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Syed Ikramuddin v. Syed Mahamed Ali .

Andhra Pradesh High Court

Sep 27, 1984

Judgment

Subsequent
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Structured Summary of the Provided Opinion

Factual and Procedural Background

This matter arises out of a partition suit involving the matruka property, specifically a house bearing No. 3-5-855 situated at Hyderguda, Hyderabad, and appurtenant land. A preliminary decree was passed in the partition suit and a Commissioner was appointed to effect partition by metes and bounds; the enquiry was in progress.

The petitioner (second defendant) sought to include in the schedule the house No. 3-5-855 and appurtenant land of 12,000 sq. yards, claiming that the property belonged to his mother, Sogra Begum, who died intestate, and thus it formed part of the matruka property. The petitioner had raised this contention in his written statement but it was not decided.

Initially the petitioner applied for amendment of the schedule under Order IV, Rule 17, CPC; that application was dismissed. On revision this Court dismissed the revision but indicated that the procedure followed was not as per law and that the petitioner could follow the appropriate procedure. The petitioner then filed I.A. No. 322 of 1981 in the trial court to include the house and land in the schedule and to effect partition.

The respondent-plaintiff contested the application, asserting that the old number of the property is 953.A/1 and that Sogra Begum had gifted the entire property (house and land) to Lutfunnisa Begum (alias Laiqunnisa), the respondent's wife, by a settlement deed dated May 21, 1946; that the donee was in possession and enjoyment in her own right; and therefore the property was not matruka. The trial court dismissed the application as not maintainable and on grounds of laches, and found in the enquiry that Sogra Begum had gifted the house (old No. 953.A/1) to Lutfunnisa Begum. The petitioner did not assail that finding before the revisional court.

Legal Issues Presented

Whether an application lies under O. XX, R. 18 CPC (or under S.151 CPC invoking inherent powers) to include an additional item in the schedule of a partition decree and, relatedly, whether more than one preliminary decree can be passed in a partition action.
Whether the gift made by Sogra Begum conveyed only the house and appurtenant land measuring 6,170 sq. yards (leaving the balance of land — allegedly totalling 12,000 sq. yards — as matruka), or whether the gift conveyed the entire property as defined by definite boundaries (in which case the donee takes the whole, regardless of the specified measurement).
Whether the petition is barred by laches or is an afterthought raised late in the proceedings to delay partition.

Arguments of the Parties

Petitioner's Arguments

The property in question belonged to his mother Sogra Begum, who died intestate, making it matruka and thus liable to be included in the partition schedule.
Although the trial court found a gift, what was conveyed by the gift deed was only the house and appurtenant land measuring 6,170 sq. yards; the total open land is 12,000 sq. yards, so the excess remains matruka and is subject to partition.
The petitioner relied on authorities (S. Burrayya v. S. Achayyamma and Ramaswamy Chetty v. Palaniappa Chetty) to support the proposition that there is no impediment to pass more than one preliminary decree and that this dispute could be adjudicated in the same action rather than in a separate suit.
He sought to include the additional land by amendment or appropriate application so it may be partitioned among heirs.

Respondent's Arguments

The application is belated and an afterthought; the petitioner allowed the preliminary decree to become final and did not timely challenge it or participate in the Commissioner’s enquiry, only raising the present plea late to protract proceedings.
The trial court rightly found that Sogra Begum gifted the house and land to Lutfunnisa Begum; the gift conveyed the entire property as described by the boundaries in the gift deed, and thus there is no matruka left to be partitioned.
The donee (Lutfunnisa Begum) is not a party to the suit and holds an indefeasible right by virtue of the gift deed, so she cannot be compelled to litigate in this suit.
The petitioner’s remedy under O. XX, R. 18 CPC does not lie to enlarge a preliminary decree to include additional items; the application is not maintainable. The respondent relied on authorities (Devarajulu v. Kondammal, Thimmappa v. B. Subba Rao, State v. Bamadeb) to support positions on laches and delay.
On construction of deeds, boundaries should prevail over numerical area when definite boundaries are specified in the instrument.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
S. Burrayya v. S. Achayyamma, AIR 1959 Andh Pra 26	Authority cited by petitioner for the proposition that there is no impediment to pass multiple preliminary decrees; that separate items can be adjudicated in the same action.	Not applied directly by the Court as controlling authority, but noted as part of petitioner's reliance supporting the broader proposition that separate preliminary decrees are permissible.
Ramaswamy Chetty v. Palaniappa Chetty, AIR 1924 Mad 354	Cited by petitioner in support of the proposition that more than one preliminary decree may be passed in partition proceedings.	Included among petitioner’s authorities; Court addressed the general proposition later through its own precedent (Pentaiah).
Devarajulu v. Kondammal, AIR 1925 Mad 427	Cited by respondent in support of the contention that the application is belated and that laches bars relief.	Referenced as part of respondent’s argument supporting laches; the Court considered laches as a factor in refusing to decide the extent of land on revision.
Thimmappa v. B. Subba Rao, AIR 1960 Mys 249	Cited by respondent in support of the plea of laches/delay and that the application is an afterthought.	Used by the respondent to bolster the laches argument; the Court accepted laches as a relevant consideration in its disposition.
State v. Bamadeb, AIR 1971 Orissa 227	Cited by respondent in relation to delay and procedural propriety (supporting laches argument).	Part of the respondent’s reliance on authority to establish delay as a ground; the Court treated delay as a factor in refusing relief on revision.
Pentaiah v. Siva Lingam, (1984) 2 APLJ (SN) 35 (S.A No. 587 of 1980, dt. Sept. 1, 1984)	Held that in partition actions more than one preliminary decree can be passed and that undisposed items may be decided in the same action; supports availability of application under O. XX, R. 18 or S.151 to include items if they are joint/matruka/co-owned.	Relied upon by the Court as the principal authority to hold that an application would lie (under O. XX, R. 18 or under S.151 CPC) to include an item claimed to be matruka/co-owned and to pass further decree(s) in the same action.
Roe v. Siddons, (1888) 22 QB 224	Cited (and approved in Babulal) concerning the principle that appurtenant measurements may be construed and that questions of extent can arise in conveyance interpretation.	Referred to by petitioner’s counsel to support the contention that only the house and appurtenant 6,170 sq. yards were conveyed; Court noted the reliance but did not decide the factual extent on revision.
Babulal v. Ram Prasad, AIR 1939 All 37	Full Bench judgment approving Roe v. Siddons and cited for principles on construction regarding appurtenant lands and specified measurements.	Noted by the Court as part of the petitioner’s authority on construction of conveyances; Court observed that extent was a disputed factual question not determined at enquiry and left it open.
Subbayya Chakkiliyan v. M. Muthia Goundan, AIR 1924 Mad 493	Cited by respondent for the rule that where definite boundaries are given in a deed, boundaries prevail over the stated measurements; the purchaser/donee takes the land within the boundaries.	The Court reiterated this settled rule of construction (boundaries prevail over measurements) but refused to decide the factual extent in revision given procedural circumstances and absence of the donee.

Court's Reasoning and Analysis

The Court addressed two principal strands of analysis: (A) whether an application to include the disputed item in the schedule would lie in the partition suit, and (B) the merits question regarding the extent of land conveyed by the gift deed.

A. Availability of Application to Include an Item in the Schedule

The Court referred to its earlier decision in Pentaiah v. Siva Lingam in which it held that where certain items in a partition suit remain undecided, there is no impediment to passing more than one preliminary decree and that disputes regarding undisposed items can be decided within the same action rather than by separate suits. Following that authority, the Court concluded that an application would lie under O. XX, R. 18 CPC or, alternatively, under S. 151 CPC invoking the Court's inherent powers, to include an item in the schedule when the property claimed is joint family, matruka, or co-owned property.

B. Merits: Construction of the Gift Deed and Extent of Land

On the substantive contention whether the gift conveyed only the house and 6,170 sq. yards or the entire land within defined boundaries (potentially 12,000 sq. yards), the Court analyzed the record and applicable principles:

The record showed the petitioner had pleaded in the written statement that the property was matruka; however, at enquiry the trial court found that Sogra Begum had gifted the property to Lutfunnisa Begum — a finding not assailed before the revisional court.
The petitioner’s present contention (that only 6,170 sq. yards were conveyed) was supported by authorities (Roe v. Siddons; Babulal v. Ram Prasad) on construction regarding appurtenant measurements. The respondent, conversely, relied on authority (Subbayya Chakkiliyan) for the settled rule that where a conveyance specifies definite boundaries, boundaries prevail over stated measurements and the donee takes the land within those boundaries.
The Court reiterated the settled principle that definite boundaries specified in a conveyance prevail over numerical area, so that the donee/purchaser normally takes the land within the stated boundaries irrespective of the specified measurement.
However, the Court emphasized that the specific factual question (whether the land is 6,170 sq. yards or 12,000 sq. yards) was not litigated at the enquiry: the trial court’s controversy had centred on the execution/validity of the gift, not on the factual extent of the land. The respondent/trial court did not focus on extent during enquiry, and the donee (Lutfunnisa Begum) — who holds an indefeasible title under the deed — was not a party before the revisional court.
Given these procedural and factual circumstances — (i) the disputed factual nature of the extent, (ii) lack of enquiry evidence on extent, (iii) the absence of the donee from the proceedings, and (iv) the petitioner’s delay (having earlier pleaded no gift, later accepting the gift finding only to argue extent) — the Court found it would result in a miscarriage of justice to decide the factual extent on revision.

Consequently, the Court declined to determine the precise extent of the land in this revisional proceeding and left the question open for appropriate adjudication in the proper forum, in the presence of all interested parties including the donee.

Holding and Implications

Holding:

Revision dismissed.

Implications and immediate consequences:

The revisional challenge to the trial court's orders was dismissed and the trial court's findings (including the finding of a gift to Lutfunnisa Begum) remain undisturbed by this revision.
The Court held, as a legal principle, that an application can lie under O. XX, R. 18 CPC or under S. 151 CPC to include an additional item in the schedule of a partition action where the property is claimed as joint family/matruka or co-owned property; that is, more than one preliminary decree can be passed in appropriate cases (following Pentaiah v. Siva Lingam).
The specific factual dispute about whether the gift conveyed only 6,170 sq. yards or the entire land within the boundaries (allegedly 12,000 sq. yards) was left open and not decided in this revision because of procedural defects, absence of the donee, and risk of prejudice. The parties remain free to adjudicate that factual question in an appropriate forum with all necessary parties present.
The Court dismissed the revision without costs.

Note: The opinion did not decide the factual question of the exact extent of the land; it preserved the parties' ability to pursue the matter further in a proper proceeding. The Court also affirmed the settled rule of construction that boundaries prevail over stated measurements, but declined to apply that rule to reach a final factual determination on this record.

Revision dismissed.

Show all summary ...

1. The petitioner is the second defendant. The suit was laid for partition of the matruka property i.e house bearing No. 3-5-855, situated at Hyderguda, Hyderabad. A preliminary decree was passed and a Commissioner was appointed to effect partition by metes and bounds and the enquiry is in progress. At that stage, the petitioner filed an application to include in the schedule the house bearing No. 3-5-855 situated at Hyderguda and also the appurtenant land of 12,000 Sq. Yards. According to the petitioner, the property belongs to his mother Sogra Begum, and she died intestate. Therefore, it formed part of the matruka property. Though he raised the same contention in the written statement, it was not decided. Since it is matruka property it is liable to be included as one of the items in the schedule and is liable to be partitioned. In the first instance, he made an application for amendment of the schedule under Order IV, Rule 17, CPC. That application was dismissed and when revision was filed this Court while dismissing the revision, held that the procedure followed is not as per law. It was indicated that it is open to the petitioner to follow appropriate procedure. Thereafter, the petitioner filed an application being I.A No. 322 of 1981 in the lower Court to include this item as one of the items in the schedule and to effect partition. To this application, a counter was filed by the respondent-plaintiff contending that the old number of the property in question is 953.A/1; that the property was gifted over by Sogra Begum in favour of Lutfunnisa Begum alias Laiqunnisa, wife, of the respondent, by a settlement deed, dt. May, 21, 1946; that the entire property comprising of the house and the land was gifted over and that she was in possession and enjoyment in her own right. He, therefore, contended that it is not a matruka property and is not liable to be included in the schedule. The lower court dismissed the application on the ground that it does not lie and also on the ground of laches. In the enquiry, the lower Court gave a finding that Sogra Begum gifted over the house bearing No. 3-5-805 (Old No. 953.A/1) in favour of her daughter-in-law Lutfunnisa Begum alias Liqunnisa, wife of the respondent.

2. In this revision, Sri Seetharamaiah learned counsel for the petitioner did not assail the correctness of the finding that Sogra Begum gifted over the house to Lutfunnisa Begum alias Laiqunnisa, wife of the respondent, but his contention is now focussed on the fact that what was gifted was only a house and the appurtenant land admeasuring 6,170 Sq. Yards whereas in fact the total extent of the open land is 12,000 Sq. yards. Therefore, excluding the property gifted over, namely, the house and the appurtenant land of Rs. 6,170 sq. yards. the balance of the land continues to be the property of Sogra Begum. She having died intestate, it becomes the matruka property and is liable to be partitioned between all her heirs. If that fact is accepted, then there will not be any dispute to include that property by way of an amendment as part of the schedule. In support thereof, he relied upon the decision of a Division Bench of this Court in S. Burrayya v. S. Achayyamma, AIR 1959 Andh Pra 26, as also the decision in Ramaswamy Chetty v. Palaniappa Chetty, AIR 1924 Mad 354. He contended that there is no impediment to pass any number of preliminary decree. A preliminary decree granted earlier, can continue to be the preliminary decree, but in the case on hand, the dispute is whether this item can be separately adjudicated and a further preliminary decree granted.

3. Sri Narayana Charyuly, learned counsel for the respondent, on the other hand, contended that the application is a belated one. It is an afterthought. The petitioner raised expressly the plea that there is no gift as such. The entire property is the matruka property of Sogra Begum. There is no issue cast by the trial Court. After the preliminary decree was granted, the petitioner allowed the decree to become final while the other respondents too failed to file an appeal. Before the appellate Court, he did not assail the correctness of the preliminary decree. When the Commissioner was appointed and the enquiry proceeded with, he did not take this plea. He did not participate in the enquiry before the Commissioner. At the last moment he woke up and raised this plea only to protract the proceedings. In support of this plea, he relied upon the decisions in Devarajulu v. Kondammal, AIR 1925 Mad 427, Thimmappa v. B. Subba Rao, AIR 1960 Mys 249. State v. Bamadeb, AIR 1971 Orissa 227. He further contended that what was conveyed to Lutfunnisa Begum alias Laiqunnisa Begum is not only the house and a land of 6,170 sq. yards. but the entire property comprising within the boundaries mentioned in the gift deed. It is not the case of the petitioner in the Court below the balance extent of the land excluding 6,170 sq. yards should form part of the matruka. That is the reason why the respondent did not focuss his attention with regard to the balance of the property. He confined himself to the validity of the execution of the gift deed in favour of his wife. It is also contended that Lutfunnisa Begum alias Laiqunnisa is a not a party to the suit. She has got an indefeasible right by virtue of the gift deed. Therefore, she cannot be driven to have a fight in this case. He also supported the reasoning of the lower Court with regard to laches and also the maintainability of the petition, he stated that the application under O. XX, Rule 18, CPC does not lie. The preliminary decree cannot be enlarged in the application. The preliminary decree contains only one item. More than one item, now, cannot be included in the preliminary decree.

4. Upon these respective contentions, the first question that arises for consideration is whether an application would lie?

5. I have held in Pentaiah v. Siva Lingam, (1984) 2 APLJ (SN) 35, (S.A No. 587 of 1980, dt. Sept. 1, 1984) that in partition action when there is no dispute with regard to the existence of the property, though claims in respect of one of the items of the properties were not adjudicated and a preliminary decree was passed in respect of the other items, there is no impediment to pass more than one preliminary decree. With a view to shorten the litigation instead of driving the parties to a separate action. The dispute can be decided in the same action. Accordingly I confirmed the preliminary decree in respect of the items decreed in the suit and remanded the matter for enquiry with respect to another item which was claimed to be the joint family property. I have also held that the same principle applies inter se to the co-owners as well. Under those circumstances, following the above decision, I have no difficulty to hold that an application would lie under O. XX, R. 18 or even under S. 151, CPC invoking the inherent power of the Court to include one of the items, provided the property belongs to the joint family or the matruka or the co-ownership. In this case, it is claimed by the petitioner that it is the matruka property and that therefore, the matter can be adjudicated. As regards the legal principle, I have no manner of doubt to hold that an application would lie.

6. With regard to the claim to the property as such, now the record establishes that the petitioner averred in the written statement that the entire house and the land is the matruka property. No issue was raised. The preliminary decree was allowed to become final and the Commissioner is proceeding to divide the property comprising the preliminary decree by metes and bounds. At this stage, the petitioner filed this application to include this house and the land of 12,000 sq. yards as well as part of the schedule. The trial Court has accepted that there is a gift made by Sogra Begum in favour of Lutfunnisa Begum alias Laiqunnisa Begum the wife of the respondent. That finding is not assailed, and fairly, before me.

7. The only point in issue now centres round the question; what is the total extent, of the open land? Sri Seetharamaiah learned Counsel for the petitioner contends that what was conveyed under the gift deed to the donee is only the house and 6,170 sq. yards and nothing more, and that 6,170 sq. yards is an appurtenant land for the convenient enjoyment thereof. In support thereof, he relied upon the decision in Roe v. Siddons, (1888) 22 QB 224, at p. 236; which was approved and followed in the Full Bench judgment of the Allahabad High Court in Babulal v. Ram Prasad, AIR 1939 All 37.

8. Sri Narayana Charyulu, learned counsel for the respondent on the other hand, as extracted earlier, contended that the entire gift is of the house and the entire land situated within the boundaries specified in the schedule. The boundaries specified in the schedule are: South: House of Mohd. Ahmed Ansari, North: House of Kulsumbai Mr. Torian and house of Baiganapally Nawab: East: the residential house belonging to the petitioner and West King Koti road. He contends that what was conveyed under the gift to Lutfunnisa Begum is the entire property, though it may have been specified as 6,170 sq. yards. It may be more or, it may be less. The entire extent belongs to her and her alone. Therefore, there is no matruka left over. In support of this plea, he relied upon a Division Bench judgment in Subbayya Chakkiliyan v. M. Muthia Goundan, AIR 1924 Mad 493. Therein also, the question of construction of the deed arose. It was hold that ordinarily when a piece of land is sold with definite boundaries, unless it is very clear from the circumstances surrounding the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must, prevail as against the measurements.

9. It is now well settled that when a conveyance is made of the property with definite boundaries, the boundaries shall prevail over the extent, and whatever may be the extent specified within the boundaries, the entire extent of the land must be deemed to belong to the purchaser or the donee or the settlee. But here the question is whether the land is 6,170 sq. yards or 12,000 sq. yards. As I have stated earlier, the controversy that centred round before the trial court is with regard to the execution of the gift deed, but not with regard to the extent of the land. Therefore, rightly the respondent did not concentrate his attention with regard to the extent of the land mentioned in the petition, and also in the evidence at the enquiry. It is a disputed fact and when that question was not raised at the enquiry before the trial Court, if I give a finding in this regard, there will be any amount of miscarriage of justice to either party. Added to that the donee is not before the court who has got an indefeasible right, title to and interest in the property conveyed, whether it is 6,170 sq. yards or 12,000 sq. yards. It is a matter to be gone into at an appropriate stage in her presence. Though Sri Seetharamaiah, learned counsel for the petitioner sought to contend that if it is decided that there is excess land and it is sought to be included in the schedule, she may participate in the enquiry, I am not inclined to agree with the learned counsel in this regard. The petitioner had slept over the matter for a long time; he raised the plea in the trial court that there is no gift; he raised this affirmative plea only having found that the gift was accepted and sought to say something more and even carried the matter in revision in this regard. Under these circumstances, I am not inclined to give a finding in this regard in this revision. Therefore, I leave open that question and it is open to the parties to adjudicate their rights in an appropriate forum according to law, if they are so advised.

10. Accordingly, the revision is dismissed on the above ground but in the circumstances, without costs.