What is the scope of the enquiry under Order XXI, Rules 97-101, CPC ?

  In the case on hand, the obstructionists do not claim title under any one of the parties to the litigation. They set up independent title in themselves. What was filed by Dildar-Un-Nissa Begum was only a suit for partition. In a suit for partition, the Civil Court cannot go into the question of title, unless the same is incidental to the fundamental premise of the claim.{Para 113}

139. Therefore, in fine, we hold on Issue No. (i) that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners as well as the Government who have set up independent claims and that whatever was done in pursuance of the preliminary decree was an abuse of the process of law. We also hold on Issue No. (iv) that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves. All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists/claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit. If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

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Can a claim against persons who hold title to the suit property but are strangers to the partition suit be decided in the same suit?

Take for instance a suit filed for partition by a member of the Hindu Undivided Family. If one of the coparceners or an alienee from such coparcener, claims independent title to one of the properties bought in his individual name, it may be open to the Court while trying the suit for partition to decide whether such a property belongs exclusively to the defendant. To this limited extent, examining the title of a party to the suit schedule property is permissible even in a suit for partition. 

{Para 114}

115. But in a simple suit for partition, the parties cannot assert title against strangers, even by impleading them as proforma respondents. The strangers who are impleaded in a partition suit, may have nothing to say about the claim to partition. But they may have a claim to title to the property and such a claim cannot be decided in a partition suit.

 120. Therefore, we are of the view that the preliminary decree dated 28.06.1963 could not have determined the claim to title made by the legal heirs seeking partition, as against third parties. Any finding rendered in the preliminary decree, that the properties were Mathruka properties liable to be partitioned, was only incidental to the claim of the legal heirs and such a finding will not be determinative of their title to property as against third parties.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

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Can the executing court decide questions of title raised by third parties who assert independent ownership under Order XXI, Rules 97-101 of the Civil Procedure Code (CPC)?

Technically the High Court may not be right, in the true legal sense, in branding the preliminary decree as vitiated by fraud. But the fact remains that insofar as third parties to the family of Khurshid Jah (and those claiming under them) are concerned, the preliminary decree is nothing more than a mere paper, as those third parties have had nothing to do with the claim for partition, though they have had a legitimate claim to title to the properties, described in the suit schedule. Therefore, we would only say and hold on question Nos. (i) and (iv) that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners and the Government who have set up independent claims. We also hold that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties, who assert independent title in themselves. Marina Beach (in Chennai) or Hussain Sagar (in Hyderabad) or India Gate (in New Delhi) cannot be included as one of the items of properties in the Plaint Schedule, in a suit for partition between the members of a family and questions of title to these properties cannot be allowed to be adjudicated in the claim petitions under Order XXI, Rules 97-101, CPC.

{Para 126}

139. Therefore, in fine, we hold on Issue No. (i) that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners as well as the Government who have set up independent claims and that whatever was done in pursuance of the preliminary decree was an abuse of the process of law. We also hold on Issue No. (iv) that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves. All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists/claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit. If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Read full Judgment here: Click here

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Can a party holding a preliminary decree of a partition suit acquire title to a specific portion of a particular property and can transfer it to third party?

Therefore, the question of specific immovable properties or specifically identified portions of immovable properties getting allotted to any person merely holding a preliminary decree with respect to an undivided share does not arise. A preliminary decree in a suit for partition merely declares the shares that the parties are entitled to in any of the properties included in the plaint schedule and liable to partition. On the basis of a mere declaration of the rights that take place under the preliminary decree, the parties cannot trade in, on specific items of properties or specific portions of suit schedule properties. Since there are three stages in a partition suit, namely (i) passing of a preliminary decree in terms of Order XX Rule 18(2); (ii) appointment of a Commissioner and passing of a final decree in terms of Order XXVI Rule 14 (3); and (iii) taking possession in execution of such decree under Order XXI Rule 35, no party to a suit for partition, even by way of compromise, can acquire any title to any specific item of property or any particular portion of a specific property, if such a compromise is struck only with a few parties to the suit. {Para 195}

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Read full Judgment here: Click here

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Whether the bank can accept a final decree in a partition suit as a document of title?

 The second difficulty that the Asset Reconstruction Company has, is that six different companies created an equitable mortgage by deposit of title deeds. As per the averment contained in Para 2 of I.A. No. 110290 of 2022, the deposit of title deeds happened on 25.03.2009. What is said to have been deposited are the certified copies of the final decree in Application No. 517 of 1998 in CS No. 14 of 1958 dated 24.04.1998. {Para 218}

 219. We do not know how a final decree in a partition suit and that too in a notorious suit like CS No. 14 of 1958 could have been taken to be a document of title which can be accepted by way of equitable mortgage. In any case, the deposit of title deeds is said to have taken place on 25.03.2009. By this time, the order of the learned Single Judge (L. Narasimha Reddy, J.) dated 26.10.2004 allowing the claims of the obstructionists had come into existence. Though the said order of the learned Single Judge dated 26.10.2004 was set aside by the Division Bench by an order dated 23.06.2006, the said order of the Division Bench had become the subject matter of the civil appeals even at that time. These civil appeals were eventually allowed by this Court by an order dated 05.03.2014. We do not know how during this interregnum period, the Banks could have accepted this property as security, despite the same being the subject matter of a serious long drawn litigation.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

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Whether sanad or property card is required to be set aside?

Article 14 of the Indian Limitation Act provides that an application to set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for, shall be brought within one year from the date of the act or order. It is contended that the decision of the inquiry officer is an order of a Government officer, and the sanad is an act of such officer in his official capacity, and I think those two points may be conceded. But the question is whether this is a suit to set aside an act or an order of a Government officer within Article 14. Certainly the plaint does not ask in terms that the order or sanad be set aside. It does ask for possession, and the contention put forward by the appellant is that the Court could not make an order for possession in face of this sanad, but must set aside the sanad first, and that any order for possession as against the appellant involves setting aside the sanad on which he relies. That argument, I think, might prevail, if the sanad were an ordinary document of title. If a plaintiff is suing for possession, and the defendant relies on a conveyance from the plaintiff or his predecessor, it may be necessary to set that conveyance aside before the plaintiff can get an order for possession, and in these circumstances the suit for possession would be in substance a suit to set aside a document within the Indian Limitation Act, though that relief be not expressly asked for. To my mind the real question on this appeal is, whether the sanad, which is much more precise than the order of the inquiry officer, amounts to something in the nature of a document of title, which must be set aside before the plaintiff can get an order for possession. Mr. Coyajee for the appellant relies on a dictum of Sir Norman Macleod in Ulawappa v. Gadigewa (1925) 27 Bom. L.R. 948 in which he refers to a sanad granted under Section 133 of the Bombay Land Revenue Code as in the nature of a document of title, but in that case the learned Chief Justice was not considering the question which we have to deal with. To my mind a sanad granted under Section 133 is not strictly speaking in the nature of a document of title between litigating parties. It is a document affecting rights only between the Crown and the person to whom it is granted. The object of an inquiry under the Land Revenue Code is to determine the right of Government to revenue, and for that purpose to survey the land and to determine who is the holder and, therefore, liable to assessment. But an order made under the Land Revenue Code is not, in my opinion, intended to operate, and does not operate, finally as a determination of title between subjects of Government. No doubt an order made under the, Land Revenue Code is prima facie evidence of title, but it is not conclusive and may be over-ridden as other evidence may be overridden. It is not, in my opinion, essential for a person in the position of the plaintiff in this case claiming possession against the defendant, who has been granted a sanad Under Section 133, to obtain an order setting aside that the sanad before he can obtain an order for recovery of possession from a civil Court, It is always open to the revenue authorities to correct their record, and if the plaintiff, having obtained an order for possession or an order declaring his title from a competent civil Court, goes to the revenue authorities, I have no doubt that the necessary corrections will be made in the revenue records. But the revenue records, in my opinion, are not conclusive in favour of the defendant as against the plaintiff, and it is not, therefore, essential that the Court should make an order setting aside the sanad before granting an order for possession to the plaintiff.
 Bombay High Court

Narbheramji Gyaniramji Ramsnehi vs Vivekramji Bhagatramji Ramsnehi on 8 March, 1939

Equivalent citations: (1939) 41 BOMLR 939

Bench: J Beaumont, Kt., N Wadia

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