Madras High Court
Umra Begum vs Hiyath Khan on 25 April, 2022
C.R.P.(NPD) No.41 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.04.2022
CORAM : JUSTICE N.SESHASAYEE
C.R.P.(NPD) No.41 of 2022
and C.M.P.No.287 of 2022
1.Umra Begum
2.Ammu Vubera
3.Amin Taj
(Amended as per order in REA.No.33/2021
dated 27.09.2021)
4.Shablgullah Sherif (Minor)
5.Inamullah Sherif (Minor)
Minor 4th & 5th petitioners are represented by their
guardian & next friend, Mother viz., the 1st petitioner)
... Revision Petitioners / Respondents
/ Judgment Debtors 7 to 11
Vs.
Hiyath Khan ... Respondent / Petitioner /
Decree Holder / Plaintiff
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India, praying to set aside the fair and decretal order dated 01.12.2021 in
R.E.A.No.75 of 2019 in R.E.P.No.43 of 2012 in O.S.No.73 of 2005 passed
by the learned Sub Judge, Harur, Dharmapuri District.
For Petitioners : Mr.R.Abdul Mubeen
https://www.mhc.tn.gov.in/judis
1/7
C.R.P.(NPD) No.41 of 2022
For Respondent : Mr.R.Thanigai Arasu
ORDER
The revision is preferred to set aside the fair and decretal order dated
01.12.2021 in R.E.A.No.75 of 2019 in R.E.P.No.43 of 2012 in O.S.No.73
of 2005 on the file of Sub Court, Harur, Dharmapuri District.
2. The facts that led up to the institution of the present revision may be
briefly stated :
A certain Noorullah Sherif possessed certain properties. His wife is
Fathima Beevi. They had three sons and two daughters, of whom
Niyamathullah Sherif is one. While so, all the heirs of Noorullah
Sheriff barring his son Niyamathullah Sherif had entered into a sale
agreement with the respondent Hiyath Khan for sale of 2.65 acres out
of 4.0 acres that the family possessed.
To enforce the same, Hiyath Khan instituted a suit in
O.S.No.73/2005 before the Sub Court, Dharmapuri against the
widow and two sons (Thaharullah Sheriff and Jabarullah Sherif) of
Noorullah Sheriff. This came to be decreed exparte. This Court is
informed that there were some attempts by the defendants to have the
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) No.41 of 2022
exparte decree set aside, but that was stated to be futile, when the
decree has become final.
To execute the decree, Hiyath Khan has laid R.E.P.No.43/2012. In
this, the present revision petitioners, who are the legal heirs of
Niyamathullah Sherif were also made parties, and they contested the
E.P. on the grounds available to them
It is stated that Niyamathullah Sherif was not a party to the sale
agreement, based on which, the decree came to be passed in
O.S.No.73/2005.
.Be that as it may, Umra Begum (wife of Niyamathullah Sherif) and
her children had filed a suit for partition in O.S.No.251/2013, in
which she had impleaded all the other heirs of her father-in-law
Noorullah Sheriff.
By now, the Execution Court has executed the sale deed on
16.11.2009 in favour of Hiyath Khan, and subsequent to that, Hiyath
Khan had sold the property to one Muniappan.
While so, Hiyath Khan filed REA.No.75 of 2019 to commission out
2.65 acres covered under the sale deed executed by the Court. The
Court has appointed a Commissioner in REA.No.75 of 2019, vide
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) No.41 of 2022
order dated 01.12.2021. This order is now in challenge.
3. Heard Mr.Abdul Mubeen, learned counsel for the revision petitioners
and Mr.Thanigai Arasu for the respondent.
4. The learned counsel for the revision petitioners submitted that :
a. Neither Niyamathullah Sherif nor Umra Begum and her children are
parties in O.S.No.73/2005. Going by the sale agreement in favour of
Hiyath Khan, the share of Niyamathullah Sheriff was not even
involved in the agreement. The revision petitioners therefore have
independent title to the extent of the share of Niyamathullah Sherif.
b. It is Umra Begum who has laid O.S.No.251/2013 for partition, and
she has fairly impleaded not only Hiyath Khan, but also his purchaser
as a party to the suit.
c. The Execution Court was egregiously in error, when it literally
attempted to convert the scope of decree for delivery in a suit of
specific performance into a partition suit.
d. He added that the execution petition is not even maintainable against
Umra Begum and her children, since Umra Begum's husband
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) No.41 of 2022
Niyamathullah Sherif was neither a party to the sale agreement nor a
defendant in O.S.No.73/2005.
5. The learned counsel for the respondent submitted that inasmuch as
Hiyath Khan has purchased 2.65 acres out of the total extent of 4.0 acres,
he is entitled to have his share delivered. Even though he has sold the
property to Muniappan, yet to protect the warranty of his title and the
possession that passes through him, it is important that he continued to
prosecute the execution proceedings for the benefit of his purchaser.
6. This Court finds considerable merit in the submissions of the learned
counsel for the revision petitioners. It is an admitted fact that
Niyamathullah's share is untouched by the sale agreement which Hiyath
Khan has entered into only with the siblings of Niyamathullah Sheriff,
excluding him. Therefore, it is in this circumstances, the legal heirs of
Niyamathullah Sherif has laid O.S.No.251/2013 for partition.
7. Turning to the order passed in REA.No.75/2019 is concerned, this
application cannot be sustained in procedure, since the purchaser from a co-
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) No.41 of 2022
sharer of an undivided share or undivided extent, can only seek partition of
a share, and can only seek an allotment of the specific property if any
purchased by him in an equitable allocation of property during the final
decree.
8. The Execution Court was in error in converting a suit for specific
performance into a suit for partition . Having said that, Hiyath Khan and
his purchaser may approach the trial Court where O.S.No.251/2013 is
pending, and raise such contentions as are available to them in law.
9. This revision is allowed and the order of the trial Court dated
01.12.2021, in R.E.A.No.75/2019 in R.E.P.No.43 of 2012 is set aside.
Essentially nothing survives in R.E.P.No.43/2012 . However, it is for the
Execution Court to look into it and terminate the execution petition in
R.E.P.No.43/2012, if it is no more required to stay on its file. No costs.
Consequently, connected miscellaneous petition is closed.
25.04.2022
Index : Yes / No
Speaking order / Non-speaking order
ds
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) No.41 of 2022
N.SESHASAYEE.J.,
ds
To:
The Sub Judge
Harur
Dharmapuri District.
C.R.P.(NPD) No.41 of 2022
25.04.2022
https://www.mhc.tn.gov.in/judis
