T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC.

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 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 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, 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

33Copy pinpoint33. 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)."

34Copy pinpoint34. 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

35Copy pinpoint35. 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 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 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 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 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 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 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 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."

36Copy pinpoint36. 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

37Copy pinpoint37. 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 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 equity could have been claimed in the final decree proceedings to the extent of vendor's share has already been extended to the purchasers.

38Copy pinpoint38. 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 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 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 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 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 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 to the matters covered by it. a preliminary decree is regarded as embodying the final decision of the court passing that decree."

39Copy pinpoint39. Moreover, it is provided in sedion 97 of the C.P.C. as under: "97. Appeal from final decree where no appeal from 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." H

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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 ? .

40Copy pinpoint40. 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 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 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 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 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 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 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 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 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 H

54 SUPREME COURT REPORTS [2017] 3 S.C.R.

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 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 in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.""

42Copy pinpoint42. 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 ?

43Copy pinpoint43. 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 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 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

44Copy pinpoint44. 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 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 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 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.]" •

45Copy pinpoint45. The "distant kindred" is dealt with in section 67 in Mulla's Principles ofMahomedan Law thus:

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."

46Copy pinpoint46. 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 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 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 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

48Copy pinpoint48. 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 H

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.

49Copy pinpoint49. 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."

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

50Copy pinpoint50. 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 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 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 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 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

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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 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 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.

51Copy pinpoint51. 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.

52Copy pinpoint52. 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.

53Copy pinpoint53. 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

54Copy pinpoint54. 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 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 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 estate ofNabibaksh. However, that is not the question here."-· ·

55Copy pinpoint55. 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 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 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 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 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 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

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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

56Copy pinpoint56. 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.

57Copy pinpoint57. 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. ·

58Copy pinpoint58. 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

59Copy pinpoint59. 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

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60Copy pinpoint60. 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 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 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.

61Copy pinpoint61. 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

62Copy pinpoint62. 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

63Copy pinpoint63. 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.

65Copy pinpoint65. 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 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 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 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 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 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 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."

67Copy pinpoint67. 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 in his possession forming part of the estate for discharging the debts of the deceased, is such sale binding on other co-heirs or creditors of the deceased, and if so, to what extent ? It was held that property of a deceased Muhammadan vests in his heir upon his death in specified share. Heirs of the deceased take their shares in severalty, as tenants- in-common and under Muhammadan Law one heir of the deceased cannot bind shares to his co-heirs.

68Copy pinpoint68. 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 '!

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

69Copy pinpoint69. 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. Relian~e hl).S 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- 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 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 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 respondent to vacate the portion of the building which is presently in his possession and give vacant and peaceful possession of his portion of the building to the appellant in lieu of payment of Rs 5,50,000. We are granting a long time to the respondent to vacate the portion of the building in his possession to avoid any inconvenience to the respondent." Decision in Dhanlakshmi & 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 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 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."

71Copy pinpoint71. 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 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 pui·chaser can claim the entire property to be allotted to him.

72Copy pinpoint72. 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 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 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 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 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 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 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 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 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 alienating co-sharer and in the proceedings for final decree itself, no· such equitable right has been claimed by purchaser as discussed hereinafter. To claim such an equity separate bundle of facts was required to be pleaded and established. Thus, in absence thereof, it is not possible in the instant case to work out the equities of the purchasers in other properties allotted to the share of the vendor.

73Copy pinpoint73. 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 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..

74Copy pinpoint74. 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 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 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

76Copy pinpoint76. 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 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 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 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 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 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 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 devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out "in accordance with the law (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 espoused.

T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 83 [ARUN MISHRA, J.]

77Copy pinpoint77. 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

78Copy pinpoint78. 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.

79Copy pinpoint79. Jn Ka111111a11a Sambamurthy (Dead) by LRs. v. Kalipatnapu

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.

80Copy pinpoint80. 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 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 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 written or settled law."