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Fada HusaIn and anr. Vs. Kutub Husain - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All38
AppellantFada HusaIn and anr.
RespondentKutub Husain
Excerpt:
execution of decree - decree for money--property not attached--such property not sold in execution-submersion of contiguous estate--alluvion. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in..........any sale that may have taken place is not simply voidable, but de facto void.' in the present case, the kachar mahal, being at the time under water, was not attached, it was not advertized for sale, the revenue assessed thereon was not referred to in the sale-proceedings, and the sale certificate itself contains no reference to it as the property sold; but, on the contrary, the share sold is described as paying the amount of revenue assessed on the share of ali bakhsh in the uparwar mahal only. we are therefore unable to agree with the lower courts in holding that the sale of the 20th september 1877, conveyed any rights to the defendant in the kachar mahal, and, the title of the plaintiff being admitted, we decree the appeal, reversing the decrees of both the lower courts. costs in all.....
Judgment:

Mahmood, J.

1. It is clear to us that the question in this case is not what might have been sold, but what was actually sold. And upon this question there can be no doubt. There is nothing to show (and indeed it is not seriously maintained) that the Kachar mahal was ever actually attached or advertized for sale, and the only explanation given is that it was under water at the time. The explanation, however, far from supporting the defence, strengthens the plaintiff's case. The two mahals were made into separate properties in 1875, and it is admitted that during the sale-proceedings, in describing the shares to be sold, the revenue assessed on the Uparwar mahal only was mentioned. Such is the case in the sale-certificate itself, which is the basis of the defendant's title. Yet the Courts below have allowed the defendant more than his title-deed includes, apparently on the ground that although the two mahals were separate properties, yet the ownership of the Kachar depended upon the ownership of the Uparwar mahal, the latter being regarded as the main property, and the former as accretion to it. But such a view is clearly erroneous in law. Before the auction-sale of the 20th September 1877, Ali Bakhsh could have sold his share in the Kachar, and kept his share in the Uparwar mahal, and vice versa. The two properties were separate being separately assessed with revenue, and the incidents of the ownership of one could not affect the ownership of the other. There is no such rule of law as would justify the proposition that simply because two mahals are contiguous, and one of them is liable to be submerged, therefore the former is nothing more or less than an accretion to the other. Yet such seems to be the view upon which the judgments of the lower Courts proceed. The ownership of property cannot pass without a valid legal conveyance or other incident of law which has the same effect. Here the plaintiff's father, Ali Bakhsh, was admittedly the owner of the two annas share in the Kachar mahal, and the plaintiff Fida Husain, as his legal heir, has inherited it. The only fact relied upon by the defendant for proving that the ownership has passed to him is the auction-sale of the 20th September 1877, which, as we have already said, did not include the share in the Kachar mahal now in dispute.

2. In the case of Mahadeo Dubey v. Bhola Nath Dichit I.L.R. 5 All. 86 a Full Bench of this Court laid down the rule that 'a regularly perfected attachment is an essential preliminary to sale in execution of simple money decrees, and that where there has been no such attachment, any sale that may have taken place is not simply voidable, but de facto void.' In the present case, the Kachar mahal, being at the time under water, was not attached, it was not advertized for sale, the revenue assessed thereon was not referred to in the sale-proceedings, and the sale certificate itself contains no reference to it as the property sold; but, on the contrary, the share sold is described as paying the amount of revenue assessed on the share of Ali Bakhsh in the Uparwar mahal only. We are therefore unable to agree with the lower Courts in holding that the sale of the 20th September 1877, conveyed any rights to the defendant in the Kachar mahal, and, the title of the plaintiff being admitted, we decree the appeal, reversing the decrees of both the lower Courts. Costs in all the Courts will be paid by the defendant respondent.


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