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2023 DIGILAW 35 (ALL)

Rashida Begum v. Arshad Hussain

2023-01-04

AJIT KUMAR

body2023
JUDGMENT : 1. Heard Sri Akhilesh Chandra Shukla, learned counsel for the petitioners, Sri Kshitij Shailendra, learned counsel appearing for contesting respondent no. 1, Sri Namit Srivastava, learned counsel appearing for contesting respondent no. 8 and perused the record. 2. The petitioners before this Court are judgment debtors of judgment and decree dated 25th of March, 1994 passed in a suit being O.S. No. 993 of 1985 for specific performance of contract. 3. The suit was unsuccessfully appealed against by the present petitioners before the First Appellate Court and then before the Second Appellate Court. It transpires from the record that the appellants moved a substitution application to substitute the legal heirs of Shamima Begam, who died issue-less and accordingly, the heirs of husband's brother were brought on record. 4. A counter affidavit was filed on behalf of the heirs of late Shamima Begum sworn by Fakhruddin in second appeal wherein it was stated that Shamima Begum and Aliya Begum have died. This counter affidavit was accompanied by a document of family settlement wherein it was stated that Saleha Begum died during the pendency of appeal and her legal representatives were substituted and in order to avoid dispute amongst the members of the family an oral settlement was reached between the parties whereunder the heirs of first and second party, i.e., Shamima Begum and Aliya Begum, relinquished their claim for 3rd and 4th parties in their favour having obtained money from them and now they are not interested in pursuing the matter. When the execution came to be filed after dismissal of the second appeal, an objection was filed under Section 47 of CPC by the judgment debtor which was rejected on 15th of January, 2018. The same was unsuccessfully challenged in revision before 7th Additional District Judge, Allahabad and revision petition came to be dismissed vide judgment and order dated 25th February, 2019. It is stated at bar that the said order has been challenged before this Court in a petition under Article 227 bearing No. 3543 of 2019 in which this Court did not pass any interim order and merely parties were directed to exchange their pleadings. Learned counsel for the petitioners does not dispute that the matter is pending simply at the stage of admission. 5. Learned counsel for the petitioners does not dispute that the matter is pending simply at the stage of admission. 5. It appears that after the draft deed was submitted before the executing court that an objection came to be filed by the present petitioner taking a ground that the heirs of Saleha Begum could not have presented a draft of sale deed in respect of the entire property which was subject matter of decree and to which Shamima Begum and Aliya Begum were equally entitled to but heirs of Shamima Begum having not come forward, the decree holder, namely, the heirs of Saleha Begum were entitled for execution of sale deed to the extent of share of Saleha Begum only. It is argued that no assignment of their rights as such could have been made by the heirs of Shamima Begum and Aliya Begum. However, their objections came to be dismissed by the executing court vide order dated 29.7.2022 against which the revision has been dismissed vide order dated 10.06.2022 and even the review petition came to be dismissed on 10.12.2022and now the petitioners are before this Court challenging all the above three orders in this petition, filed under Article 227 of the constitution. 6. The arguments advanced by learned counsel for the petitioners is that there is a procedure prescribed for assignment of decree and unless and until there is proper assignment of decree, assignee cannot get the decree executed in his favour. He submits that mere filing of an affidavit before the Court of appeal would not construe a valid assignment within the meaning of provisions contained under Order XXI Rule 16 of CPC. He submits that the assignment has to be in writing and is also required to be registered one as it deals with transfer of rights by way of assignment of a movable property and, therefore, such assignment stands governed by the provisions of the Transfer of Property Act, 1982. In support of his argument, learned counsel for the petitioner has relied upon a judgment of Supreme Court in the case of Dhani Ram Gupta and others vs. Lala Sri Ram and another; AIR 1980 SC 157 . In support of his argument, learned counsel for the petitioner has relied upon a judgment of Supreme Court in the case of Dhani Ram Gupta and others vs. Lala Sri Ram and another; AIR 1980 SC 157 . He has placed reliance upon para-4 of the said judgment which runs as under:- "We are unable to read Order XXI Rule 16 as furnishing any foundation for the basic assumption of the learned counsel for the respondent that property in a decree does not pass to the transferee under the assignment until the transfer is recognised by the Court. Property in a decree must pass to the transferee under a deed of assignment when the parties to the deed of assignment intend such property to pass. It does not depend on the Court's recognition of the transfer. Order XXI Rule 16 neither expressly nor by implication provided that assignment of a decree does not take effect until recognised by the Court. It is true that while Order XXI Rule 16 enables a transferee to apply for execution of the decree, the first proviso to Order XXI Rule 16 enjoins that notice of such application shall be given to the transferor and the judgment-debtor and that the decree shall not be executed until the Court has heard their objections, if any, to its execution. It is one thing to say that the decree may not be executed by the transferor until the objections of the transferor and the judgment-debtor are heard, it is an altogether different thing to say that the assignment is of no consequence until the objections are heard and decided. The transfer as between the original decree-holder and the transferee is effected by the deed of assignment. If the judgment debtor has notice of the transfer, he cannot be permitted to defeat the rights of the transferee by entering into an adjustment with the transferor. If the judgment debtor has no notice of the transfer and enters into an adjustment with the transferor before the transferee serves him with notice under Order XXI Rule 16, the judgment-debtor is protected. This in our view is no more than plain good sense. In Dwar Buksh Sirkar v. Fatik Jali, the decree holder represented to the Court that the judgment debtor had satisfied the decree by payment and wanted his execution application to be disposed of accordingly. This in our view is no more than plain good sense. In Dwar Buksh Sirkar v. Fatik Jali, the decree holder represented to the Court that the judgment debtor had satisfied the decree by payment and wanted his execution application to be disposed of accordingly. Before satisfaction could be recorded a transferee of the decree from the original decree-holder intervened and claimed that satisfaction could not be recorded as there was a valid transfer of the decree in his favour prior to the alleged payment by the judgment debtor to the original decree holder. The argument before the High Court was that the assignee could not prevent the recording of the satisfaction of the decree as he had not filed an execution application and got the assignment in his favour recognised. The High Court of Calcutta observed: "The only provision in the Code referring expressly to the assignment of a decree is contained in section 232, and that no doubt contemplates a case in which the assignee applies for execution. In such a case the Court may, if it thinks fit, after notice to the decree-holder and the judgment-debtor, allow the decree to be executed by the assignee. If, how ever, there is an assignment pending proceedings in execution taken by the decree-holder, I see nothing in the Code which debars the Code from recognising the transferee as the person to go on with the execution. The recognition of the Court is no doubt necessary before he can execute the decree, but it is the written assignment and not the recognition which makes him the transferee in law. The omission of the transferee, if it was an omission, to make a formal application for execution, was merely an error of procedure and does not affect the merits of the.............................................It is argued for the respondent that the transferee's title was not complete as express notice of the transfer had not been given to the judgment-debtor. As already observed, the transfer, as between transferor and the transferee, is effected by the written assignment. If the judgment-debtor had no notice of the transfer and being otherwise unaware of it paid the money to the decree-holder, the payment was, of course, a good payment, and he cannot again be held liable to the transferee". We express our agreement with the observations made by the Calcutta High Court. (emphasis added)" 7. If the judgment-debtor had no notice of the transfer and being otherwise unaware of it paid the money to the decree-holder, the payment was, of course, a good payment, and he cannot again be held liable to the transferee". We express our agreement with the observations made by the Calcutta High Court. (emphasis added)" 7. Thus, it is argued by learned counsel for the petitioners that both the courts below have manifestly erred in law in rejecting the objection of the petitioner with regard to draft deed submitted for execution of sale deed. He submits that the rights, if were not properly assigned in respect of the suit property which was subject matter of suit for specific performance of sale, would automatically get reverted back to the defendants of the suit/judgment debtor and the decree holder, namely, the heirs of Saleha Begum or even Aliya Begum, if she is alive, would not be benefited by way of execution of the sale deed of the entire land which includes the share of Shamima Begum. Thus, according to learned counsel for the petitioners, it has become imperative for this Court to arrest the miscarriage of justice by invoking its supervisory jurisdiction under Article 227 of the Constitution. 8. Per contra, Sri Khistij Shailendra and Sri Namit Srivastava, learned counsel appearing for the contesting respondents caveator has argued that the draft deed that was presented before the executing court by the heirs of late Saleha Begum and Aliya Begum herself and so the argument that Aliya Begum had not come forward would have no merit. A photocopy of the draft deed has been produced before the Court which is taken on record. It is further argued that provisions of Order XXI Rule 16 would not be attracted in the present case for the simple reason that this is an assignment of decree by the decree holder to a third party so as to attract the provisions. It is argued that the heirs of late Shamima Begum were very much party in the second appeal and they have expressed their relinquishment by filing an affidavit along with counter affidavit which was never objected to and the second appeal was dismissed affirming the judgment and decree of the trial court. It is argued that the heirs of late Shamima Begum were very much party in the second appeal and they have expressed their relinquishment by filing an affidavit along with counter affidavit which was never objected to and the second appeal was dismissed affirming the judgment and decree of the trial court. It is submitted that the relinquishment of rights by the decree holder in favour of joint decree holder would be taken to be within the meaning of relinquishment deed which is not require to be registered either under the Indian Registration Act as it is not a case of transfer of immovable property which is required otherwise to be a deed of registry instituted by sale under the Transfer of Property Act. In this regard, he has placed reliance upon a judgment of this Court in the case of State of U.P. vs. Dharam Pal and another; 2008 (10) ADJ 604 , Raghvendra Jeet Singh vs. Board of Revenue, Allahabad and other; 2015 (4) ADJ 53 and Smt. Balwant Kaur and others vs. State; 1984 All.L.J. 305. 9. Having heard the arguments advanced by learned counsel for the respective parties across the bar, the undisputed fact that emerges out is that draft deed for execution of registered sale deed has been presented by the heirs of Late Saleha Begum and Alia Begum. There is also no dispute that to the agreement for sale Smt. Saleha Begum, Shamima Begum and Alia Begum were beneficiaries and their suit being O.S. No.495 of 1981 was decreed against Mohammad Ahmad vide judgment dated 25.3.1994 and judgment debtor lost his Second Appeal also. In the second appeal, appellant himself moved a substitution application seeking substitution of Late Shamima Begum. The heirs of Late Shamima Begum filed counter affidavit annexing therein a notary affidavit in which it was stated that Shamima Begum and Alia Begum got their money earlier paid to Mohammad Ahmad back from third and fourth party i.e. heirs of Saleha Begum and fifth and sixth party also relinquished their claim in favour of 3rd and 4th party. The third and fourth party to the family settlement reached, were heirs of Saleha Begum. Neither this settlement deed of relinquishment of rights was questioned in appeal nor, any amendment was sought to raise any ground that any such settlement was illegal. The third and fourth party to the family settlement reached, were heirs of Saleha Begum. Neither this settlement deed of relinquishment of rights was questioned in appeal nor, any amendment was sought to raise any ground that any such settlement was illegal. The appeal was dismissed on merits and all the rights got crystalised into a decree. It is this decree which has been put to execution. Objection filed under Section 47 C.P.C. was also dismissed and possibly this was not raised any issue. And now the draft is being questioned on the ground that relinquishment deed amounted to transfer of intent in an immovable property and so required to be registered and then on owner can not get the decree executed as per Order XXI Rule 15 CPC. 10. The second issue does not arise as it is not a case of assignment of decree to a third party. It is a case of relinquishment of right to execution in form of other decree holder and so third party assignment of decree does not arise. 11. In so far as registration of of relinquishment deed is concerned, I find merit in the submission advanced by Sri Kshitij Shailendra, learned counsel for the respondents. 12. A Full Bench of this Court in the case of Smt. Balwant Kaur and others vs. State; AIR 1984 (NOC) 107 (ALL) held that within the family, if settlement results in relinquishment of right by one co-owner in favour of the other, with whom title also vests, such relinquishment would be release and not a conveyance as such. Vide Paragraphs-12 and 13 the Court held thus:- "12. We are unable to accept the submission that under the law it is not open to a co-owner to renounce his rights in favour of another co-owner. In the case of Board of Revenue v. V. M. Murugesa Mudaliar, AIR 1955 Mad 641 (FB), the executants of a deed were three persons who along with two persons in whose favour the deed was executed were partners of a registered firm. The executants had ceased to be partners of the firm from and after 12-4-1949. In the case of Board of Revenue v. V. M. Murugesa Mudaliar, AIR 1955 Mad 641 (FB), the executants of a deed were three persons who along with two persons in whose favour the deed was executed were partners of a registered firm. The executants had ceased to be partners of the firm from and after 12-4-1949. The preamble of the deed recited that the releasors, that is, executants were co-owners of the immovable property described in the Schedule to the document as house and ground bearing Door No. 47 in Coral Merchant Street, G. T., Madras, entitled to 3/5 share therein. They desired to renounce all interest in the said property by deed receiving the proportionate value of the share in cash. The operative portion of the deed ran thus: "This deed witnesseth that, in consideration of the sum of Rs.9,858-9-7 (Rs. nine thousand eight hundred and fifty-eight, annas nine and pies seven) receipt whereof on or before the date of these presents through adjustment of accounts the releasors hereby release, extinguish, abandon, cancel and otherwise relinquish all their respective rights, claims, demands or interest, in any manner or to any extent, in respect of the property set out and fufly described in the Schedule hereunder." Clearly in this case releasors owned the concerned properties in which they were seeking to release their interests as co-owners and not as joint-owners. It was conceded before the Madras High Court that had the executants been joint-owners as distinguished from co-owners, the document of the nature executed in that case could have been considered to be a deed of release. It was argued that the document having been executed by a co-tenant (co-owner) the objective thereof could only be achieved by conveying executants' title and as such that document could not be considered to be a deed of release. Rajamannar, C. J., speaking for Full Bench of the Court observed that in that case it was not the case of any one that there was a division of the property by metes and bounds and in accordance with the said shares. In such circumstances the document in and by which the co-owner purported to abandon or relinquish his claim to the share to which he would be entitled would be in the nature of release. In such circumstances the document in and by which the co-owner purported to abandon or relinquish his claim to the share to which he would be entitled would be in the nature of release. According to this decision it is open to a co-owner of a property which does not stand partitioned by metes and bounds, to relinquish or renounce his claim to the property and if he does so then as a matter of law the interest of the remaining co-owners gets augmented. Law countenances that the object that some of the co-owners of an unpartitioned property should be enabled to enjoy the property without any let or hindrance or claim made by other co-owners can be achieved by such other co-owners executing a release deed and that if such co-owners set out to achieve that object by executing a release deed, there is no reason why such release deed should be construed as a deed of conveyance merely because such objective could also be achieved by executing a deed of conveyance. 13. Following observations made by the Supreme Court in the case of Kuppuswami Chettiar v. A.S.P.A. Arumugam Chettiar, AIR 1967 SC 1395 , also go to support the conclusions arrived at by Rajamannar, C. J., in the case of Board of Revenue v. V.M. Murugese Mudaliar (AIR 1955 Mad 641) (at p. 1397):-- "Now it cannot be disputed that a release can be usefully employed as a form of conveyance by a person having some right of interest to another person having limited estate, for example, by a remainder-man to a tenant for life and the release then operates as an enlargement of the limited estate." It is true that in the case of Kuppuswami Chettiar v. A.S.P.A. Arumugam Chettiar (supra) the question that came up for consideration before the Supreme Court was whether a document styled as a document of release was to be treated as a document conveying title. The Supreme Court eventually came to the conclusion that the said document was a deed of conveyance; but that was because it found that, the said deed had been executed in favour of person who had absolutely no interest in the properties released. In the instant case, however, it cannot be said that the mother and brother of the two executants who were co-owners of the property had no interest in the property. (Emphases added)" 13. In the instant case, however, it cannot be said that the mother and brother of the two executants who were co-owners of the property had no interest in the property. (Emphases added)" 13. So the principle of law that emerges is that a surrender of right in favour of a co-owner in a joint property would be a release whereas a surrender of right in favour of a third party, having no right in the property which is surrendered then such surrender will be a conveyance. Enlargement of an existing right in an unpartitioned property of a family member at the end of a co-sharer, therefore, is not a conveyance and so does not require registration as such. Summarizing the principle vide Paragraph 16 and 17 the Full Bench held thus:- "16. It is thus clear that under the law it is open to a person holding property as a tenant-in-common to execute a release deed in favour of the other co-owner renouncing his claim to interest in the unpartitioned property and for this purpose it is not necessary for him to execute a deed of conveyance. Accordingly, where in fact such a deed is executed whereby the person in whose favour the property has been released is given a right to enjoy the property without any let or hindrance or claim to be made by the persons so releasing the property, there will be no justification in reading or construing the said document as a deed of conveyance. 17. So far as the instant case is concerned, the recitals made by the two sisters in the document dated 9th March, 1970, clearly Amount to renunciation of their interest in the properties left by their deceased father. They do not contain any stipulation whereunder they seek to convey their title to their mother and brother. The two sisters were fully competent to release 'heir undivided interest in the property in favour of their mother and brother. When their objective could be achieved merely by executing a release deed, there is no reason to think that they in fact were executing a deed of conveyance misdescribing it as a release deed. Question No. 2, therefore, has to be answered by saying that on plain interpretation, the document dated 9th March, 1970 was a deed of release and not a conveyance deed within the meaning of the Indian Stamp Act. Question No. 2, therefore, has to be answered by saying that on plain interpretation, the document dated 9th March, 1970 was a deed of release and not a conveyance deed within the meaning of the Indian Stamp Act. (Emphasis added)" 14. This judgment was later on followed by the Co-ordinate Benches of this Court in State of U.P. vs. Dhanpal and another; 2008 (10) ADJ 604 and Raghvendra Jeet Singh vs. Board of Revenue Allahabad and others; 2015 (4) ADJ 2015. A deed of assignment is something different from relinquishment deed. Former is in the category of transfer to a third party that should precede by a notice to the judgment debtor but later is not such as a case in the light of the law discussed above and, therefore, the judgment in the case of Dhani Ram Gupta and others vs. Lala Sri Ram and another (supra) would not apply to the facts of the case in hand. 15. In view of the above, I do not find any fault in the orders passed by the Courts below, impugned herein this petition. Petition lacks merit and is accordingly, dismissed, consigned to record. 16. There will be no order as to cost.s