Madras High Court

Atika Begum, Amina Bi, Hajira Begum, ... vs Haji A.A.M. Abdulla, Habbeb Unnissa, ... on 28 February, 2002

Equivalent citations: (2002)2MLJ4

Author:
P.D. Dinakaran

Bench:
P.D. Dinakaran

JUDGMENT

P.D. Dinakaran, J.

1. Heard both sides.

2.1. The above appeal is directed against the judgment and decree dated 22.6.1981 and 10.7.1981 made in C.S.No.118 of 1975.

2.2. For the purpose of convenience the parties are referred to as arrayed in the suit.

2.3. The appellants are the defendants in the suit.

2.4. The plaintiffs, namely respondents 1 to 5 herein filed the above suit for division of the plaintiffs' 11315.87 shares out of 40254.87 shares in the suit property by metes and bounds and for delivery of possession thereof.

3. The suit property consists of land, market, bazaar, stalls, houses and other superstructure, known as Parachery Market, situated on the western side of Govindappa Naicken Street, Madras-1, having Municipal Door Nos.111, Govindappa Naicken Street, 1 to 5 Appaswamy Koil Street, 43, Amman Koil Street and 19 to 28, Appaswamy Mudali Street, measuring about 1 Cawnie 6 grounds and 1666 sq. ft., out of which, Mosque portion and superstructure - bearing Door No.5 and 20 in Appaswamy Mudali Street are excluded. Admittedly, the value of the shares of the property is described in terms of rupees. The identification of the suit property is not disputed between the parties.

4. Admittedly, the suit properties are purchased by the ancestors of the plaintiffs 1 and 2 as well as the defendants 1 to 113 out of their common fund, and the same is owned by the plaintiffs and defendants jointly by inheritance, sale and gift.

5.1. The plaintiffs 1 and 2 are husband and wife. Plaintiffs 3 and 5 are wakfs.

5.2. According to the plaintiffs, on 11.2.1897, the first plaintiff's paternal grand father's brother, one Hafiz Mohammed Ghouse, alias Intizam Khan Bahadur, executed a registered will, which contains a list of sharers who were entitled to the suit property and the number of shares held by each one of them. On 11.2.1897, there were 23 sharers having a total number of 40000 shares. In the said registered deed, Hafiz Mohammed Ghouse declared himself as the Manager of the suit property on behalf of the co-owners and stipulated a condition that a sharer could sell his share to another sharer alone; and the property should not be divided by metes and bounds, and put into individual possession.

5.3. In the said registered will dated 11.2.1897, the testator also appointed one Haji Abdul Rahman, who is nonetheless the father of the plaintiff and the fourth defendant, son of Gulam Mohammed Sherfad Dowla, as his successor to manage the suit property with a power to nominate his successors in consultation with other sharers.

5.4. The second plaintiff is the wife of the first plaintiff.

5.5. It is alleged that on 11.2.1897, the first plaintiff's paternal grandmother Halima Bi owned 18000-14-4 shares out of 40000 shares, out of which, it is stated that she orally gifted 2000 shares to her son Haji Abdul Rahman, the first plaintiff's father; 1000 shares to her grand daughter Amatur Rawoof; and out of the remaining 15000-14-4 shares, she created a wakf in her name in respect of one-third share i.e. 5000-14-4 shares for performing fathihas and aiding the poor and Madrasa Mohammadi; and allotted the balance 10000 shares to her two sons viz., Abdul Rahman, Sibgatulla and four daughters, viz., Mariam Begum, Khadija Begum, Amatur Rahim Begum and Fatima Begum. But her pre-deceased sons Abdul Wahab and Abdul Khader did not get any share.

5.6. Halima Bi, the first plaintiff's paternal grandmother, executed a registered will on 18.10.1910, mentioning the objects of the Wakf, giving directions to the same and also distributing her shares to her children, referred to above. Thereafter, Halima Bi died on 3.2.1925.

5.7. But, even before the death of Halima Bi, her son i.e., Haji Abdul Rahman, who is nonetheless the father of the first plaintiff and fourth defendant, brought about an unregistered agreement on 30.3.1921, prescribing the number of shares and the list of sharers.

5.8. There were 43250 shares in total due to the addition of sharers who contributed for the improvement of the market, at the time of execution of the said agreement dated 30.3.1921, viz., one Kulsoom Begum contributed 2375 shares for improving the market and was given superstructure bearing Door No.30 belonging to the market in lieu of 2375 shares given by her.

5.9. However, due to various purchase, sale and exchange, the total holding of shares were determined as 40254.87 as on 16.11.1966, out of which, according to the plaintiffs they hold the following shares:

i. the first plaintiff holds 4342.96 shares;

ii. the second plaintiff holds 1090.25 shares;

iii. the third plaintiff holds 5000.90 shares;

iv. the fourth plaintiff holds 787.53 shares; and

v. the fifth plaintiff holds 94.23 shares.

5.10. Due to passage of time, the plaintiffs, being the sharers in the suit property, wanted to divide their shares by metes and bounds and hold them separately and thus staked their claim on 9.12.1974 and 5.3.1975, but the same were objected by the defendants. Hence, the above suit.

6.1. Defendants-1, 57, 115 and 116, in the written statement dated 21.10.1976, admitted the correctness of the shares and prayed for separate allotment of shares of the properties.

6.2. Similarly, defendants 2, 91, 117 and 118, in their written statement, prayed for partition and separate possession of their 2947.88 shares in the suit property.

6.3. Defendants 33, 37 and 52, in their written statement filed in July, 1976, stated that they never objected to an amicable partition.

6.4. Defendants-4, 9, 13, 14, 19, 25, 26 and 27 also submitted that they never opposed partition.

6.5. Defendants-46, 47, 55, 58 to 61, 73, 74, 78, 80, 82 to 88, 102 and 105, admit that there were 40000 shares owned by 23 sharers as on the date of the registered deed, viz., 11.2.1897, executed by Hafiz Mohammed Ghouse. But, they strongly disputed the validity of the Will dated 18.10.1910 executed by Halima Bi, as the same was not registered. They further contended that the suit property could not be subjected to any sale or divided by partition by metes and bounds and put into individual possession, as the same is opposed to the intention of the testator, and submitted that even without any partition, each sharer would get their share in the income of the property, as per the intention of the executor of the deed dated 11.2.1897, as the suit property should not go into the hands of a stranger by any method, and thus resisted the suit.

6.6. The 75th defendant, in his statement dated 11th July 1978, stated that the suit property could not be owned jointly forever, and therefore, was willing for partition of the property.

6.7. Defendant-101 contended that the sharers in the suit property are only entitled to share the profit, but have no right either to partition or alienate the same.

7. To substantiate the contentions, both sides adduced oral and documentary evidence, of which, it is relevant to mention that the Will executed by the first plaintiff's paternal grand father's brother, Hafiz Mohammed Ghouse alias Intigam Khan Bahadur, on 11.2.1897, was marked as Ex.P1, whereunder, the said executor, declared himself as a manager, and appointed the plaintiff's father Haji Abdul Rahman as his successor.

8.1. In the light of oral evidence adduced and documentary evidence produced on either side, the learned single Judge, in his judgment and decree dated 22.6.1981 and 10.7.1981, found that (i) the suit properties are joint properties purchased by the ancestors of the plaintiffs and the defendants; (ii) the plaintiffs and the defendants constituted members of one family; (iii) the prior history shows that the ancestors of the plaintiffs and defendants were in joint possession of the suit properties; (iv) the restrictions imposed in the registered Will dated 11.2.1897, marked as Ex.P1 cannot be said to be valid; and (v) the plaintiffs and defendants are entitled for their respective shares by way of partition.

8.2. Having held that the suit property is divisible by partition, the learned single Judge further held that (i) the superstructure in Door Nos.5 and 20 in Appaswamy Mudali Street, George Town, Madras, are the absolute properties of the first plaintiff; (ii) the other properties mentioned in the schedule and the written statements of defendant-101 are not common properties liable for partition; (iii) the total number of shares of the suit market is 40254.87; (iv) the plaintiffs and defendants 1, 91, 117 and 119 are entitled for the following shares:

1. Halima Bi Wakf (third plaintiff) 5000.90 shares

2. Safia Bi Wakf (fifth plaintiff) 94.23 shares

3. Ali Mohammed Wakf (114th defendant) 1145.32 shares

4. Amina Bi Wakf (115th defendant) 500.00 shares

5. Hussain Attaullah Wakf (116th defendant) 500.00 shares

6. SerrayiGhousiya Wakf (117th defendant) 1300.00 shares

7. Sakina Bi Wakf (118th defendant) 382.81 shares

and (v) the plaintiffs-1 to 5 and defendants 1, 4, 13, 14, 33, 52, 57, 91, 115, 116, 117, 118, 91, 121 to 125 herein are entitled to the shares in the ratio more fully detailed in the Schedule B of the judgment.

8.3. Accordingly, the learned single Judge held that (i) the suit property more fully described in Schedule A of the judgment is entitled to be partitioned; (ii) the defendants are entitled to the shares in the ratio as prescribed in schedule B of the judgment and the value of the superstructure in respect of 5 and 20, Appaswami Mudali Street, as ascertained by the Commissioner, shall be paid to the first plaintiff herein from and out of the suit property more fully set out in schedule A of the judgment; (iii) the first plaintiff herein do render an account in respect of income from the suit market for a period of three years prior to the date of suit viz., 14.3.1975 and from the date of suit upto the date on which the possession of the suit property was handed over to the receiver appointed in the suit; and (iv) the costs of the suit when taxed and noted in the margin thereunder shall be met from and out of the assets of the estate.

8.4. For the purpose of clarity, we are obliged to extract Schedule `A' and Schedule `B' of the judgment as under:

" SCHEDULE `A'

Land, market, bazaar, stalls, houses and other superstructures known as the Big Parachery Market, situated on the western side of the Govindappa Naicken Street, Madras-1, comprised in one patta on the eastern side of Appaswamy Mudali Street and on the eastern side of Appaswami Mudali Street and on the southern side of Amman Koil Street, Peedunaicken Street, George Town, Madras, within the Registration District of Madras Chingleput and Registration Sub-District of Sowcarpet (under Registrar's charge) bounded on east by R.S.No.6353 Govindappa Naicken Street and the houses belonging to Planiani Pillai, P. Ramanujam Pillai, Muthayalu Chetty, P.S. Arumugam Pillai, Murugesan Chetty and Swami Venkatachalam Chetty, bearing T.S.No.6365 to 6358 on the west by R.S.No.6410 Appaswamy Mudali Street, on the south by Pattu Rasappa Mudali Street and Nos.11 and 18 property of Arunachalaeswarar Koil and on the North by R.S.No.6429, Amman Koil Street, bearing Old S.No.4903 and 630 and Municipal Door No.111, Govindappa Naicken Street, 1 to 5, Appaswami Koil Street, 43, Amman Koil Street, and 19 to 20, Appaswami Mudali Street, measuring about 1 cawnie, 6 grounds and 1666 sq. ft. (of this Mosque portion and superstructure bearing Door Nos.5 and 20 in Appaswamy Mudali Street to be excluded). "

SCHEDULE `B'
RANK VALUE OF SHARE TO BE ALLOTTED
1st plaintiff Rs.4342.96
2nd plaintiff Rs.1090.25
3rd plaintiff Rs.5000.90
4th plaintiff Rs. 787.53
5th plaintiff Rs. 94.23
1st defendant Rs. 413.22
4th defendant Rs.3832.10
13th defendant Rs. 50.00
14th defendant Rs. 238.56
33rd defendant Rs. 166.66
52nd defendant Rs. 118.05
57th defendant Rs. 114.04
91st defendant Rs. 194.05
15th defendant Rs. 500.00
116th defendant Rs. 500.00
117th defendant Rs.1350.00
118th defendant Rs. 381.81
Defendants No.91
121 to 125 through
the 2nd defendant
who died pending suit Rs.1285.73

In respect of Door No.5 & 20 Appaswamy Mudali Street. "

9. Aggrieved by the above decision of the learned single Judge that the suit property is liable to be partitioned, the contesting defendants have preferred the above appeal.

10. Even though several grounds were raised in the grounds of appeal, Mr.R.A.Ahamed, learned counsel appearing for the contesting defendants/appellants herein, restricted his arguments, contending that the conditions, prohibiting the alienation by and partition among the sharers, imposed in the registered Will dated 11.2.1897, which is admittedly acted upon by all the parties as a family settlement, creates a right of pre-emption to the beneficiaries of the Will and their legal heirs; and therefore, the suit property can neither be alienated nor divisible by partition by metes and bounds.

11. Mr. R. Alagar, learned senior counsel appearing for the plaintiffs/respondents herein, placing reliance on the decisions that weighed with the learned single Judge and the findings arrived at by him, reiterated the submissions that were made before the learned single Judge. He also contended that the appeal having been dismissed so far as some of the respondents are concerned, the same is liable to be dismissed as the decree is a final one.

12. After careful consideration of submissions of both sides, we are obliged to consider the issues:

(i) whether the condition prohibiting the alienation by and partition among the sharers imposed in the registered Will dated 11.2.1897, marked as Ex.P1 is a bar for partition of the suit property? and

(ii) whether the appeal is liable to be dismissed on the ground that the same had already been dismissed so far as respondents 7 to 10, 14 to 18, 20, 21, 23, 24, 26 to 33, 35 to 37, 39, 40, 42, 48 to 55, 60 to 63 and 67 to 78 are concerned and on the failure of the appellants to bring the legal representatives of some of the deceased respondents?

13.1. In this regard, we are obliged to extract the following recitals from Ex.P1 dated 11.2.1897, which are relevant to decide the above issue.

" Hajee Mohammed Abaur Rahman shall not sell or mortgage the entire or any portion of the property without the consent and approval of all the claimants, nor shall all the owners sell, mortgage and settle their shares to outsiders. If any one should go against this clause, it shall be null and void and the income to his share will be divided among his heirs according to "Shariat". If any one of the share holders wants to sell his or their sharers, it shall be sold to the other share holders or settled on their own heirs. The property shall not be divided and come into individual possession. "

13.2. No doubt, the above recitals makes it clear that no sharer can sell his share in the suit market to a person, who is not a sharer and no sharer can have his share separated in the suit market. It is, therefore, the said recitals mentioned in Ex.P1 dated 11.2.1897 specifically bars alienation and partition of the suit property and entitles sharers only for the division of the income. Hence, we are obliged to decide whether such condition prohibiting alienation by and partition among the sharers, imposed under Ex.P1 dated 11.2.1897 is legally valid and binding on the parties. If so, to what extent?

13.3. Ex.P1, a registered Will, was executed by Hafiz Mohammed Ghouse alias Intizam Khan Bahadur on 11.2.1897 and acted upon by the ancestors of both the plaintiffs and the defendants as a family settlement. They also agreed as to the total number of sharers, viz. 23. Their respective shares is also not disputed, even though there are some minor and negligible difference in that regard. The relationship between the parties is not disputed.

13.4. However, the plaintiffs and the contesting defendants differ on the issue whether the suit property can be subjected to alienation or partition, in view of the expressed condition imposed in Ex.P1 dated 11.2.1897, on the basis of which, the contesting defendants claim a right of pre-emption over the suit property.

13.5. In this regard, we are obliged to refer Section 10 and 11 of the Transfer of property Act, which read as follows:

Section 10:

" Condition restraining alienation.-Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing off his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein. "

Section 11:

" Restriction repugnant to interest created.- Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose off such interest as if there were no such direction. Where any such direction has been made in respect of the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof. "

13.6. A combined reading of the above provisions provides that any condition which restrains the transferee or any person claiming under him from alienating or parting with or disposing of his right in the property, is void, as per
Section 10
of the Transfer of Property Act.

13.7. While
Section 10
of the Transfer of Property Act deals with a restriction against the transfer of interest conveyed absolutely,
Section 11
of the Transfer of Property Act deals with the restrictions on the enjoyment of such interest conveyed absolutely. In fine, while
Section 10
refers to a restriction on the transfer of property,
Section 11
refers to a restriction on the enjoyment of the property. The principle behind
Section 11
is that a condition repugnant to the interest created absolutely, is void.

13.8. If that be so, the next question that boils out for our consideration in the instant case is whether the restraint on the partition among the sharers of the suit property amounts to an absolute restraint on alienation as well as enjoyment, opposed to
Section 10
and
of the Transfer of Property Act respectively, or amounts to a right of pre-emption permissible under
Section 6
of the Transfer of Property Act.

13.9. It is true that the right of pre-emption is a right in the event of sale to purchase the property upon agreed terms and it can only be exercised as to immovable property.

13.10. The object of right of pre-emption is to prevent the introduction of strangers as co-sharers and the right is enforced on the assumption that the introduction of strangers causes inconvenience to the pre-emptive co-sharers. It is a transient right in its very inception and nature; and being a personal privilege, it cannot be transferred to anyone except to the owner of the property affected thereby. The right of pre-emption is applicable as per equity justice and good conscience.

13.11. But, a right of transfer is incidental to and inseparable from the beneficial ownership of the property. Therefore, an absolute restraint of such power is repugnant to the nature of the estate and any such condition violates such right is void, as the same is opposed to the rule of justice, equity and good conscience.

13.12. It is well settled in law that a partition is not actually a transfer of property, but is analogous to an exchange and only a process of mutual renouncement. The partition signifies the surrender of a portion of a joint right in exchange of a similar right from the co-sharer. In other words, the partition effects a change in the mode of enjoyment of property, but is not an act of conveying property from one to another. In other words, partition is a process, in and by which, a joint enjoyment is transformed into an enjoyment severally. Hence, partition is not actually a transfer of property, but would only signify the surrender of a portion of a joint right in exchange of a similar right from the other co-sharer or co-sharers. A right of partition, therefore, being an incident of joint ownership of property, any restriction repugnant to such right or interest is invalid as per
Section 11
of the Transfer of Property Act. Hence, the condition imposed in the suit agreement Ex.P1 dated 11.2.1897 opposing the partition will not be binding on the parties.

13.13. No doubt, a partial restraint on transfer is permissible. In the instant case, the condition imposed in the agreement dated 11.2.1897, with regard to the right of partition, is not partial, but an absolute one. Hence, the same is void under
Section 10
of the Transfer of Property Act.

13.14. But, the restraint, such as, the owners of a share could only sell it to the members of his community, is only a partial restraint and the same is valid in law. Therefore, the condition that sharers cannot sell the property to any person who is not a sharer, as imposed in Ex.P1 dated 11.2.1897, is only a partial restraint and hence, the same is valid in law and binding on all the sharers of the suit property.

13.15. We are, therefore, obliged to hold that the condition to bar any division of the suit property by partition among the sharers by metes and bounds is not valid. However, the condition that no sharer can seek his share in the suit property to any person who is not a sharer is valid in law. Therefore, appreciating the contentions of the learned counsel for the contesting defendants/appellants that the suit property should not go into the hands of third parties, the claim of the contesting defendants/ appellants herein that they have a right of pre-emption over the suit property as against the aliens to the suit property deserves to be safeguarded, as protected under
Section 6
of the Transfer of Property Act.

14. Admittedly, the appeal was dismissed so far as the respondents 7 to 10, 14 to 18, 20, 21, 23, 24, 26 to 33, 35 to 37, 39, 40, 42, 48 to 55, 60 to 63 and 67 to 78 are concerned by order dated 11.7.2000. So far as the respondents 7, 16, 17 and 39 are concerned, the appeal is abated. When the question is as to whether the property is liable for partition or not and the trial Court having held that the same is liable for partition and such a decree being a joint one so far as all the respondents are concerned, in our considered view, the appeal is liable to be dismissed in toto, as there cannot be two different decrees against different group of respondents.