Case: A.J. Pinto and Anr Vs. Smt. Sahebbi Kom Muktum Saheb by L. Rs. and Ors

In the plaint reference was made to some alienations, which, it was pleaded, were not binding on the plaintiff. In this appeal we are only concerned with the mortgage decree obtained by one L.B. Pinto (original defendant No. 12 in the suit) on whose death A. J. Pinto (appellant No. 1 in this court) was impleaded as defendant No.in his capacity as legal representative of the deceased. The said mortgage decree was stated to have been obtained by defendant No.12 against Hajaratsab, defendant No. 1 in respect of some land situated in Gabbur village of Rubli taluk and R. S. 48/1 situated at Krishnapur. The suit for partition was initially instituted in forma pauperis in 1939. At that time the mortgage decree in favour of defendant No. 12 was being executed and an injunction restraining him from executing the decree and from taking possession of the property was also sought. Defendant No. 12 and after his death, defendant No.resisted the plaintiffs suit assailing the mortgage decree. It appears that the mortgaged property was sold but it did not fetch sufficient funds to satisfy the full claim under the mortgage decree with the result that Pinto secured a personal decree against Hajratsab and in execution of that decree sought to sell certain properties belonging to the estate of Mirsab. On objection to the sale in execution of the personal decree being raised by the plaintiff, the Court made an order that the properties sought to be proceeded against be sold but the sale would be subject to the result of the partition suit. It was further directed that in the proclamation of sale the fact of the pendency of the partition suit be also mentioned. That sale, it seems, was held something in 1942. On November 16, 1942 a sale certificate in respect thereof was issued in favour of Pinto. According to that sale certificate Pinto was declared as purchaser of the right title and interest of Hajratsab in the various properties described therein. The partition suit was compromised between the plaintiff and all the defendants except Pinto. The Civil Judge, Senior Division. Dharwar to whose Court the suit was transferred sometime in 1948 took the view that even though Pinto was not a party to the compromise between the plaintiff and the other defendants the compromise was not unfair and there being no equiry in favour of Pinto who had purchased the right, title and interest of Hajaratsab in the suit property subject to the result of the suit, a decree should be passed in terms of the compromise against all the defendants including Pinto. An appeal, was preferred against this decree by the appellant and a learned single Judge of the Bombay High Court on July 26, 1954 set aside the decree as against Pinto and remanded the case back to the trial Court with the direction that the suit be proceeded with in accordance with law. After remand the trial Judge held that the plaintiff was entitled to 1/5th share in the three properties which alone were the subject matter of the controversy after remand. She was held entitled to claim 1/5th share from the present appellant in R. S. No. 104/4 of Gabbur village in R. S. No. 45/4 of Krishnapuram village and in G. T. S. No. 3540 of Hubli. The partition and possession of the two pieces of land were to be effected through the Collector and that of the site in Hubli through a commissioner to be appointed by the Court in the proceedings for passing the final decree. The Collector was directed to effect the partition in the two pieces of land so as not to conflict with the Bombay Prevention of Fragmentation and Consolidation of Holdings Act No. LXII of 1947. The appellant was to pay the past and future mesne profits from the date of the cause of action mentioned in the plaint till the date of the decree or till the delivery of possession, whichever might be earlier, at the rate to be determined under Order 20, Rule 12, C. P. C. in respect of the plaintiffs 1/5th share in the three properties. The appellant was also to pay 1/4th of the court fee claimed by the plaintiff against him. It was also observed that the decree between the plaintiff and the other defendants should be in terms of the earlier compromise as already ordered. This decree was made on February 11, 1955 and one consolidated decree against all the defendants was framed in which the decrees against defendant No.and the other defendants were distinctly specified. Against this judgment and decree the appellant preferred an appeal to the High Court of Mysore at Bangalore. A Bench of that Court on December 13, 1961 dismissed the appeal. It appears that an attempt was made there to raise some points in respect of properties other than the three properties which were the subject matter of the decree appealed from. But the High Court did not consider it necessary to go into those points in that appeal, leaving them to be decided if and when an occasion arose later. The High Court was quite clearly of the opinion that the plaintiff had secured a decree against the appellant in respect of the three properties mentioned in the decree and it was observed that the appellant had no grievance as regards any of the reliefs granted to the plaintiff by that decree. The present controversy arises out of the proceedings in respect of the execution of the decree dated February 11, 1955 affirmed by the Mysore High Court and it is common ground that now the controversy is confined to the properties described as G. T. S. 3547 to(houses let by Pinto, appellant No. 1 to Dawood Mirza, appellant No. 2) and property No. 1122 (house sold by Pinto to Beopari respondent No. 2). These properties are described by the parties as lot No. 1. The remaining properties described as lot No. 2 also claimed by the appellant are not in dispute in this appeal.

Reasoning: We have not been persuaded to so hold and indeed the subsequent history of the litigation does not support this contention. That being the position the decree in respect of the properties other than the three properties which were the subject matter of the decree dated February 11, 1955 must be held to be final and binding on the appellant notwithstanding the fact that the decree in respect of those properties was again incorporated in the decree of February 11, 1955 so that the consolidated decree may reflect the combined effect of the final decision of the controversy in the suit. Shri Bishan Narain indeed conceded that once we hold that the order of the Bombay High Court remanding the case to the trial Court did not set aside the entire compromise decreeand that the decree of 1949 in respect of the other properties became final though its terms were repeated in the decree of February, 1955 then he has no case. The question whether under Mohammaden law there can be partial partition does not arise for determination on the view taken by us regarding the scope of the present controversy between the parties. We, therefore, express no opinion on this point.7. A faint attempt by the appellants counsel to appeal to us on equitable considerations was met on behalf of the respondent by Shri Tarkunde by the submission that the appellant had taken the properties very cheap at public auction because of the pendency of the litigation and of the mention of this fact in the sale proclamation itself. The auction sale being subject to the result of the litigation the properties would in all probability have been auctioned at a very low price.8. There is some force in Mr. Tarkundes submission though in view of our conclusion that the earlier decision of 1949 is no longer open to challenge at the instance of the appellant, equitable considerations can hardly have any relevance and are of little avail to him.