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1948 Supreme(Nagpur) 83
HIGH COURT OF NAGPUR
Bose, Mudholkar
WARIS KHAN AND OTHERS – Appellant
Versus
AHMADULLAKHAN AND OTHERS – Respondent
First Appeal No. 128 of 1939
Decided on : 11-08-1948
K G Chendkey, M R Bobde, R J Bhave, R S Dabir, T L Sheode, Advocates
The main legal point established in the judgment is the acceptance and act upon of the partition decree, the applicability of res judicata, and the lack of adverse effects on the rights of certain parties due to the dismissal of the suit.
Headnote:
Partition - Property Dispute - 15-1-1929 - Summary of Acts and Sections: The court discussed the validity of the partition decree dated 15-1-1929 and its acceptance by the parties involved. The court also considered the applicability of res judicata and estoppel in the context of the partition. The key legal provisions discussed include res judicata, estoppel, and the acceptance of partition decrees.
Fact of the Case:
The case involved a dispute over the partition and separate possession of shares in several properties. The court analyzed the acceptance of the partition decree, the applicability of res judicata, and the binding nature of the partition.
Finding of the Court:
The court found that the partition decree dated 15-1-1929 was accepted and acted upon by the parties involved, and therefore, constituted a valid defense to the suit. The court also held that the dismissal of the suit against certain parties did not adversely affect the rights of other parties, leading to a partial abatement of the appeal.
Issues: The issues involved the acceptance and validity of the partition decree, the applicability of res judicata, and the binding nature of the partition on the parties involved.
Ratio Decidendi: The court's decision was based on the acceptance and act upon of the partition decree by the parties, the applicability of res judicata, and the lack of adverse effects on the rights of certain parties due to the dismissal of the suit.
Final Decision: The court dismissed the appeal with costs, set aside the decree in part, and upheld the dismissal of the suit against certain parties.
1. This judgment will govern the decisions of First Appeal No. 74 of 1940 & second Appeal No. 108 of 1940 also.
2. This appeal & First Appeal 74/40 arise out of Civil Suit No. 29-A of 1936, on the file of the Second Subordinate Judge, First Class, Jubbulpore, while Second Appeal 108/40 arises out of Civ. Suit No. 180-A of 1938, on the file of the Second Subordinate Judge, Second Class, Jubbulpore. In civil suit No. 29-A of 1936 the plffs. respondents claim partition & separate possession of 7/36 share in five houses in Jubbulpore Nos. 74, 447, 458, 468 & 631 & also mesne profits for three years amounting to Rs. 2034 plus interest thereon at 1 percent, i.e., Rs. 393/4/., in all amounting to Rs. 2427/4/-. They claim to have purchased this share from one Amir Khan, the step-brother of appellants 1 to 3 & the step-son of appellant 4. In Civ. Suit No. 180-A/38 one of the appellants claims rent for a portion of house No. 458 from the plffs. respondents & their ejectment therefrom.
3. It is admitted that the property in suit & a house at Bhopal were the property of Nawab Khan, the father of appellants 1 to 3 & the deceased resp. 5 & the husband of appellant 4. It is also admitted that Amir Khan's share in Nawab Khan's property was 7/36. On 6-12-1926 the appellants 1 to 3 instituted a suit for partition against Amir Khan. The suit was decreed on 15-1-1929 & a Commissioner was appointed to partition Nawab Khan's property. The Commissioner divided the property amongst all the heirs of Nawab Khan & allotted the house at Bhopal, the whole of house no. 631 at Jubbulpore & -/2/4 share in house No. 74 at Jubbulpore to the share of Amir Khan, Besides this, he also allotted some moveable property & cash to Amir Khan's share. We are, however, not concerned with the moveables or the cash in this appeal. The final decree for partition was passed in pursuance of the Commissioner's report, & it would appear that all the parties were put in possession of their respective shares by the Commissioner before the final decree was passed.
4. During the pendency of the partition suit. Amir Khan executed a mortgage in favour of Sheikh Dulloo, the father of the plffs. respondents, on 5-9-1928, & under that mortgage he hypothecated with him his 7/36th share in the entire property of Nawab Khan at Jubbulpore. Subsequent to the partition the plffs. respondents brought a suit against Amir Khan upon the mortgage executed by him in favour of their father. To that suit the present appellants & the deceased respondent 5 were joined as parties. It may be mentioned here that respondents 6 & 7 as well as Sheikh Subrati, who is said to be the purchaser at an auction sale in execution of the decree against Amir Khan of the property allotted to him at the partition, were also joined as parties. Respondents 6 & 7 were joined because they are mortgagees from the appellants & Mahaboob Khan. In that suit one of the pleas detect by the appellants & Mahaboob Khan was that the mtge. in favour of the plffs. respondents was void as it was executed during the pendency of the partition suit. To that plea the plffs. respondents replied by saying that the partition decree was void as the suit comprised of property which lay outside British India & that the decree must be treated as a nullity. This contention was upheld by the trial Court & a decree was passed on the foot of the mortgage apparently against all the defts. to that suit including the present appellants & Mahaboob Khan. From that decree the present appellants took an appeal to the late Court of the Judicial Commissioner & in that appeal it was held that while the present appellants had no right to redeem the mortgage & consequently were not necessary parties to the mortgage suit, they could not merely be discharged from the suit but that they should also be held to be bound by the finding that the partition decree was a nullity. Their appeal was however allowed & the suit was dismissed against them. According to the r
