1990 C L C 366
1990 C L C 366
[Karachi
Before Syed Abdur Rehman, J
IQBAL SULTAN‑‑‑Petitioner
versus
Miss CHAND SULTAN and 2 others‑‑‑Respondents .
Civil Suit No.12 of 1987 and Judicial
Miscellaneous No.48 of 1988, decided on 27th September, 1989.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 12(2)‑‑‑Application for setting aside
decree allegedly obtained by fraud/misrepresentation, under S.12(2), Civil
Procedure Code, if found to be improper, mala fide and having been made only to
protract the proceedings and to abuse the process of the Court, could be
dismissed by the Court without framing any issue or recording any evidence.
Alam Ali v. District Judge, Multan
(b) Sindh Chief Court Rules (O.S.)‑‑‑
‑‑‑‑R. 381‑‑‑Rule 381, Sindh Chief Court Rules
require explanation, whereas application for grant of letters of administration
was filed more than three years after the demise of proposition.
(c) Succession Act (XXXIX of 1925)‑‑‑
‑‑‑‑S. 295‑‑‑Suit for administration‑‑‑Relief‑‑‑In
a suit for administration the relief to be granted is, that the estate of the
deceased is to be administered under the decree of Court. Syed Mehdi
Hussain Shah v. Mst. Shadoo Bibi PLD 1962 SC 291 and Mohammad Javed Akhtar v.
Public at Large 1977 CLC 262 ref.
(d) Succession Act (XXXIX of 1925)‑‑‑
‑‑‑‑Ss. 254 & 295‑‑‑Letters of
administration‑‑‑Word "proceedings"‑‑Connotation ‑‑‑Procedure to be
followed in a contentious matter stated.‑‑[Words and phrases].
In contentious matters the proceedings are to
take, as nearly as may be, the form of a regular suit, according to the
provisions of Civil Procedure Code. There is nothing in section 295 or any
other provision of the Succession Act which provides that the proceedings are
to take the form of suit only up to any particular stage i.e. up to the
recording of evidence, and not thereafter. It does not say that in contentious
matters the judgment, the decree or the execution of the decree shall not be,
as nearly as may be, in the form of a suit. The word "proceedings",
cannot be restricted to the recording of evidence, but will cover all the
proceedings that take place in a contentious matter, including judgment, decree
and the execution thereof. In such cases the judgment, decree and its execution
have to take, as nearly as may be, the form of a suit, according to the provisions
of Civil Procedure Code. The decree in a contentious matter can be either a
decree in Form No.32 of Appendix `A', if the parties have no objection to it,
or if the Court feels that the interests of justice will be fully and
completely served by granting decree in such a form. But if the Court feels
that the interests of justice cannot be fully and completely served otherwise
than by granting a decree resembling that of a suit for administration then not
only section 254 of the Succession Act authorises, empowers and enjoins the
Court to do so, but even in the exercise of its inherent powers Court can
always do so. [p. 373] D
(e) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑Ss. 41 & 52‑‑‑Lis pendens, principle of‑‑‑Sale
made during the pendency of suit proceedings was fully covered by provision of
S.52, Transfer of Property Act and was hit by the doctrine of lis pendens and
thus did not affect rights of decreeholder in respect of suit‑property‑‑‑Such
sale was also not protected by S.41, Transfer of Property Act, 1882
Usman v. Haji Omer and another AD 1966 SC 328;
Messrs Ahsan sCorporation, Karachi
(f) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑S. 52‑‑Lis pendens, principle of‑‑Sale made
during the pendency of suit was hit by doctrine of lis pendens and did not
affect rights of decree‑holder in respect of suit property.
(g) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑5. 52 [as amended by Sindh Transfer of
Property and the Registration (Sind Amendment) Act (XIV of 1939)]‑‑‑Constitution
of Pakistan Karachi from
Sindh and its subsequent merger in West Pakistan‑‑Laws which were in force in Karachi were continued to remain in force in Karachi
(h) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑Ss. 41 & 52‑‑‑Sale of property to a
stranger during pendency of proceeding would not take effect beyond vendees'
share in that property‑‑‑Only exception to the rule is contained in S.41,
Transfer of Property Act, 1882‑‑‑Principle contained in S.41, Transfer of
Property Act, however, was not available to a person who had come to Court with
unclean hands.
(i) Maxim‑‑‑
‑‑‑‑ Nemo plus juris ad alium transferee postest
quam ipse habereti‑‑‑‑No person can grant to another a longer interest in
property than he himself possesses.
Iqbal Qazi for Petitioner.
Abdul Majid Khan for Respondents.
Dates of hearings: 2nd and 10th May, 1989.
JUDGMENT
Brief facts giving rise to this application are
that a petition for grant of Letters of Administration was filed by Iqbal
Sultan, the son of deceased Mst. Fatima Sultan who died at Karachi Karachi Karachi
2. Present application ..under section 12 (2)
read with section 151, C.P.C. has been filed by one Zaheeruddin who claims to
have entered into an agreement of sale with Hira Sultan dated 14‑7‑1987 with
respect to all the 0‑6‑0 annas share of the above house left by Mst. Fatima
Sultan. Thereafter, he made all possible enquiries in respect of the exclusive
title of Hira Sultan and published notices in the newspapers and after waiting
for sufficiently long time purchased the house in ‑dispute by way of registered
sale‑deed dated 17‑9‑1987. Applicant Zaheeruddin has further alleged that he
had no knowledge that the suit property was subject Io any dispute or
litigation or that the plaintiff Iqbal Sultan or defendants Chand Sultan or
Hira Sultan or anybody else was co‑sharer in the property. He claims that the
exclusive possession of the house has been delivered to him by Hira Sultan, who
was in exclusive possession thereof and the mutation in the record of KD.A. was
also in her name. He further contended that the decree was fraudulent and
collusive and prayed that the same may be set aside.
3. Affidavits, counter‑affidavits and rejoinders
have been filed to this application. An application under Order XIV Rules 1 and
5 and section 151, C.P.C.(C.M.A. No.7470/88) has also been filed by the
applicant/intervenor wherein it is prayed for framing of the issues and
directing the parties to lead their evidence. Mr. Iqbal Kazi, Advocate, who
appeared for the applicant/intervenor insisted on the framing of the issues and
leading of evidence. He relied upon P L D 1983 Lahore
278‑‑Alam Ali v. District Judge, Multan
"Since in that application, the issues were
not framed, the evidence of the parties was not recorded; WAPDA was not asking
to prove allegation of fraud etc. and the petitioners were not given
opportunity to lead evidence to rebut the assertion of the WAPDA. The learned
District Judge was not competent to set aside the compromise decree
straightaway and thereby condemn the petitioners' hearing."
4. This is not at all an authority for holding
that an application under section 1.2 (2), C.P.C. cannot be dismissed without
framing issues or recording evidence. In this case a compromise decree was set
aside by the Court on an application under section 12 (2), C.P.C. and even the
plaint thereby was rejected under Order VII, Rule 11, C.P.C. for want of
jurisdiction. The High Court set aside the order and held that a decree could
not be set aside by allowing an application under section 12 (2), C.P.C.
without framing issues of fraud etc. and without recording evidence thereof.
Hence this is an authority for holding that an application under section 12
(2), C.P.C. cannot be granted without framing issues and leading evidence and
not that it cannot be dismissed without doing so.
Mr. Iqbal Kazi then cited P L D 1982 .Peshawar
172‑‑Abdul Rauf v. Abdul Rahim Khan wherein it was held that word `collusion'
in judicial proceeding means secret agreement between two persons to have a
suit instituted by one against the other in order to obtain decision of a
judical tribunal for some sinister purpose and therefore collusion could be
gone into by the Court on an application under section 12 (2), C.P.C. which
lies to determine the question of fraud and misrepresentation etc. There can be
no cavil with the proposition of law given in this ruling. This ruling,
however, would not apply to the present case because there is no such collusion
in this case between Iqbal Sultan and his sisters. The collusion appears to be
between Zaheeruddin and Chand Sultan and Hira Sultan.
He then cited 1982 C L C 625‑‑Munir Ahmed Khan
v. Samiullah Khan where it was held as follows:‑‑‑
"Wherever in the Civil Procedure Code an
application is to be disposed of by a summary inquiry, the matter is left to
the satisfaction of the Court and reference may be made to the application made
under Order IX, rule 13, Order IX, rule 9, Order XLI, rule 17, Order XLI, rule
19 of the Code of Civil Procedure. However, where a substantial inquiry is to
be made under the Civil Procedure Code the matter is not left to the
satisfaction of the Court alone and existence of the facts on which the
exercise of the jurisdiction depends must be proved."
5. In this case also an application under
section 12 (2), C.P.C. was granted by the lower Court and the decree was set
aside without holding an inquiry. Therefore, the Lahore High Court set aside
the order passed by the lower Court setting aside the decree and remanded the case
to the lower Court to allow the parties to lead evidence and then decide the
application. This is also, therefore, a reverse case and not a case in which
the application under section 12 (2), C.P.C. was dismissed.
He then cited 1984 S C M R 586‑‑Jalaldin v.
Asghari Begum. In this ruling it was held that the word `person' has been used
in this section intentionally so that the right of filing application under
section 12 (2), C.P.C. is ;not restricted to the parties to the suit only.
There can be no cavil with the proposition of law stated in this ruling but
this ruling also does not apply to the present case.
Finally, Mr. Iqbal Kazi referred to 1986 C L C
747‑‑Abdul Ghaffar v. Jalaluddin which was a decision given by me in a somewhat
similar case and tried to distinguish the same by submitting that in the case
under ruling the applicant had not requested the Court to allow to lead any
evidence in addition to the affidavit riled by him or to cross‑examine the
respondent on his counter‑affidavit. As such it was held by this Court that the
trial Court had fully complied With the requirement of the procedural law in
deciding the application under section 12 (2), C.P.C. and the objection of the
appellant does not carry any weight. This ruling in my view also would not help
the applicant. The brief facts of the case under ruling were that a decree was
passed in favour of respondent and against the applicant. The respondent filed
execution application for enforcing the decree. The applicant thereupon filed
an application under section 12 (2) read with section 47, C.P.C. He contended
that the decree was obtained by fraud and misrepresentation as the respondent
had not obtained power of attorney from his son on whose behalf he had signed
and verified the plaint. The application was dismissed by the learned Civil
Judge on the ground that it was a technical and formal objection and no fraud
or misrepresentation was involved. Hence he dismissed the application under
section 12 (2), C.P.C. The finding of the‑learned trial Court was maintained by
the First Appellate Court and also by this Court by my abovementioned ruling.
6. While closing the judgment of the above
ruling, I had observed that both the lower Courts were perfectly justified in
dismissing the application and the appeal of the applicant and had agreed with
the lower Courts that the applicant was only interested in protracting the
proceedings and in trying to continue his unlawful possession over the disputed
property as long as possible. The circumstances of the present case and the
conduct of the present applicant also do not seem to be different from that of
the case under ruling.
7. I
am, therefore, of the clear view that if the Court comes to the finding that an
application under section 12 (2), C.P.C. is improper, mala fide and has been
made only to protract the proceedings and to abuse the process of the Court,
the Court can dismiss the same summarily without framing any issues or
recording any evidence. To hold that the Court should frame issues and record
evidence in every application filed under section 12 (2), C.P.C. even before A
dismissing it would amount to give a licence to unscrupulous litigants to
protrect the proceedings and perpetuate their unlawful possession and to see
that there is no end to the proceedings. In this case the defendants Chand
Sultan and Hira Sultan had hifhly misconducted themselves so much so that
proceedings under section 476, Cr.P.C. have been ordered against them. It
appears that instead of mending' their ways they have committed another
misconduct by setting up the applicant to perpetuate the mischief against
plaintiff Iqbal Sultan.
8. Mr.
Iqbal Kazi then questioned the merits of the proceedings taken in the case and
the legality of the judgment and decree passed thereunder.
He pointed out that the propositus Fatima Sultan
died on 17‑3‑1979 while Iqbal Sultan filed this suit as SMA No. 169/86 after
about 8 years of her death. ft was for grant of letters of administration in
respect of a house. It discloses that the deceased propositus had left 2 other
heirs Chand Sultan and Rukhsana Sultan besides the petitioner and that they
were living in this house while, the petitioner was living somewhere else.
Chand Sultan filed her counter affidavit on 17‑11‑1986 while Hira Sultan filed
objections on 7‑12‑1986. Rule 381 I of the Sind Chief Court Rules (O.S.)
requires explanation if an application for B g,,,rant of letters of
administration is filed more than 3 years after the demise of the propositus.
No such explanation was given in this case. It may be stated that this is a
technical objection. It was for the defendants Chand Sultan and Hira Sultan to
have taken this objection, if the office of the Court had not taken the same.
When no such objection was taken and the case was decided finally now no right
accrues to the applicant who is a transferee from Hira Sultan defendant to take
up this technical objection which the defendant herself could have taken but
did not take.
SMA No. 169/88 was treated as a contentious
matter as required by section 295 of the Succession Act and was renumbered as a
suit on 21‑12‑1986. It will be useful to reproduce section 295 of the
Succession Act as under:‑‑
"295. In any case before the District Judge
in which there is contention, the proceedings shall take, as nearly as may be,
the form of a regular suit, .according to the provisions of :the
Code of Civil Procedure, 1908, in which the petitioner for. probate or letters
of administration, as the case AT ,may be, shall be the plaintiff,
and the person who has appeared to oppose the grant shall be the
defendant."
Mr. Iqbal Kazi went on to argue that no doubt
the procedure to be followed is that of a suit but the petition shall otherwise
remain one for grant of letters of administration and the decree shall be in
Form No.32 in Appendix `A' of the Rules as provided by Rule 413 of Sind Civil
Court Rules (O.S.). According to this form in contentious matters the letters
of administration are to be granted to the plaintiff not in the form set out in
Schedule VII, prescribed by section 290 of Succession Act, but in the form of
decree. It is the plaintiff even in that event who has to administer the
property. He contended that the Court could not legally grant the letters of
administration to anybody other than the plaintiff. According to section 291 of
Succession Act, such a letter was to be granted to the plaintiff after he had
furnished a bond with securities to the Court. A preliminary decree
for administration of property appointing the Nazir of the Court could not be
passed in such a suit. In this connection he relied upon P L D 1962 S.C. 291‑‑
Sved Mehdi Hussain Shah v. Mst. Shadoo Bibi where it was held that while an
administration suit is not a remedy for getting possession from those who claim
the property in their possession in their own right and adversely to the
deceased, there does not appear to be any valid objection to their
dispossession if they claim only as heirs or under a will from the
deceased and their claim is negatived. This ruling goes against applicant
Zaheeruddin himself because he claims to be the purchaser from one of the heirs
of the deceased and not as a person in possession in his own right and
adversely to the deceased. In this ruling, it has also been held that no
specific provision exists in regard to the procedure of an administration suit
though the competence of such a suit is recognized in Order XX of Civil
Procedure Code and in the forms of plaints and decrees contained in Appendices
C to that Code. In a suit for administration the relief to be granted is that
the estate of the deceaseed is to be administered under the decree of Court. He
then relied upon 1977 C L C 262‑‑Mohammad Javed Akhter v. Public at Large,
where my learned brother Mr. Justcie Saeeduzzaman Siddiqui after taking into
consideration the practice of this Court of dispensing with condition of surety
for issuance of letters of administration etc. and of appointment of Nazir to
administer the property held, that the letters of administration could neither
be granted without furnishing security nor would it be possible to grant the
same in favour of the Nazir. From the perusal of this ruling it appears that
perhaps it relates to non‑contentious matters. The case of contentious matters
is different. In contentious matters the proceedings arc to take, as nearly as
may be, the form I of a regular suit, according to the provisions of Civil
Procedure Code. There is nothing in section 295 or any other .provision of the
Succession Act which provides that the proceedings are to take the form of suit
only up to any particular stage i.e. up to the recording of evidence, and not
thereafter. It does D not say that in contentious matters the judgment, the
decree or the execution of the decree shall not be, as nearly as may be, in the
form of a suit. The word "proceedings", in my opinion, connot be
restricted to the recording of evidence, but will cover all the proceedings
that take place in a contentious matter, including judgment, decree and the
execution thereof. In such cases the judgment, decree and its execution have to
take, as nearly as may be, the form of a suit, according to the provisions of
Civil Procedure Code. The decree in a contentious matter can be either a decree
in Form No.32 of Appendix `A', the parties have no objection to it, or if the
Court feels that the interests of justice will be fully and completely served
by granting decree in such a form. But if the Court feels that the interests of
justice cannot be fully and completely served otherwise than by granting a
decree resembling that of a suit for administration then not only section 254
of Succession Act authorises, empowers and enjoins the Court to do so, but even
in the exercise of its inherent powers Court can always do so. I cannot
persuade myself to agree to the proposition that the Court is bound to issue
the letters of administration within the four corners of Form No.32 of Appendix
`A' even if the Court feels that it would not be in the interest of justice to
do so. In the present case there was such a vigorous contest between the
parties that the appointment of lqbal Sultan as an administrator, even if it
was after obtaining a surety bond from him, would not have been in the interest
of the heirs who had opposed him. It would not have been a smooth sailing for
Iqbal Sultan either. The exercise could have resulted in embarrassment to lqbal
Sultan and loss of property or money to his opponents or even to both. It was
for this reason that I had not granted decree appointing lqbal Sultan as
administrator in Form No.32 and still I feel that it would go against the
interest of Zaheeruddin himself, otherwise even now the Court could have
ordered that the decree be issued in Form No.32 and lqbal Sultan would have
been too happy to be appointed as an administrator. Even otherwise section 254
of Succession Act gives discretion to the Court in the matter of appointing any
other suitable person as an administrator. Section 254 may be reproduced as
under:
"25‑1. Appointment, as administrator, of
person other than one who in ordinary circumstances, would be entitlcd to
administration.‑‑(1) When a person has died intestate, or leaving a will of
which there is no executor willing and competent to act or where the executor
is, at the time of the death of such person, resident out of the province, and
it appears to the Court to be necessary or convenient to appoint some person to
administer the estate or any part thereof, other than the person who, in
ordinary circumstances would be entitled to a grant of administration the Court
may in its discretion, having regard to consanguinity, amount of interest, the
safety of the estate and probability that it will be properly administered,
appoint such person as it thinks fit to be administrator.
(2) In
every such case letters of administration may be limited or not as the Court
thinks fit."
The occasional practice of this Court of
appointing Nazir as Administrator in contentious matters also supports my
viewpoint.
9. The next contention of Mr. Iqbal Kazi was
that the share of defendant Chand Sultan could not have been given by the Court
to the other heirs even if she had disclaimed the same. The contention of Mr.
Iqbal Kazi would not help applicant Zaheeruddin and would, on the contrary, go against
him for the simple
reason that he had purchased the house from Hira
Sultan alone and not from Chand Sultan. If for the sake of argument the share
of Chand Sultan is given to her in spite of disclaimer then the share of Hira
Sultan would be reduced to 1/4th whereas at present she is given 1/3rd share in
the house. Applicant Zaheeruddin would, on the contrary, get lesser share in
the house in that case.
10. Mr. Iqbal Kazi next contended that the house
was purchased by applicant Zaheeruddin in 1987 after making full enquiries that
it belonged to I‑lira Sultan alone and that nobody else had a share in the
house. He found that the name of Hira Sultan alone was mutated in K.DA. as heir
of deceased Fatima Sultan. There was also a certificate of Virst Class
Magistrate of that effect. He got notices published in Daily `Jang' and Daily
`News' dated 15‑7‑1987 but the plaintiff did not reply to those notices. He,
therefore, claimed to be a bona fide purchaser of the house for
value without notice.
11. Mr. Abdul Majeed Khan, Advocate, who
appeared for the plaintiff submitted that the plaintiff had already applied to
the K.DA. intimating them about the suit. He further submitted that according
to section 52 of Transfer of operty Act, a transfer of a property during the
pendency of a suit cannot take effect so as to defeat the decree
passed in the suit. He relied upon P L D 1966 S.C. 328‑‑Usman v. Haji Omer and
another, P L D 1973 Karachi 403‑‑M/s. Ahsan
Corporation, Karachi
12. Mr. Iqbal Kazi referred to Sind Act XIV of
1939 and submitted that it required registration of the notice with Registrar
in order to make section 52 of the Transfer of Property Act applicable to
transactions entered into in the city of Karachi and thus such transactions
were not void and illegal on the principle of lis pendens in absence of
registration of notice of such a suit with the Registrar. Mr Abdul Majeed Khan
submitted that by Sindh Ordinance V of 1955 the words, "this act shall extend
in the first instance to the city of Karachi: Provided that" were repealed
from subsection (2) of section 1 of this Act and, therefore, this Act was now
to extend not to Karachi but to such areas of Sindj only to which the
Provincial Government may be notification in the official Gazette direct. Mr.
Iqbal Kazi pointed out that the repeal of the above words was consequent upon
the separation of Karachi from the Province of Sindh Karachi was again merged in the Province of West Pakistan Karachi having been remerged in
Sindh which had become a part of the Province
of West Pakistan the above provision
which continued to apply to Karachi Karachi at the time of its separation
from Sindh were to continue in force ‑in Karachi Karachi
was merged in West Pakistan in 1961 the laws which were till then in force in Karachi were to continue to remain in force in Karachi Karachi Karachi
which was a part of Sindh at the time of passing this order, therefore, omitted
these words from Act XIV of 1939 even for the city of Karachi
13. The argument of Mr. Abdul Majeed appears to
be devoid of force. Clauses (1), (4) and (5) of Article 225 of the Constitution
of Pakistan, 1962 read as under:‑‑
"225.‑‑(l) Except as provided by this
Article, all existing laws shall, subject to this Constitution, continue in force,
so far as applicable and with the necessary adaptations until altered, repealed
or amended by the appropriate Legislature.
(2) ..........................................
(3) ..........................................
(4) For the purpose of bringing the provisions
of any existing law into accord with the provisions of this Constitution, the
President may, within a period of two years after commencing day, make, by
order, such adaptations, whether by way of modification, addition of omission,
as he may deem to be necessary or expedient, and any order so made shall have
effect (or be deemed to have had effect) from such date not being a date
earlier than the commencing day, as may be specified in the order.
(5) The
President may authorize the Governor of a Province to exercise, in relation to
the Province the powers conferred on the President by clause (4) of this
Article in respect of laws relating to matters with respect of which the
Legislature of the Province has power to make laws."
Clause (1) of Article 225 of the Constitution of
Pakistan, 1962, provided for continuance of all existing laws while clause (4)
thereof provided for a machiney for bringing the existing laws into accord with
1962 Constitution where the former was not in accord with the latter. This was
to be done in case of Central Laws by an order of the President. The President
under clause (5) was to authorize the Governor of a province in case of
provincial laws and in that case the Governor was to make the order. The Constitution
envisages the abolition of Province of
Sind and its merger in a new province
by name West Pakistan . Hence the 1~ords
"Province of Sindh" of the Act which were not in accord with 1962
Constitution required to be substituted by the word "Sindh" in the long
title and preamble of Act XIV of 1939 in order to bring this law which was an
existing law in accord with the Constitution of 1962. Consequently the Governor
on being authorized by the President had made the above omission of the words: Province of Sindh Karachi
14. I am, therefore, of the clear view that the
words, "this Act shall extend in the first instance to the city of
Karachi; Provided that" will have to be treated as having again appeared
there in Sindh Act XIV of 1939, and therefore, this provision in the Act
continues to apply to city of Karachi even after the promulgation of West
Pakistan Laws (Adaptation) Order, 1964. Hence it applies to the city of. Karachi Karachi
The rulings cited by Mr. Abdul Majeed Khan,
Advocate do not apply to this case. Case of Ahsan Corporation, Karachi v.
Chairman of Evacuee Trust Board relates to an evacuee trust property and it was
held that section 52 of the Transfer of Property Act was not applicable to it,
inter alia, on the ground that the transfer had taken place when no proceedings
were pending. Ikram Ellahi v. Settlement and Rehabilitation Commissioner
(Lands), Lahore and Munawar Hussain v. Nisar & Co. relate to agricultural
land situated in Punjab while ease of Mohammad Usman v. Rehmatullah related to
agricultural lands situated in Sindh and outside the city of Karachi and
therefore to none of these cases the provisions of Act XIV of 1939 would apply.
The only case which could be of some use to the plaintiff was that of Usman v.
Haji Umer and another but since the plea of the bar of Act XIV of 1939 was not
raised in that case therefore it could not be considered as a direct authority
on the point.
15. 1 am, therefore, satisfied that the
transaction made between Hira Sultan and applicant Zaheeruddin is not hit by
the principle of lis pendens contained in section 52 of the Transfer of
Property Act. But that does not mean that the transaction can take effect
beyond 1/3rd share of Hira Sultan. As a general rule no person can grant to
another a larger interest in property than he himself possesses, which is
contained in the maxim: Nemo plus juris ad alium transferee postest quam ipse
haberee. The only exception to this rule is contained in section 41 of the
Transfer of Property Act when the transaction is a bona fide purchase for value
and without notice, which as I have already held is not the case G with
Intervenor Zaheeruddin. I am fully satisfied that he has been dishonestly set
up by Hira Sultan and Chand Sultan. The principle contained in section 41 is an
equitable principle and cannot be availed of by a person who has come to the
Court with unclean hands. This is not a case of pre‑emption or specific
performance where the title of the plaintiff depends upon passing of the decree.
In this suit the plaintiff had become the co‑owner of the house immediately on
the death of his mother, hence his share could not have been transferred by the
other co‑owners.
16. I am, therefore, of the clear view that
Zaheeruddin who has stepped into the shoes of Hira Sultan can at the most claim
1/3rd share in the house in the suit which Hira Sultan had inherited from her
mother and was ratified by this decree. The claim in the application under
section 12 (2), C.P.C. of Zaheeruddin on the entire house and against the share
of lqbal Sultan is mala fide. It has been made to harass Iqbal Sultan in
collusion with Hira Sultan and Chand Sultan and with a view to protract the
proceedings and the unauthorised possession of the house in suit to the detriment
of plaintiff Iqbal Sultan. I, therefore, dismiss J. Misc. No.48 of 1988 as well
as C.MA. No.747 of 1988. The stay order granted in favour of Zaheeruddin is
vacated.The Official Assignee/Commissioner is directed to proceed with the
execution of preliminary decree.
AA./I‑93/K Order
accordingly.
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