equity
will often relieve against penalties and forfeitures, where
compensation can be granted, relief can never be given against
F the provisions of a statute."
4t>. In P.M Latha v. State of Kera/a (2003) 3 SCC 541, it has
been opined: (SCC p. 546, para 13)
"13. Equity and law are twin brothers and law should
be applied and interpreted equitably but equity cannot override
G
written or settled law."
47. In Raglnmath Raj Bareja v. Punjab National Bank (2007)
2 SCC 230, the Cou11 observed that it is well settled that when
there is a conflict between law and equity, it is the law which has
to prevail. The Court further ruled that equity can supplement the
1-1
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 85
fARUN MISHRA, J.]

• law, but it cannot supplant or override it. In this context, reliance A
was also placed upon Mada111a11chi Ramappa v. Muthaluru
Bojjappa AIR 1963 SC 1633, Laxminarayan R Bhallad .v. Slate
of Maharashtra (2003) 5 SCC 413, Nasiruddi11 v. Sita Ram
Agarwal (2003) 2 SCC 577, E. Pala11isa111y v. Pala11isa111y (2003)
I SCC 123, and India House v. Kishan N. Lalwani (2003) 9
B
sec 393."
81. Reliance has been placed on Raghunath RaiBareja & Am:
v. Pwijab Na1io11al Bank & Ors. (2007) 2 SCC 230, in which the Latin
·maxim "dura lex sed lex" which means "the law is hard, but it is the
law" was applied. Relying upon that it has been observed that equity
can only supplement the law, but it cannot supplant or override it. But
c
when there is a conflict between law and eqi.1ity, it is the law which has
to prevail.
82. In the instant case, equitable right of allotment of some land
other than which was purchased out of some other prope1ties al lotted to
D
the share of vendor Hamid Ali Khan, D-1 has not been claimed in the
objections filed during the final decree proceedings filed by the purchasers.
The property admittedly has exchanged hands a number of times during
the pendency of suit from 1935 till date and how the equity is to be
worked out is always a question of fact in every case, how much share
has been al lotted to the share of one vendor and how much property he E
had already alienated till that time and what are the debts or charges on
the prope1ty 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
F
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, G
made on behalf of the appellants that defendant No. I 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 ofland which was
in excess of his entitlement, in the absence of pleading by appellants or
purchasers on the basis oforal submissions. made before us. In the absence
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86 SUPREME COURT REPORTS [2017] 3 S.C.R.

A of requisite data, pleadings and evidence, question of working out equity
in aforesaid manner, cannot be examined or gone into by this Cou11 at
this stage. The claim of equity is outcome of ingenuity of arguments
made only in this Colll1 I ike a drowning fish trying to catch last straw.
We are not at all impressed by the submission, and consequently the
same is repelled, more so considering the provisions of the Mohammedan
8
Law that sale beyond the extent of the share of the vendor i11 specific
property was void.
(ix) In re : whether sale was for legal lll'cessity, and thus
bintling :
c
83. It was submitted that sale was for legal necessity for benefit
of estate. It has been averred in the objections preferred by the purchasers
that sale was made by Hamid Ali Khan, defendantNo. I, for payment of
land revenue. Thus it was contended that the payment of land revenue
has enured for the benefit of the entire estate. Thus sale would be valid
D
and binding on co-heirs. Except making the aforesaid bald stateriient,
nothing has been placed on record to indicate that the sale was for
payment of land revenue. On the other hand, when we peruse the sale
deed, recital of it makes it clear that the sale was effected by Hamid Ali
Khan for his 'personal necessity'. He had not executed the sale deed
E for payment of land revenue as its recital is otherwise which would
prevail. Nor the sale deed had been executed in the fiduciary capacity
aCting on behalf of co-sharers rather he has claimed in the sale deed
that he was the exclusive owner of 68 acres 10 guntas area of property
and was in possession thereof. He had sold the land for a co11<ideration
F of Rs.2000 in view of his personal necessity. The sale was made after
·taking permission from the Deputy Collector Division, Distt. West,
Hyderabad. Thus, the sale deed negates the aforesaid bald averment
made in the objection petition. Even otherwise under the Mohammedan
Law, it was not open to Hamid Ali Khan, defendant No.1 to act in fiduciary
capacity to sell the property and bind shares of others. It is not mentioned
G in sale deed that Ham id AIi Khan had sold for any legal necessity or for
the benefit of the entire estate. The recital in sale deed has the evidentiary
value and Bala Mallaiah and his successors are bound by what has been
mentioned therein. Thus, 110 case is made out on the basis of the aforesaid
submission also to make an interference.
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. Etc: 87
[ARUN.MISHRA, J.]

(x) In re : the effect of proceedings under the Tenancy Act, A
1950 :
84. It was contended on behalf of the respondents that with respect
,. to the disputed property the proceedings were initiated by Boddam
..• Narsimha under the Act of 1950. Boddam Mallaiah was a lessee for 3
years. He was inducted in the aforesaid lands under a koul dated 1.3 .1953 B
executed by Hamid Ali Khan, who was defendant No.1 in the pa1iition
suit. liiitially, 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
c
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 scction 38E of the Act of 1950. The tribunal
vi de order dated 24. 8. 1999 held that Bala Mallaiah never protested the
omission of entry of tenancy from the revenue records as deemed tenant, D
and it was found that there were no protected tenants in Madhapur
village. The order was questioned in the appeal under section 90 of the
Act which was dismissed by the Joint Collector on 13 .3 .2000. Thereafter,
Writ Petition No.2229/2000 was preferred before the High Cou11 of
Judicature at Andhra Pradesh which was also dismissed by the High
Cou1i on 16.4.2001 and the same was questioned before this Cou1i which E
dismissed appeal in Bodda111 Narsimha (supra).
85. However, on behalf of the respondents it has been submitted
that Bala Mallaiah has become pattedar vide conveyance deed dated
23.11.1959. The case set up by Bala Mallaiah that he was jointly
cultivating the suit land along with his two brothers Komaraiah andAgaiah F
was found to be meritless and negatived for the period between 1952
and 1959. On 1.1.1973 when the notification came to be issued, Bala
Mallaiah was not the protected tenant. The case set up by Boddam
Narsimha regarding protected tenancy and issuance of ownership
certificate was negatived. This Court noted that even for the sake of G
arguments if it is accepted that Bala was a protected tenant on 12.2.1956,
he sti II became a pattedar vi de conveyance deed dated 23.11.1959, and
in any event assumed protected tenancy did not continue up to 1.1.1973,
and therefore, the appellant was not entitled to ownership ce1iificate
under section 38E. Section 38E vfthe Act of 1950 had no application to
H
-.
88 SUPREME COURT REPORTS [2017] 3 S.C.R.

A the facts of the case. This Court has discussed the matter thus :
"13. Bala was a kaul who had taken an annual lease from Hamid
Ali Khan. He was a tenant at will. This was during the pendency
of the partition suit. He became a paltedar vide conveyance dated
23-11-1959. The kaul itself indi.catcs. that Bala was to cultivate in
B his individual capacity; that at the end of the year, Bala had to
return the lands to the owner; that Bala was not given the right to
include any other cultivator. Therefore, there is no merit in the
contention of the appellant that Bala was jointly cultivating the
suit lands with his two brothers Agaiah (father of the appellant)
and Kornaraiah. Further, between tenancy and the conveyance,
c there was a time-gap. Hamid Ali Khan was a pattedar. His rights
were purchased by Bala vide conveyance dated 23-11-1959,
therefore, on 1-1-1973, when the notification came to be issued,
Bala was not the tenant. He was a pattedar. Moreover, the
\lppellant herein is not the LR of Bala. Bala was his paternal
D uncle. At no point oftinie, even the LRs of Bala had claimed that
Bala was a protected tenant. It is evident from Section 38-E that
the said section has been enacted for those protected tenants
who are declared to be protected tenants and included in the
register prepared for that purpose. A person becomes a protected
tenant when he is a holder on the dates or for the periods mentioned
E
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. Ti:;hsildar 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
F 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 Acl, 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
G be in physical possession on 1-1-1973. lt is sufficient ifhe co11ti11ues
to hold the status of a protected tenant on the notified date, even
ifhe is not in physical possession. The Act does not merely regulate
the relationship of landlord and tenant but deals with the alienation
ofagricultural land and includes transferofthe landholder's interest
1-1
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 89
rARUN MISHRA, J.l

to the protected tenants. Therefore. the grant of pattedari A
(ownership rights) also finds place in the' Act.
14. On the facts and circumstances of the present case, Bala had
become a pattedar (owner) under the conveyance deed dated
23-11-1959. His name was shown as a pattedar even prior to 1-1-
1973. ;he benefit of Section 38-E is given to persons who hold B
the lands as. protected tenants and who continue to hold the lands
as protected tenants on 1-1-1973. The protected tenancy has to
be enforced on 1-1-1973. Under Section 38-E, ownership rights
are conferred only upon persons who continue to be protected
tenants as on 1-1-1973. They form a special class. In the present
case, as stated above, Bala became a pattedar in 1959. In Sada c
(supra) it has been held that protected tenants are covered by
Chapter IV of the Act. They fall under a limited categorx. They
are referred to in Sections 34, 37 and 37-A. In the said judgment,
it has been held that Section 3 7-A, introduced by Act 3 of 1956
deals with a separate class of persons deemed to be protected D
tenants. This class of persons is different from the category of
protected tenants who fall under Sections 34 and 37 respectively.
Section 37-A refers to persons who are holders of the land at the
commencement of amending Act of 1955 ( 12-3-1956). These
persons were required to be tenants on 12-3-1956 and that they
should continue to be tenants till 1-1-1973. Only such category of E
persons are entitled to ownership certificate under Section 38-E.
In the present case, even for the.: sake of argument, if we were to
proceed on the basis that Bala was a protected tenant on 12-3-
1956, still Bala became a pattedar vide conveyance deed dated
23-11-1959, therefore, in any event, the assumed protected tenancy F
. did not continue up to 1-1-1973. In our opinion, therefore, in any
view of the matter, the appellant herein was not entitled to the
ownership certificate under Section 38-E of the Act. Section 38-
E has no application to the fac.:ts of the present case."
86. This Court in aforesaid case has only decided the question G
about protected tenancy which was claimed and issuance of ownership
certificate by Boddam Narsimha under section 38E. No other question
was involved for consideration in the proceedings under the Act of 1950.
Thus, the decision cannot be taken to be an authority on a question
which was not agitated. Boddam Narsimha who filed the said proceedings
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90 SUPREME COURT REPORTS [2017] 3 S.C.R.

A had lost up to th is Court and in that there was a mere mention 9f the fact
that by virtue of the conveyance deed, Bala Mallaiah became pattedar
vide registered sale deed dated 23.11.1959. There was 1io 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
. B could have alienated to Bala Mallaiah and issue about /is 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
c 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 ofNawab Jung. The plaintiffs and other heirs of
Late Nawab Jung were aware that the name of Hamid Ali Khan had
D been recorded in the revenue records. The transfer was made with the
permission of the Collector under section 47 of the 1950 Act. Any person
affected by any entry in such record of rights under Regulation 4 of the
Hyderabad Record of Rights in Land Regulations, 1948 was required to
question the same within two years. Bala Mallaiah was in possession.
Thus, the decree which has been passed ignoring the rights of the pattcdar
E is bad in law. In our opinion, admittedly, it was a matruka property of
Late Nawab Jung. The suit for partition was pending w.e.f. 1935 and
mutation simpliciter in the name of Hamid Ali Khan conferred no right,
title or interest. The mutation is only for the fiscal purpose and is not
decisive ofright, title or interest in the property which is within the domain
F of the civil court. The grant of patta from 1953 onwards by Hamid Ali
Khan to Bala Mallaiah was on yearly basis and the execution of sale
deed and the grant of land on yearly basis were during /is pe11de11s.
Thus, the transactions are covered by the doctrine of /is pendens and
were el early subject to the outcome of the pending partition proceedings.
In Venkatrao Anantdeo Joshi & Ors. v. Malatibai & Ors. (2003) I
G sec 722, a question came up for consideration assuming that pending
suit for pai1ition, a batai patra was executed on the basis of which tenancy
rights were claimed. It was held that su1.:h batai patra would not confer
any right on the person. It being hit by the principle of lispe11de11s. This .
Court has held thus :
H
I

T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC.
[ARUN MISHRA, J.)

· "8. At the time of hearing of this appeal. learned counsel for the
appellants submitted that the plea of tenancy raised by Baburao is
91

A
l
on.the face of it, bogus so as to defeat the rights of the appellants
"hich. are crystallised at the. time of passing of the preliminary
decree. Presuming that pending the suit for partition, even if batai
palra is executed, it would not confer any rights on Baburao as it
B
is hit by principles. of /is peudeus. In any case, as the preliminary
decree becomes final, it was not open for Baburao to raise such
contention at the time of passing of final decree for partition.
9. With regard to /is peudem, learned counsel for the appellants I
rightly referred to the judgment and decree passed in Regular
Civil Suit No. 51 of 1973 and contended that presuming that the c
so-called batai patra was at all executed by Anantdeo, it was not
open to him to execute the same pending disposal of the suit filed
by Appellant I for partition of the property. In that suit, Appellant
l and his mother had challenged the transferofland out of Survey
• No. 60/Aand also for partition of the suit property. By elaborate D
judgment and order, the suit filed by the appellants was decreed ' i',,
to the extent that they were entitled to 2/3rd share in the suit '
!
properties. The cou1t had also directed mesnc profits. Till the date
of the decree, it was contended by Anantdeo that he was in
I possession of portion of the suit land and the remaining portion
E
I was in possession of Malatibai, in view of the sale deed in her
favour. It has also been specifically contended that for some time,

'
I .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 ofMalatibai and himself. The court
specifically arrived at the conclusion that Anantdeo was in F
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 2/3r<l share in the suit property. In
the revenue records ·•also, there is no mutation in favour ofBaburao.
Further, the so-called compromise decree in Civil Suit No. 288 of
1981 against Anantdco and Malatibai would not confer any title G
against the appellant.
IO. Further, in a suit for partition where preliminary decree is
passed, at the time of passing of the final decree it was not open
to the respondent to raise the contention that he was a tenant of
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92 SUPREME COURT REPORTS
., (2017) 3 S.C.R.

A the suit premises. Section 97 CPC specifically provides that where
any party aggrieved by the preliminary decree does not appeal
from the said decree, he is precluded from disputing its correctness
in any appeal which may be preferred from the final decree."
In view of the aforesaid, we find no force in the 'submissions
B raised on behalf of the respondents based upon pattedar rights as it was
subject to section 52 ofT.P. Act and the same is hereby rejected.
(xi) In re : what is the effect or decision of this Court and
High Court with respect to final decree prncel·dings in Item No.
2 of Schedule 'B' property :
c 88. With respect to item No.2 of Plaint' B: schedule property one
Padmini Co-operative Housing Society Ltd. tiled an objection in the final
decree proceedings. The trial court vide order dated 29.3.1996 rejected
the objection which was preferred. First appeal preferred was also
dismissed by a Single Judge on 23.4.1997. LPA No. I04/1997 was filed
D which was dismissed by a Division Bench of the High Court on
20.11.1998. Then SLP [C) No.3558/1999 was filed in this Court which
has been dismissed by a speaking order affirming the judgment and order
passed by the executing court and the High Court. A perusal of the
judgment of the High Court in LPA indicates that the High Court had
held that in Mohammedan Law there is no recognition for a sale by a
.E 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,
~vhose property had devolved upon the sharers, the said sale without the
consent of other co-sharers is invalid and does not confer any right on
F the purchaser with regard to such co-sharers who do not join the said
sale. The decision has been affirmed by this Cou1t vide order dated
I. I 0.1999 in SLP [C] No.3558/1999. Following order was passed by
this Court:
"After hearing arguments exhaustively for more than two hours
G and after considering the prelimi1\ary decree dated 24.11.70, the
modified preliminary decree passed by the High Court, the
Commissioner's repo1t dated 14.7.95, final decree passed by the
City Civil Cou1t 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/
H
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 93
[ARUN MISHRA, J.l

94 dated 30.8.94 and after considering the various rulings of the A
Cou1is 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 oflaw the decision of this Court being a reasoned
order has relevance and the decision in the aforesaid n'iatter in same B
case also suppo1is the view which has been taken by us on merits.
(xii) In re : whether there is waiwr 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 c
approbate and reprobate. In Boddam Nursimha (supra), stand was
taken that Bala Mallaiah was the pattedar, thus, they are bound by their
said representation and cannot wriggle out of it. They have relied upon
the decision i_n C. Beepathuma v. Velasari Shankaranarayana
Kadambolithaya AlR 1965 SC 241 on the principle of approbate and D
reprobate as also the decision in Mumbai J11ternatio11al Airport (P)
Ltd. v. Golden Chariot Airport (20 I0) I0 SCC 422 in which it has
been observed that the contesting respondent has blown hot and cold by
taking inconsistent stands which .
. is not permissible.
90. In fact, during the pendency of the partition suit with respect E
to ancestral property of Late Nawab Jang, Hamid Ali Khan - defendant
No.I - had alienated the property treating it as his own whereas it was
obviously subject to the right of other co-shares finally declared in the
preliminary decree. Bala Mallaiah and his successors have filed several
proceedings, civil suit of 1993 in which they have failed. Boddam
Narsimha, nephew of Bala Mallaiah also filed proceedings under the F
Act of 1950 for issuance of ownership certificate by virtue of their being
protected tenants which case was also dismissed. Thus, the stand which
was taken by appellants under the protected Tenancy Act was not at all
inconsistent and did not amount to approbation and reprobation on the
part of the heirs of Late Nawab Jung. Land grabbing proceedings were G
also instituted by LRs. of Bala Mallaiah and his brothers. The proceedings
were dismissed and W.P. No.15577/2001 filed before the High Cou1i
was also dismissed vide order dated 30.1.2002. After having lost in the
aforesaid proceedings, belatedly the objection had been preferred in the
final decree proceedings for paiiition. The conduct of purchasers makes
H
94 SUPREME COURT REPORTS [2017] 3 S.C.R.

A it clear that they instituted multifarious proceedings, and took inconsistent
stands which were not accepted by this Court in Boddam Narsimha
(supra). The appellants or their predecessors had not taken inconsistent
stands. They were clearly protected by doctrine of !is pendens.
(xiii) In re: whether appellants are guilty of delay orlaches:
B 91. It was also submitted that a preliminary decree recognized
the rights of the transferees to be adjudicated at the time of final decree
proceedings and no steps were taken by the legal heirs after passing of
the preliminary decree way-b.ack in 1970 to implead them. The
proceedings for final decree were initiated in the year 1984. The appellants
c have not taken prompt steps, as such they are not entitled to any indulgence
from this Court. Reliance has been placed upon Municipal Council,
Alunednagai:_ v. Shah Hyder Beig (2000) 2 SCC 48 to contend that any
delay on the pati of the parties defeats the rights.
92. We are not impressed by any of the aforesaid submissions.
D 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 limitatioi1. As a matter of fact, LRs. of Bala Mallaiah and
his brother etc. took steps in the year 1993 and onwards by filing
E 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
F who are responsible to delay in the final decree proceedings in a patiition
case instituted in the year 1935 and the matter is still pending in the
shape of instant appeals before this Court.
(xiv) In re : the effect under the Urban Land Ceiling Act :
93. It was also submitted that under the Urban Land Ceiling Act
G proceedings, the land was not shown to be belonging to the heirs of
Late Nawab Jung. The orders passed in urban land ceiling case have
not been placed on record. That apart, it was stated that the proceedings
lapsed due to repeal of Urban Land Cei 1ing Act Be that as it may. The
respondents are purchasers from branch of Bala Mallaiah whose vendor
was defendant No.1. The property has further exchanged hands. Since
1-1
T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC .. 95
[ARUN MISHRA, J.]

the orders have not been placed on record, in the aforesaid factual A
scenario, we decline to examine the aforesaid proposition further and
we were not apprised how the purchasers could claim a better right than
the one possessed by their vendor. We leave it open to the State
Government to examine the question of ceiling and effect of the decision.
94. A compromise petition has been filed with respect to area 18 B
acres 25 guntas. As per the compromise the division of the property has
to take place between the appellants and the newly added respondent
Nos.87 to 127. Same was objected to by one of heirs. It will involve
transfer of the property, hence, we leave the parties to have resort to an
appropriate remedy in this regard. It is found not to be recordable in the
form of transaction in which it has been filed.
c
95. Resultantly, the appeals are allowed. Impugned judgment and
decree passed by the High c;:ourt is set aside. The final decree of the
Trial Court is restored. Costs of Rs.1,00,000/- to be paid within two
months from ~oday.
D

Nidhi Jain Appeals allowed.