SYED IKRAMUDDIN Vs. SYED MAHAMED ALI

JUDGEMENT

(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 IA. 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 Sower 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, tie 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 focus 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.