Case: T.Ravi  Vs. B.Chinna Narasimha &amp; Ors. Etc

3. The property was matruka property of Late Mohd. Nawab Jung who passed away on 25.4.1935. Civil Suit No.82/1935 was instituted by Mohd. Hashim Ali Khan, son of Mohd. Nawab, in Darul Qaza City Court, Hyderabad, for partition of matruka properties of Late Nawab comprised in Schedules `A, `B and `C. The suit was contested, inter alia, by defendant No. 1. Darul Qaza Court was abolished in the year 1951. On abolition of original jurisdiction of the High Court, the case was assigned to the City Civil Court. It appears that later on as the file was not received by the City Civil Court from the Custodian, it passed order dated 8.1.1955 to the effect that the file of the case was not yet received, the plaintiff was also absent, as such the case be closed for the time being and be revived only on receipt of the file and on an application to be filed by the plaintiff. The city civil court understood the order to be of dismissal of suit in default. The plaintiff moved an application for revival of the suit. The city civil court directed the plaintiff vide order dated 1.12.1955 to deposit Rs. 50 towards costs and if the costs were not paid by 15.12.1955, the suit shall stand dismissed. The plaintiff could not pay the cost within the stipulated time and prayed for extension of time which was not extended. The order was questioned by the plaintiff in the High Court by way of filing an appeal. The High Court decided the appeal vide order dated 23.1.1962 and held that vide order dated 8.1.1955, the suit was not dismissed for default. It was an order adjourning the suit with a direction that it may be revived only on receipt of the file from the Custodian, therefore, there was no necessity for the plaintiff to file an application under Order 9 Rule 9 CPC for restoration. Thus the trial court had no jurisdiction to direct the plaintiff vide order dated 1.12.1955 to pay the cost of Rs. 50 to the defendants on or before 15.12.1955 as a condition precedent. The appeal was allowed and the order dated 1.12.1955 was set aside. The order passed by the High Court attained finality. Thereafter, the suit was re-numbered as Civil Suit No.42/1962 in the city civil court. Hamid Ali Khan, defendant No.1 sold Item No.6 of Schedule `B property in area 68 acres 10 guntas on 23.11.1959 to Bala Mallaiah vide registered sale deed. He sold the share inherited by other co-heirs also to Bala Mallaiah. It was found in the preliminary decree for partition dated 24.11.1970 that defendant No.1, Hamid Ali Khan, was having only 14/104th share in matruka properties. The plaintiff, and defendant Nos.2, 3 and 12 were also having 14/104th share each. Defendant Nos.4 to 6, daughters of Nawab had 7/104th share in matruka properties. Nurunnisa Begum, widow of Late Nawab, defendant No.7 was entitled to 13/104th share in matruka properties.4. Aggrieved by the preliminary decree for partition determining the shares to the aforesaid extent, the plaintiff and legal heirs of defendant No.1 i.e. defendant Nos.23 to 25 and defendant No.27 preferred appeal in the year 1972 before the High Court. Cross-objections were also preferred by defendant No.6 - Shareefunnisa Begum. The High Court dismissed the appeals and allowed the cross-objections of defendant No.6 with respect to item No.4 of Schedule `A property. The plaintiff questioned the decision by way of filing LPA No.199/1977 and the same was dismissed vide order dated 12.11.1976, the decision with respect to preliminary decree has attained finality.5. Defendant No.25 - daughter of defendant No.1 - filed IA No.854/1984 for passing a final decree in terms of the preliminary decree passed in the partition suit. During the pendency of the final decree proceedings, an Advocate-Commissioner was appointed to divide the suit schedule land by metes and bounds as per the preliminary decree passed on 24.11.1970 for which an application (IA No.31/1989) was filed on 16.1.1989. He submitted a report in December, 1993 in respect of item No.6 of Schedule `B of preliminary decree dated 24.11.1970. The Advocate-Commissioner divided the suit schedule property on 28.11.1993. He also noticed that third parties were in possession of the land and he had also seen a signboard of Surya Enclave Developers. The sale transaction took place during the pendency of the preliminary decree proceedings on 23.11.1959. The LRs. of Bala Mallaiah were entitled to the share of Hamid Ali Khan, defendant No.1. On 6.10.1997, pending final decree proceedings, plaintiff and defendant Nos.4 and 14 to 17 i.e. LRs. of defendant No.5 assigned their interest in item No. 6 of plaint `B schedule properties in favour of D.A.P. Containers Pvt. Ltd. The assignees were brought on record as defendant Nos.99 to 112 in the final decree proceedings vide order dated 22.4.1999 passed by the Senior Civil Judge, City Civil Court, Hyderabad.6. On 16.7.2001, L.Rs. of Bala Mallaiah filed IA No.978/2001 and sought impleadment to contest the matter in respect of item No.6 of plaint `B Schedule properties. Vide order dated 14.10.2003, LRs. of Bala Mallaiah were impleaded. On 2.4.2004, subsequent purchasers of the disputed property filed an application (IA No. 544/2004) under Order VII Rule 11 CPC for rejection of the final decree proceedings. It was resisted by appellants and rejected by the court vide order dated 5.7.2005 and ultimately the final decree came to be passed on 7.7.2005 in terms of the preliminary decree dated 24.11.1970. In the final decree proceedings initiated by IA No.854/1984, share of each heir was recognized in the disputed property being Item No.6 of Schedule `B plaint. The rights of Hamid Ali, vendor of Bala Mallaiah and subsequent purchasers share was recognized to the extent of 14/104th share. Rights of the assignees/appellants were also recognized in terms of the assignment deed and separate possession was given to them. The final decree was questioned in Appeal Nos.385 and 386 of 2006 which were filed by LRs. of Bala Mallaiah and purchasers from them with respect to item No.6 of plaint `B schedule property. The appeals were dismissed on 27.4.2007. Aggrieved thereby, Second Appeal No.410/2008 was preferred. Appeal had been allowed by the impugned judgment and decree dated 15.4.2010.7. Before the final decree could be passed in the case, civil suit being OS No.294/1993 was filed for perpetual injunction by L.Rs. of Bala Mallaiah against Hashim Ali Khan and others on the basis of sale deed dated 23.11.1959. The suit was dismissed by Junior Civil Judge, Hyderabad West & South vide judgment and decree dated 8.6.1998. It was held that the plaintiffs were not entitled to claim adverse possession over the suit schedule property and that their purchase and possession was subject to the result of the partition suit, O.S. No.42/1962. It was also held that the possession of the plaintiff could not be said to be rightful possession and they could claim only to the extent of their vendors share and not over the entire property, and thus, they were not entitled to the relief of injunction against the defendants. As against the judgment and decree of the trial court, an appeal was preferred in the Court of Additional District Judge, NTR Nagar, Hyderabad and the same was dismissed on 20.7.2000. Second Appeal No.465/2001 preferred against the same in the High Court was dismissed vide judgment and order dated 26.9.2001.8. Land grabbing proceedings under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 initiated by the L.Rs. of Bala Mallaiah were dismissed by the Special Court in LGC No.148/1996 vide order dated 13.5.1997. It was held that the application was not maintainable. The court took cognizance of the preliminary decree proceedings, appointment of the Commissioner and also held that it was not open to contend that the doctrine of lis pendens had no application. The application was ultimately dismissed. The order was questioned by way of filing W.P. No.15577/2001 in the High Court of Andhra Pradesh. The High Court simply observed that the observations made by the special court would not come in the way of the petitioners to work out their rights in accordance with law in the partition suit, that is to say in the final decree proceedings.9. There was yet another litigation initiated by Boddam Narsimha, nephew of Bala Mallaiah. On 16.12.1998 an application was filed before the Tribunal, Ranga Reddy District, seeking declaration of protected tenancy under section 37A of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950. The same was dismissed vide order dated 24.8.1999. The appeal preferred to the Joint Collector was also dismissed on 13.3.2000. CRP No.2229/2000 before the High Court of Judicature at Andhra Pradesh was dismissed by the Single Judge vide order dated 16.4.2001. Aggrieved thereby, C.A. No.3429/2002 - Boddam Narsimha v. Hasan Ali Khan (dead) by LRs. & Ors. - (2007) 11 SCC 410     was filed, and the same was also dismissed by this Court.10. The High Court while passing the impugned judgment and decree under appeal has held that the sale deed dated 23.11.1959 was not hit by the principle of lis pendens under section 52 of the Transfer of Property Act. During the pendency of the suit, defendant No.1 had leased out the land to Bala Mallaiah and later on had alienated the same on 23.11.1959. The decision of this Court in Boddam Narsimha (supra) had been relied upon to hold that Bala Mallaiah was declared as Pattedar, that would bind all the parties. It was necessary for the plaintiff to take steps to get the sale deed dated 23.11.1959 cancelled in accordance with law. It has also been held that as the sale by defendant No. 1 to Bala Mallaiah was not effected during lis pendens, in the absence of challenge to the sale deed and due to non-impleadment in the suit, by virtue of adverse possession, title has been perfected. At the same time, the High Court has held that till the final decree is passed the suit is said to be pending and the preliminary decree only determines the rights of the parties. Thus, the final decree which has been passed by the trial court with respect to item No.6 of plaint `B schedule property was impracticable.

Reasoning:
19. In view of the categorical findings recorded by the trial court and first appellate court it is apparent that the sale deed dated 23.11.1959 was hit by doctrine of lis pendens and secondly on the basis of the said sale deed, L.Rs. of Bala Mallaiah could have claimed only to the extent of the share of his vendor and not the entire land, i.e. only to the extent of 14/104th share of defendant No.1.It was submitted on behalf of respondents that the findings in O.S. No.294/1993 do not operate as res judicata as it was left ultimately to raise the objections in the final decree proceedings.We are unable to accept the aforesaid submission as there was clear inability to grant injunction and the submission of the plaintiffs that they were having title on entire land on the basis of sale deed dated 23.11.1959, had been negatived. It was found that Bala Mallaiah could have purchased only the share of his vendor Hamid Ali and not the entire disputed property and the purchase was affected by lis pendens. We are of the considered opinion that the finding with respect to purchase being made during lis pendens had attained finality and was not open to question in the present proceedings. Besides, the validity of the sale deed to the extent of the share of the vendor which was sought to be re-agitated in the final decree proceedings, was also not open to be raised in view of clear findings recorded in the suit of 1993. Though we have held so, however nothing turns on the aforesaid finding as to res judicata as we propose to examine both aspects on merits afresh, in view of the conclusions which we propose to record hereinafter.(ii) In re : Whether the sale deed dated 23.11.1959 executed by defendant No.1 in favour of Bala Mallaiah is hit by doctrine of lis pendensis apparent from the aforesaid order that it was clearly an order of keeping the case sine die to be taken up only on receipt of the file on being informed by filing an application by the plaintiff. The file was not before the court. Thus, there was no question of dismissal of the case in default nor was it so dismissed by the court. However the plaintiff laboured under wrong impression, as such filed application under Order 9 Rule 9 CPC and prayed for restoration of the suit. An order was passed on 1.12.1955 by the city civil court, restoring the suit on the basis of payment of Rs. 50 as costs to be paid on or before 15.12.1955. Costs could not be deposited by the plaintiff by 15.12.1955. The prayer was made to accept the costs on 16.12.1955 by extending time under section 148 CPC. However, the city civil court dismissed the said application. The order was questioned in the High Court in appeal filed by the plaintiff in which the Division Bench of the High Court vide order dated 5.2.1962 had held that the suit in fact was not dismissed for default on 8.1.1955 by the trial court. It was an order adjourning the suit with a direction to be revived only on the file being received from the Custodian. Therefore, there was no necessity for the plaintiff to file an application under Order 9 Rule 9 CPC. The High Court had set aside the order dated 8.1.1955 and also held that there was no jurisdiction with the city civil court to pass an order on 1.12.1955 to impose and pay costs of Rs. 50.doubt about it that section 2 of T.P. Act protects rule of Mohammedan law by excluding the provisions of Chapter II containing sections 5 to 53A thereof. In our opinion, exclusion is conditional upon existence of rule of Mohammedan law in that regard, that is to say if principle/rule of Mohammedan law provides as to transfers lis pendens, the same would prevail and nothing in section 52 of T.P. Act shall be deemed to affect any such rule. However, we have not been shown any such rule of Mohammedan law containing provision as to lis pendens and thus, in the absence whereof the provisions of section 52 T.P. Act would be attracted. The submission as to non-applicability of section 52 of T.P. Act to Mohammedan law is hereby rejected.We are unable to accept the submissions raised on behalf of the respondents that there was hiatus between 10.12.1955 and 1962 till the order was passed by the High Court as it was misunderstood by the parties that the suit had been dismissed. In our opinion, when the suit itself had not been dismissed vide order dated 8.1.1955, the events subsequent thereto i.e. the trial court vide order dated 1.12.1955 treated it as having been dismissed or that the plaintiff also was left under a wrong impression that the suit had been dismissed in default and cost was imposed on 1.12.1955 and it was not paid up to 15.12.1955, would make no difference. Due to non-payment of costs, by order dated 1.12.1955 the suit stood dismissed, cannot be accepted, as the order was non est in the eye of law. It was an illegal order of treating a pending suit as having been dismissed. No legal fiction can be created so as to treat the suit as having been dismissed when in fact it had not been dismissed at all and as a matter of fact suit had not been dismissed on 8.1.1955. Subsequent order or imposition of costs for its restoration was non est and illegal and was rightly set aside by the High Court. When suit had not been dismissed at all in the eye of law, it is to be treated as pending only. No legal fiction can be created in favour of the respondents that the suit itself had been dismissed on 15.12.1955 due to non-payment of costs for restoration; whereas it was not dismissed at all and the High Court has also held that the order dated 1.12.1955 was without jurisdiction. The said order has to be ignored and was in fact set aside by the High Court. Thus the suit was in fact pending and was wrongly treated as having been dismissed. The High Court has rightly held that it was never dismissed. Thus, in our opinion, the sale deed in question dated 23.11.1959 was executed during lis pendens and the High Court has erred in law in holding otherwise in the judgment impugned herein.(iii) In re: whether section 52 of T.P. Act renders a transfer pendente liteThe principle underlying Section 52 of the TP Act is based on justice and equity. The operation of the bar under Section 52 is however subject to the power of the court to exempt the suit property from the operation of Section 52 subject to such conditions it may impose. That means that the court in which the suit is pending, has the power, in appropriate cases, to permit a party to transfer the property which is the subject-matter of the suit without being subjected to the rights of any part to the suit, by imposing such terms as it deems fit. Having regard to the facts and circumstances, we are of the view that this is a fit case where the suit property should be exempted from the operation of Section 52 of the TP Act, subject to a condition relating to reasonable security, so that the defendants will have the liberty to deal with the property in any manner they may deem fit, in spite of the pendency of the suit.In our opinion the sale deed is not void but only valid to the extent of the share of vendor of Bala Mallaiah i.e. it is valid to the extent of 14/104th share which has been found in the preliminary decree and affirmed in the final decree. The sale deed was subject to the outcome of the suit which was to the aforesaid effect.(iv) In re : What is the effect of preliminary decree for partition and the extent to which it is binding :37. In the instant case preliminary decree was passed in the year 1970 and the shares were declared to the aforesaid extent of the respective parties therein who were the heirs of Late Nawab Jung. Hamid Ali Khan, defendant No.1, had only 14/104th share in the disputed property. Preliminary decree dated 24.11.1970 has attained finality which was questioned in appeal on limited extent in the High Court which has attained finality by dismissal of LPA on 12.10.1977. Thus the determination of shares as per preliminary decree has attained finality, shares of the parties had been crystallised in each and every property. Purchaser pendente lite is bound by the preliminary decree with respect to the shares so determined and it cannot be re-opened and whatever equity could have been claimed in the final decree proceedings to the extent of vendors share has already been extended to theis apparent from the aforesaid Section that the matters which are concluded by preliminary decree cannot be re-agitated in an appeal against the final decree. No appeal was preferred by the purchasers or by defendant No.1 as against the preliminary decree.(v) In re : whether it was necessary to file a suit for cancellation of sale deed dated 23.11.1959 ?40. In our opinion, when the sale deed had been executed during the pendency of suit the purchaser pendente lite is bound by the outcome of the suit. The provisions of section 52 prevent multiplicity of the proceedings. It was not at all necessary to file a suit for cancellation of the sale deed as the vendor had no authority to sell land of other co-sharers. He had right to alienate his own share only which he had in the property to the extent of 14/104th. As such the right, title and interest of Bala Mallaiah were subject to the pending suit for partition in which a preliminary decree was passed in the year 1970 which had attained finality in which vendor of Bala Mallaiah, defendant No.1 was found to be having share only to the extent of 14/104th. The preliminary decree was not based upon fraud or collusion. The sale deed was not under the authority of the court and the pendency of the suit under section 52 commenced from the date of presentation of the plaint and continued until the suit or proceedings were disposed of by a final decree, and on a complete satisfaction of the discharge of such decree, an order had been obtained. The lis pendens operates during execution also. Bala Mallaiah, his L.Rs. and purchasers from them are bound by the decision of the case. They cannot circumvent the jurisdiction of the court and wriggle out of the decree. The transfer remained valid subject to the result of the suit and pendente lite purchaser is subject to the legal rights and obligations of his vendor as decided by the court.In re: whether Bala Mallaiah, his heirs and purchasers had perfected their right, title and interest by virtue of adverse possession ?41. The High Court has held that there was no lis pendens, and as such it was necessary to question the sale deed and for want of questioning the sale deed, the plaintiffs had perfected their title by virtue of adverse possession. The same is clearly a perverse finding. Firstly, in the earlier civil suit of 1993 submission was raised with respect to adverse possession which was negatived. Secondly, in our opinion as we have held that the sale deed was hit by the doctrine of lis pendens, the purchasers were bound by the result of the suit. Thus there was no question of perfecting the title by adverse possession during pendency of suit. Section 52 negates the very plea of adverse possession. Trial court and first appellate court have rightly held that there was no question of adverse possession. The High Court has simply without any discussion held that the title was perfected by adverse possession. Merely a bald statement that there was adverse possession is not enough to set up a plea of adverse possession. It has to be clearly set out from which date it commenced, and became hostile when there was repudiation of the title. No such plea has been raised. There are 3 classic requirements of plea of adverse possession i.e. "nec vi, nec clam, nec precario" i.e., peaceful, open and continuous. No such pleading has been raised much less there is question of any proof and moreover, this plea was not available to be raised in view of doctrine of lis pendens. Possession never became adverse in the instant case as the property was purchased subject to the outcome of the litigation.In our opinion, the High Court has erred in law in holding that the plaintiffs perfected their title by virtue of adverse possession. The finding is perverse and has no foundational basis.(vii) In re: whether under the Muslim Law, defendant No.1 being a co-sharer could have alienated the share of other co-sharers in the disputed property ?43. In the instant case, the property was ancestral property of Late Nawab Jung. It is not in dispute that Nawab Jung died intestate. The legal heirs of Late Nawab Jung succeeded to the estate as tenants in common and not as joint-tenants. The heirs succeeded to the estate in specific shares. In Outlines of Muhammadan Law by Asaf A.A. Fyzee, 4th Edn, it has been observed that general principles of Islamic jurisprudence do not contemplate administration, but a mere distribution of the estate as per the principles laid down in Sirajiyyah. As per the Sunni law, a testator can leave a legacy to an heir only to the extent of 1/3rd of estate and not exceeding that. After death of a person the first step is to make payment of funeral expenses, debts and legacies. Thereafter, distribution of estate among legal heirs, firstly to sharers, in the absence thereof, to residuaries, and in case of absence of both to distant kindred.Thus, it is apparent that the incidents of such joint tenancy and tenants in common are further subject to the law by which parties are governed and in that context, we have to examine a case. There is no dispute with the general principles of joint tenancy and tenants in common but the same would also depend upon in their application with respect to the law by which the parties and the lis in question are governed. In a case belonging to Muslims, incidents of Muslim Law, their law of inheritance has to be considered, in particular with respect to rights of tenants in common. Right of disposition by a testament is also different in the Muslim law. There cannot be testamentary disposition for more than 1/3rd of the property held by testator. The power of alienation in Muslim law is different from Hindu law. In Hindu law, there is difference in Dayabhaga and Mitakshra school of law. Muslim law may be akin in some respect to Dayabhaga law but not with Mitakshara Law. However, in Mitakshra Law in Bombay School and in Banaras School, power of alenation is different. A co-parcener cannot alienate without consent of other co-parceners in Banaras School of Mitakshara Law. In Bombay School of Mitakshara Law, a co-parcener can alienate for value his undivided interest or his co-parcenery property without consent of other co-parceners. However in the area which is governed by the Banaras School of Mitakshara Law, sale of his undivided share in a co-parcenery property without consent of other co-parceners is voidable at the instance of non-alienating co-parcener.Keeping in view aforesaid principle we proceed to consider the question further. In Syed Shah Ghulam Ghouse Mohiuddin & Ors. v. Syed Shah Ahmed Mohiuddin Kamisul Quadri (died) by l.rs. & Ors. (1971) 1 SCC 597  , this Court has laid down that Muslim heirs are tenants in common and they succeed to their definite fraction of every part of estate of the deceased. The shares of the heirs are definite and known before actual partition. Therefore, on partition of the properties there is division by metes and bounds in accordance with specific shares of each sharer which have already been determined by law.far as voluntary alienations are concerned, which alone form the subject-matter of reference, the Muhammadan Law is clear that one of the heirs of a deceased person is not competent to bind the other heirs by histhe question of partial partition is not involved in the instant case, as such, we need not go into the aforesaid question as to the permissibility of the partial partition, as the suit in the instant case was filed for partition of the entire matruka property.On the basis of the aforesaid decisions with respect to the preferential right it is sought to be contended on behalf of the appellants that there is no equity in favour of the purchaser, but under Muslim law co-heirs have the right of preferential purchase and in this case even it is not pretended by the purchaser that he had offered to the co-heirs before purchasing the same vide sale deed dated 23.11.1959.We decline to accept the submission as the property in question is capable of division and it is not a small fraction of property, but partition is of huge property, and as the property admittedly has exchanged several hands by now, we are not inclined to invalidate the sale deed executed by defendant No. 1 in favour of Bala Mallaiah even to the extent of his share i.e. 14/104th on the basis of principle of pre-emption of Muslim law. It would be too late and iniquitous to invoke the principle of pre-emption in such a case, particularly when no such plea was raised at the relevant time and in the courts below. In case heirs were desirous of raising it, they should have raised their plea timely.In our opinion, sale beyond 14/104th share by Hamid Ali to Bala Malliah was void. The Mohammedan Law does not recognize the right of one of shareholders being tenants-in-common for acting on behalf of others. While discharging debt also they act as independent debtors. A co-sharer cannot create charge on property of co-heir. The right of Muslim heir is immediately defined in each fraction of estate. Notion of joint family property is unknown to Muslim law. Co-heir does not act as agent while discharging debt but is an independent debtor not as co-debtor or joint debtor. Co-sharers are not defined as joint contractors, partners, executors or mortgagees.(viii) In re: whether the purchaser has a right to claim equity for allotment of Item No. 6 of Schedule `B property in final decree proceedings in suit for partition ? If yes, to what extentThough it is true that purchasers can work out the equity in the final decree proceedings but it is only to the legally permissible extent and not beyond that. The preliminary decree declared the shares in item No.6 of Schedule `B property in specified shares. The preliminary decree is binding and even otherwise the sale was valid only to the extent of the share of defendant No.1 i.e. 14/104th share in the specific property and not beyond it.82. In the instant case, equitable right of allotment of some land other than which was purchased out of some other properties allotted to the share of vendor Hamid Ali Khan, D-1 has not been claimed in the objections filed during the final decree proceedings filed by the purchasers. The property admittedly has exchanged hands a number of times during the pendency of suit from 1935 till date and how the equity is to be worked out is always a question of fact in every case, how much share has been allotted to the share of one vendor and how much property he had already alienated till that time and what are the debts or charges on the property that are legally permissible, would be some of the relevant considerations. Nothing of that sort has been pleaded by the purchasers in the objections filed in the final decree proceedings. Though in the absence of claiming equitable right in the share of vendors other properties, it cannot be worked out and it is doubtful when undivided share has not been sold and the specific property had been purchased, such equitable right can be enforced. Even assuming that the purchaser could work out the equity, however in the absence of pleadings and evidence required for the purpose, it would amount to misadventure. We do not propose to give any finding on submission and its correctness, made on behalf of the appellants that defendant No.1 had gone on a selling spree like anything and before executing the sale deed on 23.11.1959 he had already sold more than 1000 acres of land which was in excess of his entitlement, in the absence of pleading by appellants or purchasers on the basis of oral submissions made before us. In the absence of requisite data, pleadings and evidence, question of working out equity in aforesaid manner, cannot be examined or gone into by this Court at this stage. The claim of equity is outcome of ingenuity of arguments made only in this Court like a drowning fish trying to catch last straw. We are not at all impressed by the submission, and consequently the same is repelled, more so considering the provisions of the Mohammedan Law that sale beyond the extent of the share of the vendor in specific property was void.(ix) In re : whether sale was for legal necessity, and thus binding :83. It was submitted that sale was for legal necessity for benefit of estate. It has been averred in the objections preferred by the purchasers that sale was made by Hamid Ali Khan, defendant No.1, for payment of land revenue. Thus it was contended that the payment of land revenue has enured for the benefit of the entire estate. Thus sale would be valid and binding on co-heirs. Except making the aforesaid bald statement, nothing has been placed on record to indicate that the sale was for payment of land revenue. On the other hand, when we peruse the sale deed, recital of it makes it clear that the sale was effected by Hamid Ali Khan for his `personal necessity. He had not executed the sale deed for payment of land revenue as its recital is otherwise which would prevail. Nor the sale deed had been executed in the fiduciary capacity acting on behalf of co-sharers rather he has claimed in the sale deed that he was the exclusive owner of 68 acres 10 guntas area of property and was in possession thereof. He had sold the land for a consideration of Rs. 2000 in view of his personal necessity. The sale was made after taking permission from the Deputy Collector Division, Distt. West, Hyderabad. Thus, the sale deed negates the aforesaid bald averment made in the objection petition. Even otherwise under the Mohammedan Law, it was not open to Hamid Ali Khan, defendant No.1 to act in fiduciary capacity to sell the property and bind shares of others. It is not mentioned in sale deed that Hamid Ali Khan had sold for any legal necessity or for the benefit of the entire estate. The recital in sale deed has the evidentiary value and Bala Mallaiah and his successors are bound by what has been mentioned therein. Thus, no case is made out on the basis of the aforesaid submission also to make an interference.(x) In re : the effect of proceedings under the Tenancy Act, 1950 :84.It was contended on behalf of the respondents that with respect to the disputed property the proceedings were initiated by Boddam Narsimha under the Act of 1950.Boddam Mallaiah was a lessee for 3 years. He was inducted in the aforesaid lands under a koul dated 1.3.1953 executed by Hamid Ali Khan, who was defendant No.1 in the partition suit. Initially, it was for one year and was renewed each year later on. Hamid Ali Khan executed a sale deed in favour of Bala Mallaiah on 23.11.1959. After the sale deed, Bala Mallaiah became a pattedar in place of Hamid Ali Khan in respect of the suit land. Bala Mallaiah was the paternal uncle of Boddam Narsimha. An application was filed by Boddam Narsimha under section 37A of the Tenancy Act on the ground that Late Bala Mallaiah was a protected tenant and prayed for issuance of ownership certificate under section 38E of the Act of 1950. The tribunal vide order dated 24.8.1999 held that Bala Mallaiah never protested the omission of entry of tenancy from the revenue records as deemed tenant, and it was found that there were no protected tenants in Madhapur village. The order was questioned in the appeal under section 90 of the Act which was dismissed by the Joint Collector on 13.3.2000. Thereafter, Writ Petition No.2229/2000 was preferred before the High Court of Judicature at Andhra Pradesh which was also dismissed by the High Court on 16.4.2001 and the same was questioned before this Court which dismissed appeal in Boddam Narsimha (supra).However, on behalf of the respondents it has been submitted that Bala Mallaiah has become pattedar vide conveyance deed dated 23.11.1959.The case set up by Bala Mallaiah that he was jointly cultivating the suit land along with his two brothers Komaraiah and Agaiah was found to be meritless and negatived for the period between 1952 and 1959. On 1.1.1973 when the notification came to be issued, Bala Mallaiah was not the protected tenant. The case set up by Boddam Narsimha regarding protected tenancy and issuance of ownership certificate was negatived. This Court noted that even for the sake of arguments if it is accepted that Bala was a protected tenant on 12.2.1956, he still became a pattedar vide conveyance deed dated 23.11.1959, and in any event assumed protected tenancy did not continue up to 1.1.1973, and therefore, the appellant was not entitled to ownership certificate under section 38E. Section 38E of the Act of 1950 had no application to the facts of the case.This Court in aforesaid case has only decided the question about protected tenancy which was claimed and issuance of ownership certificate by Boddam Narsimha under section 38E. No other question was involved for consideration in the proceedings under the Act of 1950. Thus, the decision cannot be taken to be an authority on a question which was not agitated. Boddam Narsimha who filed the said proceedings had lost up to this Court and in that there was a mere mention of the fact that by virtue of the conveyance deed, Bala Mallaiah became pattedar vide registered sale deed dated 23.11.1959. There was no adjudication on the various issues as to the legality or validity of the said rights which could be conferred by sale deed and to what extent Hamid Ali Khan could have alienated to Bala Mallaiah and issue about lis pendens etc. never came up for consideration. Thus, the decision is of no help and cannot be taken to be an adjudication by this Court with respect to the rights of Hamid Ali Khan or Bala Mallaiah in matruka properties which was not an issue in the aforesaid case. The scope of the proceedings and the issue involved were totally different. Thus, no sustenance can be derived by the respondents by relying upon the aforesaid decision in which Boddam Narsimha in fact had lost.87. It was also contended that Hamid Ali Khan was recorded as pattedar after the death of Nawab Jung. The plaintiffs and other heirs of Late Nawab Jung were aware that the name of Hamid Ali Khan had been recorded in the revenue records. The transfer was made with the permission of the Collector under section 47 of the 1950 Act. Any person affected by any entry in such record of rights under Regulation 4 of the Hyderabad Record of Rights in Land Regulations, 1948 was required to question the same within two years. Bala Mallaiah was in possession. Thus, the decree which has been passed ignoring the rights of the pattedar is bad in law. In our opinion, admittedly, it was a matruka property of Late Nawab Jung. The suit for partition was pending w.e.f. 1935 and mutation simpliciter in the name of Hamid Ali Khan conferred no right, title or interest. The mutation is only for the fiscal purpose and is not decisive of right, title or interest in the property which is within the domain of the civil court. The grant of patta from 1953 onwards by Hamid Ali Khan to Bala Mallaiah was on yearly basis and the execution of sale deed and the grant of land on yearly basis were during lis pendens. Thus, the transactions are covered by the doctrine of lis pendens and were clearly subject to the outcome of the pending partitionview of the aforesaid, we find no force in the submissions raised on behalf of the respondents based upon pattedar rights as it was subject to section 52 of T.P. Act and the same is hereby rejected.(xi) In re : what is the effect of decision of this Court and High Court with respect to final decree proceedings in Item No. 2 of Schedule `B property :88. With respect to item No.2 of Plaint `B schedule property one Padmini Co-operative Housing Society Ltd. filed an objection in the final decree proceedings. The trial court vide order dated 29.3.1996 rejected the objection which was preferred. First appeal preferred was also dismissed by a Single Judge on 23.4.1997. LPA No.104/1997 was filed which was dismissed by a Division Bench of the High Court on 20.11.1998. Then SLP [C] No.3558/1999 was filed in this Court which has been dismissed by a speaking order affirming the judgment and order passed by the executing court and the High Court. A perusal of the judgment of the High Court in LPA indicates that the High Court had held that in Mohammedan Law there is no recognition for a sale by a co-sharer of the entire estate and that the other co-sharers are not bound by such sale and said decision even went to the extent of saying that even when the sale was meant for discharging the debts of ancestor, whose property had devolved upon 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.At least on point of law the decision of this Court being a reasoned order has relevance and the decision in the aforesaid matter in same case also supports the view which has been taken by us on merits.(xii) In re : whether there is waiver of right by appellantsIn fact, during the pendency of the partition suit with respect to ancestral property of Late Nawab Jang, Hamid Ali Khan - defendant No.1 - had alienated the property treating it as his own whereas it was obviously subject to the right of other co-shares finally declared in the preliminary decree. Bala Mallaiah and his successors have filed several proceedings, civil suit of 1993 in which they have failed. Boddam Narsimha, nephew of Bala Mallaiah also filed proceedings under the Act of 1950 for issuance of ownership certificate by virtue of their being protected tenants which case was also dismissed. Thus, the stand which was taken by appellants under the protected Tenancy Act was not at all inconsistent and did not amount to approbation and reprobation on the part of the heirs of Late Nawab Jung. Land grabbing proceedings were also instituted by LRs. of Bala Mallaiah and his brothers. The proceedings were dismissed and W.P. No.15577/2001 filed before the High Court was also dismissed vide order dated 30.1.2002. After having lost in the aforesaid proceedings, belatedly the objection had been preferred in the final decree proceedings for partition. The conduct of purchasers makes it clear that they instituted multifarious proceedings, and took inconsistent stands which were not accepted by this Court in Boddam Narsimha (supra). The appellants or their predecessors had not taken inconsistent stands. They were clearly protected by doctrine of lis pendens.(xiii) In re : whether appellants are guilty of delay or laches :91.It was also submitted that a preliminary decree recognized the rights of the transferees to be adjudicated at the time of final decree proceedings and no steps were taken by the legal heirs after passing of the preliminary decree way-back in 1970 to implead them. The proceedings for final decree were initiated in the year 1984. The appellants have not taken prompt steps, as such they are not entitled to any indulgence from this Court. Reliance has been placed upon Municipal Council, Ahmednagar v. Shah Hyder Beig (2000) 2 SCC 48     to contend that any delay on the part of the parties defeats the rights.We are not impressed by any of the aforesaid submissions. The preliminary decree passed in 1970 was clearly against the interest of the purchasers as their vendor was not found to have the rights which was not assailed by them. The preliminary decree attained finality in the year 1976 and proceedings for final decree taken in 1984 were within the period of limitation. As a matter of fact, LRs. of Bala Mallaiah and his brother etc. took steps in the year 1993 and onwards by filing successive cases as enumerated above. There was no delay on the part of the appellants defeating their rights. It was the respondents who having lost in the three proceedings one after the other, raised objection in the year 2004 in the final decree proceedings. What prevented them from doing so in the year 1993, has not at all been explained. Thus, it is they who are responsible to delay in the final decree proceedings in a partition case instituted in the year 1935 and the matter is still pending in the shape of instant appeals before thisIn re : the effect under the Urban Land Ceiling ActSince the orders have not been placed on record, in the aforesaid factual scenario, we decline to examine the aforesaid proposition further and we were not apprised how the purchasers could claim a better right than the one possessed by their vendor. We leave it open to the State Government to examine the question of ceiling and effect of the decision.94. A compromise petition has been filed with respect to area 18 acres 25 guntas. As per the compromise the division of the property has to take place between the appellants and the newly added respondent Nos.87 to 127. Same was objected to by one of heirs. It will involve transfer of the property, hence, we leave the parties to have resort to an appropriate remedy in this regard. It is found not to be recordable in the form of transaction in which it has been filed.