Andhra HC (Pre-Telangana)
Mohammed Ali Nayyar vs Ahraz Hussain [Alongwith C.M.A. Nos. ... on 11 October, 2004
Equivalent citations: 2004(6)ALD845, 2005(1)ALT618
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. These three civil miscellaneous appeals under Order 43 Rule 1 read with Section 104 C.P.C. arise out of the proceedings initiated for execution of the decree in O.S.No.774 of 1994 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad. The appellants are third parties to the suit. The appellant in C.M.A.No.109 of 1996 and 1295 of 1999 is the father and the appellants in C.M.A.No.1104 of 1999 are his wife and son. For the sake of convenience, they are referred to as appellants 1, 2 and 3 respectively. The first appellant and the second respondent are brothers. The first respondent in all the three appeals is the decree holder and the second respondent is the judgment debtor.
2. The first respondent filed the suit against the second respondent for recovery of certain amount. Along with the suit, he filed I.A.No.846 of 1994 under Order 38 Rule 5 C.P.C. and secured an attachment before Judgment of a house bearing No.11-6-832, Red Hills, Hyderabad. The first appellant filed I.A.No.874 of 1994 under Order 38 Rules 8 and 10 C.P.C. to raise the attachment. According to him, the property, comprising of cellar, ground, first and second floors, was owned by his father by name M.A. Shakoor. He stated that the ground floor was sold to him through sale deed dated 15.06.1991 and that on the same day, his father executed another sale deed in favour of the second appellant, transferring the first floor. It was further alleged that his father executed a Will dated 08.07.1992 bequeathing cellar and second floor of the building, in favour of the third appellant. M.A. Shakoor is said to have died on 24.06.1993. With these contentions, the first appellant pleaded that the attachment of the said property is without basis.
3. The suit was decreed ex parte on 10.08.1994. The application filed by the first appellant was dismissed on 05.12.1995. Against the same, C.M.A.No.109 of 1996 is filed. On the basis of the ex parte decree, the first respondent filed E.P. No. 53 of 1995 and sought for sale of the attached property. At that stage, the first appellant filed E.A.No.153 of 1995 under Order 21 Rule 58 read with 151 C.P.C. This application was dismissed by the executing Court through its order dated 3.12.1998. Assailing the same, he filed C.M.A.No.1295 of 1999. The first respondent filed E.P.No.107 of 1995 with a view to bring the other portions of the same building to sale. Appellants 2 and 3 filed E.A.No.263 of 1996 under order 21 Rule 58 read with 151 C.P.C. The executing Court dismissed this application also through order dated 03.12.1998. This order gave rise to C.M.A.No.1104 of 1999.
4. Sri V. R. avinder Rao, learned counsel for the appellants, submits that an application filed under Order 38 Rule 8 C.P.C. ought to have been considered either during the pendency of the suit or along with the suit and that there cannot be any justification for consideration of the same after the suit was decreed. He submits that the sale of the ground and first floors of the building was affected in favour of the appellants 1 and 2 respectively way back on 15.06.1991 much before the filing of the suit and there was absolutely no justification for the trial Court in rejecting the claims made by the appellants in respect of those premises. He further contends that through a validly executed Will, the owner of the property bequeathed the cellar and second floor in favour of the third appellant and on account of the death of the testator much before the filing of the suit, the third appellant became the absolute owner of the said premises. He submits that the Court below has rejected the applications on technical grounds without appreciating the contentions of the parties, and did not apply the relevant provisions of law. He submits that all the three appellants are residing abroad and in that view of the matter they executed G.P.A. infavour of M.A. Wahab and that the trial Court refused to act upon the same on hyper-technical grounds even though there was no dispute in this regard.
5. Sri M.M. Firdos, learned counsel for the first respondent, on the other hand, submits that the sales infavour of appellants 1 and 2 are vitiated by fraud, since they were brought into existence only with a view to defeat the claim of the first respondent. He contends that the very fact that the second respondent, another son of M.A.Shakoor, was not left with any property, discloses that efforts were made to keep the entire property out of reach of the first respondent in the execution proceedings. His other contention is that the Will executed by late M.A. Shakoor in favour of the third appellant is invalid and contrary to the principles of Mohammedan Law. According to him, a Muslim is not entitled to execute a Will bequeathing more than one-third of the property held by him.
6. The same Court dealt with I.A.No.874 of 1994, on the original side and E.A.Nos.153 of 1995, 263 of 1996 on execution side. For the sake of convenience, it is referred to as the 'trial Court'. Though the trial Court referred to certain deficiencies as to the form of G.P.A. executed by the appellants in the respective proceedings, there is no serious dispute about the same in these appeals. From the contentions of the parties, the following questions arise for consideration.
a) Whether an application filed under Order 38 Rules 8 and 10 C.P.C. needs to be dealt with before the disposal of the suit.
b) Whether the sales affected infavour of appellants 1 and 2 by late M.A. Shakoor are valid and legal; and
c) Whether late M.A. Shakoor was entitled to execute a Will bequeathing the remaining portion of the premises bearing No.11-6-832.
7. As regards the first question, it needs to be seen that an attachment before Judgment is affected on the basis of an application made by the plaintiff in a suit under Order 38 Rule 5 C.P.C. If a person, who is not a party to the suit, has a claim vis-à-vis the attached property, an application for raising the attachment can be made under Rule 8 thereof. It provides that the adjudication of the claims made by such parties shall be in the same manner, as provided for the disposal of the claims of property attached in execution of a decree for payment of money. In effect, the procedure prescribed under Order 21 Rule 58 C.P.C. is made applicable for disposal of the applications filed under Order 38 Rule 8 C.P.C.
8. By its very nature, an application under Order 38 Rule 8 C.P.C. is made during the pendency of the suit. Strictly speaking, the suit on the one hand and the claim under Order 38 Rule 8 C.P.C. on the other, are parallel and they have no similarity from the point of view of adjudication. While the former relates to the claim of the plaintiff against the defendant, the latter is in relation to the rights of a third party, in respect of a property, that is meant to be proceeded against, in the execution of a probable decree in that suit. Still, disposal of the application under Rule 8 would facilitate the effective adjudication of the entire mater. The reason is that if the objection raised under such application is sustained, the plaintiff may choose to select any other property for this purpose. On the other hand, if the claim is rejected, the claimant may pursue his further remedies. From the point of view of suit also, it becomes important i.e. if the suit is dismissed, it makes little difference whether the claim in the application is considered or not. On the other hand, if the suit is decreed and the application is kept pending, it leads to any amount of uncertainty and may, in a way, hamper the progress in the execution proceedings.
9. As is evident from the instant case, the suit was decreed on 10.08.1994 and the application filed under Order 38 Rule 8 was kept pending. The first respondent filed E.P.No.53 of 1995 for selling the attached property. That necessitated the filing of E.A.No.153 of 1995 by the first appellant himself under Order 21 Rule 58 C.P.C. In effect, there were two sets of applications for the same relief and claim, one under Order 38 Rule 8 and the other under Order 21 Rule 58 C.P.C. Such a complex situation is brought about on account of the failure of the trial Court in disposing of the application under Order 38 Rule 8 either before, or along with the disposal of the suit. If an application under Order 38 Rule 8 is rejected, it would disentitle such claim to raise similar objection under Order 21 rule 58 C.P.C. For the foregoing reasons, it is held that an application under Order 38 Rule 8 has to be disposed of either during the pendency of the suit or along with the suit, though not as a matter of compliance with any mandatory provisions, but, as a measure to ensure proper implementation of the provisions of the Code of Civil Procedure.
10. It is not disputed that late M.A.Shakoor was the absolute owner of the entire premises in house bearing No.11-6-832. He executed sale deeds on 15.06.1991 in favour of appellants 1 and 2, transferring ground and first floors respectively. The allegation of the first respondent that the sales were affected with a view to keep the suit properties out of reach of the Court in the execution proceedings, could have gained acceptability had it been a case where the suit was filed by the time the transfers took place. The suit was filed in the year 1994, whereas the sales took place three years earlier to that. In fact, there is nothing in law, which could have prevented the owner of the property to transfer any portion of it even after the suit is filed, as long as it was not established that the defendant in the suit has acquired any definite interest in that property. Under these circumstances, it cannot be said that the sale of ground and first floor of the premises in favour of appellants 1 and 3 is vitiated in any manner. Consequently, the said portion of the building cannot be proceeded against any execution.
11. Now remains the third, but most important aspect of the appeals. Late M.A. Shakoor is said to have executed a Will dated 08.07.1992 in favour of the third appellant bequeathing the cellar and second floor of the building. The testator of the Will died on 24.06.1993. The genuinty of the Will is not in serious dispute. The controversy is as to the capacity of the testator to execute the Will. An individual is entitled to bequeath his self-acquired property in the manner he chooses. The Law of Succession has to give way to the mode of devolution provided for under the Will. In addition to proving the Will, a person claiming under it has to explain away various doubtful circumstances, surrounding it. The Will executed by a Muslim, however, stands on a different footing. Though he is entitled to execute a Will, obviously in relation to his self-acquired properties, his freedom is restricted. He can bequeath only one-third of the properties held by him. Mulla in his book, 'Principles of Mahomedan Law' (7th Edition page127) had summed up the law on this aspect as under:
"Limit of testamentary power: A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator."
12. The basis for this restriction does not emanate from Koran. The origin is said tobe a conversation and interaction between The Prophet and Abee Vekass. Legend has it that when Abee Vekass was ailing, The Prophet visited him and the former expressed his desire to bequeath his entire property infavour of his only daughter and asked the opinion of the Prophet. It is said that the Prophet replied to the effect that he could not dispose of his property more than one-third in favour of his daughter. With the passage of time, the principle came to be supported by reasons such as, that the freedom of a person holding the property cannot be permitted to leave his other legal heirs without any means. The principle was further developed to the extent that in case the legal heirs of a testator approve of such a course, the entire property can be bequeathed by a Will.
13. Reverting to the facts of the case, by the time the late Shakoor executed the Will on 08.07.1992, he parted with two of the four floors of the building by sale infavour of appellants 1 and 2. Through the Will, he bequeathed the entire property that remained with him. The will does not disclose that he held any other items of property. Since it is a matter of principle of personal law, the persons claiming under the Will are under obligation to establish that the extent of the property bequeathed under the Will did not exceed one-third of the property held by the testator. The trial Court did not have an occasion to go into this aspect, because it was not pointedly raised. It becomes necessary to examine this question not only from the point of view of entitlement of the third respondent to derive title through the Will, but also from the point of view of the entitlement of the Judgment debtor, or persons claiming through him. If the testator did not hold any other property by the time he executed the Will, two-third of the same has to be shared by other legal heirs including the second respondent; in accordance with the principles of Mohammedan Law.
14. For the foregoing reasons, it is held that:
The ground and first floors in premises bearing No.11-6-832 sold infavour of appellants 1 and 2 cannot be proceeded against, in the execution of the decree. Consequently, C.M.A. Nos. 109 of 1996 and 1295 of 1999 and the applications out of which they arise stand allowed.
15. The order in E.A.No.263 of 1996 in E.P.No.107 of 1995 insofar as it relates to the cellar and second floor of the premises bearing No.11-6-832 is set aside. It stands remitted to the executing Court for fresh disposal, wherein the validity of the Will dated 08.07.1992 executed by late Shakoor shall be examined with reference to the properties that were held by him as on the date of execution of the Will. In case, it emerges that the property bequeathed under the Will did not exceed one-third of what was held by him, the claim of the third appellant shall be sustained. On the other hand, if it emerges that late Shakoor did not hold any other property, the claim of the third appellant shall stand restricted to one-third of the said property. The question as to whether the property covered by the Will was attached before or after Judgment shall also be considered. C.M.A.No.1104 of 1999 stands allowed to the extent indicated above. The executing Court shall permit the parties to lead such evidence as is permissible in law and dispose of the matter as early as possible.