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Ahamad Ibrahim Vs. N.M.K. Syed Mohideen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1975)2MLJ377
AppellantAhamad Ibrahim
RespondentN.M.K. Syed Mohideen and ors.
Cases ReferredIn Chimpiramma v. Subramanyam
Excerpt:
- .....on the file of the district munsif's court of ramanathapuram for declaration and possession. the suit property measures 20 feet cast to west and 24 feet south to north in ward no. 1 of keelakarai panchayat and a hut bearing door no. 204-a standing thereon. there was also a prayer for injunction.2. the property originally belonged to one madar ammal. she made an oral gift of the entire property to her daughter syed ali bathumal. she had another daughter by name yusuf sulaika and a son by name seeni mohammed. seeni mohamed married mohammed ameena ummal. after the death of syed ali bathumal, a half share of the property devolved upon her daughter mohamed aisha and the dispute in this second appeal relates only to this half share. consequent to this devolution aisha sold the property in.....
Judgment:

S. Mohan, J.

1. The plaintiff is the appellant. He filed a suit in O.S. No. 224 of 1966 on the file of the District Munsif's Court of Ramanathapuram for declaration and possession. The suit property measures 20 feet cast to west and 24 feet south to north in Ward No. 1 of Keelakarai Panchayat and a hut bearing Door No. 204-A standing thereon. There was also a prayer for injunction.

2. The property originally belonged to one Madar Ammal. She made an oral gift of the entire property to her daughter Syed Ali Bathumal. She had another daughter by name Yusuf Sulaika and a son by name Seeni Mohammed. Seeni Mohamed married Mohammed Ameena Ummal. After the death of Syed Ali Bathumal, a half share of the property devolved upon her daughter Mohamed Aisha and the dispute in this second appeal relates only to this half share. Consequent to this devolution Aisha sold the property in favour of the predecessor-in-interest of the plaintiff. Mohammed Ameena Ummal filed O.S. No. 1 of 1945 against Seeni Mohamed, her husband. That resulted in a decree. Thereupon in execution of the decree, the defendant purchased 2/3rds of the suit property in Court-auction. Sulaika, the other daughter preferred a claim petition under Order 21, Rule 90, Code of Civil Procedure, and her claim was allowed and thus the matter reached a finality as far as O.S. No. 1 of 1946 was concerned. However, Aisha also filed a claim concerning her half share which was negatived. There upon she preferred O.S. No. 402 of 1950 on the first of September, 1950 to set aside the dismissal of her claim. In that suit she entered into a compromise with Ameena Ummal. It may be noted here that neither Seeni Mohamed, the judgment debtor nor the auction-purchaser Mohamed Khasim, the first defendant, who died pending suit (whose L.R's have been brought on record) was made a party to this compromise. The plaintiff, contending that neither the judgment-debtor nor the auction-purchaser is a necessary party to the claim suit preferred the present suit and also contended that his title ought to be upheld in view of the oral gift. In defence it was pleaded that in so far as neither the decree-holder nor the auction purchaser who purchased 2/3rds of the suit property in execution of O.S. No. 1 of 1946 had not been impleaded in the suit, any compromise between Mohamed Ameena Ummal and Aisha, the predecessor-in-title of the plaintiff, would not be binding. Factually there was no oral gift and therefore the plaintiff could not base his title on the strength of the so-called oral gift. The learned District Munsif, before when the matter came up for trial, on a consideration of the oral and documentary evidence decreed the suit whereupon the defendants filed A.S. No. 99 of 1970, and the learned Subordinate Judge reversed the findings of the trial Court and dismissed the suit. Hence the present second appeal.

3. The learned Counsel for the appellant submits that the lower appellate Court erred in reversing the judgment of the trial Court since it is a well-settled proposition of law that neither the auction-purchaser nor the decree-holder is a necessary party to a claim suit and in support of the same he relies on the decision reported in Velu Padayachi v. Arumugam Pillai : (1920)38MLJ397 and also Chimpiramma v. Subramanyam I.L.R. (1956) A.P. 874 : 1956 A.L.T. 1010 : 1956 A.W.R. 1137 : A.I.R. 1957 A.P. 61. It is his further submission that in any event, there being a valid oral gift, his title ought to have been upheld by the lower appellate Court as was found by the trial Munsif. Mr. K.T. Paul Pandian the learned Counsel for the respondents does not dispute the abstract proposition of law that in a claim suit, neither the auction-purchaser nor the judgment-debtor would be a necessary party. But he would urge that the question here is about the binding nature of the compromise entered into between the parties in the absence of the auction-purchaser and the judgment-debtor and he also in his turn would rely on Chimpiramma v. Subramanyam 1956 A.W.R. 1137 : A.I.R. 1957 A.P 61, itself and contend that in so far as they were not made parties to the compromise, it could not be enforced as against them.

4. It is his further submission on evidence that it has been found by the Lower Appellate Court that there was no valid oral gift and as such no interference is called for on this point.

5. There is absolutely no doubt that in a mere claim suit neither the auction-purchaser nor the judgment-debtor is a necessary party, since all that the claimant seeks to agitate is that the decree-holder should not have brought the property to sale as there was no saleable interest and this is the reason why in Valu Padayachiv. Arumugham Pillai : (1920)38MLJ397 , Sadasiva Aiyar, J., at page 401 observed:

No case has been quoted in which, it has been held that such a startling result follows the omission to make the judgment-debtor a party to the claim proceedings. On the other hand, it has been held in several cases that the judgment-debtor is not a necessary party to a claim proceeding and that the proper parties to such a proceeding are the decree-holder and the claimant. Of course, if the judgment-debtor intervenes actively, opposes the claim along with the decree-holder and the claim petition succeeds, he may be bound by the order unless he sets it aside within one year as the order may be then said to be passed against him also. But ordinarily, it is the decree-holder's right to bring the property to sale against the claim of the claimant's right to have the property released (or sold subject to the claimant and the claim) which are litigated in such a petition. The auction-purchaser is entitled to take advantage of the order against the claimant in such a case (if it is not set aside by a suit within one year) not because the purchaser is the representative of the decree-holder but because the order which established the right of the decree-holder to bring the property to sale against the claim of the claimant cannot be given effect to otherwise and was clearly intended by the Legislature to have the effect of precluding the claimant from putting forward his claim again in opposition to the auction-purchaser at the sale held in pursuance of the order against the claimant. The conclusive establishment of the decree-holder's right to being the property to sale free from the claimant's alleged encumbrance involves the right of the purchaser at the sale to get a title to the property free from such encumbrance.

In Chimpiramma v. Subramanyam 1956 A.W.R. 1137 : A.I.R. 1957 A.P. 61 the Full Bench lays down the law as follows:

The scope of the decision or a claim order has been correctly stated in cases where the judgment-debtor is not made a party : But where the judgment debtor is made a party, I would prefer the Madras view and hold that the order against the judgment-debtor cannot be questioned unless he gets it vacated within the time prescribed. It may therefore be taken as settled law, and also consistent with practice that a judgment-debtor need not be made a party to claim proceedings in winch case, the Court decides only the right of the decree-holder to bring the property to sale against the claim of the claimant's right to have the property released.

Such an order would not obviously bar the judgment-debtor who was not a party to the proceedings. It is equally settled that a judgment-debtor can also be made a party to such a proceeding and in that event it would be binding on him and preclude him from setting up his claim unless he gets the said order set aside in a suit filed under Order 21, Rule 63, Civil Procedure Code, within the time prescribed.

As rightly contended by Mr. K. T. Paul Pandian, as propositions of law no exception could be taken to the submission of the learned Counsel for the appellant. But the point here is somewhat different. As seen above, the compromise was entered into between Aisha on one hand and Mohamed Ameena Ummal, the decree-holder in O. S. No. 1 of 1946. Though no doubt O.S. No. 402 of 1950, came to be filed on the first of September, 1950 and the auction-purchaser (first defendant) purchased the property in Court-auction in execution of the decree in O. S. No. 1 of 1946, only on 12th September, 1950 the compromise came to be entered into only in 1952 by which time the rights of the defendants came to be crystalised under the Court-auction-purchaser. Therefore to such a compromise, unless he was a party it could not be enforced as against him. This is far from saying that the auction-purchaser or the judgment-debtor is not a necessary party to a claim suit. In this view, neither of the decisions quoted above would have any application to the facts of the present case. It is somewhat interesting to note that the very decision of the Full Bench of the Andhra Pradesh High Court shows that if it was sought to be enforced against these persons, they must be impleaded as parties.

6. Turning to the question of oral gift, it has been categorically found by the Courts below that there is a good deal of inconsistency between the versions relating to the oral gift. In fact P. W. 3 would admit during her cross-examination that she had no knowledge of the gift in favour of her mother, and therefore, rightly, the lower appellate Court did not accept the plea of oral gift. The net result is both the points raised by the learned Counsel for the appellant fail and I therefore dismiss the second appeal with costs. No leave.


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