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Wilayati Begam Vs. Nand Kishore - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All231
AppellantWilayati Begam
RespondentNand Kishore
Cases ReferredGulzari Lal v. Madho Ram
Excerpt:
civil procedure code, section 244 - question relating to the execution, discharge or satisfaction of the decree--contest between the holder of a decree for an undivided share of joint property and an auction purchaser pendente lite. - .....the property in which wilayati begam was a share-holder, and at the auction sale the defendant nand kishore became the purchaser on the 20th of august 1895. in 1899 he got possession of the property so purchased. the plaintiff appellant applied in the mutation department to have her name recorded in respect of her share, but nand kishore filed an objection and the objection was allowed. thereupon the suit out of which this appeal has arisen was instituted on the 25th of july 1904.2. the court of first instance decreed the plaintiff's claim, but this decree was reversed on appeal, and on second appeal to this court the learned judge dismissed the appeal on the ground that the suit was barred by section 244 of the code of civil procedure. he held that the case fell within the ruling in.....
Judgment:

John Stanley, C.J. and William Burkitt, J.

1. The facts of this case are fully set out in the judgment of the learned Judge of this Court from whose decision this appeal has been preferred. They are not complicated. The plaintiff Musammat Wilayati Began was entitled to an undivided share of the estate of one Nihali Begam consisting of a 16 biswansi zamindari share of a mahal and also sir land appertaining thereto. She brought a suit against Ali Sher Khan and others for recovery of this share, and on the 12th of December l896 got a decree for possession. This decree was not put into execution until the 6th of December 1899. Formal possession was given in 1900. While this suit was pending, one Raghunath Das, who had obtained a simple money decree against Ali Sher Khan and the other defendants to the suit of Wilayati Begam, attached end fold the property in which Wilayati Begam was a share-holder, and at the auction sale the defendant Nand Kishore became the purchaser on the 20th of August 1895. In 1899 he got possession of the property so purchased. The plaintiff appellant applied in the mutation department to have her name recorded in respect of her share, but Nand Kishore filed an objection and the objection was allowed. Thereupon the suit out of which this appeal has arisen was instituted on the 25th of July 1904.

2. The Court of first instance decreed the plaintiff's claim, but this decree was reversed on appeal, and on second appeal to this Court the learned Judge dismissed the appeal on the ground that the suit was barred by Section 244 of the Code of Civil Procedure. He held that the case fell within the ruling in Gulzari Lal v. Madho Ram (1904) I.L.R. 26 All. 447; that Nand Kishore was, as the purchaser in that case, the representative of the judgment-debtor within the meaning of Section 244, and that the question raised was one relating to the execution of the decree, and that the question was only determinable by the Court executing the decree.

3. Now, was the question raised one relating to the execution of the decree? This is the important question. There is an aspect of the facts which does not appear to have been present to the mind of the learned Judge, and no doubt was not brought to his notice in argument. Musammat Wilayati Begam was entitled only to an undivided share of the property of Nihali Begam, and could not in her former suit obtain more than a decree declaring her title to that share. She could not in that said have got more than formal possession. She could not obtain physical possession without instituting partition proceedings. The proceedings in execution in that suit, therefore, ended with the delivery of formal possession--Jagan Nath v. Milap Chand (1906) I.L.R. 28 All. 722. Wilayati Begam having got formal possession in execution thereby exhausted all the remedies open to her in that suit. Physical possession could only be obtained by partition in the Revenue Court. Now let us see what was the position of Nand Kishore. He purchased the property in dispute pendente lite, that is, during the pendency of the suit of Wilayati Begam, and therefore became bound by the judgment which was obtained by the plaintiff against Ali Sher Khan and others. An alienation or. assignment pendente lite is not permitted to affect the rights of other parties to a suit unless it disables the party who makes the alienation from carrying out the order of the Court, in which case the alienee or assignee must be brought before the Court. In the present case all that the plaintiff was entitled to was a declaration of her title to her share in the estate of Nihali Begam, and there was no necessity to bring Nand Kishore, the purchaser pendente lite, before the Court. It was argued before us on behalf of the respondent that the plaintiff ought to have applied to have Nand Kishore added as a party and to have obtained a decree against him. But it appears to us that it was not obligatory on the plaintiff to make any such application. If she had made it, it would have rested in the discretion of the Court to grant or refuse the application. Now a grantee pen-dente lite cannot question the decree or any proceeding in the cause which from the nature of the suit and the relief prayed for might naturally result. The practice under the Judicature Act in England is similar in this respect to that prevailing in this country under the Civil Procedure Code, and in England the addition to the array of parties of a purchaser pendente lite is ordinarily not regarded as necessary--Kino v. Rudkin (1877) L.R. 6 Ch. D. 160, at p. 162, also Daniel's Chancery Practice, 6th edn., p. 256. In view then of the fact that the plaintiff appellant in. her former suit obtained all the relief to which she was entitled as a co-sharer in an undivided estate, and that she obtained formal possession of her share in execution of the decree passed in that suit, we do not think that the ruling in the case of Gulzari Lal v. Madho Ram (1904) I.L.R. 26 All. 447 bars her right to maintain the present suit. When the defendant resisted her claim to have her name recorded as owner in respect of her share, she was, we think, justified in instituting the suit out of which this appeal has arisen, which is one in substance for the declaration of her title to a share as against the defendant, who in the mutation proceedings denied her title, thereby throwing a cloud on it. She cannot obtain proprietary possession of the share unless she takes partition proceedings, and in so far as the Court of first instance granted her a decree for proprietary possession, that decree cannot be upheld. We allow the appeal, set aside the decree of the learned Judge of this Court and also the decree in the lower appellate Court and decree the plaintiff's claim for a declaration of her title as claimed with costs in all Courts.


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