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First Appeal No. 21 of 1954, decided on 17th March 1959.
Co‑sharer‑‑Not competent to alienate in excess of his share in joint property‑Transfer of Property Act (IV .of 1882), S. 44.
A co‑sharer is not legally competent to alienate in excess of his share in the joint property, even though he may be in posses sion of the whole property. The mere fact that in law a co‑sharer is deemed to have a share in every fragment of the undivided pro perty does not entitle him to alienate any interest in the property in excess of his share which he owns in the property.
Where a co‑sharer had alienated his entire share in joint property:
Held, the co‑sharer was not competent to make a gift out of the remaining joint property and the donees did not acquire any right in the property gifted.
The transferee from a co‑sharer is clothed with the same rights as the co‑sharer has in the property, but if the co‑sharer transfers in excess of his share in the property, then the transferee will step into the shoes of the co‑sharer only to the extent of the share which the transferor owns in the whole of the property and no more. It follows that a co‑sharer is not legally competent to transfer in excess of his share in the property.
Muhammad Muzaffar Khan v. Muhammad Yusuf Khan P L D 1959 S C (Pak.) 9 ; Saad Ullah v. Ibrahim A I R 1925 Lah. 518 ; Harnam Singh v. Jagat Singh A I R 1929 Lah. 168 and Sukhdev v. Parsi A I R 1940 Lah. 473 ref.
Kishnaveni Ammal v. Subramanyam Chetty A I R 1938 Mad. 547 and Mangalmal Aganmal v. Haji Muhammad Yusuj' Bhoro A I R 1939 Sind 315 distinguished.
Freeman on Co‑tenancy and Partition, 2nd Edition, p. 212:
Doctrine inapplicable to Pakistan.
Sardar Muhammad Iqbal for Appellants.
Ghias Muhammad and F. M. Anwari for Respondents 1 to 3.
Nemo for Respondents 4 and 5.
Dates of hearing : 12th, 13th and 17th March 1959.
‑This is a first appeal from the decree of the Senior Civil Judge, Sargodha, dated the 26th of January 1954. The relevant facts giving rise to this appeal are these : In the year 1903, Sarbaland, father oft‑he plaintiffs, Mirza, Akbar and Ashraf, and Allahditta (defendant No. 5) acquired from the Government, occupancy rights in Squares Nos. 21 and 30, situated in, Chakc No. 36 in the District of Sargodha, on horse breeding conditions. His brother Husain Bakhsh was associated with him in the grant from the very start. In 1912, Sarbaland executed an agreement in favour of his brother Husain Bakhsh in which he admitted that Husain Bakhsh held equal rights with him in the said grant. On the 22nd of July 1935, Sarbaland died and the grant was mutated in the name of his eldest son, Allahditta (defendant No. 5). Killas Nos. 1 to 4, R to 13, 18/2, 19 and 20 out of Square No. 30 were, however, given to Allah Ditta's stepmother, Mst. Fateh Bibi (defendant No. 6), and her minor sons, Mirza, aged 10 years, Akbar, aged 7 years and Ashraf, aged 5 years, for their maintenance, vide copy of mutation No. 52 (Exh. P. 2). In the year 1940‑41, the horse‑breeding conditions were abrogated and the occupancy‑tenants were allowed to acquire proprietary rights on payment of proprietary dues. On the 26th of July 1946, Allahditta (defendant No, 5) acquired proprietary rights in Squares Nos. 21 and 30. Rasul Bakhsh, Ali Ahmad and Murad Ali (defendants Nos. 1 to 3), sons of Husain Bakhsh, demanded from Allahditta to admit their claim that they were entitled to one‑half share in the two squares, and on his refusal they instituted Suit No. 165 of 1946 on the 30th July 1946 against him, for a declaration to the effect that they were entitled to one‑half share in Squares Nos. 21 and 30. During the pendency of the suit Allahditta defendant sold Square No. 21 to Muhammad Shafi (defendant No. 4) for a sum of Rs. 35,000 by means of the registered sale deed (copy of which is Exh. D. 4), executed on the 2nd of August 1946, and registered on the 3rd of August 1946. In view of this sale the sons of Husain Bakhsh amended their plaint and impleaded Muhammad Shafi as a defendant and converted their suit into one for possession of one‑half share in 440 kanals of land. On the 25th of August 1946, Mirza, Akbar and Ashraf plaintiffs and Allahditta and Mst. Fateh Bibi defen dants made a private arrangement in respect of the killas in Square No. 30 which had been given to Mst. Fateh Bibi and her minor sons for maintenance. According to this arrangement Mst. Fateh Bibi and her sons surrendered killas Nos. 1 to 4 and 8 to 12 in Squire No. 30 in favour of Allahditta, who in turn made a gift of killas Nos. 13 to 25 in Square No. 30 in favour of the plaintiffs Mutation No. 167 regarding the surrender of the killas by Mst. Fateh Bibi and her sons was sanctioned on the 28th of August 1946, vide copy of mutation Ex, P. 4, and mutation . No. 66 regard ing the gift made by Allahditta in favour of the plaintiffs was entered on the 25th August 1946, and sanctioned on the 28th October 1946. In spite of the gift made in favour of the plaintiffs, the sons of Husain Bakhsh did not implead Mirza, Akbar and Ashraf as defendants in their suit. The Senior Civil Judge, Sargodha, granted a decree in favour of the sons of Husain Bakhsh, on the the 3rd of August 1948, for the possession of one‑half of 440 kanals of land on payment of Rs. 1,100. He further ordered that since 91e sons of Husain Bakhsh had been granted a decree for one‑half of both the squares, Muhammad Shafi would be entitled to retain possession over one‑half of Square No. 21 and to take possession of one‑half of Square No. 30 instead. On appeal by Allahditta the High Court affirmed the findings of the Senior Civil Judge, but modified the decree by ordering that the sons of Husain Bakhsh will get possession of one‑half share of land measuring 440 kanals of Squares Nos. 21 and 30 entire. In execution of this decree the sons of Husain Bakhsh, who are now defendants Nos. 1 to 3, obtained possession of one‑half share in Squares No. 21 and 30 on the 28th of March 1952, and the present plaintiffs were dispossessed of killas Nos. 13 to 25 in Square No. 30. They then instituted the present suit on the 22nd of August 1952, for recovery of the possession of killas Nos. 13 to 25 to Square No. 30, impleading Rasul Bakhsh, Ali Ahmad, Muiad Ali sons of Husain Bakhsh, Muhammad Shafi and Allah ditta as defendants. They also impleaded their mother Mst. Fateh Bibi as defendant No. 6. Later on, it transpired that Muhammad Shafi had, before the institution of this suit, gifted Square No. 21 to Muhammad Anwar, and consequently he was impleaded as defendant No. 7.
2. In their written statements Allah Ditta (defendant No. 5) and Mst. Fateh Bibi (defendant No. 6) supported the claim of the plaintiffs. Mst. Fateh Bibi also pleaded that in case the claim of the plaintiffs was negatived, then she was entitled to the possession of killas Nos. 13 to 25 in Square No. 30 in her own right by way of maintenance. The remaining defendants resisted the suit mainly on the ground that the gift having been made by Allahditta in favour of the plaintiffs during the pendency of the previous suit, did not affect the rights of the parties and that Allahditta defen dant had already sold his entire share in the two squares to Muhammad Shafi defendant and consequently he was not compe tent to make a gift of killas Nos. 13 to 25 of Square No. 30 in favour of the plaintiffs. On the pleadings of the parties the follow ing issues were framed :‑
(1) Whether on the death of Sarbaland, by means of mutation No, 52; decided on 3rd October, 1935, plaintiffs were allowed 13 N11as of land out of Square 30, at present in dispute, in their capacity as owners
(2) Whether Mst. Fateh Bibi surrendered her right of mainte nance in the land in dispute on the condition that Allah Ditta would gift the said land in favcur of the plaintiffs
(3) Whether Allah Ditta gifted the land in dispute in favour of the plaintiffs
(4) Whether plaintiffs should have been impleaded as parties in the previous suit filed by defendants Nos. 1 to 3 against Allahditta and Muhammad Shafi
(5) Whether by virtue of Doctrine of lispendens, plaintifs are not bound by the decree in said suit (O. P. P.)
(6) Allah Ditta having sold Square No. 21 entire in favour of Muhammad Shafi defendant, whether he was competent to make a gift of the land in dispute in favour of the plaintiffs
(7) Whether plaintiffs are owners of the land in dispute on account of their adverse possession for over ‑ 12 years before suit
(8) Whether Muhammad Shafi purchased Square No. 21 entire as a bona fide purchaser for consideration without notice If so, what is its effect on the rights of defendants 1 to 3 In case it is held that defendants 1 to 3 in enforcement of their decree against Allahditta and Muhammad Shafi can deprive Muhammad Shafi of one‑half of Square No. 21, whether Muhammad Shafi has any equity against the plaintiffs in respect of the land in dispute
(9) Whether plaintiffs, as donees from Allahditta, are not entitled to get possession of the land in dispute
(10) Relief.
3. Issue No. 1 was decided against the plaintiffs while issues Nos. 2 and 3 were decided in their favour. Under issue No. 4 it was held that the plaintiffs should have been impleaded as parties in the previous suit in so far as that suit related to Killas Nos. 13, 18/2, 19 and 20 in Square No. 30. Issue No. 5 was decided against the plaintiffs. Under issue No. 6 it was held that Allah Ditta could have gifted a half share in Killas Nos. 13 to 25 in Square No. 30 in favour of the plaintiffs. Issue No. 7 was decided against the plaintiffs Under issue No. 8 it was held that there was no evidence to show that Muhammad Shafi and Muhammad Anwar were bona fide purchasers without notice. Under issue No. 9 it was held that the plaintiffs were entitled to one‑half share in Killas Nos. 13 to 25 of Square No. 30. In view of these findings the plaintiffs were granted a decree for possession of one‑half share in Killas Nos. 13 to 25 of Square No. 30. Against this decision Muhammad Shafi, Muhammad Anwar, Rasul Bakhsh, Ali Muhammad and Murad Ali defendants have come up in appeal before this Court.
4. The facts of the case are not in dispute. The‑ only question which we are required to determine in this appeal is, whether Allahditta defendant after selling his entire share in the two squares to Muhammad Shafi, was competent to make a gift of Killas Nos. 13 to 25 of Square No. 30 in favour of the plaintiffs. The learned counsel for the appellants argued that after the sale in favour of Muhammad Shafi, Allahditta had no more alienable interest left in the two squares, and could not have made a gift of Killas Nos. 13 to 25 in favour of the plaintiffs. In support of his contention, he relied on a recent decision of the Supreme Court of Pakistan reported as Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (P L D 1959 S C (Pak.) 9). The question which came up for consideration before their Lordships was not identical with the point involved in the present appeal, yet the following observations of their Lordships throw considerable light on the question raised before us:‑
" A plain consideration of the nature of the transaction in the circumstances of this case could, in our opinion, lead to but one conclusion. The vendee of a co‑sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to its vendee, so long as there is no partition between the co‑sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership , rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co‑sharers."
The principle which is deducible from these observations is that the transferee from a co‑sharer is clothed with the same rights as the co‑sharer has in the property, but if the co‑sharer transfer in excess of his share in the property, then the transferee will step c into the shoes of the co‑sharer only to the extent of the share which the transferor owns in the whole of the property and no more. It follows that a co‑sharer is not legally competent to transfer in excess of his share in the property. In Saad Ullah v. Ibrahim (A I R 1925 Lah.518), it was held by Martineau, J. as follows :‑
" Although Allahdiya and Kimun not being the sole owners of the land could not sell the full proprietary rights, the sale by them nevertheless holds good to the extent of conveying the rights which they could sell including the right to retain possession till partition."
From this also it can be reasonably inferred that a co‑sharer can legally transfer his rights in the joint property only to the extent of his share and no more. Similar observations are to be found in Harnam Singh v. Jagat Singh (A I R 1929 Lah,168) and Sukhdev v. Parsi (A I R 1940 Lah. 473). The learned counsel for the plaintiffs‑respondents could not cite any authority to the contrary. He, however, contended that a co sharer has a share in every fragment and portion of the joint holding so long as partition does not take place. He, therefore, argued that in spite of the sale of his entire share in the two squares, Allahditta had a right in every fraction of the remaining property untill partition, and he was, therefore, competent to make a gift of Killas Nos. 13 to 25 of Square No. 30 in favour of the plaintiffs. In our opinion this argument completely overlooks the patent ‑fact that after the, sale of his entire share in the joint property, Allahditta had no alienable interest left in the property. In view of the judgment of the High Court in the previous suit, there is no room for any doubt that Allahditta and the sons of Husain Bakhsh had half and half share in the undivided property, and as soon as Allahditta sold his half share, measuring 220 kanals, he had no more interest left in the property. We have no doubt in our minds that a co‑sharer is not legally competent to alienate in excess of his share in the joint property, even though he may be in possession of the whole property. The mere fact that in law a co‑sharer is deemed to have a share in every fragment of the undivided property does not entitle him to alienate any interest in the property in excess of his share which he owns in the property. We have, therefore, no hesitation in holding that Allahditta was not competent to make a gift of Killase Nos. 13 to 25 in Square No. 30 and the plaintiffs, therefore, did note acquire any right in these Killas on the basis of the gift. This view seems to be consistent with the principle embodied in section 44 of the Transfer of Property Act, which provides that a transferee from a co‑owner acquires such interest or share in the joint property as the co‑owner possesses in the property. In this view of the matter, this appeal must succeed.
5. The learned counsel for the plaintiffs‑respondents, how ever, argued that the rights of different grantees in severalty of distinct parcels of land from the same co‑sharer are equal irrespective of the dates of their several grants, and if at the time of the partition the estate is found not large enough, then in view of the equities the shares of the parties will have to be adjusted pro rata. In this connection he relied on para. 212 of Freeman on Co‑tenancy and Partition (2nd Edition) which reads as follows :‑
"The rights of different grantees in severalty of distinct parcels of land from the same co‑tenant are equal, irrespective of the dates of their several grants. Thus, if a tenant‑in‑common of a lot of land sell and convey the north one‑half thereof in severalty to A, and the south one‑half thereof in severalty, at a subsequent date, to B, A has not, on account of the priority of his grant, any superior, legal, or equitable rights to B. If, at the time of the conveyances, the parties all supposed the grantor to be seized of an estate in severalty, and a moiety thereof is afterwards recovered by a claimant under a para mount title, A cannot compel such a partition as will set off the north half to him, and leave the moiety recovered to be assigned out of B's half. There seems no such relations between earlier and later purchases as authorise the former to impose any such obligations on the latter. The rights and equities of each are equally ample and perfect. The loss which they suffer in this instance is not from an incumberance, which may be extinguished, either by the appropriation of the land left with the heirs or a contribution among themselves, but is a full and paramount right over a portion of the lands of each. As respects heirs, we would endeavour to mould their rights, so as to protect the alienee of their ancestor, but we find no authority to apply any such principles between pur chasers, and we must leave each to sustain his share of the burthen."
The learned author, who is an American, presumably dealt with the rule of law applicable in the United States of America. There is no indication that this rule is derived from the common law of England. In any case, it is opposed to the provisions of section 48 of the Transfer of Property Act. We do not propose to enter into a detailed discussion of this question, as we are of the considered opinion that in view of the law prevailing in Pakistan this rule has no application to the facts of the present case, because Allahditta had no interest or share in the joint property on the day when he made the gift of Killas Nos. 13 to 25 in favour of the plaintiffs. The fact cannot be lost sight of that this was done after the suit had been instituted by the sons of Husain Bakhsh and Allah Ditta had sold his entire share in the joint property to Muhammad Shafi. In support of his contention the learned counsel also relied on Kishnaveni Ammal v. Subramanyam Chetty (A I R 1938 Mad. 547) and Mangalmal Aganmal v. Haji Muhammad Yusuf Bhoro (A I R 1939 Sind 315), but the facts of these cases stand entirely on a different footing. In the former case, it was held that " as between the two substituted security rights, no question of priority arises for section 48 (T. P. Act) applies only to succes sive mortgages on the same property." It only means that the rights in the substituted security of two rival claimants should be in proportion to the value of original security as it stood on the date of the partition. In the latter case it was laid down as follows :‑
" But Mr. Lulla goes further. He says that there were several sales and that his clients, the alienees under the first sale of 1917, have priority with respect to the lands sold or purported to be sold to them over subsequent purchasers. He relies on Narayan Babaji v. Nathaji Durgaji (28 Bom. 201). In this case however, it is clear that all the purchasers in the subsequent sales which the Court could have recognized, and these are seven in all, the alleged oral sale being excluded, will have to make some contri bution,‑will have to give up some proportion of their supposed purchases because the estate is not large enough for the alienees of Hamid and Musa to get from Hamid and Musa's share all Hamid and Musa purported to sell them."
Unfortunately, the facts of the case are not set out in detail in this ruling. It is, therefore, not easy to grasp the true import of the above observations. It appears that the question had arisen in a suit for partition between the heirs of one Khuda Bakhsh. The suit was, however, dismissed by the trial Judge against the alienees of Hamid and Musa two of the sons of Khuda Bakhsh on the finding that the claim against them had become time‑barred because of their adverse possession. On appeal, this finding was reversed by the District Judge. The matter was then taken up before the Sind Judicial Commissioner's Court. The learned Judicial Commissioner agreed with the finding of the District Judge on the point of limitation and while dealing with the question of equities made the aforesaid observations. The learned Judicial Commissioner has not given any reasons in support of his finding, nor has he referred to any provision of law or authority. If the learned Judicial Commissioner really meant to lay down that a purchaser from a co‑sharer has no right of priority over subsequent purchasers, then with all respect, we wish to dissent from that view. It is opposed to the equities, and ignores the provisions of section 48 of the Transfer of Property Act. After a careful consideration of the arguments advanced on behalf of the plaintiffs‑respondents, we have arrived at the conclusion that the plaintiffs had not acquired any interest or right in Killas Nos. 13 to 25 of Square No. 30, on the basis of the gift.
6. Lastly, it was argued on behalf of the plaintiffs‑respon dents that they were entitled to the possession of Killas Nos. 13 to 25 of Square No. 30, independently of the gift, as these Killas had been given to them and their mother by way of main tenance. So far as the claim of the plaintiffs on this score is concerned, it is a sufficient answer that at the time of the institu tion of this suit, the three plaintiffs had attained majority and the estate of their deceased father was no more liable for their maintenance. Their mother, Mst. Fateh Bibi, however, could claim a portion of the estate for her maintenance till her remarriage or death. In her written statement she had specifically raised this plea, but no issue was framed in respect of it and the circumstances relating to this matter were not investigated, and no finding was given by the learned Senior Civil Judge. She may, therefore, pursue her remedy, if she is so advised, by filing a suit on the basis of her claim to maintenance.
7. For the reasons stated above, we would allow this appeal and setting aside the decree passed by the lower Court, we would dismiss the plaintiff's suit. In the peculiar circumstances of the case, however, the parties are left to bear their own costs throughout.
A. H. Appeal allowed.
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