THE HON’BLE SRI JUSTICE K.C.BHANU APPLICATION Nos.83 to 88 of 2010, 199 to 209 of 2010, 239 of 2009 and 517 of 2009 COMMON ORDER: 1. Applicants in Application Nos. 83 to 88, 199 to 209 of 2010 filed their respective Applications claiming to be the legal representatives of deceased decree holder no.42, to allot their respective shares as per Mohammedan Law as per the scheme of partition already prepared and submitted to this Court in Application No.110 of 1973. 2. It is stated in the applications that, the applicants are decree holder nos. 194, 195, 196, 199, 201, 202, and the legal representatives of deceased nos.197 and 200, in C.S. No.14 of 1958, which is filed for partition and separate possession of matruka properties among the legal heirs of late Nawab Sir Khursheed Jah Bahadur, who died in 1320 Hizri, and after his death, his estate devolved on his legal heirs. On 24.08.1962, an order was passed by this Court appointing a Receiver-cum- Commissioner whereby the entire estate came under the custody of the Receiver-cum-Commissioner. A preliminary decree was passed on 28.6.1963 partly on compromise and partly on adjudication, in favour of the legal heirs; that the properties comprised various categories of moveable and immovable properties, including buildings and agricultural lands; the division and apportionment of shares of the buildings and lands surrounding them was effected mostly in terms of the compromise decree and the shares of decree holders as per the scheme of partition in Application NO.110 of 1973, are accepted by this Court; that the deceased Nawab Mohd. Muneeruddin Khan is the decree holder no.42 in C.S. No.14 of 1958, and on his death, names of the applicants were substituted in his place by order dated 01.03.1969 in Application No.22 of 1969 and the applicants and other decree holder nos. 195 to 205 are the decree holders under Section 2(3) of the Code of Civil Procedure, 1908, and are entitled for final decree. Hence, the applications. 3. Whereas the registered assignee of defendant no.206 filed Application No.239 of 2009 to pass a final decree stating that 80% of the shareholders sold away their undivided share in the preliminary decree by way of registered sale deeds in the year 1964 in favour of H.E.H. The Nizam and Nawab Khazim Nawaz Jung, who is none other than the brother-in-law of the H.E.H. Niazam, jointly; that, the assignees of the decree filed application for impleadment in the suit, and there were number of objections for the impleadment, and this Court set aside those objections holding that the sale deeds executed by the share holders are valid and binding on them, and accordingly the defendants 156 and 157 respectively were added by order dated 20.08.1964; that, thereafter, the defendant no.156 sold away his share in favour of the petitioner/defendant no.206 in the year 1967, and therefore, defendants 157 and 206 are jointly entitled to the share of the sold sharers; that, the Receiver-cum- Commissioner appointed by this Court divided the property between the sharers as per their entitlement in the preliminary decree; that, the defendants 156 and 206 are entitled to the share fallen to the share of sold sharers in two equal halves; that, the Receiver-cum-Commissioner filed Application NO.139 of 1971 allotting shares with regard to the agricultural lands, and as per the Report dated 13.07.1984, the entire land in survey no.78 of Hafeezpet village, Serilingampalli mandal, Ranga Reddy district, which is item no.37 of the Schedule IV annexed to the preliminary decree, was allotted to the defendants 157 and 206 into equal halves; that, out of Ac.215.23 guntas, the defendant no.157 got Ac.107.33 guntas and the defendant no.206 is entitled for the remaining half; that, the applicant claimed to have purchased Ac.10.00 of land by way of registered deed of decreetal rights dated 19.6.2008 from out of Ac.107.33 guntas which was fallen to the share of defendant no.206; that, the defendants 157 and 206 filed Application Nos. 64 and 65 of 1983 respectively in C.S. No.14 of 1958 for deletion of the names of the sold sharers from the array of cause title and for mutation; that the same applications were allowed by order dated 5.8.1983, and the said orders were confirmed by a Division Bench of this Court in O.S.A. No.59 of 2006; that the defendant no.206 and the legal representatives of defendant no.157 are entitled to entire land in survey no.78 of Hafeezpet village, Serilingampalli mandal, Ranga Reddy district, and hence, this application for passing a final decree in favour of the applicant to an extent of Ac.10.00 guntas in respect of land situated in survey no.78 (part) of Hafeezpet village as per the plan annexed to the Deed of Assignment dated 19.06.2008 and to engross the final on the stamp paper and hand over the same to the applicant. 4. Application No.517 of 2009 in Application No.239 of 2009 is filed to record compromise in terms of the Memorandum of Compromise and pass a final decree in favour of the petitioner to an extent of Ac.10.00 guntas in survey no.78 of Hafeezpet village, Serilingampally mandal, Ranga Reddy district, more particularly delineated in Schedule-D in the map attached to the Compromise Deed; to pass a final decree in favour of the respondent no.1 to an extent of Ac.37.13 guntas in survey no.78 of Hafeezpet village, Serilingampally mandal, Ranga Reddy district, more particularly delineated in Schedule-C; to pass a joint final decree in favour of the respondents 2 and 3 to an extent of Ac.20.00 guntas in Survey no.78 of Hafeezpet village, Serilingampally mandal, Ranga Reddy district, more particularly delineated in Schedule-B; and to pass a final decree in favour of the respondent no.4 to an extent of Ac.0.20 guntas each in survey no.78 of Hafeezpet village, Serilingampally mandal, Ranga Reddy district, more particularly delineated in Schedule-A in the map attached to the compromise. 5. Counter and objections are filed by defendant no.618 and others with regard to Application No.239 of 2009 filed for passing of final decree stating that the applicant has deliberately suppressed the correct information and indulged in abuse of process of court; that, the petitioner suppressed the facts that the survey no.78 has been divided into two parts i.e. survey nos.78/A and 78/B, and survey no.78/B was allotted with Ac.107.33 guntas by way of order passed by this court in favour of various companies and the said companies executed assignment deeds which were recognized by this Court to an extent of Ac.67.33 guntas and the balance Ac.40.00 guntas was allotted separately to 8 individual members and by way of E.P. No.6 of 1998 and by appointing the Advocate Commissioner, the defendants and others were put in possession, which is clearly stated in panchanama dated 13.07.1997; that, by way of assignment deed dated 29.11.1995, the share falling to the share of M/s. Cyrus Investments Limited and others was transferred to six companies to the extent of Ac.67.33 guntas and 8 individual members were allotted with Ac.5.00 each to the extent of Ac.40.00 in survey no.78 of Hafeezpet village; that, six companies headed by M/s. Golconda Extrusions and others executed Assignment Deed dated 09.11.1998 in favour of Hari Babu and others to the extent of Ac.67.33 guntas in survey no.78 of Hafeezpet and the Assignment Deed is recognized by this Court by order dated 17.11.1998 in Application no.1634 of 1998 in C.S. No.14 of 1958, and as such, the said K.Hari Babu and others are in possession and enjoyment of the property recognized by this Court; that, out of 8 individual members in the Assignment Deed dated 29.11.1995, 6 members executed an Assignment Deed in favour of V.Yamini and others, on 01.08.2002 to the extent of Ac.30.00 falling in survey no.78/B of Hafeezpet village, which was recognized by this Court by order dated 20.09.2002 in Application Nos. 1090 and 1091, wherein at first instance, Smt. Indrani Prasad and P.Ramesh Babu did not execute Assignment of their share falling to Ac.10.00 guntas, which they did subsequently when they executed a Registered Assignment Deed transferring their right over Ac.10.00 guntas also along with 27 assignors vide registered Assignment Deed No.9722 of 2006 dated 10.04.2006, totally an extent of Ac.32.00 i.e. Ac.22.00 guntas belonging to Assignors 1 to 23 and Assignor Nos. 24 to 25 transferring the share of Ac.10.00 guntas; as such, the respondents herein were having Ac.107.33 guntas in survey no.78/B of Hafeezpet village; that the applicant herein is not entitled for Ac.10.00 guntas in survey no.78; that, the defendants executed the Assignment Deed to an extent of Ac.40.00 guntas out of Ac.107.33 guntas which is falling to the right side of the plan appended by the Petition in favour of Smt.Sunitha Prasad, which was recognized by this Court, but, instead of claiming the property belonging to Smt. Sunitha Prasad’s share, which falls on right side of the plan, the petitioner herein is illegally claiming the property belonging to respondents herein, which was recognized by this Court, and strangely, the petitioner herein and others are entering into compromise to the extent of Ac.67.33 guntas in respect of which Assignment Deeds were executed, and they filed Application No.517 of 2009; that, when Section 145 Cr.P.C. proceedings were initiated, the Revenue Divisional Officer confirmed the possession to the respondents to the extent of Ac.107.33 guntas, which has become final, and as such, the petitioner herein has no claim over Ac.107.33 guntas for which he filed the Application seeking compromise for Ac.67.33 guntas, which is falling to the share of the respondents and another Ac.10.00 guntas which does not fall to the share of Smt. Sunitha Prasad. Hence, it is prayed to dismiss the Application No.517 of 2009. 6. Similar contentions have been raised in the counter affidavit filed in Application No.517 of 2009 filed to record compromise between the parties therein. 7. Basing on the above pleadings, the points for determination are: (1) Whether the applicants in Application Nos. 83 to 88 and 199 to 209 of 2010, who claim to be legal heirs of defendant no.42 in C.S. No.14 of 1958, are entitled for passing of final decree as per the shares claimed by them; (2) Whether the compromise in Application No.517 of 2009 can be ordered ? (3) Whether a final decree can be passed in favour of the applicant in Application No.239 of 2009 to an extent of Ac.10.00 guntas of land in survey no.78 (part) of Hafeezpet village, Serilingampalli mandal, Ranga Reddy district ? 8. The learned counsel for the petitioners in Application Nos. 239 of 2009 and 517 of 2009 contended that the applicant is entitled to an extent of Ac.10.00 guntas by virtue of Assignment Deed executed by the defendant no.206 in favour of the applicant and the title cannot be passed through unregistered assignment deeds; that the objectors have no semblance of right over the property situated in survey no.78; that, with regard to the claim of some of the respondents through registered Assignment Deed dated 10.04.2006 an extent of Ac. 32.00 guntas, the objectors have not paid the agreed sale consideration and therefore the registered deed was cancelled by way of cancellation of Assignment Deed dated 21.9.2007 and therefore the objectors have no right or title over the property, which is vested to the defendant no.206, and that the original purchaser defendant no.26 executed a registered Assignment Deed in favour of the petitioner in the final decree application. He further contended that applicants in Application Nos. 83 to 88 and 199 to 209 of 2010, who claim to be legal heirs of the deceased defendant no.42 cannot claim right over the land inasmuch as the defendant no.42 had already sold away his share by virtue of registered sale deed and the sale deed was recognized by this Court. Hence, he prays to dismiss the Application Nos. 83 to 88 of 2010 and 199 to 209 of 2010. 9. On the other hand, the learned counsel for the defendant no.355 contended that these respondents are not aware of decree passed in Application No.1109 of 2007 dated 24.11.2007 rejecting the objections raised by the tenant and the legal representatives of sold sharers as they are not made parties to the same; that the petitioner is indulging in abuse of process of Court by claiming the schedule property belonging to the defendant no.206; that the Receiver-cum-Commissioner divided the land in survey no.78 of Hafeezpet village into two equal parts, and 6 companies, headed by M/s. Golconda Extrusions executed Assignment Deed dated 9.11.1998 in favour of Hari Babu and others to an extent of Ac.67.33 guntas, which was recognized by this Court, and as such, the said Hari Babu and others have been in possession and enjoyment of the property; that the present petition claiming Ac.10.00 guntas, which has fallen to the share of the respondent to the left side of the plan appended, for which the petitioner or his assignees have no right, and this extent of Ac.10.00 guntas does not fall to the share of Smt. Sunitha Prasad; that, the Receiver’s report has to be approved after calling for objections. He further contended that during the life time, a muslim person can alienate the property and after such alienation, his legal representatives would not get any right over the property. Hence, he prayed to dismiss the Application Nos. 239 of 2009 and 517 of 2009. 10. POINT No.1: Whether the applicants in Application Nos. 83 to 88 and 199 to 209 of 2010, who claim to be legal heirs of defendant no.42 in C.S. No.14 of 1958, are entitled for passing of final decree as per the shares claimed by them ? It is not in dispute that as per the report of the Receiver-cum-Commissioner dated 13.7.1984, entire land in survey no.78 of Hafeezpet village, Serilingampalli mandal, Ranga Reddy district, which is item no.37 of Schedule IV annexed to preliminary decree was allotted to the defendant nos.157 and 206 in equal halves. Some of the defendants and plaintiffs including the defendant no.42, through whom the legal representatives therein claimed right, sold their undivided share in the preliminary decree by way of registered sale deed in the year 1964 in favour of H.E.H. The Nizam and Nawab Khazim Nawaz Jung. The defendant no.42 executed registered sale deed dated 22.11.1964 selling his undivided share to the defendants 156 and 157. The defendant no.156 in turn sold his share in favour of defendant no.206 in the year 1967. Now, the question is whether the sale transaction entered by the defendant no.42 is permissible under the Mohammedan Law or void under Section 23 of the Indian Contract Act, 1872, and that whether the sale transaction violates the injunction issued during the pendency of suit. On this aspect, the learned counsel Mr. N.M.Krishnaiah appearing for the applicant in Application Nos. 239 and 517 of 2009 relied on a decision in Khan Bahadur v. Kazim Ali Pasha & others[1]. This case also relates to C.S. NO.14 of 1958 whereunder several applications were filed under Order I Rule 10 CPC and Order XXII Rule 10 CPC for adding the applicants therein as parties on the ground that they purchased right, title and interest in some of the suit schedule properties from a particular defendant mentioned in the respective applications. Those applications were allowed holding as follows: “It follows that the sales in favour of the petitioners cannot be held to be void so as disentitle them to be recognized as assignees the interests of their vendors for the purpose of Order XXII Rule 10 CPC”. It is also held the above decision thus: “Under the Mohammedan Law, the heirs succeed in the estate as tenants in common in specific shares and any heir may even before the distribution of the estate transfer his own share. (Mulla Mohammadan Law, Fourteenth Edition (1955). SS.41-42 at pages 32 and 33 Khatoon Bibi v. Abdul Wahab, AIR 1939 Mad. 306.).” From the above decision, it is clear that sale deeds executed in between 27.04.1964 and 01.08.1964 cannot be said to be void. Therefore, for the similar reason, the sale deed executed by the defendant no.42 cannot be said to be void. 11. On the other hand, Sri C.Pandu Ranga Rao, the learned counsel for the applicants in Application Nos. 83 of 2009 and others relied on the following decisions: (a) In Venkata Reddy & others v. Pethi Reddy[2], wherein it is held thus: “A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon it's being executable.” There is no dispute about the proposition of the law laid down in the aforesaid decision. (b) In Hasham Abbas Sayyad v. Usman Abba Sayyad & others[3], therein it is held thus: “7. Preliminary decree declares the rights and liabilities of the parties. However, in a given case a decree may be both preliminary and final. 8. There can be more than one final decrees. A decree may be partly preliminary and partly final. [see Rachakonda Venkat Rao and Others R. Satya Bai (Dead) by L. Rs. and Another (2003) 7 SCC 452] 9. A final decree proceeding may be initiated at any point of time. No limitation is provided therefor. However, what can be executed is a final decree, and not a preliminary decree, unless and until final decree is a part of the preliminary decree.” (c) I n R.Rathinavel Chettiar & another v. V.Sivaraman & others[4], wherein it is held thus: “Thus a "decree" has to have the following essential elements, namely, (i) There must have been an adjudication in a suit. (ii) The adjudication must have determined the rights of the parties in 10 respect of, or any of the matters in controversy. (iii) Such determination must be a conclusive determination resulting in a formal expression of the adjudication. ( 11 ). Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant. (d) In Surjit Singh & Ors. V. Harbans Singh & Ors.,[5] wherein it is held thus: “As said before, the assignment is by means of a registered deed. The assignment had taken palce after the passing of the preliminary decree in which Pritam Singh has been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable propety worth more than hundred rupees, if being assigned, was required to be registered. That has instantly been done. It is per se property, for it relates to the immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable difference whether property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/ assignment as having not taken place at all for its purposes…” Though, in the above case, the assignment has been taken place after passing of the preliminary decree, there was a restraint order restraining all the parties therein from transferring the property involved in the said case. But, in this case, there is no such restraint order placed before this Court restraining the defendants, including the defendant no.42, from alienating the property. Except an order in Application No.101 of 1964 in C.S. No.14 of 1958 dated 12.6.1994, whereunder the defendant no.42 filed an application to permit him to sell the property of Khurshad Jung for Rs.39.00 lakhs as the property value was worth more than a Crore of rupees, there was no occasion for this Court to give the permission and accordingly the application was closed on 12.6.1964 on the ground that it was represented that the suit properties were worth a Crore of rupees and that a joint application on behalf of the sharers was necessary in order to consider the matter. Therefore, the above decision has no application to the facts of the present case. (e) In Parsam Venkataramayya v. Parsam Venkataramappa & others[6], wherein it is held thus: “.. The final decree proceedings under O.20 Rr.12 and 18 only relate to matters which are provided in the preliminary decree as to partition, as to an account for mesne profits or as to an account for other properties, but do not relate to the decision of any substantial rights of parties as to title of properties which can only be decided in a regular suit.” There is no dispute about the law laid down by the Madras High Court. (f) In Paramount Co-op. Housing Society, Hyderabad v. Padmini Co-op. Housing Society, Hyderabad & others[7] wherein it is held thus: “All other judgments referred to above also deal the aspect that in Mohammedan Law, there is no recognition for a sale by a co-sharer of the entire estate and that other co-sharers are not bound by the said sale and the said decisions even went to the extent of saying that even if the said sale was meant for discharging the debts of ancestor, whose property had devolved on the sharers, the said sale without the consent of other co-sharers is invalid and does not confer any right on the purchaser with regard to such co-sharers who do not join the said sale.” But, the above decision has no application to the facts of the present case because the defendant no.42 has not sold the shares of other co-sharers in the entire estate. (g) In Kumar Gonsusab & others v. Mohammed MiyanUrf Baban & others,[8] wherein it is held thus: “In Radhakishan Laxminarayan Toshniwal v. Shridhar Ramachandra Alshi and Others, this Court has held that the transfer of property, where the Transfer of Property Act applies, has to be under the provisions of the Act only and Mohammedan Law or any other personal law of transfer of property cannot override the statute.” 12. In another decision in Tikam Chand v. Rahim Khan,[9] AIR 1971 MP 23, a division Bench of Madhya Pradesh High court held thus: “Under Mohammedan Law, one co-owner has a right to sell in the undivided share in the estate to which he has succeeded as a heir, an alienee of a specific item stands in the shoes of the co-owner and obtains a personal right, which he is equally entitled to enforce against the shares of his vendors and that the said purchaser for value, therefore, can stand in the shoes of his alienor to the extent of claiming a general partition of all the properties so that the equity may be worked out by allotting to the shares of his vendors the property which has been alienated by him, if such a course does