Ameena Bi Vs. Kuppuswami Naidu and Others
EmailAppeal: Civil Appeal No. 1397 of 1978
Petitioner: Ameena Bi
Respondent: Kuppuswami Naidu and Others
Apeal: Civil Appeal No. 1397 of 1978
Judges: LALIT MOHAN SHARMA, CJI., YOGESHWAR DAYAL & S.P. BHARUCHA, JJ.
Date of Judgment: Feb 09, 1993
Head Note:
CODE OF CIVIL PROCEDURE, 1908:
Section 47 and Article 137 of the Limitation Act – Appellant not made party to the suit by K – Nor money decree passed against M, the Receiver appointed by the Court representing the estate of S, the appellant’s father – Decree, however, was personally against M – Held that since appellant was neither a party to the suit nor any decree was passed against the estate of deceased S, no question arose of appellant taking proceedings under Section 47 – Concurrent finding of the courts below, that the suit filed by appellant was within 12 years, upheld.
JUDGEMENT:
YOGESHWAR DAYAL, J. :
1. This is an appeal by Ameena Bi (plaintiff) against the judgment of the learned Single Judge of the Madras High Court dated 26th July, 1976. The respondents are Kuppuswami Naidu (defendant No.1) and five others (defendants 2 to 6). The High Court by the impugned judgment took the view that the suit filed by the plaintiff/appellant herein was barred under the provisions of Section 47 of the Code of Civil Procedure and also barred under Article 137 of the Limitation Act.
2. The High Court had reversed the concurrent judgments of the District Munsif, Tindivanam dated 21st November, 1970 and the lower appellate Court i.e., Subordinate Judge, Cuddalore dated 30th October, 1972. The trial Court and the lower appellate Court had decreed the plaintiff’s title to the suit properties in dispute and also passed decree for recovery of possession of the same with costs. The plaintiff was also granted a decree for mesne profits to be computed in accordance with the provisions of Order 20 Rule 12 of the Code of Civil Procedure, for a period of three years prior to the suit. The plaintiff/appellant filed the Special Leave Petition which was granted on 28th August 1978 and hence this appeal is before us.
3. Briefly stated the allegations in the plaint were that one S.M. Sheriff died on 17th November, 1947 leaving behind the plaintiff/appellant the only daughter as heir besides his wife, sister and four brothers. The said S.M. Sheriff was carrying on a lucrative business and owned considerable amount of immovable properties at various places. It was pleaded that the plaintiff, besides his mother, her aunt and uncles are heirs to the estate of S.M. Sheriff. The plaintiff pleaded that she was entitled to one half share in the estate of her father and the other half to be shared by other heirs.
4. On 20th November 1947, one of the brothers of late S.M. Sheriff, Mohammed Sheriff instituted a suit (C.S. No. 544/47) for partition of the properties left behind his late brother S.M. Sheriff on the file of the High Court of Madras. During the pendency of the suit for partition Mohammad Sheriff was appointed as a Receiver of the estate. He leased out two properties belonging to the estate of deceased in favour of Kuppuswami Naidu, defendant/respondent No.1. Mohammad Sheriff, however, continued as Receiver upto 1952 only and thereafter the High Court appointed Shri J. Alwar Naidu, Advocate, as Receiver. Shri J. Alwar Naidu continued as Receiver till the suit for partition was decreed by metes and bounds by judgment and decree dated 30th July, 1956. The properties in dispute were allotted to her (plaintiff/appellant herein) and on decreeing of the suit the Receiver was discharged.
5. It appears that in the meanwhile on 3rd August, 1955 the defendant No.1, Kuppuswami Naidu, had filed a suit (C.S. No. 208/55) in the District Munsif Court, Tindivanam against Mohammad Sheriff, as defendant No.2 and Shri J. Alwar Naidu, Advocate, Receiver in the Madras High Court (C.S. No. 544/47) as defendant No.1. The suit was filed for the refund of the advance given by Kuppuswami Naidu to Mohammad Sheriff for leasing out certain lands at Pela Kuppam as had not been put in possession. It was pleaded in that suit that the amount of Rs.1,100/- was paid on 27th June, 1952 and as stated earlier, Shri Alwar J. Naidu, Receiver in Suit (C.S. No. 544/47) was made defendant No.1 as the amount had been paid to the Ex-Receiver. On 7th September, 1955 Shri Alwar J. Naidu, Receiver, filed an application being No.2715/1955 in the partition suit and sought directions in the matter of Suit filed by Kuppuswami Naidu for contesting the same. Kuppuswami Naidu also filed an application being No.1692/55 in the partition suit seeking leave of the Court to sue the Receiver. On 23rd September, 1955 on the application filed by the Receiver Shri Alwar J. Naidu, the High Court directed that the Receiver need not contest the suit as it is the personal liability of Mohammad Sheriff. The decree in O.S. No.208/55 will be effected by debiting the amount of decree to Mohammad Sheriff’s account in C.S. No. 544/47 filed by him.
6. It also appears that on 31st March, 1956 suit filed by Kuppuswami Naidu (O.S. No. 208/55) was decreed. Mohammad Sheriff remained ex-parte in that suit and Receiver did not contest the same in view of the order of the High Court dated 23rd September, 1955.
7. In the final decree which was passed in the partition suit on 30th July, 1975 no property was allotted to Mohammad Sheriff as his liability to the estate exceeded the value of his share.
8. No certified copy of the decree passed in Kuppuswami Naidu’s case was filed on record but Ext. A.7 which is a certified copy of Suit Register, Extract O.S. 208/55, was filed. The decree that had been passed in the suit filed by Kuppuswamy Naidu (O.S. No. 208/55) runs as follows:
“Decreed that 2nd defendant personally and defendants from the 2nd defendant’s family properties in the hands of Receiver 1st defendant in Madras High Court C.S. 544/47 do pay plaintiff Rs.1298/- with interest on Rs.1100/- at the rate of 6 per cent per annum from 27-6-1955 till payment and do also pay plaintiff Rs.154-0-0 being the cost of the suit”.
9. In the partition suit certain properties were allotted to Ameena Bi, appellant herein, which were mentioned in Schedule ‘E’ attached to the final decree for partition and Kuppuswami Naidu, while executing his decree against Mohammad Sheriff got the properties, allotted to Ameena Bi attached and sold in execution of money decree obtained by him in his suit and purchased the disputed properties of Ameena Bi while executing his decree against Mohammad Sheriff. It appears that Kuppuswamy Naidu without even obtaining the possession of the properties through court, transferred the same to the other defendants in the present suit. It also transpires that no notice of the execution application was given to Ameena Bi nor was the order of attachment dated 16th August, 1955 served on her. She was not made a party to the execution application. The properties of Ameena Bi were auctioned on 28th November, 1956 without notice to her and sale was also confirmed on 5th January, 1957 again without notice to her. It appears that in the meantime respondents had obtained possession, whereupon the plaintiff/appellant served a notice upon the defendants/respondents to deliver back possession and payment of mesne profits and ultimately filed suit (O.S. No. 441/68) on or about 27th April, 1968 in the District Court, Tindivanam. The plea of the plaintiff/appellant in the suit was that the decree which was obtained by Kuppuswami Naidu merely created a personal liability of Mohammad Sheriff in his favour and he had a further right to recover the money from the estate of Mohammad Sheriff in the hands of the Court Receiver (defendant No.1). It was thus the case of the plaintiff/appellant that subsequent attachment and sale are not binding on her. Kuppuswami Naidu, after the sale in execution, did not take possession but later trespassed into the suit lands and transferred the disputed properties to other defendants in the present case.
10. The respondents as defendants denied the allegations of the plaintiff/appellant and contended that the decree was binding on the estate of S.M. Sheriff deceased. It was also pleaded that the final partition decree of the High Court was not binding on Kuppuswami Naidu or his transferee. It was pleaded that the suit was barred by Section 47 of the Code of Civil Procedure and the Limitation Act.
11. The trial Court, however, on a construction of the extract of the decree in the Suit Register (Ext. A.7) took the view that the decree was only against Mohammad Sheriff in the hands of the Court Receiver. The trial Court also took the view that sale of plaintiff’s properties in execution of such a decree, without any notice to the plaintiff, was nullity. The trial Court also found that the suit was not barred by Limitation as the possession of the respondents was for less than 12 years. The findings of the District Munsif were affirmed by the order of the lower appellate court dated 30th October, 1972.
12. In second appeal the High Court on construction of the extract of the decree in the Suit Register (Ext.A.7) took the view that the decree obtained by Kuppuswami Naidu was not only personally against Mohammad Sheriff but was also against the estate of S.M. Sheriff, deceased, in the hands of Receiver, defendant No.1. In that view of the matter the High Court held that the suit was barred under the provisions of Section 47 of the Code of Civil Procedure and was also governed by the residuary Article 137 of the Limitation Act and was barred by time. As stated earlier, against this order of the High Court, Ameena Bi, has come up in appeal.
13. It was contended by learned counsel for the appellant – (1) that Ameena Bi was not a party in the suit. Even against the Advocate, Receiver, appointed by the Court representing the estate of her father, S.M. Sheriff, no money decree was passed and the High Court erred in construing Ext.A.7. as if the estate of S.M. Sheriff was party to the suit filed by Kuppuswami Naidu for refund and mesne profits: and (2) that the suit was not barred by time as it was filed before 12 years of dispossession of the plaintiff.
14. It may be noticed that the concurrent findings of the trial court and the first appellate court were that the decree was personally against Mohammad Sheriff (defendant No.2) and against the estate of Mohammad Sheriff in the hands of Receiver/defendant No.1. It may also be noticed that in the extract of the decree in the suit register which has been reproduced earlier, there is no mention of the estate of deceased S.M. Sheriff at all. All that is mentioned is regarding the family estate of defendant No.2, Mohammad Sheriff, in the hands of defendant No.1. The extract also notices the order passed by the Madras High Court on application (No.1692/55) filed by Kuppuswami Naidu seeking leave of the High Court to sue the Receiver. Neither of the parties filed any copy of the decree obtained by Kuppuswami Naidu in O.S. No. 208/55.
15. We have given our anxious considerations to the submissions made on behalf of the appellant and find lot of merit in the same. It is clear from the extract of the decree of the suit register (Ext.A.7.) that the decree was personally against the second defendant, Mohammad Sheriff only and also against defendant No.1 to the extent of second defendant’s family properties in the hands of the Receiver. It is thus clear that no decree had been passed against the estate of deceased S.M. Sheriff. The plaintiff/appellant, Ameena Bi, got her rights from her father. She never got any right from Mohammad Sheriff in the partition decree. At the stage when the execution was applied for, the Court Receiver had ceased to exist and the final decree had been passed in the partition suit allotting the disputed properties to Ameena Bi. Ameena Bi was never a party to the suit filed by Kuppuswami Naidu. Even the decree which was passed against defendant No.1 was to the extent of the family properties of Mohammad Sheriff in the hands of the Receiver and not the properties of the deceased S.M. Sheriff in the hands of the Receiver.
16. We are thus of the view that the High Court erred in construing as if the money decree had been passed against the estate of deceased S.M. Sheriff. Admittedly Ameena Bi was not a party to the suit. Since Ameena Bi was neither a party to the suit nor any decree was passed against the estate of deceased S.M. Sheriff, no question arose of Ameena Bi taking proceedings under Section 47 of the Code of Civil Procedure in the suit filed by Kuppuswami Naidu (O.S. No.208/1955). We thus set aside the finding of the High Court on the construction of Ext.A.7. and uphold the construction placed by the trial court and the lower appellate court.
17. The next question is the limitation. There is a concurrent finding of both the courts below that the suit had been filed within 12 years of dispossession of Ameena Bi and was based on title and was really within time. Under Article 65 of the Limitation Act which provides a period of 12 years as a period of limitation in filing the suit, the period begins to run ‘when the possession of the defendant becomes adverse to the plaintiff’. Once it is found that the purchase of properties by Kuppuswami Naidu in court auction was illegal and without any authority, further transfer by Kuppuswami Naidu to the remaining defendants/respondents also do not acquire any legitimacy. The possession was obtained by the defendants within 12 years from the date of filing of the suit by the plaintiff/appellant.
18. We thus set aside the impugned judgment and decree passed by the High Court dated 26th July, 1976 and restore the judgment and decree passed by the court of Subordinate Judge, Cuddalore dated 30th October, 1972. The plaintiff/appellant would be entitled to full costs throughout.
1. This is an appeal by Ameena Bi (plaintiff) against the judgment of the learned Single Judge of the Madras High Court dated 26th July, 1976. The respondents are Kuppuswami Naidu (defendant No.1) and five others (defendants 2 to 6). The High Court by the impugned judgment took the view that the suit filed by the plaintiff/appellant herein was barred under the provisions of Section 47 of the Code of Civil Procedure and also barred under Article 137 of the Limitation Act.
2. The High Court had reversed the concurrent judgments of the District Munsif, Tindivanam dated 21st November, 1970 and the lower appellate Court i.e., Subordinate Judge, Cuddalore dated 30th October, 1972. The trial Court and the lower appellate Court had decreed the plaintiff’s title to the suit properties in dispute and also passed decree for recovery of possession of the same with costs. The plaintiff was also granted a decree for mesne profits to be computed in accordance with the provisions of Order 20 Rule 12 of the Code of Civil Procedure, for a period of three years prior to the suit. The plaintiff/appellant filed the Special Leave Petition which was granted on 28th August 1978 and hence this appeal is before us.
3. Briefly stated the allegations in the plaint were that one S.M. Sheriff died on 17th November, 1947 leaving behind the plaintiff/appellant the only daughter as heir besides his wife, sister and four brothers. The said S.M. Sheriff was carrying on a lucrative business and owned considerable amount of immovable properties at various places. It was pleaded that the plaintiff, besides his mother, her aunt and uncles are heirs to the estate of S.M. Sheriff. The plaintiff pleaded that she was entitled to one half share in the estate of her father and the other half to be shared by other heirs.
4. On 20th November 1947, one of the brothers of late S.M. Sheriff, Mohammed Sheriff instituted a suit (C.S. No. 544/47) for partition of the properties left behind his late brother S.M. Sheriff on the file of the High Court of Madras. During the pendency of the suit for partition Mohammad Sheriff was appointed as a Receiver of the estate. He leased out two properties belonging to the estate of deceased in favour of Kuppuswami Naidu, defendant/respondent No.1. Mohammad Sheriff, however, continued as Receiver upto 1952 only and thereafter the High Court appointed Shri J. Alwar Naidu, Advocate, as Receiver. Shri J. Alwar Naidu continued as Receiver till the suit for partition was decreed by metes and bounds by judgment and decree dated 30th July, 1956. The properties in dispute were allotted to her (plaintiff/appellant herein) and on decreeing of the suit the Receiver was discharged.
5. It appears that in the meanwhile on 3rd August, 1955 the defendant No.1, Kuppuswami Naidu, had filed a suit (C.S. No. 208/55) in the District Munsif Court, Tindivanam against Mohammad Sheriff, as defendant No.2 and Shri J. Alwar Naidu, Advocate, Receiver in the Madras High Court (C.S. No. 544/47) as defendant No.1. The suit was filed for the refund of the advance given by Kuppuswami Naidu to Mohammad Sheriff for leasing out certain lands at Pela Kuppam as had not been put in possession. It was pleaded in that suit that the amount of Rs.1,100/- was paid on 27th June, 1952 and as stated earlier, Shri Alwar J. Naidu, Receiver in Suit (C.S. No. 544/47) was made defendant No.1 as the amount had been paid to the Ex-Receiver. On 7th September, 1955 Shri Alwar J. Naidu, Receiver, filed an application being No.2715/1955 in the partition suit and sought directions in the matter of Suit filed by Kuppuswami Naidu for contesting the same. Kuppuswami Naidu also filed an application being No.1692/55 in the partition suit seeking leave of the Court to sue the Receiver. On 23rd September, 1955 on the application filed by the Receiver Shri Alwar J. Naidu, the High Court directed that the Receiver need not contest the suit as it is the personal liability of Mohammad Sheriff. The decree in O.S. No.208/55 will be effected by debiting the amount of decree to Mohammad Sheriff’s account in C.S. No. 544/47 filed by him.
6. It also appears that on 31st March, 1956 suit filed by Kuppuswami Naidu (O.S. No. 208/55) was decreed. Mohammad Sheriff remained ex-parte in that suit and Receiver did not contest the same in view of the order of the High Court dated 23rd September, 1955.
7. In the final decree which was passed in the partition suit on 30th July, 1975 no property was allotted to Mohammad Sheriff as his liability to the estate exceeded the value of his share.
8. No certified copy of the decree passed in Kuppuswami Naidu’s case was filed on record but Ext. A.7 which is a certified copy of Suit Register, Extract O.S. 208/55, was filed. The decree that had been passed in the suit filed by Kuppuswamy Naidu (O.S. No. 208/55) runs as follows:
“Decreed that 2nd defendant personally and defendants from the 2nd defendant’s family properties in the hands of Receiver 1st defendant in Madras High Court C.S. 544/47 do pay plaintiff Rs.1298/- with interest on Rs.1100/- at the rate of 6 per cent per annum from 27-6-1955 till payment and do also pay plaintiff Rs.154-0-0 being the cost of the suit”.
9. In the partition suit certain properties were allotted to Ameena Bi, appellant herein, which were mentioned in Schedule ‘E’ attached to the final decree for partition and Kuppuswami Naidu, while executing his decree against Mohammad Sheriff got the properties, allotted to Ameena Bi attached and sold in execution of money decree obtained by him in his suit and purchased the disputed properties of Ameena Bi while executing his decree against Mohammad Sheriff. It appears that Kuppuswamy Naidu without even obtaining the possession of the properties through court, transferred the same to the other defendants in the present suit. It also transpires that no notice of the execution application was given to Ameena Bi nor was the order of attachment dated 16th August, 1955 served on her. She was not made a party to the execution application. The properties of Ameena Bi were auctioned on 28th November, 1956 without notice to her and sale was also confirmed on 5th January, 1957 again without notice to her. It appears that in the meantime respondents had obtained possession, whereupon the plaintiff/appellant served a notice upon the defendants/respondents to deliver back possession and payment of mesne profits and ultimately filed suit (O.S. No. 441/68) on or about 27th April, 1968 in the District Court, Tindivanam. The plea of the plaintiff/appellant in the suit was that the decree which was obtained by Kuppuswami Naidu merely created a personal liability of Mohammad Sheriff in his favour and he had a further right to recover the money from the estate of Mohammad Sheriff in the hands of the Court Receiver (defendant No.1). It was thus the case of the plaintiff/appellant that subsequent attachment and sale are not binding on her. Kuppuswami Naidu, after the sale in execution, did not take possession but later trespassed into the suit lands and transferred the disputed properties to other defendants in the present case.
10. The respondents as defendants denied the allegations of the plaintiff/appellant and contended that the decree was binding on the estate of S.M. Sheriff deceased. It was also pleaded that the final partition decree of the High Court was not binding on Kuppuswami Naidu or his transferee. It was pleaded that the suit was barred by Section 47 of the Code of Civil Procedure and the Limitation Act.
11. The trial Court, however, on a construction of the extract of the decree in the Suit Register (Ext. A.7) took the view that the decree was only against Mohammad Sheriff in the hands of the Court Receiver. The trial Court also took the view that sale of plaintiff’s properties in execution of such a decree, without any notice to the plaintiff, was nullity. The trial Court also found that the suit was not barred by Limitation as the possession of the respondents was for less than 12 years. The findings of the District Munsif were affirmed by the order of the lower appellate court dated 30th October, 1972.
12. In second appeal the High Court on construction of the extract of the decree in the Suit Register (Ext.A.7) took the view that the decree obtained by Kuppuswami Naidu was not only personally against Mohammad Sheriff but was also against the estate of S.M. Sheriff, deceased, in the hands of Receiver, defendant No.1. In that view of the matter the High Court held that the suit was barred under the provisions of Section 47 of the Code of Civil Procedure and was also governed by the residuary Article 137 of the Limitation Act and was barred by time. As stated earlier, against this order of the High Court, Ameena Bi, has come up in appeal.
13. It was contended by learned counsel for the appellant – (1) that Ameena Bi was not a party in the suit. Even against the Advocate, Receiver, appointed by the Court representing the estate of her father, S.M. Sheriff, no money decree was passed and the High Court erred in construing Ext.A.7. as if the estate of S.M. Sheriff was party to the suit filed by Kuppuswami Naidu for refund and mesne profits: and (2) that the suit was not barred by time as it was filed before 12 years of dispossession of the plaintiff.
14. It may be noticed that the concurrent findings of the trial court and the first appellate court were that the decree was personally against Mohammad Sheriff (defendant No.2) and against the estate of Mohammad Sheriff in the hands of Receiver/defendant No.1. It may also be noticed that in the extract of the decree in the suit register which has been reproduced earlier, there is no mention of the estate of deceased S.M. Sheriff at all. All that is mentioned is regarding the family estate of defendant No.2, Mohammad Sheriff, in the hands of defendant No.1. The extract also notices the order passed by the Madras High Court on application (No.1692/55) filed by Kuppuswami Naidu seeking leave of the High Court to sue the Receiver. Neither of the parties filed any copy of the decree obtained by Kuppuswami Naidu in O.S. No. 208/55.
15. We have given our anxious considerations to the submissions made on behalf of the appellant and find lot of merit in the same. It is clear from the extract of the decree of the suit register (Ext.A.7.) that the decree was personally against the second defendant, Mohammad Sheriff only and also against defendant No.1 to the extent of second defendant’s family properties in the hands of the Receiver. It is thus clear that no decree had been passed against the estate of deceased S.M. Sheriff. The plaintiff/appellant, Ameena Bi, got her rights from her father. She never got any right from Mohammad Sheriff in the partition decree. At the stage when the execution was applied for, the Court Receiver had ceased to exist and the final decree had been passed in the partition suit allotting the disputed properties to Ameena Bi. Ameena Bi was never a party to the suit filed by Kuppuswami Naidu. Even the decree which was passed against defendant No.1 was to the extent of the family properties of Mohammad Sheriff in the hands of the Receiver and not the properties of the deceased S.M. Sheriff in the hands of the Receiver.
16. We are thus of the view that the High Court erred in construing as if the money decree had been passed against the estate of deceased S.M. Sheriff. Admittedly Ameena Bi was not a party to the suit. Since Ameena Bi was neither a party to the suit nor any decree was passed against the estate of deceased S.M. Sheriff, no question arose of Ameena Bi taking proceedings under Section 47 of the Code of Civil Procedure in the suit filed by Kuppuswami Naidu (O.S. No.208/1955). We thus set aside the finding of the High Court on the construction of Ext.A.7. and uphold the construction placed by the trial court and the lower appellate court.
17. The next question is the limitation. There is a concurrent finding of both the courts below that the suit had been filed within 12 years of dispossession of Ameena Bi and was based on title and was really within time. Under Article 65 of the Limitation Act which provides a period of 12 years as a period of limitation in filing the suit, the period begins to run ‘when the possession of the defendant becomes adverse to the plaintiff’. Once it is found that the purchase of properties by Kuppuswami Naidu in court auction was illegal and without any authority, further transfer by Kuppuswami Naidu to the remaining defendants/respondents also do not acquire any legitimacy. The possession was obtained by the defendants within 12 years from the date of filing of the suit by the plaintiff/appellant.
18. We thus set aside the impugned judgment and decree passed by the High Court dated 26th July, 1976 and restore the judgment and decree passed by the court of Subordinate Judge, Cuddalore dated 30th October, 1972. The plaintiff/appellant would be entitled to full costs throughout.
