1965 Supreme(AP) 137

Andhra Pradesh High Court
Judges : A.V.KRISHNA RAO
Khan Bahadur C.B.Taraporwala - Appellant
Versus
Kazim Ali Pasha - Respondent
Decided On : 06-27-65

Sale transactions are not opposed to the Mohammadan Law or are champertous and void under Section 23 of the Contract Act.

Headnote:

CIVIL PROCEDURE CODE - ORDER I RULE 10, ORDER XXII RULE 10 - SALE TRANSACTION - VALIDITY - MOHAMMADAN LAW - CHAMPETROUS - SECTION 23 OF THE CONTRACT ACT - INJUNCTION - RECEIVER'S POSSESSION - SECTION 47 OF THE ANDHRA PRADESH (TELANGANA AREA) TENANCY AND AGRICULTURAL LANDS ACT (XXI OF 1950) - VALIDITY OF SALE - IMPLEADING OF PETITIONERS.

Fact of the Case:

The petitioners filed 21 applications under Order I Rule 10, Order XXII Rule 10 and Section 151, C. P. C. 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 are 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 are 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.

Finding of the Court:

The Court held that the sale transactions are not opposed to the Mohammadan Law or are champertous and void under Section 23 of the Contract Act. The Court also held that the sale transactions in favour of the petitioners, which have been supported by the respective vendors, would not result in a loss to the other parties. The Court further held that the petitioners may be properly impleaded as additional defendants inasmuch as there is a valid assignment of his share of other properties to them.

Issues: 1. Whether the sale transactions are opposed to the Mohammadan Law or are champertous and void under Section 23 of the Contract Act? 2. Whether 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? 3. Whether the petitioners may be properly impleaded as additional defendants inasmuch as there is a valid assignment of his share of other properties to them?

Ratio Decidendi: 1. The Court held that the sale transactions are not opposed to the Mohammadan Law or are champertous and void under Section 23 of the Contract Act because: a. Under the Mohammadan Law, the heirs succeed to the estate as tenants in common in specific shares and any heir may even before the distribution of the estate transfer his own share. b. There is nothing in the Mohammadan Law against the transferee’s right to possession under Section 44 of the Transfer of Property Act. c. Transfers by one co-heir of a deceased Mohammadan have been enforced or recognised in numerous reported cases. 2. The Court held that the sale transactions in favour of the petitioners, which have been supported by the respective vendors, would not result in a loss to the other parties because: a. 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. b. 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. 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. d. 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. 3. The Court held that the petitioners may be properly impleaded as additional defendants inasmuch as there is a valid assignment of his share of other properties to them because: a. The share of the defendant 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. b. The sale contracts are severable in this respect and cannot be said to be altogether void merely because they included agricultural lands.

Final Decision: All the twenty-one applications by the petitioners are allowed and they will be on record 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 amount of Rs. 150 to the petitioners as costs in these applications.