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

47. In Raglnmath Raj Bareja v. Punjab National Bank (2007) 2 SCC 230, the Cou11 observed that it is well settled that when there is a conflict between law and equity, it is the law which has to prevail. The Court further ruled that equity can supplement the 1-1

T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 85 fARUN MISHRA, J.]

• law, but it cannot supplant or override it. In this context, reliance A was also placed upon Mada111a11chi Ramappa v. Muthaluru Bojjappa AIR 1963 SC 1633, Laxminarayan R Bhallad .v. Slate of Maharashtra (2003) 5 SCC 413, Nasiruddi11 v. Sita Ram Agarwal (2003) 2 SCC 577, E. Pala11isa111y v. Pala11isa111y (2003) I SCC 123, and India House v. Kishan N. Lalwani (2003) 9 B sec 393."

81Copy pinpoint81. Reliance has been placed on Raghunath RaiBareja & Am: v. Pwijab Na1io11al Bank & Ors. (2007) 2 SCC 230, in which the Latin ·maxim "dura lex sed lex" which means "the law is hard, but it is the law" was applied. Relying upon that it has been observed that equity can only supplement the law, but it cannot supplant or override it. But c when there is a conflict between law and eqi.1ity, it is the law which has to prevail.

82Copy pinpoint82. In the instant case, equitable right of allotment of some land other than which was purchased out of some other prope1ties al lotted to the share of vendor Hamid Ali Khan, D-1 has not been claimed in the objections filed during the final decree proceedings filed by the purchasers. The property admittedly has exchanged hands a number of times during the pendency of suit from 1935 till date and how the equity is to be worked out is always a question of fact in every case, how much share has been al lotted to the share of one vendor and how much property he had already alienated till that time and what are the debts or charges on the prope1ty that are legally permissible, would be some of the relevant considerations. Nothing of that sort has been pleaded by the purchasers in the objections filed in the final decree proceedings. Though in the absence of claiming equitable right in the share of vendor's other properties, it cannot be worked out and it is doubtful when undivided share has not been sold and the specific property had been purchased, such equitable right can be enforced. Even assuming that the purchaser could work out the equity, however in the absence of pleadings and evidence required for the purpose, it would amount to misadventure. We do not propose to give any finding on submission and its correctness, made on behalf of the appellants that defendant No. I had gone on a selling spree like anything and before executing the sale deed on 23.11.1959 he had already sold more than 1000 acres ofland which was in excess of his entitlement, in the absence of pleading by appellants or purchasers on the basis oforal submissions. made before us. In the absence H

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

A of requisite data, pleadings and evidence, question of working out equity in aforesaid manner, cannot be examined or gone into by this Cou11 at this stage. The claim of equity is outcome of ingenuity of arguments made only in this Colll1 I ike a drowning fish trying to catch last straw. We are not at all impressed by the submission, and consequently the same is repelled, more so considering the provisions of the Mohammedan 8 Law that sale beyond the extent of the share of the vendor i11 specific property was void. (ix) In re : whether sale was for legal lll'cessity, and thus bintling : c

83Copy pinpoint83. It was submitted that sale was for legal necessity for benefit of estate. It has been averred in the objections preferred by the purchasers that sale was made by Hamid Ali Khan, defendantNo. I, for payment of land revenue. Thus it was contended that the payment of land revenue has enured for the benefit of the entire estate. Thus sale would be valid and binding on co-heirs. Except making the aforesaid bald stateriient, nothing has been placed on record to indicate that the sale was for payment of land revenue. On the other hand, when we peruse the sale deed, recital of it makes it clear that the sale was effected by Hamid Ali Khan for his 'personal necessity'. He had not executed the sale deed for payment of land revenue as its recital is otherwise which would prevail. Nor the sale deed had been executed in the fiduciary capacity aCting on behalf of co-sharers rather he has claimed in the sale deed that he was the exclusive owner of 68 acres 10 guntas area of property and was in possession thereof. He had sold the land for a co11<ideration of Rs.2000 in view of his personal necessity. The sale was made after ·taking permission from the Deputy Collector Division, Distt. West, Hyderabad. Thus, the sale deed negates the aforesaid bald averment made in the objection petition. Even otherwise under the Mohammedan Law, it was not open to Hamid Ali Khan, defendant No.1 to act in fiduciary capacity to sell the property and bind shares of others. It is not mentioned in sale deed that Ham id AIi Khan had sold for any legal necessity or for the benefit of the entire estate. The recital in sale deed has the evidentiary value and Bala Mallaiah and his successors are bound by what has been mentioned therein. Thus, 110 case is made out on the basis of the aforesaid submission also to make an interference. H

T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. Etc: 87 [ARUN.MISHRA, J.]

(x) In re : the effect of proceedings under the Tenancy Act, A 1950 :

84Copy pinpoint84. It was contended on behalf of the respondents that with respect ,. to the disputed property the proceedings were initiated by Boddam ..• Narsimha under the Act of 1950. Boddam Mallaiah was a lessee for 3 years. He was inducted in the aforesaid lands under a koul dated 1.3 .1953 B executed by Hamid Ali Khan, who was defendant No.1 in the pa1iition suit. liiitially, it was for one year and was renewed each year later on. Hamid Ali Khan executed a sale deed in favour of Bala Mallaiah on 23.11.1959. After the sale deed, Bala Mallaiah became a pattedar in place of Hamid Ali Khan in respect of the suit land. Bala Mallaiah was the paternal uncle of Boddam Narsimha. An application was filed by c Boddam Narsimha under section 37A of the Tenancy Act on the ground that Late Bala Mallaiah was a protected tenant and prayed for issuance of ownership certificate under scction 38E of the Act of 1950. The tribunal vi de order dated 24. 8. 1999 held that Bala Mallaiah never protested the omission of entry of tenancy from the revenue records as deemed tenant, and it was found that there were no protected tenants in Madhapur village. The order was questioned in the appeal under section 90 of the Act which was dismissed by the Joint Collector on 13 .3 .2000. Thereafter, Writ Petition No.2229/2000 was preferred before the High Cou11 of Judicature at Andhra Pradesh which was also dismissed by the High Cou1i on 16.4.2001 and the same was questioned before this Cou1i which dismissed appeal in Bodda111 Narsimha (supra).

85Copy pinpoint85. However, on behalf of the respondents it has been submitted that Bala Mallaiah has become pattedar vide conveyance deed dated 23.11.1959. The case set up by Bala Mallaiah that he was jointly cultivating the suit land along with his two brothers Komaraiah andAgaiah F was found to be meritless and negatived for the period between 1952 and 1959. On 1.1.1973 when the notification came to be issued, Bala Mallaiah was not the protected tenant. The case set up by Boddam Narsimha regarding protected tenancy and issuance of ownership certificate was negatived. This Court noted that even for the sake of G arguments if it is accepted that Bala was a protected tenant on 12.2.1956, he sti II became a pattedar vi de conveyance deed dated 23.11.1959, and in any event assumed protected tenancy did not continue up to 1.1.1973, and therefore, the appellant was not entitled to ownership ce1iificate under section 38E. Section 38E vfthe Act of 1950 had no application to H

-. 88 SUPREME COURT REPORTS [2017] 3 S.C.R.

A the facts of the case. This Court has discussed the matter thus : "13. Bala was a kaul who had taken an annual lease from Hamid Ali Khan. He was a tenant at will. This was during the pendency of the partition suit. He became a paltedar vide conveyance dated 23-11-1959. The kaul itself indi.catcs. that Bala was to cultivate in B his individual capacity; that at the end of the year, Bala had to return the lands to the owner; that Bala was not given the right to include any other cultivator. Therefore, there is no merit in the contention of the appellant that Bala was jointly cultivating the suit lands with his two brothers Agaiah (father of the appellant) and Kornaraiah. Further, between tenancy and the conveyance, c there was a time-gap. Hamid Ali Khan was a pattedar. His rights were purchased by Bala vide conveyance dated 23-11-1959, therefore, on 1-1-1973, when the notification came to be issued, Bala was not the tenant. He was a pattedar. Moreover, the \lppellant herein is not the LR of Bala. Bala was his paternal uncle. At no point oftinie, even the LRs of Bala had claimed that Bala was a protected tenant. It is evident from Section 38-E that the said section has been enacted for those protected tenants who are declared to be protected tenants and included in the register prepared for that purpose. A person becomes a protected tenant when he is a holder on the dates or for the periods mentioned in Sections 35, 37 and 37-A. Once a person becomes a protected tenant, he is entitled to an ownership certificate under Section 38- E. In Sada v. Ti:;hsildar AIR 1988 AP 77 Full Bench of the Andhra Pradesh High Court held that a person ''holds" the land as protected tenant if he is still a protected tenant on the notified date i.e. 1-1-1973, though out of possession. As long as his right as protected tenant has not been determined by the date of notification in a manner known to the Acl, he holds the land as a protected tenant, whether physically in possession or not. For the vesting of ownership of land held by a protected tenant under Section 38-E, it is not necessary that the protected tenant should be in physical possession on 1-1-1973. lt is sufficient ifhe co11ti11ues to hold the status of a protected tenant on the notified date, even ifhe is not in physical possession. The Act does not merely regulate the relationship of landlord and tenant but deals with the alienation ofagricultural land and includes transferofthe landholder's interest 1-1

T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 89 rARUN MISHRA, J.l

to the protected tenants. Therefore. the grant of pattedari A (ownership rights) also finds place in the' Act.

14. On the facts and circumstances of the present case, Bala had become a pattedar (owner) under the conveyance deed dated 23-11-1959. His name was shown as a pattedar even prior to 1-1-

1973. ;he benefit of Section 38-E is given to persons who hold B the lands as. protected tenants and who continue to hold the lands as protected tenants on 1-1-1973. The protected tenancy has to be enforced on 1-1-1973. Under Section 38-E, ownership rights are conferred only upon persons who continue to be protected tenants as on 1-1-1973. They form a special class. In the present case, as stated above, Bala became a pattedar in 1959. In Sada c (supra) it has been held that protected tenants are covered by Chapter IV of the Act. They fall under a limited categorx. They are referred to in Sections 34, 37 and 37-A. In the said judgment, it has been held that Section 3 7-A, introduced by Act 3 of 1956 deals with a separate class of persons deemed to be protected tenants. This class of persons is different from the category of protected tenants who fall under Sections 34 and 37 respectively. Section 37-A refers to persons who are holders of the land at the commencement of amending Act of 1955 ( 12-3-1956). These persons were required to be tenants on 12-3-1956 and that they should continue to be tenants till 1-1-1973. Only such category of persons are entitled to ownership certificate under Section 38-E. In the present case, even for the.: sake of argument, if we were to proceed on the basis that Bala was a protected tenant on 12-3- 1956, still Bala became a pattedar vide conveyance deed dated 23-11-1959, therefore, in any event, the assumed protected tenancy F . did not continue up to 1-1-1973. In our opinion, therefore, in any view of the matter, the appellant herein was not entitled to the ownership certificate under Section 38-E of the Act. Section 38- E has no application to the fac.:ts of the present case."

86Copy pinpoint86. This Court in aforesaid case has only decided the question G about protected tenancy which was claimed and issuance of ownership certificate by Boddam Narsimha under section 38E. No other question was involved for consideration in the proceedings under the Act of 1950. Thus, the decision cannot be taken to be an authority on a question which was not agitated. Boddam Narsimha who filed the said proceedings H

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

A had lost up to th is Court and in that there was a mere mention 9f the fact that by virtue of the conveyance deed, Bala Mallaiah became pattedar vide registered sale deed dated 23.11.1959. There was 1io adjudication on the various issues as to the legality or validity of the said rights which could be conferred by sale deed and to what extent Hamid Ali Khan . B could have alienated to Bala Mallaiah and issue about /is pendens etc. never came up for consideration. Thus, the decision is of no help and cannot be taken to be an adjudication by this Court with respect to the rights of Hamid Ali Khan or Bala Mallaiah in matruka properties which was not an issue in the aforesaid case. The scope of the proceedings and the issue involved were totally different. Thus, no sustenance can c be derived by the respondents by relying upon the aforesaid decision in which Boddam Narsimha in fact had lost.

87Copy pinpoint87. It was also contended that Hamid Ali Khan was recorded as pattedar after the death ofNawab Jung. The plaintiffs and other heirs of Late Nawab Jung were aware that the name of Hamid Ali Khan had been recorded in the revenue records. The transfer was made with the permission of the Collector under section 47 of the 1950 Act. Any person affected by any entry in such record of rights under Regulation 4 of the Hyderabad Record of Rights in Land Regulations, 1948 was required to question the same within two years. Bala Mallaiah was in possession. Thus, the decree which has been passed ignoring the rights of the pattcdar is bad in law. In our opinion, admittedly, it was a matruka property of Late Nawab Jung. The suit for partition was pending w.e.f. 1935 and mutation simpliciter in the name of Hamid Ali Khan conferred no right, title or interest. The mutation is only for the fiscal purpose and is not decisive ofright, title or interest in the property which is within the domain of the civil court. The grant of patta from 1953 onwards by Hamid Ali Khan to Bala Mallaiah was on yearly basis and the execution of sale deed and the grant of land on yearly basis were during /is pe11de11s. Thus, the transactions are covered by the doctrine of /is pendens and were el early subject to the outcome of the pending partition proceedings. In Venkatrao Anantdeo Joshi & Ors. v. Malatibai & Ors. (2003) I G sec 722, a question came up for consideration assuming that pending suit for pai1ition, a batai patra was executed on the basis of which tenancy rights were claimed. It was held that su1.:h batai patra would not confer any right on the person. It being hit by the principle of lispe11de11s. This . Court has held thus : H

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

[ARUN MISHRA, J.)

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

A l on.the face of it, bogus so as to defeat the rights of the appellants "hich. are crystallised at the. time of passing of the preliminary decree. Presuming that pending the suit for partition, even if batai palra is executed, it would not confer any rights on Baburao as it B is hit by principles. of /is peudeus. In any case, as the preliminary decree becomes final, it was not open for Baburao to raise such contention at the time of passing of final decree for partition.

9. With regard to /is peudem, learned counsel for the appellants I rightly referred to the judgment and decree passed in Regular Civil Suit No. 51 of 1973 and contended that presuming that the c so-called batai patra was at all executed by Anantdeo, it was not open to him to execute the same pending disposal of the suit filed by Appellant I for partition of the property. In that suit, Appellant l and his mother had challenged the transferofland out of Survey • No. 60/Aand also for partition of the suit property. By elaborate D judgment and order, the suit filed by the appellants was decreed ' i',, to the extent that they were entitled to 2/3rd share in the suit ' ! properties. The cou1t had also directed mesnc profits. Till the date of the decree, it was contended by Anantdeo that he was in I possession of portion of the suit land and the remaining portion E I was in possession of Malatibai, in view of the sale deed in her favour. It has also been specifically contended that for some time,

' I .property was in possession of Baburao prior to marriage of Shakuntala Bai and then in possession of one Pandurang Saokar and lastly it was in possession ofMalatibai and himself. The court specifically arrived at the conclusion that Anantdeo was in possession of the suit property and the so-called transfer was without any legal and family necessity as alleged and, therefore, the appellants were entitled to 2/3r<l share in the suit property. In the revenue records ·•also, there is no mutation in favour ofBaburao. Further, the so-called compromise decree in Civil Suit No. 288 of 1981 against Anantdco and Malatibai would not confer any title against the appellant. IO. Further, in a suit for partition where preliminary decree is passed, at the time of passing of the final decree it was not open to the respondent to raise the contention that he was a tenant of H

92 SUPREME COURT REPORTS ., (2017) 3 S.C.R.

A the suit premises. Section 97 CPC specifically provides that where any party aggrieved by the preliminary decree does not appeal from the said decree, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree." In view of the aforesaid, we find no force in the 'submissions B raised on behalf of the respondents based upon pattedar rights as it was subject to section 52 ofT.P. Act and the same is hereby rejected. (xi) In re : what is the effect or decision of this Court and High Court with respect to final decree prncel·dings in Item No. 2 of Schedule 'B' property : c 88. With respect to item No.2 of Plaint' B: schedule property one Padmini Co-operative Housing Society Ltd. tiled an objection in the final decree proceedings. The trial court vide order dated 29.3.1996 rejected the objection which was preferred. First appeal preferred was also dismissed by a Single Judge on 23.4.1997. LPA No. I04/1997 was filed D which was dismissed by a Division Bench of the High Court on 20.11.1998. Then SLP [C) No.3558/1999 was filed in this Court which has been dismissed by a speaking order affirming the judgment and order passed by the executing court and the High Court. A perusal of the judgment of the High Court in LPA indicates that the High Court had held that in Mohammedan Law there is no recognition for a sale by a .E co-sharer of the entire estate and that the other co-sharers are not bound by such sale and said decision even went to the extent of saying that even when the sale was meant for discharging the debts of ancestor, ~vhose property had devolved upon the sharers, the said sale without the consent of other co-sharers is invalid and does not confer any right on the purchaser with regard to such co-sharers who do not join the said sale. The decision has been affirmed by this Cou1t vide order dated I. I 0.1999 in SLP [C] No.3558/1999. Following order was passed by this Court: "After hearing arguments exhaustively for more than two hours and after considering the prelimi1\ary decree dated 24.11.70, the modified preliminary decree passed by the High Court, the Commissioner's repo1t dated 14.7.95, final decree passed by the City Civil Cou1t dated 11.2.96, the judgment of the learned Single Judge dated 23.4.97, the judgment of.the Division Bench dated 24.11.93 and the other passed by the High Court in CRP.No. 700/ H

T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC. 93 [ARUN MISHRA, J.l

94 dated 30.8.94 and after considering the various rulings of the A Cou1is cited before us by the learned senior counsel on both sides, we are not inclined to interfere with in SLP. The SLP is dismissed." At least on point oflaw the decision of this Court being a reasoned order has relevance and the decision in the aforesaid n'iatter in same B case also suppo1is the view which has been taken by us on merits. (xii) In re : whether there is waiwr of right by appellants :

89Copy pinpoint89. It was also submitted that on behalf of the respondents that there is waiver of rights by the plaintiff and other heirs of Late Nawab Jung with respect to disputed property, and they cannot be permitted to c approbate and reprobate. In Boddam Nursimha (supra), stand was taken that Bala Mallaiah was the pattedar, thus, they are bound by their said representation and cannot wriggle out of it. They have relied upon the decision i_n C. Beepathuma v. Velasari Shankaranarayana Kadambolithaya AlR 1965 SC 241 on the principle of approbate and reprobate as also the decision in Mumbai J11ternatio11al Airport (P) Ltd. v. Golden Chariot Airport (20 I0) I0 SCC 422 in which it has been observed that the contesting respondent has blown hot and cold by taking inconsistent stands which . . is not permissible.

90Copy pinpoint90. In fact, during the pendency of the partition suit with respect to ancestral property of Late Nawab Jang, Hamid Ali Khan - defendant No.I - had alienated the property treating it as his own whereas it was obviously subject to the right of other co-shares finally declared in the preliminary decree. Bala Mallaiah and his successors have filed several proceedings, civil suit of 1993 in which they have failed. Boddam Narsimha, nephew of Bala Mallaiah also filed proceedings under the F Act of 1950 for issuance of ownership certificate by virtue of their being protected tenants which case was also dismissed. Thus, the stand which was taken by appellants under the protected Tenancy Act was not at all inconsistent and did not amount to approbation and reprobation on the part of the heirs of Late Nawab Jung. Land grabbing proceedings were G also instituted by LRs. of Bala Mallaiah and his brothers. The proceedings were dismissed and W.P. No.15577/2001 filed before the High Cou1i was also dismissed vide order dated 30.1.2002. After having lost in the aforesaid proceedings, belatedly the objection had been preferred in the final decree proceedings for paiiition. The conduct of purchasers makes H

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

A it clear that they instituted multifarious proceedings, and took inconsistent stands which were not accepted by this Court in Boddam Narsimha (supra). The appellants or their predecessors had not taken inconsistent stands. They were clearly protected by doctrine of !is pendens. (xiii) In re: whether appellants are guilty of delay orlaches:

91Copy pinpoint91. It was also submitted that a preliminary decree recognized the rights of the transferees to be adjudicated at the time of final decree proceedings and no steps were taken by the legal heirs after passing of the preliminary decree way-b.ack in 1970 to implead them. The proceedings for final decree were initiated in the year 1984. The appellants c have not taken prompt steps, as such they are not entitled to any indulgence from this Court. Reliance has been placed upon Municipal Council, Alunednagai:_ v. Shah Hyder Beig (2000) 2 SCC 48 to contend that any delay on the pati of the parties defeats the rights.

92Copy pinpoint92. We are not impressed by any of the aforesaid submissions. D The preliminary decree passed in 1970 was clearly against the interest of the purchasers as their vendor was not found to have the rights which · was not assailed by them. The preliminary decree attained finality in the year 1976 and proceedings for final decree taken in 1984 were within the period of limitatioi1. As a matter of fact, LRs. of Bala Mallaiah and his brother etc. took steps in the year 1993 and onwards by filing successive cases as enumerated above. There was no delay on the part of the appellants defeating their rights. It was the respondents who having lost in the three proceedings one after the other;raised objection in the. year 2004 in the final decree proceedings. What prevented them from doing so in the year 1993, has not at all been explained. Thus, it is they who are responsible to delay in the final decree proceedings in a patiition case instituted in the year 1935 and the matter is still pending in the shape of instant appeals before this Court. (xiv) In re : the effect under the Urban Land Ceiling Act :

93Copy pinpoint93. It was also submitted that under the Urban Land Ceiling Act G proceedings, the land was not shown to be belonging to the heirs of Late Nawab Jung. The orders passed in urban land ceiling case have not been placed on record. That apart, it was stated that the proceedings lapsed due to repeal of Urban Land Cei 1ing Act Be that as it may. The respondents are purchasers from branch of Bala Mallaiah whose vendor was defendant No.1. The property has further exchanged hands. Since 1-1

T. RAVI & ANR. v. B. CHINNA NARASIMHA & ORS. ETC .. 95 [ARUN MISHRA, J.]

the orders have not been placed on record, in the aforesaid factual A scenario, we decline to examine the aforesaid proposition further and we were not apprised how the purchasers could claim a better right than the one possessed by their vendor. We leave it open to the State Government to examine the question of ceiling and effect of the decision.

94Copy pinpoint94. A compromise petition has been filed with respect to area 18 B acres 25 guntas. As per the compromise the division of the property has to take place between the appellants and the newly added respondent Nos.87 to 127. Same was objected to by one of heirs. It will involve transfer of the property, hence, we leave the parties to have resort to an appropriate remedy in this regard. It is found not to be recordable in the form of transaction in which it has been filed. c

95Copy pinpoint95. Resultantly, the appeals are allowed. Impugned judgment and decree passed by the High c;:ourt is set aside. The final decree of the Trial Court is restored. Costs of Rs.1,00,000/- to be paid within two months from ~oday. D

Nidhi Jain Appeals allowed.