TMI Blog2017 (3) TMI 1924X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Court under the Urban Land Ceiling Act? Whether the decision in Original Suit No. 294 of 1993 operates as res judicata, if yes, to what extent? - HELD THAT:- In view of the categorical findings recorded by the trial court and first appellate court it is apparent that the sale deed dated 23.11.1959 was hit by doctrine of lis pendens and secondly on the basis of the said sale deed, L.Rs. of Bala Mallaiah could have claimed only to the extent of the share of his vendor and not the entire land, i.e. only to the extent of 14/104th share of Defendant No. 1 - in the case on hand it was necessary for the Court in the earlier round of litigation to decide the nature and scope of gift deed Ext. A-1. Accordingly, the courts decided that the gift made in favour of ancestors of Respondent 1 of the land was absolute and it was not an endowment for a public or charitable purpose. On the facts of the case, it is clear that though an issue was not formally framed, the issue was material and essential for the decision of the case in the earlier proceeding. Hence, the bar of res judicata applies to the facts of the present case. The finding with respect to purchase being made d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted. No legal fiction can be created in favour of the Respondents that the suit itself had been dismissed on 15.12.1955 due to non-payment of costs for restoration; whereas it was not dismissed at all and the High Court has also held that the order dated 1.12.1955 was without jurisdiction. The said order has to be ignored and was in fact set aside by the High Court. Thus the suit was in fact pending and was wrongly treated as having been dismissed. The High Court has rightly held that it was never dismissed. Thus, the sale deed in question dated 23.11.1959 was executed during lis pendens and the High Court has erred in law in holding otherwise in the judgment impugned herein. Whether Section 52 of T.P. Act renders a transfer pendente lite void? - HELD THAT:- The sale deed is not void but only valid to the extent of the share of vendor of Bala Mallaiah i.e. it is valid to the extent of 14/104th share which has been found in the preliminary decree and affirmed in the final decree. The sale deed was subject to the outcome of the suit which was to the aforesaid effect. What is the effect of preliminary decree for partition and the extent to which it is binding? - HELD THA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The same is clearly a perverse finding - Merely a bald statement that there was adverse possession is not enough to set up a plea of adverse possession. It has to be clearly set out from which date it commenced, and became hostile when there was repudiation of the title. No such plea has been raised. The High Court has erred in law in holding that the Plaintiffs perfected their title by virtue of adverse possession. The finding is perverse and has no foundational basis. Whether under the Muslim Law, Defendant No. 1 being a co-sharer could have alienated the share of other co-sharers in the disputed property? - HELD THAT:- In the instant case, the property was ancestral property of Late Nawab Jung. It is not in dispute that Nawab Jung died intestate. The legal heirs of Late Nawab Jung succeeded to the estate as tenants in common and not as joint-tenants. The heirs succeeded to the estate in specific shares - As per the Sunni law, a testator can leave a legacy to an heir only to the extent of 1/3rd of estate and not exceeding that. After death of a person the first step is to make payment of funeral expenses, debts and legacies. On consideration of the incidents of disposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not defined as joint contractors, partners, executors or mortgagees. Whether the purchaser has a right to claim equity for allotment of Item No. 6 of Schedule 'B' property in final decree proceedings in suit for partition? If yes, to what extent? - HELD THAT:- Though it is true that purchasers can work out the equity in the final decree proceedings but it is only to the legally permissible extent and not beyond that. The preliminary decree declared the shares in item No. 6 of Schedule 'B' property in specified shares. The preliminary decree is binding and even otherwise the sale was valid only to the extent of the share of Defendant No. 1 i.e. 14/104th share in the specific property and not beyond it - In the instant case, preliminary decree has declared the share only to the extent of 14/104th in the disputed property in item No. 6, Schedule 'B'. Thus, by no equitable principle the purchaser can claim the entire property to be allotted to him. In the instant case, equitable right of allotment of some land other than which was purchased out of some other properties allotted to the share of vendor Hamid Ali Khan, D-1 has not been claimed in the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lis pendens. Whether Appellants are guilty of delay or laches? - HELD THAT:- As a matter of fact, L.Rs. of Bala Mallaiah and his brother etc. took steps in the year 1993 and onwards by filing successive cases as enumerated above. There was no delay on the part of the Appellants defeating their rights. It was the Respondents who having lost in the three proceedings one after the other, raised objection in the year 2004 in the final decree proceedings. What prevented them from doing so in the year 1993, has not at all been explained. Thus, it is they who are responsible to delay in the final decree proceedings in a partition case instituted in the year 1935 and the matter is still pending in the shape of instant appeals before this Court. The effect under the Urban Land Ceiling Act - HELD THAT:- It was also submitted that under the Urban Land Ceiling Act proceedings, the land was not shown to be belonging to the heirs of Late Nawab Jung. The orders passed in urban land ceiling case have not been placed on record. That apart, it was stated that the proceedings lapsed due to repeal of Urban Land Ceiling Act. Be that as it may. The Respondents are purchasers from branch of Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 23864-23865 of 2011. 2. In the appeals, the final decree which has been drawn up in a partition suit with respect to item No. 6 of Schedule 'B' pertaining to land admeasuring 68 acres 10 guntas comprised in survey Nos. 63, 68, 69 and 70 situated at village Madhapur, District Ranga Reddy, Hyderabad is in question. 3. The property was matruka property of Late Mohd. Nawab Jung who passed away on 25.4.1935. Civil Suit No. 82/1935 was instituted by Mohd. Hashim Ali Khan, son of Mohd. Nawab, in Darul Qaza City Court, Hyderabad, for partition of matruka properties of Late Nawab comprised in Schedules 'A', 'B' and 'C'. The suit was contested, inter alia, by Defendant No. 1. Darul Qaza Court was abolished in the year 1951. On abolition of original jurisdiction of the High Court, the case was assigned to the City Civil Court. It appears that later on as the file was not received by the City Civil Court from the Custodian, it passed order dated 8.1.1955 to the effect that the file of the case was not yet received, the Plaintiff was also absent, as such the case be closed for the time being and be revived only on receipt of the file and on an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeals and allowed the cross-objections of Defendant No. 6 with respect to item No. 4 of Schedule 'A' property. The Plaintiff questioned the decision by way of filing LPA No. 199/1977 and the same was dismissed vide order dated 12.11.1976, the decision with respect to preliminary decree has attained finality. 5. Defendant No. 25 - daughter of Defendant No. 1 - filed IA No. 854/1984 for passing a final decree in terms of the preliminary decree passed in the partition suit. During the pendency of the final decree proceedings, an Advocate-Commissioner was appointed to divide the suit Schedule land by metes and bounds as per the preliminary decree passed on 24.11.1970 for which an application (IA No. 31/1989) was filed on 16.1.1989. He submitted a report in December, 1993 in respect of item No. 6 of Schedule 'B' of preliminary decree dated 24.11.1970. The Advocate-Commissioner divided the suit Schedule property on 28.11.1993. He also noticed that third parties were in possession of the land and he had also seen a signboard of Surya Enclave Developers. The sale transaction took place during the pendency of the preliminary decree proceedings on 23.11.1959. The L.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule property and that their purchase and possession was subject to the result of the partition suit, O.S. No. 42/1962. It was also held that the possession of the Plaintiff could not be said to be rightful possession and they could claim only to the extent of their vendor's share and not over the entire property, and thus, they were not entitled to the relief of injunction against the Defendants. As against the judgment and decree of the trial court, an appeal was preferred in the Court of Additional District Judge, NTR Nagar, Hyderabad and the same was dismissed on 20.7.2000. Second Appeal No. 465/2001 preferred against the same in the High Court was dismissed vide judgment and order dated 26.9.2001. 8. Land grabbing proceedings under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 initiated by the L.Rs. of Bala Mallaiah were dismissed by the Special Court in LGC No. 148/1996 vide order dated 13.5.1997. It was held that the application was not maintainable. The court took cognizance of the preliminary decree proceedings, appointment of the Commissioner and also held that it was not open to contend that the doctrine of lis pendens had no application. The appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing on behalf of the Appellants that in fact there was no dismissal of the suit in 1955 as held by the High Court in the year 1962. Thus, the sale deed dated 23.11.1959 was clearly during lis pendens. The suit was filed in the year 1935 and the preliminary decree for partition was passed in the year 1970 and final decree has been passed in 2005. It was further contended that it was not open to Defendant No. 1 to sell more than his share. He had no authority to sell the land belonging to the share of other co-heirs as Muslims inherit the property as tenants-in-common and not as joint tenants. It was further submitted that there was no necessity of questioning the sale deed as it was subject to the provisions of lis pendens contained in Section 52 of T.P. Act. The High Court has gravely erred in law in holding that the title had been perfected by virtue of adverse possession. It was also contended that this Court in Boddam Narsimha (supra) did not adjudicate the question of title of Bala Mallaiah. Thus, the High Court has gravely erred in law in reversing the judgment and decree passed by the trial court as affirmed by the first appellate court. The High Court has also erred in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts of other co-heirs. It was further urged that in view of the decision in Civil Suit No. 294/1993, various questions were left open to be agitated in the final decree proceedings. It was also submitted that in the judgment dated 24.11.1970 with regard to preliminary decree in para 93, purchasers were given the liberty to raise the question of equity in the final decree proceedings. Thus, the High Court has rightly interfered with the final decree with respect to the disputed property. Even if Section 52 of the T.P. Act is applicable, the transactions hit by lis pendens are not void. Bala Mallaiah had acquired the rights of a pattedar, no decree could have been passed in favour of L.Rs. of Late Nawab Jung. Considering the conduct of the Appellants, no case for interference is made out. They cannot approbate and reprobate. 13. Following questions arise for consideration under the appeals: (i) Whether the decision in Original Suit No. 294 of 1993 operates as res judicata, if yes to what extent? (ii) Whether the sale deed dated 23.11.1959 executed by Defendant No. 1 in favour of Bala Mallaiah is hit by doctrine of lis pendens? (iii) Whether Section 52 of T.P. Act rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 1/3rd interest had devolved upon Plaintiff Nos. 6 and 7. Agaiah - Plaintiff No. 8 is the brother of Bala Mallaiah and Plaintiff Nos. 9 to 12 are his sons. It was further averred that the Plaintiff entered into a developer's agreement with respect to residential plots with M/s. Surya Land Developers Promoters with respect to 13 acres 17 guntas forming part of survey No. 68 and 12 acres 31 guntas in survey No. 69. Another agreement was entered into with Bapuji Estates with respect to 6 acres of area out of survey No. 69. Plots comprised in survey Nos. 68 69 were also sold to various persons. Survey No. 69 was also sold in entirety. A preliminary decree for partition was passed in O.S. No. 42/1962 in the year 1970 which comprised of disputed property also. Bala Mallaiah or the Plaintiffs and other heirs were not impleaded as parties in the aforesaid suit for partition and under the guise of decree the Defendants were claiming ownership and threatening to dispossess the Plaintiffs forcibly. In the suit for partition, during final decree proceedings, an Advocate-Commissioner had been appointed who visited the disputed property on 15.8.1993. Hence, suit No. 294/1993 was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id Ali Khan, Defendant 1, had no right to sell the entire dispute property to Bala Malliah as absolute owner. The Plaintiffs could claim right over the property to the extent of vendor of Bala Mallaiah. It was also held that the land grabbing case LGC No. 148/1996 was dismissed which order had attained finality and barred the present suit. Injunction could not be granted in view of the preliminary decree for partition which had been passed as it would tantamount to granting injunction against the decree-holders for enforcing their lawful decree. Being a purchaser lis pendens, it is open to the Plaintiff to approach the court where the final decree proceedings were pending to work out available equity to the extent of vendor's share. Against the said decision in first appeal, Second Appeal No. 465/2011 was filed in the High Court of Andhra Pradesh at Hyderabad which was dismissed in limine vide order dated 26.9.2011 as no substantial question of law was found involved in the appeal. Judgment and decrees of courts below were thus affirmed. 19. In view of the categorical findings recorded by the trial court and first appellate court it is apparent that the sale deed dated 23.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title. 25. We have gone into the above aspects in some detail so that when a question arises before the Courts as to whether an issue was earlier decided only incidentally or collaterally, the Courts could deal with the question as a matter of legal principle rather than on vague grounds. Point 1 is decided accordingly. (Emphasis added by us) In Commissioner of Endowments and Ors. v. Vittal Rao and Ors. (2005) 4 SCC 120, it has been held thus: 28. In support of his submission, the learned Counsel for Respondent 1 contended that as long as an issue arises substantially in a litigation irrespective of the fact whether or not a formal issue has been framed or a formal relief has been claimed, a finding on the said issue would operate as res judicata, strongly relied on the decision of this Court in Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer (supra). Paras 18 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not an endowment for a public or charitable purpose. On the facts of the case, it is clear that though an issue was not formally framed, the issue was material and essential for the decision of the case in the earlier proceeding. Hence, the bar of res judicata applies to the facts of the present case. 21. Reliance has been placed by learned Senior Counsel for the Respondents on a decision in Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and Ors. (2008) 4 SCC 594 wherein the Court had summarized the conclusions thus:: 21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, 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 the remedy. Where the Plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the Plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission as there was clear inability to grant injunction and the submission of the Plaintiffs that they were having title on entire land on the basis of sale deed dated 23.11.1959, had been negatived. It was found that Bala Mallaiah could have purchased only the share of his vendor Hamid Ali and not the entire disputed property and the purchase was affected by lis pendens. We are of the considered opinion that the finding with respect to purchase being made during lis pendens had attained finality and was not open to question in the present proceedings. Besides, the validity of the sale deed to the extent of the share of the vendor which was sought to be re-agitated in the final decree proceedings, was also not open to be raised in view of clear findings recorded in the suit of 1993. Though we have held so, however nothing turns on the aforesaid finding as to res judicata as we propose to examine both aspects on merits afresh, in view of the conclusions which we propose to record hereinafter. (ii) In re: Whether the sale deed dated 23.11.1959 executed by Defendant No. 1 in favour of Bala Mallaiah is hit by doctrine of lis pendens? 23. In the instant case, a suit for partition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection that it may be revived only on the receipt of the file from the Custodian. Therefore there was no necessity for the Plaintiff to file the application under Order 9, Rule 9, Code of Civil Procedure, praying that the suit be restored to its original number after setting aside the order dated 8-1-55. The Plaintiff could have merely asked the court to take up the suit and to proceed with the trial. The learned Judge has no jurisdiction to direct the Plaintiff by his order dated 1-12-55 to pay day costs viz., Rs. 50/- to the Defendants on or before 15-12-55 as a condition precedent. This order is clearly illegal and has to be set aside. In the result, the appeal is allowed, and the order dated 1-12-55 directing the Plaintiff to pay the Defendants Rs. 50/- on or before 15-12-55 as a condition precedent to restraining the suit is set aside. As a consequence, the order dated 7-1-56 is vacated. Since this is a suit of 1951 which has been pending for a long time, the lower court will dispose of the same as expeditiously as possible. The contesting Respondents shall pay the costs of the Appellant. 24. A preliminary objection has been raised on behalf of the Respondents as to ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this where an order has been made for the payment of certain money within a certain time for the purpose of getting specific performance and at the same time an order has also been made that if the money is not paid the suit will stand dismissed, the court retains jurisdiction. Though not without hesitation, I have reached the conclusion that in such a case it will be unrealistic and unjust to say that the court retains jurisdiction. Whether the court has retained jurisdiction or not will, in my view, depend very much on the substance of the directions given..... Where..... the court makes also an order that if the amount is not deposited within the time specified the suit will stand dismissed, I find it difficult to agree that the court retains any jurisdiction whatsoever. 6....the trial court lost jurisdiction in the suit as soon as it made the order directing the payment within a certain time and further directing 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 and Ors. (2004) 6 SCC 378 has been relied upon in which it has been laid down thus: 18. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in a suit. Thomson Press (India) Ltd. v. Nanak Builders and Investors Pvt. Ltd. and Ors. (2013) 5 SCC 397, has been relied on in which this Court has laid down thus: 26. It would also be worth discussing some of the relevant laws in order to appreciate the case on hand. Section 52 of the Transfer of Property Act speaks about the doctrine of lis pendens. Section 52 reads as under: 52. Transfer of property pending suit relating thereto.-- During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pendens applies to such alienations. (See Nilakant Banerji v. Suresh Chunder Mullick (1884-85) 12 IA 171 and Moti Lal v. Karrab-ul-Din (1896-97) 24 IA 170)' (Samarendra Nath case (supra) AIR p. 1445, para 16) 29. The aforesaid Section 52 of the Transfer of Property Act again came up for consideration before this Court in Rajender Singh v. Santa Singh AIR 1973 SC 2537 and Their Lordships with approval of the principles laid down in Jayaram Mudaliar v. Ayyaswami (1972) 2 SCC 200 reiterated: (Rajender Singh case (supra), SCC p. 711, para 15) 15. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject-matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envisages that: During the pendency in any court having authority within the limits of India ... of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. It would, therefore, be clear that the Defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the Appellant except with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the Respondents cannot be considered to be either necessary or proper parties to the suit. 12. The principles specified in Section 52 of the TP Act are in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of diligence, which would constitute active prosecution , could not be defined with precision. To remove this uncertainty, the law was amended in 1929, and the Amending Act XX of 1929 substituted the word pendency for the phrase active prosecution ; and there can now be no difficulty in deciding whether the transfer was made during the pendency of a suit or proceeding. In Parmeshari Din v. Ram Charan and Ors. AIR 1937 PC 260, it was held: 2. It is clear that the question of the active prosecution of a suit is one of fact, but it was not suggested in either of the Courts in India that the Plaintiffs had not actively prosecuted the suit, and were consequently debarred from availing themselves of the Rule of lis pendens. The learned Judges of the Court of Appeal had, therefore, no opportunity to express their opinion on this point; and their Lordships cannot entertain an objection, which depends upon a question of fact not dealt with below. Upon the record before them, there is no indication of any delay or remissness in the prosecution of the suit, for which the Plaintiffs can be held responsible. Their Lordships, therefore, agree with the High Court that the transfer relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32. The broad principle underlying Section 52 of the TP Act is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed, as held in Krishanaji Pandharinath v. Anusayabai AIR (1959) Bom 475. In that matter the Respondent (original Plaintiff) had filed a suit for maintenance against her husband and claimed a charge on his house. The suit was dismissed on 15.7.1952 under Order 9 Rule 2, of the Code of Civil Procedure 1908, for non-payment of process fee. The husband sold the house immediately on 17.7.1952. The Respondent applied for restoration 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 impleaded 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: ...In Section 52 of the Transfer of Property Act, as it stood before it was amended by Act 20 of 1929, the expression 'active prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal had not been filed. We would however, prefer to follow the dicta in Krishanaji Pandharinath AIR 1959 Bom 475 to cover the present situation under the principle of lis pendens since the sale was executed at a time when the second appeal had not been filed but which came to be filed afterwards within the period of limitation. The doctrine of lis pendens is founded in public policy and equity, and if it has to be read meaningfully such a sale as in the present case until the period of limitation for second appeal is over will have to be held as covered Under Section 52 of the TP Act. 31. The doctrine of lis pendens would be applicable even to the proceedings in the nature of an appeal as has been emphasized in the case of Krishanaji Pandharinath v. Anusayabai AIR 1959 Bom 475 thus: 3. It is true that in this case the sale effected by Sidram was after the dismissal of the suit filed by Anusayabai and before the suit was restored, but the alienation being before, the final decree or order was passed and complete satisfaction or discharge of the decree was obtained, it must be regarded as pendente lite. In Section 52 of the Transfer of Property Act, as it stood before it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale deed in question dated 23.11.1959 was executed during lis pendens and the High Court has erred in law in holding otherwise in the judgment impugned herein. (iii) In re: whether Section 52 of T.P. Act renders a transfer pendente litew void? 33. Reliance has been placed by learned Senior Counsel for the Respondents on Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1 in which this Court has laid down that the doctrine of lis pendens does not affect the conveyance by a party to the suit but only renders it subservient to the rights of other parties to the litigation. Section 52 will not therefore render a transaction void. This Court has laid down thus: 42. It is well settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchaser of any such property takes the bargain subject to the rights of the Plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent court may issue in the suit against the vendor. 36. In our opinion the sale deed is not void but only valid to the extent of the share of vendor of Bala Mallaiah i.e. it is valid to the extent of 14/104th share which has been found in the preliminary decree and affirmed in the final decree. The sale deed was subject to the outcome of the suit which was to the aforesaid effect. (iv) In re: What is the effect of preliminary decree for partition and the extent to which it is binding: 37. In the instant case preliminary decree was pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicated upon by the court before a preliminary decree is passed that decree must, in so far as rights adjudicated upon are concerned, be deemed to be a final decision. The word 'decision' even in its popular sense means a concluded opinion (see Stroud's Judicial Dictionary - 3rd ed. Vol. I, p. 743). Where, therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. The High Court has, however, observed: The mere declaration of the rights of the Plaintiff by the preliminary decree, would, in our opinion not amount to a final 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 certain contingencies in which such a preliminary decree can be modified or amended and therefore would not become final. It is not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned Judges meant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. It is apparent from the aforesaid Section that the matters which are concluded by preliminary decree cannot be re-agitated in an appeal against the final decree. No appeal was preferred by the purchasers or by Defendant No. 1 as against the preliminary decree. (v) In re: whether it was necessary to file a suit for cancellation of sale deed dated 23.11.1959? 40. In our opinion, when the sale deed had been executed during the pendency of suit the purchaser pendente lite is bound by the outcome of the suit. The provisions of Section 52 prevent multiplicity of the proceedings. It was not at all necessary to file a suit for cancellation of the sale deed as the vendor had no authority to sell land of other co-sharers. He had right to alienate his own share only which he had in the property to the extent of 14/104th. As such the right, title and interest of Bala Mallaiah were subject to the pending suit for partition in which a preliminary decree was passed in the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u (1995) 6 SCC 150, Venkatrao Anantdeo Joshi v. Malatibai (2003) 1 SCC 722, Raj Kumar v. Sardari Lal (2004) 2 SCC 601 and Sanjay Verma v. Manik Roy (2006) 13 SCC 608.) (vi) In re: whether Bala Mallaiah, his heirs and purchasers had perfected their right, title and interest by virtue of adverse possession? 41. The High Court has held that there was no lis pendens, and as such it was necessary to question the sale deed and for want of questioning the sale deed, the Plaintiffs had perfected their title by virtue of adverse possession. The same is clearly a perverse finding. Firstly, in the earlier civil suit of 1993 submission was raised with respect to adverse possession which was negatived. Secondly, in our opinion as we have held that the sale deed was hit by the doctrine of lis pendens, the purchasers were bound by the result of the suit. Thus there was no question of perfecting the title by adverse possession during pendency of suit. Section 52 negates the very plea of adverse possession. Trial court and first appellate court have rightly held that there was no question of adverse possession. The High Court has simply without any discussion held that the title was perfected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128.] 12. A Plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina (Supra).) In P. Periasami v. P. Periathambi (1995) 6 SCC 523 this Court ruled that: (SCC p. 527, para 5) Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: (SCC pp. 640-41, para 4) 4. As regards the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share, but succeed to the residue after the claims of the sharers are satisfied; (3) Distant Kindred are all those relations by blood who are neither Sharers nor Residuaries. Sharers take in the following manner: 63. Sharers After payment of funeral expenses, debts, and legacies, the first step in the distribution of the estate, of a deceased Mahomedan is to ascertain which of the surviving relations belong to the class of sharers, and which again of these are entitled to a share of the inheritance, and, after this is done, to proceed to assign their respective shares to such of the sharers as are, under the circumstances of the case, entitled to succeed to a share. The first column in the accompanying table (p. 66A) contains a list of Sharers; the second column specifies the normal share of each sharer; the third column specifies the conditions which determine the right of each sharer to a share, and the fourth column sets out the shares as varied by special circumstances. 44. Residuaries take if there are no sharers or if there are sharers, after satisfying their claims. As per Mulla, they will take in the following manner: 65. Residuaries If there are no Shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Edn., vol. 87 in which nature of such tenancy has been discussed before 1925 in para 220. In para 221 nature of such tenancy since 1925 has been discussed. It has been observed that tenants in common have several interests, where joint tenants, whether at law or in equity, have one interest. The tenants in common may be entitled to equitable shares in the land in unequal shares and for interests which may be unequal in duration; different shares would be subject to different limitations and the limitations may include entailed interests. No new entailed interests can be created either in real or personal property, but this does not affect any entailed interests created before 1.1.1997 considering the provisions of the Trusts of Land and Appointment of Trustees Act, 1996 as applicable in the area for which it has been enacted. There is no right of survivorship and on the death of a tenant-in-common, his share passes according to its own limitation. In para 224 the modes of effecting partition of tenancies-in-common have been dealt with in general and the position before 1925 and subsequent thereto has been taken into consideration considering the enactments which have been made app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain parts of A.P. or elsewhere there may be different customs prevailing in Muslims which are to be taken into consideration while deciding a matter. In Halsbury also distinction has been made between the law which was applicable before 1925 and the law which is applicable after 1925 and the discussion of law is with respect to various Acts on the basis of which the decisions have been referred herein. 48. When we consider the incidents of disposition of property under different laws, we have to consider the personal law and then to apply the general principles of tenancy law to the permissible non-conflict zone to personal law which holds the field for the parties to arrive at a decision. The Privy Council in the case of Imambandi and Ors. v. Mutsaddi and Ors. (1918) L.R. 45 IndAp 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 are on considerations and conditions totally differing from those applicable to or prevailing in India. The Privy Council has observed thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that of the deceased is to the extent of his share of debt proportionate to his share of estate. If that is proportionate to share of the deceased as inheritance is as tenants-in-common and as independent debtors, not co-debtors or joint debtors. Co-sharers can hardly be classified as joint contractors, partners, executors or mortgagees. They are independent debtors and the debt having been split by operation of law. This Court has laid down thus: 10. These observations in Jafri Begam case ILR (1885) 7 All 822 are prime roots of the theory as to the divisibility of the debt in the hands of heirs of a Muslim intestate. So it would be right to treat it settled that Muslim heirs are independent owners of their specific shares simultaneously in the estate and debts of the deceased, their liability fixed under the personal law proportionate to the extent of their shares. In this state of law it would be unnecessary to refer to other decisions of various High Courts touching the subject. So we proceed on the footing that as many heirs as are defending this cause, there are debts in that number. 14. The heirs of a Muslim dying intestate on whom falls the liability to discharge t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was right in holding the suit against other co-heirs to be barred by limitation relating to their shares of the debt. This Court has also laid down that in that case payment made on account of debt by Defendant-Respondent 2 as an independent debtor, and not as an agent, express or implied, on behalf of other co-heirs, in the facts established, could not be said to be a payment on behalf of all. 51. This Court again in Kasambhai Sheikh v. Abdulla Kasambhai Sheikh (2004) 13 SCC 385 has held that succession in Mohammedan Law is in specific shares as tenants in common. 52. It was observed in Ram Awalamb v. Jata Shankar AIR 1969 All. 526 that a joint tenancy connotes unity of title, possession, interest and commencement of title; in tenancy in common there may be unity of possession and commencement of title but the other two features as to unity of title and interest are missing. 53. In Mansab Ali Khan v. Mt. Nabiunnisa and Ors. AIR 1934 All 702, a suit was filed by the Plaintiffs who had acquired rights in 12/24 sihams in the property in dispute. They claimed possession over the share of the whole property on the ground that one of the Defendant-Respondents, Mt. Nabiunni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decree in such cases is, in law, against the deceased and not against the particular heir who is made Defendant in the suit. xxx xxx xxx So far as voluntary alienations are concerned, which alone form the subject-matter of reference, the Muhammadan Law is clear that one of the heirs of a deceased person is not competent to bind the other heirs by his acts, Spencer, J. -- I agree with the judgment of Mr. Justice Abdur Rahim just now pronounced. Srinivasa Aiyangar, J.-- I agree. In the absence of any right in one of the heirs to represent the co-heirs, one of several co-heirs can only deal with his or her interest in the ancestor's property inherited by them. My learned brother has shown that there is nothing in the Muhammadan Law giving such a right to one of the co-heirs who may happen to be in actual possession of the whole of the ancestor's estate; such possession, it must be remembered, is presumably on behalf of all the co-heirs. He is not constituted the representative of the deceased and cannot administer his property even for the limited purpose of paying off his debts. In Khiarajmal v. Daim L.R., 32 Ind. App., 23, Lord Davey referring to a sale by one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lotted to the other co-sharers, they take those properties, in the absence of fraud, free from the mortgage, and the mortgagee can proceed only against the properties allotted to the mortgagor in substitution of his undivided share. This was the view taken by the Board in Byjnath Lall v. Ramoodeen Chowdry (1874) LR 1 Ind. App. 106. In that case the partition was made by the Collector under Regulation XIX of 1814 (Bengal), and the mortgagee was seeking to enforce his remedy not against the properties mortgaged to him, but against the properties which had been allotted to the mortgagor in lieu of his undivided share; but the Board held that not only he had a right to do so, but that it was in the circumstances of the case his sole right, and that he could not successfully have sought to charge any other parcel of the estate in the hands of any of the former co-sharers. Their Lordships think that the principle enunciated in that case applies equally to a partition by arbitration such as the one in the present case. Their Lordships are therefore of opinion that the Appellant is not entitled to enforce his charge against the properties allotted to the first and second Respondents. The t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to and it has been held that Mohammedans under their own law are never joint in estate whether they live together or whether they do not. On death of a Muslim his heirs at once become vested with the shares to which the Islamic Law entitles them. They have not to wait until the property is divided by metes and bounds. It has also been observed that sometime an error is caused by application of Hindu law to the case of Mohammedan law. It has also been further observed that a Mohammedan heir is not a co-parcener. He has not merely a right to a defined and immediate share in each portion of the estate but if any portion of the estate is in any case marked off and divided from the rest of the estate, he has a right to an immediate share in that portion. 59. Reliance has also been placed upon the decision in Ghumanmal Lokumal and Ors. v. Faiz Muhammad Haji Khan and Ors. AIR 1948 Sind 83 in which it has been observed thus: 15. It may be conceded that the question of adjustment of equities between the vendor and vendee upon a suit by a Muslim co-sharer for partition of the entire property held in co-ownership might properly arise, but we cannot accept the position that, while a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tically exclude all power of testamentary disposition, and to prevent any diversion of the property made even with the consent of the heirs, unless that consent is given after the owner's death, when the reason is, not that the testator had power to defeat the law of inheritance, but that the heirs, having become owners of the property, could deal with it as they liked, and could therefore ratify the act of their ancestor. No Muhammadan is allowed to make a will in favour of any of his heirs, and a bequest to a stranger is allowed only to the extent of one-third of the property. Under these circumstances, to allow the Muhammadan Law of inheritance, and to disallow the Muhammadan Law of pre-emption, would be to carry-out the law in an imperfect manner; for the latter is in reality the proper complement of the former, and one department of the law cannot be administered without taking cognizance of the other. It has also been observed that under the Mohammedan law, the Rule of pre-emption proceeds upon a principle analogous to the maxim sic utere tuo ut alienum non laedas . The right of preemption is based upon the fact that there can be large number of co-sharers, the prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be contended on behalf of the Appellants that there is no equity in favour of the purchaser, but under Muslim law co-heirs have the right of preferential purchase and in this case even it is not pretended by the purchaser that he had offered to the co-heirs before purchasing the same vide sale deed dated 23.11.1959. We decline to accept the submission as the property in question is capable of division and it is not a small fraction of property, but partition is of huge property, and as the property admittedly has exchanged several hands by now, we are not inclined to invalidate the sale deed executed by Defendant No. 1 in favour of Bala Mallaiah even to the extent of his share i.e. 14/104th on the basis of principle of pre-emption of Muslim law. It would be too late and iniquitous to invoke the principle of pre-emption in such a case, particularly when no such plea was raised at the relevant time and in the courts below. In case heirs were desirous of raising it, they should have raised their plea timely. 64. In Shaik Mohd. Ali Ansari v. Shaik Abdul Samed (Died) per L.Rs. (2012) 4 ALD 680 (DB), the question of fiduciary relationship has been discussed, but in the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in joint possession with Mt. Nabiunnissa although the latter's name alone had been recorded in the revenue papers. Their cause of action was that Mt. Nabiunnissa had transferred part of the property and whether their grievance was that she had transferred more than her proper share or that she had transferred a specific part of the property which was not in her own exclusive ownership, it is quite clear that the Plaintiffs' object was to dispel the cloud on their title to 12/24 sihams of the whole property which had arisen owing to the sale deeds of 1920 and 1922. It has not been clearly proved that the Plaintiffs have been in joint possession of the whole of the property and they have therefore paid the Court fees necessary for a decree for possession. What is wanted, however, is a declaration that they are entitled to 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 Muhammad Khan ILR (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not act as agent while discharging debt but is an independent debtor not as co-debtor or joint debtor. Co-sharers are not defined as joint contractors, partners, executors or mortgagees. (viii) In re: whether the purchaser has a right to claim equity for allotment of Item No. 6 of Schedule 'B' property in final decree proceedings in suit for partition? If yes, to what extent? 69. It was contended on behalf of the Respondents that in respect of transactions which are hit by Section 52 can be looked into at the time of final decree proceedings. However, preliminary decree in the instant case identifies different modes and manners under which equities could be adjusted at the time of final decree proceedings. Reliance has been placed upon following paragraphs 81 and 93 of the judgment of the trial court while passing the preliminary decree in the year 1970: 81. It is fact established that the deceased had gifted the land to D-1 but the next point for consideration is, whether the entire land measuring 24 bigas and 10 bams was gifted to him or a portion of it for the construction of the house. The learned Counsel for D-25 argued that the entire land was given to D-1 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to B-9 are such sale deeds executed by D-1. It was explained by D-1 that he was to pay the land revenue to the Government and for that purpose he had to sell the lands. I need not go into the question about the lands sold by D-1 and about the sale amounts realized. In the final decree proceedings these facts can be taken into consideration. D-1 would be liable to account for the monies realized. It is apparent that the sale deed in question was not referred to in para 93. Even if the aforesaid observations had not been made, it was open to the executing court to adjust equity of purchasers to the permissible extent as purchasers pendente lite can work out the equities in accordance with law in the final decree proceedings. 70. Reliance has been placed by the Respondents on a decision in Jayaram Mudaliar v. Ayyaswami and Ors. (1972) 2 SCC 200: 47. It is evident that the doctrine, as stated in Section 52, applies not merely to actual transfers or rights which are subject-matter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto . Hence, it could be urged that where it is not a party to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a partition. Admittedly, the Appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the Appellants are necessary and proper parties to the suit, which is now pending before the trial court. We also make it clear that we are not concerned with the other suit filed by the mortgagee in these proceedings. 71. Though it is true that purchasers can work out the equity in the final decree proceedings but it is only to the legally permissible extent and not beyond that. The preliminary decree declared the shares in item No. 6 of Schedule 'B' property in specified shares. The preliminary decree is binding and even otherwise the sale was valid only to the extent of the share of Defendant No. 1 i.e. 14/104th share in the specific property and not beyond it. This Court in K. Adivi Naidu and Ors. v. E. Duruvasulu Naidu and Ors. (1995) 6 SCC 150, has laid down that when a specific property comprising of undivided share in joint family properties is purchased by Appellants from alienee of Karta of the joint family prior to partiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property to be divided. The equities to be adjusted would involve every matter relating to the common property with reference to which one tenant-in-common may equitably demand anything of the other such as contribution for repairs or improvements to the common property, accounting for waste of the common property and the enforcement of any lien or charge which a tenant-in-common may claim against the other in respect of any matter concerning the common property. In regard to the method of division the Court is not bound to allot an aliquot share of each species of property to each of the parties. It is enough if each tenant-in-common has an equal share of the whole. This is subject to the other equities which may have to be adjusted. In this case the Plaintiff is admittedly entitled to a half share in the estate but she is not able to get her due and legitimate share by virtue of the fact that Defendants 1 to 3 have dissipated a major portion of the estate consisting of the moveable property. The Plaintiff is therefore justly entitled to demand that all the immovable property should be assigned to her and that no portion of the immovable property should be claimed by Defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be affected by the doctrine of lis pendens. The title to the immovable property is specifically in question within the meaning of Section 52 of the Transfer of Property Act. 14. A question of title has been raised, namely whether the property in the suit belonged solely to Abdul Rahiman or was the joint property of Defendants 1 to 3 and Abdul Rahiman. This issue would be quite sufficient to attract the operation of lis pendens. No doubt a suit for administration has been held not to attract the operation of lis pendens until a preliminary decree for administration has been passed. But in this case the Plaintiff has also prayed for partition and delivery of her share and for an account on the basis that Defendants 1 to 3 have wrongfully possessed themselves of her father's property and misappropriated the bulk of it and this suit cannot therefore be viewed as a bare administration suit. But since the alienees are formally on record and they will be bound by any decree passed in the suit, there is no need to consider the applicability of Section 52 of the Transfer of Property Act. But the principle underlying the Section will have to be applied in favour of the Plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be allotted to the share of the alienor, sale must be construed to be sale of so much portion as can justly be given to the share of the alienor. In the instant case the alienor had only 14/104th share and that has been rightly allotted to him. 75. Reliance has also been placed on T.G. Ashok Kumar v. Govindammal and Anr. (2010) 14 SCC 370 in which it has been laid down that in the case of pendente lite transfer of property during the pendency of the partition suit held by the other co-owner, sale pendente lite is not void but subject to the decree in partition suit. The title of the vendee would depend upon the decision in the partition suit in regard to the title of vendor. If the vendor has title only in respect of a part of the property, vendee's title would be saved only to that extent. The sale of the remaining portion which fell to the share of other co-owner would be ineffective. On the basis of the aforesaid decision, Bala Mallaiah, his heirs and purchasers can get what can be allotted to vendor Hamid Ali Khan's share. That precisely is the preliminary as well as the final decree. This Court in T.G. Ashok Kumar (supra) has laid down thus and the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an Official Receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an Official Receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate Under Section 54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 52, applies not merely to actual transfers or rights which are subject-matter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto . Hence, it could be urged that where it is not a party to the litigation but an outside agency, such as the tax collecting authorities of the Government, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation, the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. 48. In the case before us, the Courts had given dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never be given against the provisions of a statute. 46. In P.M. Latha v. State of Kerala (2003) 3 SCC 541, it has been opined: (SCC p. 546, para 13) 13. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law. 47. In Raghunath Raj Bareja v. Punjab National Bank (2007) 2 SCC 230, the Court observed that it is well settled that when there is a conflict between law and equity, it is the law which has to prevail. The Court further ruled that equity can supplement the law, but it cannot supplant or override it. In this context, reliance was also placed upon Madamanchi Ramappa v. Muthaluru Bojjappa AIR 1963 SC 1633, Laxminarayan R. Bhattad v. State of Maharashtra (2003) 5 SCC 413, Nasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577, E. Palanisamy v. Palanisamy (2003) 1 SCC 123, and India House v. Kishan N. Lalwani (2003) 9 SCC 393. 81. Reliance has been placed on Raghunath Rai Bareja and Anr. v. Punjab National Bank and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or legal necessity, and thus binding: 83. It was submitted that sale was for legal necessity for benefit of estate. It has been averred in the objections preferred by the purchasers that sale was made by Hamid Ali Khan, Defendant No. 1, for payment of land revenue. Thus it was contended that the payment of land revenue has enured for the benefit of the entire estate. Thus sale would be valid and binding on co-heirs. Except making the aforesaid bald statement, nothing has been placed on record to indicate that the sale was for payment of land revenue. On the other hand, when we peruse the sale deed, recital of it makes it clear that the sale was effected by Hamid Ali Khan for his 'personal necessity'. He had not executed the sale deed for payment of land revenue as its recital is otherwise which would prevail. Nor the sale deed had been executed in the fiduciary capacity acting on behalf of co-sharers rather he has claimed in the sale deed that he was the exclusive owner of 68 acres 10 guntas area of property and was in possession thereof. He had sold the land for a consideration of Rs. 2000 in view of his personal necessity. The sale was made after taking permission from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se set up by Bala Mallaiah that he was jointly cultivating the suit land along with his two brothers Komaraiah and Agaiah was found to be meritless and negatived for the period between 1952 and 1959. On 1.1.1973 when the notification came to be issued, Bala Mallaiah was not the protected tenant. The case set up by Boddam Narsimha regarding protected tenancy and issuance of ownership certificate was negatived. This Court noted that even for the sake of arguments if it is accepted that Bala was a protected tenant on 12.2.1956, he still became a pattedar vide conveyance deed dated 23.11.1959, and in any event assumed protected tenancy did not continue up to 1.1.1973, and therefore, the Appellant was not entitled to ownership certificate Under Section 38E. Section 38E of the Act of 1950 had no application to the facts of the case. This Court has discussed the matter thus: 13. Bala was a kaul who had taken an annual lease from Hamid Ali Khan. He was a tenant at will. This was during the pendency of the partition suit. He became a pattedar vide conveyance dated 23-11-1959. The kaul itself indicates, that Bala was to cultivate in his individual capacity; that at the end of the year, Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The benefit of Section 38-E is given to persons who hold the lands as protected tenants and who continue to hold the lands as protected tenants on 1-1-1973. The protected tenancy has to be enforced on 1-1-1973. Under Section 38-E, ownership rights are conferred only upon persons who continue to be protected tenants as on 1-1-1973. They form a special class. In the present case, as stated above, Bala became a pattedar in 1959. In Sada (supra) it has been held that protected tenants are covered by Chapter IV of the Act. They fall under a limited category. They are referred to in Sections 34, 37 and 37-A. In the said judgment, it has been held that Section 37-A, introduced by Act 3 of 1956 deals with a separate class of persons deemed to be protected tenants. This class of persons is different from the category of protected tenants who fall Under Sections 34 and 37 respectively. Section 37-A refers to persons who are holders of the land at the commencement of amending Act of 1955 (12-3-1956). These persons were required to be tenants on 12-3-1956 and that they should continue to be tenants till 1-1-1973. Only such category of persons are entitled to ownership certificate Under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been passed ignoring the rights of the pattedar is bad in law. In our opinion, admittedly, it was a matruka property of Late Nawab Jung. The suit for partition was pending w.e.f. 1935 and mutation simpliciter in the name of Hamid Ali Khan conferred no right, title or interest. The mutation is only for the fiscal purpose and is not decisive of right, title or interest in the property which is within the domain of the civil court. The grant of patta from 1953 onwards by Hamid Ali Khan to Bala Mallaiah was on yearly basis and the execution of sale deed and the grant of land on yearly basis were during lis pendens. Thus, the transactions are covered by the doctrine of lis pendens and were clearly subject to the outcome of the pending partition proceedings. In Venkatrao Anantdeo Joshi and Ors. v. Malatibai and Ors. (2003) 1 SCC 722, a question came up for consideration assuming that pending suit for partition, a batai patra was executed on the basis of which tenancy rights were claimed. It was held that such batai patra would not confer any right on the person. It being hit by the principle of lis pendens. This Court has held thus: 8. At the time of hearing of this appeal, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enant of the suit premises. Section 97 Code of Civil Procedure specifically provides that where any party aggrieved by the preliminary decree does not appeal from the said decree, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. In view of the aforesaid, we find no force in the submissions raised on behalf of the Respondents based upon pattedar rights as it was subject to Section 52 of T.P. Act and the same is hereby rejected. (xi) In re: what is the effect of decision of this Court and High Court with respect to final decree proceedings in Item No. 2 of Schedule 'B' property: 88. With respect to item No. 2 of Plaint 'B' Schedule property one Padmini Co-operative Housing Society Ltd. filed an objection in the final decree proceedings. The trial court vide order dated 29.3.1996 rejected the objection which was preferred. First appeal preferred was also dismissed by a Single Judge on 23.4.1997. LPA No. 104/1997 was filed which was dismissed by a Division Bench of the High Court on 20.11.1998. Then SLP [C] No. 3558/1999 was filed in this Court which has been dismissed by a speaking order affirming the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved that the contesting Respondent has blown hot and cold by taking inconsistent stands which is not permissible. 90. In fact, during the pendency of the partition suit with respect to ancestral property of Late Nawab Jang, Hamid Ali Khan - Defendant No. 1 - had alienated the property treating it as his own whereas it was obviously subject to the right of other co-shares finally declared in the preliminary decree. Bala Mallaiah and his successors have filed several proceedings, civil suit of 1993 in which they have failed. Boddam Narsimha, nephew of Bala Mallaiah also filed proceedings under the Act of 1950 for issuance of ownership certificate by virtue of their being protected tenants which case was also dismissed. Thus, the stand which was taken by Appellants under the protected Tenancy Act was not at all inconsistent and did not amount to approbation and reprobation on the part of the heirs of Late Nawab Jung. Land grabbing proceedings were also instituted by L.Rs. of Bala Mallaiah and his brothers. The proceedings were dismissed and W.P. No. 15577/2001 filed before the High Court was also dismissed vide order dated 30.1.2002. After having lost in the aforesaid proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een placed on record. That apart, it was stated that the proceedings lapsed due to repeal of Urban Land Ceiling Act. Be that as it may. The Respondents are purchasers from branch of Bala Mallaiah whose vendor was Defendant No. 1. The property has further exchanged hands. Since the orders have not been placed on record, in the aforesaid factual scenario, we decline to examine the aforesaid proposition further and we were not apprised how the purchasers could claim a better right than the one possessed by their vendor. We leave it open to the State Government to examine the question of ceiling and effect of the decision. 94. A compromise petition has been filed with respect to area 18 acres 25 guntas. As per the compromise the division of the property has to take place between the Appellants and the newly added Respondent Nos. 87 to 127. Same was objected to by one of heirs. It will involve transfer of the property, hence, we leave the parties to have resort to an appropriate remedy in this regard. It is found not to be recordable in the form of transaction in which it has been filed. 95. Resultantly, the appeals are allowed. Impugned judgment and decree passed by the High Cour ..... 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