Skip to content


Khan Bahadur C.B. Taraporwala and anr. Vs. Kazim Ali Pasha and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtAndhra Pradesh High Court
Decided On
Case NumberAppln. Nos. 146, 147, 152, 155, 156, 157, 158, 160, 162, 163, 164, 167, 314, 315, 316, 331, 341, 342
Judge
Reported inAIR1966AP361
ActsIndian Contract Act, 1872 - Sections 23 and 230; Code of Civil Procedure (CPC) - Sections 86(1) and 87B - Order 1, Rule 10 and 10(2) - Order 22, Rule 10; Muhammadan Law; Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 - Sections 47
AppellantKhan Bahadur C.B. Taraporwala and anr.
RespondentKazim Ali Pasha and ors.
Appellant AdvocateV. Venkateswarlu, ;V.K. Vaidya, ;D.V. Raghava Rao, ;A. Krishnaiah, ;P. Ramshah and ;Hafeez Ahmed Khan, Advs.;R. Venkata Subba Rao, ;Harilal Waghray and ;Asiam Khan, Advs.
Respondent AdvocateK.A. Noori Azad, ;A. Bhujanga Rao, P. Seshapani, ;P. Venkatadri Sastry, ;S.M. Ashan Abedi, ;K.F. Bada, ;Mim Mazafar Ali, ;Aftab Hussain, ;Syed Mazar Hussain, ;Mustafayar Khan, ;Azeemuddin, ;Harihar Ra
DispositionPetition allowed
Excerpt:
property - alienation and transfer - section 230 of contract act, 1872 and section 86 (1), order 1 rule 10 (2) and order 22 rule 10 of code of civil procedure, 1908 - suit filed by lady against her co-heirs - preliminary decree was passed defining their shares - some of defendants were alienees pendente lite - receiver appointed by court - co-heirs alienated their interest - petitioner held power of attorney from 'nizam' - defendants opposed applications regarding sale deeds - intention of parties to be assessed from surrounding circumstances - contract entitling petitioner to enforce sale established - petitioner can be impleaded in his own name even though he made purchases on behalf of 'nizam' - no inference to be drawn from power of attorney that petitioner would not have intended to.....orderkrishna rao, j.1. this is a batch of 21 applications made under order i rule 10, order xxii rule 10 and section 151, c. p. c. by the same two petitioners for adding them as parties in c. s. no. 14 of 1958 on the ground that they have purchased the right, title and interest in the suit properties from the particular defendant mentioned in each application. the defendants concerned as the vendors arc defendants nos. 35, 50, 91, 21, 100, 10, 92, 13, 24, 12, 25, 9, 40, 132, 131, 26, 14, 29, 3, 2 and 4 respectively c. s. no. 14 of 1958 is a suit brought by dildar-un-nissu begum for partition of the maleruka properties left by nawab kurshid jah who died in 1302 the defendants arc her co-heirs and their legal representatives and alienees pendente lite except defendant no 43, the jagir.....
Judgment:
ORDER

Krishna Rao, J.

1. This is a batch of 21 applications made under Order I Rule 10, Order XXII Rule 10 and Section 151, C. P. C. by the same two petitioners for adding them as parties in C. S. No. 14 of 1958 on the ground that they have purchased the right, title and interest in the suit properties from the particular defendant mentioned in each application. The defendants concerned as the vendors arc defendants Nos. 35, 50, 91, 21, 100, 10, 92, 13, 24, 12, 25, 9, 40, 132, 131, 26, 14, 29, 3, 2 and 4 respectively C. S. No. 14 of 1958 is a suit brought by Dildar-Un-Nissu Begum for partition of the maleruka properties left by Nawab Kurshid Jah who died in 1302 The defendants arc her co-heirs and their legal representatives and alienees pendente lite except defendant No 43, the Jagir Administrator and defendants Nos 53 and 55, the States of Andhra Pradesh and of Mysore respectively. Defendant No 38, who was one of the co-heirs, was transposed as plaintiff No. 2 on 4-10-1958. Most of the parties entered into a compromise on 16-8-1961 and the suit was contested only by defendants 2 to 4, 10, 39, 47, 94 and 98. A receiver for the suit properties was appointed by this Court on 24-8-1962 and a preliminary decree for partition was made on 28-6-1963. Under the preliminary decree, each of the sharers was given a specified share in the suit properties and a commissioner was appointed to effect the partition. The suit is pending for the passing of the final decree.

The petitioners have purchased the entire share of the particular defendant mentioned in each application under registered sale deeds on various dates between 27-4-1964 and 1-8-1984, The vendor concerned in each application or his legal representatives have filed counters admitting the sale and the execution of the sale deed in favour of the petitioners and (except defendant No. 24) also supporting the prayer for impleading the petitioners. Notices of the applications were given to all the other parties to the suit. Defendant No. 39 filed counters on 22-9-1964 and 8-12-1964 opposing the applications and defendant No 140, who had purchased some of the suit properties on 24-7-1958 from defendant No. 10, filed a counter opposing Application No. 157 of 1964. The remaining parties to the suit did not file counters But after the hearing of all the applications was closed on 18-6-1965 and the orders were reserved, defendant No. 24 filed Application No. 113 of 1965 on 16-7-1965 and defendant No. 26 filed Application No. 115 of 1965 on 3-8-66 impugning the sale deeds though they admitted having executed them and asking for the dismissal of Applications Nos. 182 of 1964 and 331 of 1964 respectively. Similarly, defendant No. 25 has filed Application No 134 of 1966 yesterday for the dismissal of Application No. 164 of 1964.

2. It may be mentioned at this stage that the same two petitioners filed ten other similar applications, bearing Nos. 148 of 1964 etc., in respect of their purchases of the shares of certain other defendants in the suit properties. The first petitioner holds a general power of attorney which was executed in his favour by H.E.H. The Nizam of Hyderabad on 17-11-1962 and the 2nd petitioner is a son-in-law of H.E.H. The Nizam In pursuance of an order made by this Court on 20-8-1964, the 1st petitioner filed a memorandum disclosing that he made the purchases from the various defendants, who were the vendors in Applications Nos 146 to 167 of 1964, for and on behalf of H.E.H. The Nizam. Thereafter the ten applications hearing Nos. 148 to 151, 153. 154, 159, 161, 165 and 166 of 1964 were allowed on 11-9-1964, with the result that the petitioners have already been impleaded as defendants Nos. 156 and 157 Defendant No 39, who did not file any counters to those applications, filed the aforesaid counters subsequently, formulating his objections to the present batch of applications.

3. The contentions of Sri K.A. Noori Azad, the learned advocate for defendant No. 39 are (1) As the 1st petitioner, who is one of the two joint vendees in all the sale deeds, made the purchases on behalf of H.E.H., The Nizam, the provisions of Section 87B C.P.C. are attracted and deprive this Court of jurisdiction to implead him in the absence of the consent of the Central Government. (2) The applications arc not maintainable either under Order 1 Rule 10 or under Order XXII Rule 10. C.P.C. (3) The sale transactions arc not permissible under the Mohammadan Law and are champertous and void under Section 23 of the Contract Act. (4) The sale transactions violate the injunctions issued during the suit as welt as Clause 21 of the compromise. (5) As the suit properties are in the possession of a receiver appointed by this Court, the sale transactions amount to a contempt of this Court.

4. The first contention raises the question whether the 1st petitioner is personally entitled to enforce the sales. All the sale deeds are in similar terms their material portion being at follows:

This Deed of Sale made this day of 1964.

For Rs.....

In favour of

(1) Khan Bahadur Hereinafter referredSri C.B. Taraporwala, to as 'Vendees'constituted Attorney & which term shallFinancial Adviser to include their heirs,H. E. H. The Nizam assigns and legal ra-of Hyderabad. presentatives. and (2) Nawab KazimNawaz Judge Bahadur,s/o the late NawabSajid Yar Jung Bahadur. Both are residents of Hyderabad.

By Hereinatfer referred1. to as the vendor Ven-S/o dors which term shall2. include his, her or theirS/o heirs, assigns and legalrepresentatives.* * * * * (11) And Whereas, must of the major and minor sharers of this estate had approached the Vendees and requested them to purchase the schedule properties and all other properties belonging to the estate of Nawab Khurshid Jah Paigah, and to relieve them of this wasteful litigation etc., so that a serious and grave hardship which they are subjected to, in their daily life, may be relieved:

(12) And Whereas, the Vendees after some deliberation, agreed to purchase the schedule property, in moieties and parts, for a reasonable and appropriate market value;

* * * * * 16. And Whereas the Vendor/Vendors agreed to sell and the Vendees agree to purchase the undivided share of the Vendor/Vendors in Schedule prperty which is ..... share out of a total denomination of 38, 70, 720 shares, Now this deed of sale witnesseth as follows:

(a) In consideration of..... the receipt of which is hereby acknowledged by the Vendor/Vendors, and the balance of Rs. is to be paid after the Vendees are brought on record in C.S 14/58, L.P.A and other proceedings or by post-dated cheque No. for Rs. on the above Bank, the Vendor /Vendors hereby transfer

(c) The Vendees henceforth shall have the full and absolute power to take possession of the schedule properties sold hereby eitherthrough Court by impleading themselves asparties in C.S. No. 14/58 or by any otherconvenient and legal arrangement with theauthorities, Receiver or Commissioner in C. S.14/58 or by any such legal and proper methodsas would suit them best. The physical possession held by the sharers in some of the Schedule properties will be delivered by them within three months from this date. In other casesof possession through tenants, the Vendees areentitled to take possession immediately.

* * * * * (g) The vendees shall henceforth impleadthemseleves as parties in place of the vendor/vendors in C. S. 14/58 and L. P. A. and takeout all necessary steps in the litigation as wouldsuit the vendees best. The vendees shall beentitled to effect mutations in all departmentsand to enjoy all the properties conveyed hereby with full and absolute rights.

In witness whereof, the vendor/vendors has/have signed this deed of sale on the dateaforementioned in the presence of. Witnesses : Vendors :1. 1.2. 2.

In all the applications the aforesaid vendees figure as the petitioners. As it is conceded that the 1st petitioner made all the purchases for and on behalf of H. E. H. the Nizam, who is the ex-Ruler of the State of Hyderabad, Sri K.A. Noori Azad argues that the real 1st petitioner is H. E. H., the Nizam and that the consent of the Central Government is necessary under Section 87B read with Section 86(1), C. p. C.

5. The answer to the point turns on Section 230 of the Contract Act which reads :

'In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.

Such a contract shall be presumed to exist in the following cases :

* * * * * (3) Where the principal, though disclosed, cannot be sued.'

If there is a contract to that effect an agent may personally enforce the contract entered into by him on behalf of his principal. Here, there is no mention of H. E. H. The Nizam at all throughout the sale-deeds except in the description of the 1st vendee. Khan Bahadur Sri C. B. Taraporwala. On the other hand, there is a specific provision in Clause 16 (g) that the vendees will implead themselves in C. S. No. 14/58 and this is exactly the object of the applications All the vendors except defendant No 24 have unequivocally stated in their counters that they have no objection to the petitioners being impleaded. Only defendant No. 24, who is the vendor concerned in Application No. 162 of 1964, has confined himself in his counter to admitting the sale and has stated nothing about the petitioners being impleaded The form in which these sale-deeds have been drawn up shows that the petitioners were personally treated as the vendees to whom the legal title passed. In Clause 16 (g) there is a contract to the effect that the two petitioners as such may enforce the sales. The intention of the parties will be ascertained not only from the form of the contract but also from the surrounding circumstances. If the intention here was to transfer the legal title to H. E. H. the Nizam, the vendors would have had to seek the consent of the Central Government in order to sue him for any relief such as for the balance of the consideration. They would have naturally preferred to transfer the legal title to the 1st petitioner. Sri C.B. Taraporwala, rather than to H. E. H., the Nizam. In my opinion, there was clearly a contract entitling the 1st petitioner to enforce the sales.

6. In H. O. Brandt & Co. v. H.N. Morris and Co.; (1917) 2 K B 784, a suit for damages for non-delivery was brought by H. O. Brandt & Co. The bought note addressed to the defendants was headed as 'From Messrs. H. O. Brandt & Co., 63, Granby Row, Manchester. For and on behalf of Messrs. Sayles Bleacheries, Saylesville, Rhode Island, U. S. A.' The majority of the Bench consisting of Viscount Reading, C. J. and Scrutton, I,. 3., held that H. O. Brandt & Co. were the contracting parties and were entitled to sue upon the contract. The mention of Messrs Sayles Bleacheries was held to be intended for making known the destination of the goods.

7. In Agacio v. Forbes, (1861) 14 Moore, P.C. 160, the agreement to pay money was inform with the plaintiff, Agacio, although it was for the benefit of his firm to whom the debt was due and the firm also might have been entitled In sue upon it. The Judicial Committee reversed the decision of the Supreme Court of Hong Kong and held that Agacio was competent to sue upon the agreement in his own name.

8. The fact that Sri C.B. Taraporwala was the Attorney and Financial Adviser to H. E. H. the Nizam and described himself as such in the sale deed would not militate against the parlies having intended the legal title to be transferred to him As he states that he made the purchases for and on behalf of H. E. H., the Nizam, the latter would be the beneficial owner although the legal title vests in the former. It is settled in GUR Narayan v Sheolal Singh, AIR 1918 PC 140 that a benamindar can sue in his own name without making the beneficial owner a party. This authority was followed in Narendra Nath v. Midnapore Zamindary Co. Calcutta AIR 1940 Cal 115 and Raj Narain v Ahmadi Jan, AIR 1941 All 81 Hence there can be no objection to the 1st petitioner seeking to be impleaded in his own name although he made the purchases on behalf of H. E. H. the Nizam.

9. Sri A. Bhujanga Rao, the learned Counsel for defendant No. 16, has raised a point that the power of attorney dated 17-11-1962 in favour of the 1st petitioner does not specifically authorise him to obtain sale-deeds and sue in his own name. A perusal of the power of attorney shows that it empowers the 1st petitioner to transact almost all financial affairs on behalf of H. E. H. the Nizam. Clause 14 authorises the 1st petitioner.

' To purchase or take on lease or otherwise any lands, houses, tenements or chattels as he ray said Attorney may think desirable for my purpose and to do and execute all acts, deeds, and things for effecting and completing such purchases. '

Clause 5 authorises the 1st petitioner ' to commence any action or proceeding in any Court of Justice .... for the recovery of any . . . property.' No doubt, as pointed out by Sri A. Bhimjanga Rao, a power of attorney is construed strictly -- Mulla's Contract Act, Eighth Edition (1957), at page 628. The rules for the construction of powers of attorney are stated In Bowstead's Law of Agency, Eleventh Edition (1951). at page 49 thus :

(1) The operative part of the deed is controlled by the recitals where there is ambiguity.

(2) Where authority is given to do particular acts, followed by general words, the general words are restricted to what is necessary for the proper performance of the particular acts.

(3) General words do not confer general powers, but are limited to the purpose for which the authority is given, and are construed as enlarging the special powers only when necessary for that purpose.

(4) The deed must be construed so as to include all incidental powers necessary for its effective execution.

There is nothing in the power of attorney here, which may be construed as preventing the 1st petitioner from obtaining sale-deeds and commencing proceedings in his own name, though on behalf of H E H the Nizam. On the other hand, this power may be inferred as an incidental power necessary for the executiou of the large variety of transactions authorised by the instrument. It follows that no inference can be drawn from the power of attorney that the 1st petitioner would not have intended to obtain the legal title in himself.

10. Although Ibis is sufficient to negative the first contention aforesaid of Sri K.A. Noori Azad, I shall also deal with the contention of the assumption that H. E. H. the Nizam is in reality, though not in form, the 1st petitioner, because elaborate arguments were advanced on that footing. The position taken by Sri V. K. Vaidya is : (1) Sub-section (1) of Section 86. C. P. C., does not apply because this is not a case where H. E. H. the Nizam is being sued (2) Even if Sub-section (1) of Section 86 C. P. C., applies, the privilege accorded thereunder is waived by H. E. H. the Nizam and any further statement to that effect will, if necessarv be filed.

11. It appears to me that the latter point may be briefly disposed of, although a large number of decisions were cited by both sides. Articles III and IV of H. E. H. the Nizam's Agreement of Accession dated 25.1.1950, a copy of which in the printed while paper (Appendix VII at page 884) was produced by Sri V.K. Vaidya in response to Application No. 382 of 1964 read thus :

ARTICLE III.

' His Exalted Highness the Nizam of Hyderabad and the members of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territories of the State Immediately before the fifteenth day of August 1947.'

ARTICLE IV.

The Government of India guarantees the sucession according to law and custom to the Gaddi of the State and to the personal rights, privileges, dignities and titles of His Exalted Highness the Nizam of Hyderabad.

The relevant personal privilege as it existed before 16-8-1947 depends on Section 86, C. P. C. prior to its amendment by Act II of 1951. The earlier conflict of views on the question whether the privilege could be waived was set at rest by the decision of the Judicial Committee of the Privy Council in Gaekwar Baroda State Ry. v. Hafiz Habib-Ul-Haq. AIR 1938 PC 165. Sir Lancelot Sanderson held that the provisions of Section 80, C. P. C., are statutory and imperative, and having regard to the public purposes which they served, they cannot be waived.

12. The subsequent amendment by Act II of 1951 has introduced Clause (d) in Section 86(2), which proceeds on the footing that the privilege can be expressly or impliedly waived. But the intention of Articles III and IV of the Agreement of Accession was to preserve the personal privileges as they existed before 158 1947. It was settled by AIR 1938 PC 165 that the privilege could not be waived No doubt, Section 87B, C. P. C., which was added by Act II of 1951, is 'intended substantially to save the Rulers of former Indian States from harassment : Tokendra Bir Singh v. Govt. of India, AIR 1904 SC 1663 (1666). But that would be a matter for the consideration of only the Control Government, when its sanction under Section 86(1) is requested : Narottam Kishore v. Union of India, : [1964]7SCR55 . It is also true that under the English Law, such a privilege is capable of being waived expressly or by submission to Court's jurisdiction. But there would be no justification for engrafting that principle upon the Indian statute, if the language of statutory provision is capable of only one construction: Indrajit-singhji v. Rajendrasinghji, AIR 1956 Bom 45 (47) and Usmanali Khan v. Sagarmal, AIR 1962 Madh Pra 320 (327). For the reasons already staled. I am of opinion that the privilege conferred by Sub-section (1) of Section 86. C. P. C. cannot be waived.

13. There is however more force in Sri V. K. Vaidya's submission that even if H. E. H. the Nizam is held to be the real party, he is not being sued within the meaning of Sub-section (1) of Section 86. C. P. C. As observed; in Loke Nath v. Radha Gohinda, AIR 1926 Cal 184. ' in a suit for partition, the position ofthe parties is not that of the plaintiffs and defendants as in other suits; for in a partition suit, or in a suit for administration, or in a suit of a similar nature, every party stands in a position of a plaintiff with reference to another and that of the defendant with reference to some other'. In the present case, all the vendors have obtained shares in the suit properties under the preliminary decree and these shares have been conveyed under the sale-deeds. The intention of the applications and the effect of allowing them will only be to enforce rights to property acquired under the sale-deeds. It is not any right to relief against the person or file property of H. E. H. the Nizam that would be litigaled, in which event alone, it could be said that the Ruler being sued within the meaning of Sub-section (1) of Section 86, C. P. C. Although arrayed as defendants 156 and 157, the petitioners could equally be regarded as plaintiffs, just like defendant No. 38. after transposition. As it cannot be said that the purchasers under the sale-deeds are being sued, the provisions of Sub-section (1) of Section 86. C. P. C., do not apply to the situation.

14. It is difficult to appreciate the contention that the applications are not maintainable even under Order 1, Rule 10 (2), C. P. In Razia Begum v. Sahebzadi Anwar Begum AIR 1958 SC 886, the plainfiff filed the suit for a declaration that she is the legally wedded wife of the defendant. It was held that another wife of the defendant and their son would be bound by the declaration by virtue of Section 43 of the Specific Relief Act and that they were therefore rightly joined as additional defendants on their application under Order 1, Rule 10, C. P. C., though it was opposed by the plaintiff. R. P. Sinha, J. (as he then was) applied the principle lhat persons who would be bound by the judgment to be given in the action may be properly impleaded. The same view was taken by Umamaheswaram, J in Narasimha Raju v. Yellamanda, AIR 1960 Andh Pra 32, when he referred with approval the observation of Oldfield, J. in Rajaratnam Iyer v. Kalasyasundaram Iyer, AIR 1923 Mad 521 that 'it would be strange if a person who would be represented by a parly on the record and bound bv the decision against that party is to be debarred from himself appearing to protect his interests.' In the present case, it is nol disputed that, under the doctrine of lis pendens the petitioners as alienees pendente lite would be bound bv the final decree to be passed in the suit. It follows that there can be no possible doubt as to the maintainability of the application under Order 1. Rule 10. C. P. C.

15. The next aspect of the controversy for consideration is whether Order XXII, Rule 10 C. P. C., also applies. The relevant portion of the Rule is in the following terms :

'(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court be continued by or against the person to or upon whom such interest has come or devolved.'

It was observed by Lord Phillimore in Manindra Chandra v. Ram Kumar AIR 1922 PC 304, (306) (Col 2) that Order XXII contemplates only cases of devolution of interest from some original parly to the suit, whether plaintiff or defendant, upon someone else. The provision in Rule 10 is an enabling one -- Somulu v. Appalanaidu, AIR 1958 Andh Pra 507 The object of the rule is to enable the continuation of the suit where the interests of a party on record devolves on some other person. As observed by Lord Porter in Monghibai v. Cooverji Umersey. AIR 1939 PC 170 (173). 'parties who have assigned the whole of their interest pendciite lite cannot ask for judgment in respect of an interest which is no longer theirs''. The expression 'by leave of the Court'1 vests the Court with a discretion in the mailer which is to be judicially exercised. The mere fuel that an assignment is disputed is no ground for refusing leave -- Wright Neville v. Freser, AIR 1944 Nag 137 and Nanjammal v. Eswaramurthi, AIR 1954 Mad 592 (594). In the present case, it is not disputed that the sale transaction in favour of the applicants came into existence during the pendency of the suil. All the sale transactions are udmitted bv the respective vendors The applicants have also filed all the sale-deeds except in Application No. 167 of 1964 where it was stated by Shri V.K. Vaidya that the sale-deed has not been returned by the registering officer The entire right, title and interest of the vendor to a share in the suit properties has been conveyed under each sale-deed. It has to be borne in mind that the vendors, who are no longer interested in the properties to be allotted to their shares, may not object to any disadvantageous or prejudicial allotment of properties to their share.

Sri K.A. Noori Azad has urged that defendant No. 39 disputes the right of defendants 1, 40 and 50 to any share, that the vendors would be liable for damages caused by them to the suil properlies in their possession which is expressly provided for in the case of some of the defendants in Clause 28 of the preliminary decree and that defendant No. 39 may also become entitled to costs against the vendors in the appeal preferred by him. But defendant No. 39 would not be prejudiced in this respect if the vendors are retained as defendants and the applicants arc merely added as parties. It is not necessary lhat in all cases, a party impleaded under Order XXII, Rule 10 C. P. C., should be substituted for the original parly There are precedents for both the transferor and the transfereee being parties on record -- Commercial Rank of India Ltd. v. Sarju Saheb J. ILR 24 Mad 252. Veeraraghava Reddi v. Subba Reddi, ILR 43 Mad 37: (AIR 1920 Mad 391) (SB) and Shantil Lal v. Mukat Lal, 1944 42 All LJ 351: ILR 1944 All 350. In Shanmugam v. Radhakrishna Sarma : AIR1951Mad628 , it was held by a Division Bench of the Madras High Court that Order XXII, Rule 10. C. P. C., applies to cases of devolution of inleresl by assignment. The observation in Kaliaperumal v Ramchandra. AIR 1927 Mad 693 of Ramesam, J. sitting singly that 'order22 of the Civil Procedure Code deals with devolution of interest by the operation of law and not by act of parties '' cannot therefore., be regarded as good law. It follows that the applications are also maintainable under Order XXII, Rule 10, C.P.C The applicants, who have been already impleaded as defendants Nos. 156 and 157 would be entitled under Order XXII, Rule 10 C. P. C., to represent the interest of the vendors concerned in the present applications.

16. The next contention that arises for consideration is whether the sale transactions areopposed to the Mohammadan Law or arechampertous and void under Section 23 of theContract Act. Under the Mohammadan Law,the heirs succeed to the estate as tenants incommon in specific shares and any heir mayeven before the distribution of the estate transfer his own share. (Mulla's Mohammadan Law.Fourteenth Edition (1955), Sections 41-42 at pages32 and 33) Khatoon Bihi v. Abdul Wahab,AIR 1939 Mad 306. There is also nothing inthe Mohammadan Law against the transferee'sright to possession under Section 44 of theTransfer of Property Act. Transfers by oneco-heir of a deceased Mohammadan have beenenforced or recognised in numerous reportedcases, as for instance Chandra Shekhar v. Abidalli, (AIR 1925 Nag 68), Md. Afzal Khan v.Abdul Rahman AIR 1032 PC 235, Jan Mohammad v. Karm Chand, (AIR 1947 PC 99), Ghumanmal Lokumal v. Faiz Mohammad Haji Khan,(AIR 1948 Sindh 83), Sri K.A. Noori Azadhas not been able to cite any authority for hiscontention that the transfers in question areopposed to Mohammadan Law and this contention must be negatived. The recitals in thesale-deeds show that as the vendors were indistressed circumstances, they contracted thesales of their shares of the suit properties. Thecases of Ananda v. Laxman, AIR 1920 Nag274 (1) and Seshayya v. Subbayya, AIR 1924Mad 877 cited by Sri K.A. Noori Azad relate to agreements for financing litigation and haveno hearing on the facts here. I see no basis offact for the contention that the sale transactionswere champertous.

17. The remaining two contentions of Sri K.A. Noori Azad are not material to the decision of these applications because even if the injunctions issued during the suit have been disobeyed and the sales in favour of the petitioners affect the Receiver's possession, they would constitute only grounds for committing the defendants concerned for contempt of the Court and not for refusing to implead the petitioners as transferees of the interest of the vendor defendants. It appears that in Application No. 290 of 1958 while the suit was before the Additional Judge of the city civil Court, an interim injunction was ordered on 1-10-1955 restraining all the defendants from alienating, encumbering or damaging or wasting the properties of the suit estate in their possession. On 16-11-1962, the injunction was made absolute by this Court. Again in Application No. 127 of 1959 a temporary injunction was issued by this Court on 13-4-1959 against defendants 7, 10, 12 to 14, 18, 22, 21, 25 and 40 restraining them from alienating or selling the property described in the application and the affidavit filed. Further under Clause (21) of the compromise dated 16-8-1961, all the parlies thereto agreed not to transfer, alienate or otherwise encumber the properties in their possession but of the properties mentioned in schedules IV and IV-A.

18. Notwithstanding the injunctions, however, several of the defendants effected sales of various properties and the purchasers were impleaded as defendants on applications made by them, mostly under Order 1, Rule 10, C. P. C., and a few also under order XXII, Rule 10 C.P.C. The alienations effected prior to the preliminary decree were discussed under issues 41 and 49 of this Court's judgment, dated 28-6-1963. Generally speaking, in respect of such of the alienations as were proved, the judgment directed that the equities be worked out during the partition to be made.

19. The question of the effect on an alienation made in disobdience to a temporary injunction was discussed bv a Division Bench of this Court in Subrahmanyam v. Narasimhaiah (1963) 1 Andh WR 135. His Lordship Chandra Reddy, C. J., referred to the provisions of order XXXIX which authorises the issue of temporary injunctions and to cases decided by the Allahabad and Madras High Courts. He pointed out that whereas Section 64, C. P. C. invalidated transfer of any property which is subject to any attachment, order XXXIX. C. P. C., provides only for the punishment of the wrong-doer in Rule 2 (3). He held that the transaction in disobedience to an injunction would only be vitiated by an irregularity and would not be illegal or void though the consequences may be different if it is established that the transferor and the transferee acted in collusion and with a view to disobey the orders of the Court. In this view, he held that the transfer in question there by way of a lease was not a nullity. In the present case also, there is not even an allegation that the sales to the applicants were made with a view to disobey the injunctions.

The recitals in the sale-deeds show that owing to the pendency of the litigation for a long time, the vendors were in distressed circumstances and therefore effected the sales. There was a similar allegation by D-42 when he applied in Application No. 101 of 1964 to accept the offer of the present petitioners to buy the entire suit properties for a sum of 39 lakhs of rupees. That application was closed on 12-6-1964 on the ground that it was represented that the suit properlies were worth a core of rupees and that a joint application on behalf of all the sharers was necessary in order to consider the matter. The existence of the temporary injunctions was not regarded as a ground for refusing to recognise the alienations either in the earlier applications by the alienees for impleading them or in the judgment in the suit, dated 28-6-1963. The temporary injunctions appear to have been issued with a view to prevent any possible loss to the parties tothe suit. But, it is not shown that the sale transactions in favour of the petitioners, which have been supported by the respective vendors, would result in a loss to the other parties. For the purpose of the present applications, I see no force in the contention that the two temporary injunctions issued by this Court were disobeyed.

20. The position is similar under Clause (21) of the compromise. The clause expressly provided :

'If the parties damage or alienate or encumber the properties in their possession the loss caused to the properties shall be recovered by the Receiver-cum-Commissioner from the Sharai shares payable to them.'

If any loss to the other parties is ultimately established, it will undoubtedly be taken into account in the final decree to be passed.

21. Turning to the contention based on the possession of the Receiver, the law was explained in Kanhaiyalal v. D.R. Banaji : [1959]1SCR333 . :

'It is also settled law that proceedings taken in respect of a property which is in the possession and management of a Receiver appointed by Court under Order 40, Rule 1 of the Code of Civil Procedure, without the leave of that Court, are illegal in the sense that the party proceeding against the property without the leave of the Court concerned, is liable to be committed for contempt of the Court, and that the proceedings so held, do not affect the interest in the hands of the Receiver who holds the property for the benefit of the party who, ultimately, may be adjudged by the Court to be entilled to the same. The learned Counsel for the respondent was not able to bring to our notice any ruling of any Court in India, holding, that a sale held without notice to the Receiver or without the leave of the Court appointing the Receiver in respect of the property, is void ab initio. In the instant case, we do not think it necessary to go into the question raised by the learned Counsel for the respondents that a sale of a property in the hands of the Court through its Receiver, without the leave of the Court, is a nullity The American Courts appear to have taken the view that such a sale is void. In our opinion, il is enough to point out that the High Court took the view that the sale was voidable and could be declared illegal in a proper proceeding or by suit We shall assume for the purposes of this case and such a sale is only voidable and not void ab initio. '

Here there is no question of the petitioners and their vendors having taken independent legal proceedings without the leave of this Court. Shri K.A. Noori Azad has drawn my attention to Clause 16 (c) in the sale-deeds which provides :

' The sendees henceforth shall have the full and absolute power to take possession of the schedule properties sold hereby either through Court by impleading themselves as parties in C. S. No 14/58 or by any other convenient and legal arrangement with the authorities. Receiver or Commissioner in C. S. 14/58or by any such legal and proper methods as would suit them best. The physical possession held by the sharers in some of the schedule properties will be delivered by them within three months from this date. In other cases of possession through tenants, the vendees are entitled to take possession immediately.'

He urges that the last two sentences quoted empower the vendees to take possession without reference to the Receiver. But the first sentence quoted makes it clear that the petitioners were to take possession by legal arrangement with the Receiver and subject themselves to the orders of this Court. There is no complaint by the Receiver, who is the 3rd respondent to these applications, that his possession and management of the suit properties has been disturbed by the petitioners. It follows that the objection based on the Receiver's possession of the suit properties has no substance.

22. I have now to consider Applications Nos. 113. 115 and 134 of 1965 filed by defendants NOS. 24, 2fi and 25 respectively. Defendant No 24 had filed a counter, dated 28-7-64 in Application No 162 of 1904 setting out that he was an unemloved Graduate in financial embarrassment and admitting that he sold his share of the suit properties under a registered deed executed by him in favour of the petitioners. Subsequently in connection with Application No 30 of 1965, he had filed another counter affidavit dated 8-3-1005 admitting the sale. But in his affidavit, dated 16-7-1965 in support of Application No 113 of 1965, he says that Khan Bahadur C. B. Taraporewala and Nawab Kazim Nawah Jung practised a fraud upon him by promising to provide him with residence and life long financial aid of Rs. 100 per month, that a kind of drink was administered to him and that he executed the sale-deed without reading and understanding it. These allegations of fraud are emphatically denied in the counter filed by Nawah Kazim Nawaz Jung No in-dependent evidence bv way of third party affidavits has been filed in support of the belated charge of fraud and I see no reason to believe it.

23. In his reply affidavit, defendant No. 24 has taken an additional point that the sale includes agricultural lands and is therefore void. This ground of attack has reference to Section 47 (1) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act (XXI of 1950) which provides that no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Tahsildar. But the share of the defendanl No 25 transferred under the sale-deed covers other properties besides agricultural land and would be valid so far as the other properties such as buildings and sites, jewellery and other moveable properties are concerned. The sale contracts are severable in this respect and cannot be said to be altogether void merely because they included agricultural lands.

24. The learned counsel has called in aid Section 23 of the Contract Act which declares :

'The consideration or object of an agreement is lawful, unless :

It is forbidden by law; or

is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or

involves or implies injury to the person or property of another; or

the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. '

He urges that the sale, if permitted, would defeat the provisions of Section 47 of the Andhra Pradesh Act XXI of 1950 that would be so only so far as agricultural lands are concerned in the absence of the sanction of the Tahsildar. It follows that defendant No. 25 continues to retain interest in his share of the agricultural lands and that he must remain as a party to the suit. But the petitioners may be properly impleaded as additional defendants inasmuch as there is a valid assignment of his share of other properties to them.

25. Defendant No. 26 had also filed a counter, dated 1-9-1964 in Application No 331/ 64 admitting the sale by her and agreeing to the petitioners being impleaded. In her affidavit dated 2-8-1965 in support of Application No. 115 of 1965, however, she states that she is an illiterate pardanashin lady, that the 2nd petitioner promised to pay her the balance of proper price besides Rs. 100 per month from the Nizam's Trust after the litigation ended and that she has now come to know that these promises were not included in the sale-deed, She further stales that her counter filed in support of Application No. 331/64 was obtained by-fraud and coercion, although she has mentioned no facts relating to coercion These charges are emphatically denied in the counter affidavit of the 2nd respondent according to whom defendant No. 26 is only attempting to extract money by black-mailing. In the absence of any independent evidence worthy of credit, I see no reason to believe these belated charges.

26. In her reply affidavit, dated 13-8-1965, she has also raised the point under Section 47 of the Andhra Pradesh Act XXI of 1950, which I have dealt with in connection with defendant No. 26. Shri A. Krishnaiah, the learned counsel for defendant No. 26, has relied on Waman Shriniwas Kini v. Ratilal Bhagwandas & Co. : AIR1959SC689 and Raghavachari v. Ramakrishna Reddy, 1965 2 Andh W R 61 in support of his submission that the entire sale transaction is void. In : AIR1959SC689 , a sub-letting, even with the consent of the landlord, was held to be illegal and to make the tenant liable for eviction This depended on Section 15 of the Bombay Hotel and Lodging House Rates Control Act (LVII of 1947) which reads:

'Notwithstanding anything contained in any law it shall not be lawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:

Provided that the (State) Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification'.

The language of Section 47 (1) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act (XXI of 1950) is different, being as follows:

'Notwithstanding anything contained in any other law for the time being in force or in any decree or order of a Court, no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Tahsildar.

Provided that the Tahsildar may declare a permanent alienation or any other transfer of agricultural land to be valid if the permanent alienation or transfer took place before the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1954 and possession of the land transferred was given to the vendee before such commencement if application for sanction is made within one year after such commencement.'

It will be seen that whereas Section 15 of the Bombay Act makes the sub-letting by any tenant unlawful, Section 17 of the Andhra Pradesh Act renders the transaction invalid. Sub-letting is prohibited by the aforesaid Section 15 of the Bombay Act, whereas there is only a restriction on permanent alienation or other transfer by Section 47 of the Andhra Pradesh Act. Therefore, il cannot be said, as in the case of contract of sub-letting prohibited by Section 15 of the Bombay Act, that the petitioners are precluded altogether from relying on the sale transactions in their favour. The decision in Sannamma v Radhabhayi, AIR 1918 Mad 123(FB), relates to the sale of an unenfranchised inam land before it was enfranchised and does not support the proposition of Sri A. Krishnaiah that the entire sale, even of properties other than agricultural lands, would be void. No doubt in 1965-2 Andh Pra W. R. 61 my learned brother, Gopal Rao Ekbute, J. sitting singly held that even an agreement of sale of agricultural land without the previous permission under Section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act (XXI of 1950) would be void us being opposed to the law. The decision rendered by me earlier, Ramulu v. Anantharamulu : AIR1966AP70 , in which I held afler a consideration of the authorities that such agreements to sell agricultural lands are valid and can be specifically enforced, was not cited before Gopal Rao Ekbote. J.

Chandrasekhara Sastry, J., in his judgment, dated 21-7-1964 in C. R. P. No 2046 of 1963 (A.P ) also look the view that agreements to sell agricultural lands are valid and can be specifically enforced No doubt if even an agreement to sell agricultural lands is voidwithout the previous sanction of the Tahsildar, it might lend support to Sri A. Krishnaiah's contention that a sale in non-compliance of Section 47 would also be altogether void. But for the reasons already given in my judgment in : AIR1966AP70 , I am unable to subscribe to the view that such an agreement to sell is void.

27. Shri V. V. Vankateswarlu, the learned counsel for the peiitloners, has also pointed out that under Clause 16 (b) of the sale-deeds, the vendor has agreed to make all the applications necessary to implement the sale. He urges that the contracts are executory in this respect. But I find it difficult to hold that this makes any difference, because under Section 49 of the Andhra Pradesh Act XXI of 1950, the Tahsildar would have no power to sanction the sale in favour of the petitioner inasmuch as they are not agriculturists by profession either presently or prospectively. However, there is more force in Sri V. Venkateswarlu's submission that the question of the transfer of Agricultural lands would arise only if and when they are allotted to their vendors' shares in the final decree. It may be possible for the petitioners to work out the equities in their favour by obtaining allotment of agricultural lands to other sharers to whom the restrictions in Andhra Pradesh Act XXI of 1950 do not apply.

28. It follows that the sales in favour of the petitioners cannot be held to be void so as to disentitle them to be recognised as assignees of the interests of their vendors for the purpose of Order XXII, Rule 10, C. P. C.

29. Defendant No. 25 had filed a counter, dated 14-8-1964 in Application No. 164 of 1964 admitting that he executed the sale-deed in favour of the petitioners and received the consideration therefor and supporting the request of the petitioners to be impleaded. But in his affidavit, dated 26-8-1965 in suport of Application No. 134 of 1965 he states in great detail that he was induced to execute the sale-deed and to file the previous counter by various false promises on the part of the petitioners during the negotiations for the sale and subsequently. On these grounds, he now urges that the petitioners ought not to be impleaded. Shri V. Venkateswarlu for the petitioners states that they deny all these charges. I do not consider that the matter needs to be adjourned to enable him [o file a counter As in the other two applications, the belated charges depend only on the affidavit of defendant No. 25 himself and it is difficult to accept them. Even if he was induced by the various unperformed promises that he has mentioned, the fact remains that he has executed the sale-deed under which there is a completed transfer of his share to the petitioners.

30. It follows that Applications Nos. 113, 115 and 134 of 1965 have no substance and must be dismissed This will not however, preclude them from raising such contentions as are legally open to them in adjusting the equities at the time of the final decree.

31. All the twenty-one applications by thepetitioners are allowed and they will be onrecord under Order 1, Rule 10 and Order XXII,Rule 10, C. P. C., in respect of all their vendor-defendants concerned in these applications. Defendant No. 39 will pay a consolidated amountof Rs. 150 to the petitioners as costs in theseapplications.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //