Smt.Shamim Fatima vs Smt. Mahmood Fatima
2013 Latest Caselaw 5461 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							Reserved on 2.5.2013
 
							Delivered on 5.9.2013
 

 
Case :- SECOND APPEAL No. - 759 of 1996
 

 
Appellant :- Smt.Shamim Fatima
 
Respondent :- Smt. Mahmood Fatima
 
Counsel for Appellant :- K.C. Saxena,H.M.Srivastava,Neeraj Sriastava,R.K.Gupta
 
Counsel for Respondent :- G.N. Verma,Ch.Subhash Kr. Srivastava
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Sri H.M Srivastava, learned counsel for the appellant and Chaudhary Subhash Kr. Srivastava, learned counsel for the respondent.

This is defendant's appeal against the preliminary decree passed in suit for partition, namely, Original Suit No. 328 of 1990 (Smt. Mahmood Fatima vs. Smt. Shamim Fatima). The suit for partition filed by the plaintiff was decreed on 24.11.1991. The preliminary decree dated 24.11.1991 was challenged in appeal. The lower appellate court dismissed the appeal by the judgment and order dated 14.07.1995.

At the time of admission of present second appeal, this court passed the following order:-

"Heard Sri K. C. Saxena, learned counsel for the defendant-appellant.

A suit for partition was filed by the plaintiff-respondent on the basis of the Will alleged to have been executed by one Shahabuddin, who happens to be the father of the parties. The Will made a provision that the property would first go to his wife Smt. Ayesha Begum. Thereafter it will go to the legatees. The learned counsel for the defendant-appellant urged that both the courts below went wrong in applying the provisions of Mohamdan Law with regard to Will.

A fine point of controversy has been raised in this appeal which requires scrutiny by this court.

Issue notice to the plaintiff-respondent. Call for the record of the courts below.

List this case for hearing in the week commencing 25th May, 1998.

The two applications moved on behalf of the defendant-appellant shall remain pending on which the order shall be passed after hearing the respondent."

Brief facts of the case giving rise to the controversy are as follows:-

The plaintiff respondent filed a suit for partition of her share in the dwelling unit belonging to her father Mohd. Shahabuddin who died in the year 1969. The dwelling unit House N0. 51, Mohalla-Shyam Nagar, Kasba-Orai, District- Jalaun is the subject matter of suit property. Mohd Shahabuddin, father of plaintiff and the respondent executed a will dated 23.06.1964 in respect of suit property, according to which the suit property was devolved upon his wife Aiyesha Begum and after her death upon his two daughters namely, plaintiff and the defendant. Mother of plaintiff and the respondent Smt Aiyesha Begum died in the year 1973. The plaintiff claimed her 1/2 share in the suit property stating therein that despite efforts made by her, the defendant did not agree for partition of the dwelling unit and as such she was constrained to file the suit. The suit was decreed for half share of the plaintiff as well as the respondent. The appeal was dismissed and preliminary decree of partition was affirmed. The plaintiff Smt. Mahmood Fatima pursuant to the dismissal of the appeal by judgment and order dated 14.07.1995 filed Misc. Case No. 87 of 1995 on 28.08.1995 for preparation of final decree. The defendant appellant filed her objection offering her readiness and willingness to purchase the share of plaintiff Smt. Mahmood Fatima under section 4 of the Partition Act 1893 read with Section 44 of the Transfer of Property Act, 1882. The application filed on 07.09.1996 and Misc. Case No. 102 of 1996 was registered.

During pendency of the said application and the present second appeal, the plaintiff transferred her half share in the suit property by way of registered sale deed dated 06.04.1998 in favour of one Sharif Ahmad. Sharif Ahmad moved an application for his impleadment in Misc. Case No. 87 of  1995. The appellant filed objection to the impleadment application. The impleadment application was allowed by order dated 12.07.2004 passed by Civil Judge (Senior Division), Orai. The application under Section 47 C.P.C. registered as Misc. Case No. 102 of 1996 filed by the defendant appellant was rejected by the court below by order dated 13.8.2008 on the ground that the Misc. Case No. 87 of 1995 has been filed by the plaintiff for preparation of final decree on the basis of preliminary decree dated 24.12.1991. As the final decree had not been prepared at the time of filing of objection under Section 47 C.P.C., the same was found premature and was rejected as such.

Challenging the order dated 13.08.2008 rejecting the application under Section 47 C.P.C. a revision was filed which was dismissed by the order dated 27.02.2009 on the same ground that at the time of filing of application under Section 47 C.P.C., final decree has not been prepared nor any execution case was filed and as such the application was premature at the relevant point of time. Challenging the above mentioned two orders dated 13.08.2008 and 27.02.2009 passed by the courts below, Writ Petition No. 26994 of 2009 was filed. The writ petition was dismissed by the judgment and order dated 25.05.2009 on the ground that since the present second appeal was pending consideration before this court, the petitioner may file an appropriate application in the pending Second Appeal itself.

After dismissal of the writ petition, the defendant appellant filed an application dated 20.10.2009 in the present appeal with the prayer that a direction be issued to the Civil Judge(Senior Division), Jalaun to accept the offer of the appellant under Section 4 of the Partition Act claiming right of pre-emption and further claiming that in view of Section  44 and 52 of Transfer of Property Act, the co-sharer cannot transfer a portion of dwelling unit in favour of a stranger, when the other co-sharer is ready to purchase his/her share on the same price. The offer made was that the defendant is ready to purchase half share of the plaintiff on the same price on which it was sold to Sharif Ahmad by way of sale deed dated 06.04.1998. The aforementioned application filed before this court remained pending. It was not pressed and no order was passed on the same.

In the mean time, Sharif Ahmad the purchaser from the plaintiff-respondent filed an Execution  Case No. 2 of 2009 stating therein that the final decree has been prepared on 03.01.2008. The appellant again filed an objection under Section 47 C.P.C. that the execution of the decree cannot proceed as the suit property is a dwelling unit and co-sharer cannot transfer his/her share to a stranger when the other co-sharer is ready to purchase the said share in view of Section 4 of the Partition Act, 1893 read with section 44 of the Transfer of Property Act. The said objection was registered as Misc. Case No. 51 of 2009 and was rejected by the order dated 21.01.2011 by the Civil Judge(Senior Division), Orai. Civil Revision No. 24 of 2011 preferred against the aforesaid order was dismissed on 16.08.2011 by the Additional District Judge, Court No. 3, Jalaun at Orai.  The Executing Court and the revisional court found that the defendant appellant had failed to make out any case for grant of benefit of Section 4 of the Partition Act as conditions enumerated in the Act for getting right of pre-emption under Section 4 of the Partition Act were not fulfilled. It was found that nothing is on record to indicate that the appellant had filed any undertaking seeking right of pre-emption.

It may be noted that orders dated 21.01.2011 and 16.08.2011 by which the application of the appellant claiming right of pre-emption under Section 4 of the Partition Act was rejected by the executing court is not subject matter of challenge before any court of law. After dismissal of the application under Section 47 CPC claiming benefit of section 4 of the Partition Act, the appellant filed an application dated 16.09.2011 in the present second appeal with the prayer to stay execution of the final decree and partition of the house by meets and bounds and to further accept her offer of purchase. The said application also remained pending.

On 14.11.2011 another application was filed by the appellant stating therein that Parwana has been issued and was given to Amin on 22.09.2011 and an order has been passed for delivery of possession by police aid on 4.10.2011. Prayer in the said application is to stay the execution of partition of house during pendency of the present appeal. On the said application the present appeal came up for hearing before this court on 13.1.2012.

This court after hearing the parties passed an order dated 13.01.2012 that the appellant shall deposit a sum of Rs. 3,54,000/- within a period of two months from the date of the order to show her bona fide and on deposit of the same, the question as to whether the appellant is entitled to the benefit of Section 4 of the Partition Act or not, will be considered. It was also observed in the said order that in case, the appellant is held entitled to such benefits then how much amount is to be paid by her will also be decided afresh. An interim order was passed that actual possession pursuant to the final decree shall not be delivered to the purchaser-respondent. Pursuant to the order dated 13.01.2012, the appellant deposited an amount of Rs. 3,54,000/- before the Registrar General of this court. After deposit of the said amount, an amendment application dated 30.04.2013 was filed seeking prayer for amendment in the substantial question of law, grounds and memo of appeal.

The substantial question of law sought to be raised by way of amendment are as follow :-

"1) Whether appellant is entitled the benefit of Section 4 of Partition Act in the event of transfer of share by other Co-owner of a dwelling house in favour of stranger of the family?

2) Whether Co-owner is entitled for pre-emption in the event of transfer of share by other Co-owner?

3) Whether transfer of undivided dwelling house by one Co-owner in favour of stranger of the family whether he will get right of joint possession?"

Amendment application was heard at the time of final hearing of the present appeal with the consent of learned counsel for the parties and is being decided hereinafter.

Sri. H.M. Srivastava, learned counsel for the appellant submits that at least the appellant is entitled to the benefit of Section 4 of the Partition Act, as the property in dispute is a dwelling unit and the co-sharer cannot sell it to a stranger. In so far as challenge to preliminary decree is concerned, learned counsel for the appellant made no submissions on the substantial question of law framed at the time of admission of second appeal on 18.03.1998. The memo of appeal indicates that the question raised was that both the courts below went wrong in applying the Mohammedan Law with regard to will.

The challenge to preliminary decree of partition of half share of the dwelling unit i.e. suit property is on the basis of aforesaid question raised before this court. Though there is no specific order for admission of the appeal. However, the order dated 18.03.1998 indicates that this court issued notice to the plaintiff respondent on the above mentioned question raised by the learned counsel for the defendant appellant. It can be said that the appeal was entertained on the question raised by the learned counsel for the appellant on 18.03.1998 and it was observed that order on stay application shall be passed after hearing the defendant appellant. Nothing has happened thereafter. Stay application remained pending. As narrated above, applications moved by the appellant during pendency of the present appeal at the stage of the execution of final decree also remained pending. At no point of time, the execution was stayed by this court.

Now, only argument raised by the learned counsel for the appellant is that the appellant is entitled for right of pre-emption under Section 4 of the Partition Act in view of section 44 and section 52 of the Transfer of Property Act. To substantiate his argument of right of pre-emption under Section 4 of the Partition Act, learned counsel for the appellant submits that the applications under Section 47 C.P.C. filed by the defendant-appellant before the court below and also before Executing Court were rejected in an illegal manner. Learned counsel for the appellant further submits that the application claiming right of pre-emption was filed on 07.09.1996 and the same was rejected by the Civil judge vide order 13.08.2008 on the ground that proceeding for preparation of final decree is pending and since the Misc. Case No. 87 of 1995 was not a case for execution of final decree, the application/objection under Section 47 C.P.C. was held not maintainable. This fact shows that final decree in the suit was not prepared at least upto 13.08.2008.

In alternative, he submits that Sharif Ahmad purchaser filed an execution case No. 2 of 2009 stating therein that the final decree in suit was prepared on 03.01.2008. Thus, on the date of rejection of her objection under Section 47 C.P.C. in Misc. Case No. 87 of 1995 vide order dated 13.08.2008 the proceeding for preparation of final decree was not pending.. He further submits that the subsequent application filed under Section 47 of the C.P.C., registered as Misc. Case No. 51 of 2009 in the proceeding for execution of final decree was also rejected illegally by the Civil Judge on 21.01.2011. The appellant categorically took the stand that she was ready to purchase half share of the plaintiff at the same price at which it was sold by her on 06.04.1998 in favour of Mohd. Sharif. The said offer was not considered by the court below in right perspective.

On these grounds learned counsel for the appellant prays that his amendment application may be allowed and the substantial question of law seeking right of pre-emption under Section 4 of the Partition Act in the event of transfer of share by other co-owner be entertained for determination by this court.

Chaudhary. Subhash Kr. Srivastava, learned counsel for the plaintiff respondent interalia submits that the pleading raised in the appeal claiming benefit of section 4 of the Partition Act with regard to disputed suit property cannot be entertained by the Second Appellate Court and the substantial question of law raised by way of amendment cannot be entertained for determination at all.

Learned counsel for the plaintiff respondent made his submission in two folds. First submission is that the present second appeal is directed against the preliminary decree for partition. The final decree pursuant to preliminary decree dated 24.12.1991 is not subject matter of challenge in the present appeal. No appeal has been filed against the final decree. His second submission is that the defendant appellant already moved an application before the executing court claiming benefit of section 4 of the Partition Act in Execution Case No. 2 of 2009 filed by the transferee namely Sharif Ahmad. Admittedly, the said plea was rejected by the Executing Court and the revision filed against the order passed by the Executing Court was also dismissed. As the orders of dismissal of the application filed by the appellant has not been challenged, they became final and are binding between the parties. In view of the above, plea of pre-emption cannot be raised and entertained in the second appeal which is only against the preliminary decree.

Learned counsel for the respondent submits that in case of no challenge to the preliminary decree for partition, the final decree cannot be disturbed at all.

Having heard learned counsel for the parties and having perused the record, the court finds that the only question which arises for determination before this court in view of the submission of learned counsel for the appellant is as to whether the appellant is entitled to benefit of section 4 of the Partition Act or not.

Dealing with the said question, it would be appropriate to go through certain provisions as contained in the C.P.C. Section 2 (2) C.P.C. which defines the word 'Decree', Section 97 C.P.C. and order 20 Rule 18 (2) C.P.C. are relevant to be quoted hereunder:-

"Section2(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-"

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default."

"Section 97. Appeal from final decree where no appeal from preliminary decree.-

Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree."

"Order XX Rule 18(2) This rule shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself."

A careful reading of provisions indicates that preliminary decree is an appealable decree and if the correctness of the decree is not challenged, it becomes final and the party aggrieved thereby will not be permitted to challenge its correctness in an appeal against  the final decree. This controversy has been considered by the Apex Court in judgment of Mool Chand and others versus Deputy Director, Consolidation and others reported in (1995) 5 SCC 631 and it was held that preliminary decree finalises matter relating to declaration of rights and interest of parties in the property. The second stage is the stage when the final decree is  passed which concludes  the proceedings before the court and the suit is treated to have come to an end for all practical purposes. In case, preliminary decree is not assailed or its correctness is not challenged by filing an appeal against the same, it becomes final and its correctness cannot be challenged in an appeal preferred from the final decree in view of Section 97 of the C.P.C.

Taking analogy from the said judgment in the case of Mool Chand (supra) it may be seen that the present appeal is though against the preliminary decree of partition, however, learned counsel for the appellant does not challenge the correctness of the preliminary decree dated 24.12.1991. In his argument he does not press the substantial question of law challenging preliminary decree of partition. Moreso, the preliminary decree has become final with the preparation of final decree in the year 1998. Admittedly, no appeal has been filed against the final decree prepared on 03.01.1998.

Indisputably, with the dismissal of the application of the appellant, the claim of right of pre-emption under section 4 of the Partition Act was rejected by the executing court. Said order became final between the parties as there is no challenge to the same.

Taking into account the entire gamut of events, it is apparent that the appellant has given up her challenge to the preliminary decree and only seeks right of pre-emption. As the present appeal is only against the preliminary decree, the amendment application filed by the appellant raising substantial question of law for determination by this court claiming right of pre-emption under Section 4 of the Partition Act on account of subsequent developments cannot be entertained in the present appeal. The amendment application dated 30.04.2013 filed by the appellant is accordingly dismissed.

For the reasons stated above, the appellant is held not entitled  for the benefit of  Section 4 of the Partition Act in view of the  peculiar facts and circumstances of the case. 

Various  judgments  cited by the learned counsel for the parties claiming benefit of  Section 4 of the  Partition  Act; on the question of resjudicata  and doctrine  of merger need not be  referred to as they are not applicable in the facts and circumstances of the case.

In the result it is concluded that no  substantial question of law  arises for consideration, hence the appeal is dismissed.

Order Date :- 5.9.2013

P.P.