JUDGMENT
P.S. Brahme, J.
1. This is an Appeal by the original defendant No. 1 challenging the judgment and decree passed by the 2nd Additional District Judge, Bhandara in Regular Civil Appeal No. 52 of 1984 on 29th August, 1989 confirming the judgment and decree passed by the Joint Civil Judge (Jr. Dn.), Bhandara in Regular Civil Suit No. 37 of 1980, dated 13th June, 1984, whereunder the appellant was directed to deliver possession of the suit house to the plaintiff and further enquiry into mesne profit from the date of suit till delivery of possession of the house under Order XX, Rule 12 of the Code of Civil Procedure.
2. The original plaintiff Maroti Patre had filed the aforesaid suit against the appellant and one Shriram Sakharam Kantode (defendant No. 2) on the averments made in the plaint as follows :
One Rahim Khan s/o Shahbaz Khan was owner of a plot marked by letters “ABCD” and super structure of house marked by letters “AFGH” in the map appended to the plaint situated at Mohadi, P.C. No. 21. It was in the year 1962 that Rahim Khan constructed a house on the plot as shown by red ink-in the map. Rahim Khan died in this house on 11th April, 1972. Admittedly, he had no wife or any issue living at the time of his death. One Sabdarkhan, cousin of deceased Rahim Khan, inherited this property of Rahim Khan, Deceased Rahim Khan had a daughter by name Sakurabi w/o. Jan Mohammad, who pre-deceased Rahim Khan. The present appellant Nazirkhan is. admittedly, son of deceased Sakurabi born off Jan Mohammed. It is admitted that as Sakurabi pre-deceased Rahim Khan, the original defendant No. 1 did not get any share by inheritance in the property of deceased Rahim Khan. According to the plaintiff, after death of Rahim Khan, his cousin Sabdarkhan became owner of the suit house by inheritance. His name was mutated in Gram Panchayat record. The appellant-original defendant No. 1 did not take any objection when the house property was mutated in the name of Sabdarkhan.
3. It is the case of plaintiff that, taking advantage of absence of Sabdarkhan from the village, defendant No. 1 illegally trespassed into the suit house and took possession of the same. Admittedly, Late Sabdarkhan had filed Regular Civil Suit No. 187 of 1974 against the defendant and one Habibullakhan, who was tenant of defendant No. 1 in the suit house. After Habibullakhan left the house, defendant No. 1 has inducted defendant No. 2 Seetaram as a tenant in the suit premises. It so happened that, during pendeney of the suit, Sabdarkhan died. His wife Chandbi, his daughter Ashabi, his son Khwajanijamuddin and his married daughter Ushabi were brought on record as his legal representatives and they denied the suit. The said suit was dismissed on 11th June, 1976. Admittedly, in that suit, it was held that, after death of Sabdarkhan, his brother Akbarkhan was the only legal heir and it was he who alone could continue with the suit against the defendants. It was further held that the heirs of deceased Sabdarkhan had no right to file the suit. Therefore, these legal heirs of Late Sabdarkhan preferred Civil Appeal No. 27 of 1977 in the Court of District Judge, Bhandara. During pendency of the appeal, the present plaintiff/the legal representatives of deceased Maroti Patre purchased the suit house from Akbarkhan and Chandbi for a consideration of Rs. 500/- by sale deed dated 17th July, 1979. That is how, the original plaintiff Maroti became exclusive owner of the suit property.
4. The appellant-original defendant No. 1 had raised a point in that appeal that Akbarkhan was the legal heir entitled to succeed Rahim Khan and that, Sabdarkhan has no right, title or interest in it. It is the case of plaintiff that defendant was bound by his admissions and he is estopped from denying the title of said Akbarkhan inasmuch as in appeal his contention was that Akbarkhan was the only legal heir of deceased Rahim Khan after death of Sabdarkhan. The appellants in the said appeal presented an application to the Court to withdraw the suit with permission to file fresh suit on 19th September, 1979. Their application was allowed on the condition that they should first pay or deposit in the Court the costs of appeal for being paid to defendant No. 1. It was also ordered that since the suit filed by the plaintiff was not to exist in view of the order made as above, the decree of dismissal of the suit, recorded in Regular Civil Suit No. 187 of 1994, stood set aside. In fact, It was plaintiff who deposited an amount of Rs. 75/- towards the costs as awarded by the Appellate Court. Thereafter, the plaintiff has filed the aforesaid suit for possession of the suit house against the defendants in his capacity as purchaser of the suit property from deceased Akbarkhan, who was left as a legal heir of deceased Rahim Khan after death of Sabdarkhan.
5. Appellant-defendant No. 1 resisted plaintiffs claim by written statement Exh. 11. He did not dispute that Late Rahim Khan constructed the house on the suit plot. However, his contention is that the whole plot over which Rahim Khan constructed super structure of the house was owned by his father Jan Mohammad. He categorically denied that Sabdarkhan inherited all the property of deceased Rahim Khan and that Sakurabai, sister of deceased Rahim Khan pre-deceased him and her son namely defendant No. 1 did not get any interest in the property. He also contended that he had taken objection when the house property was mutated in the name of Sabdarkhan after death of Rahim Khan. According to him, deceased Rahim Khan was residing with him during his last days in this house. He then delivered possession of the suit house to him. It is denied that Akbarkhan is the heir of Sabdarkhan. Purchase of suit house property by the plaintiff under sale deed dated 17th July, 1979 is denied. He denied to have made any admission in the Civil Suit No. 187 of 1974. According to him, the suit is liable to be dismissed. In his special pleadings, he contended that the plot on which deceased Rahim Khan constructed the house was owned and possessed by his father Jan Mohammed. Deceased Rahim Khan requested his father to allow him to construct the house. His father, accordingly, granted permission to do so. It is his contention that deceased Rahim Khan was licensee of defendant No. 1 and that his license visa vis the suit house stood terminated after death of Rahim Khan. It is his contention that the so-called heir of Rahim Khan had no right, title or interest to the property and as such, transfer dated 17th July, 1979 in favour of plaintiff is void. Defendant
No. 1, in the alternative, contended that he has purchased the share of Sikander Khan by sale deed dated 1 7th October, 1976. As such, he being the co-owner cannot be ousted from the house. But, other co-owners Sikander, Samsher, Sugrabai and Urkudibi are necessary parties to the suit and in absence of these co-sharers being joined as parties to the suit, the suit is liable to be dismissed.
6. Defendant No. 2, who was inducted as a tenant by defendant No. 1, remained absent and as such, the suit proceeded ex parte against him.
7. The Trial Court framed issues at Exh. 22 and the parties went on trial with these issues. It is a matter of record that one Ramrao s/o Original praintiff Maroti gave evidence and also led evidence of Bajirao Mangurji (P.W. 2) had Chandbi (P.W. 3) and one Shamsher s/o Chhotekhan (P.W. 4). It may be noted that this witness Shamsher happens to be real brother of Sikander from whom defendant No. 1 has purchased 1/6th share in the suit house under sale deed dated 17th October, 1976. The witness Chandbi was wife of original plaintiff Sabdarkhan in earlier suit. Defendant No. 1 examined himself as a witness and also examined one Mahadeo Nandanwar as D.W. 2. The parties have filed sale deeds. The sale deed executed in favour of plaintiff is at Exh. 41 while the sale deed executed in favour of defendant No. 1 by Sikander is at Exh. 61.
8. The learned Trial Court, after considering the evidence led by the parlies, came to the conclusion that defendant No. 1 has failed to substantiate his claim of ownership in respect of the suit plot and house as contended by him in his written statement. The Trial Court also found that defendant No. 1 has failed to establish and prove his ownership vis-a-vis 1/6th share in the suit house on the basis of the sale deed alleged to have been executed by Sikanderkhan. The Trial Court found that defendant No. 1 is estopped from contending that Akbarkhan was owner of the suit house by inheritance since after death of Sabdarkhan. The Trial Court also held that defendant No. 1 cannot contend that Sikanderkhan and Samsherkhan, Sugrabi and Urkudibi were the co-sharers of deceased Rahim Khan. Consequent upon these findings, the Trial Court decreed plaintiffs suit directing the defendants to deliver possession of the suit house and also enquiry into mesne profit under Order XX, Rule 12 of the Code of Civil Procedure was ordered.
9. Appellant-defendant No. 1 feeling aggrieved by dismissal of the suit. preferred Civil Appeal No. 52/1984. As stated earlier, the learned Additional District Judge, Bhandara by his judgment and decree dated 29th August, 1989 dismissed the appeal. The Appellate Court gave a concurrent finding that plaintiffs has established his title to the suit property and as such, he was entitled for possession of the same and that, defendants are trespassers in the suit property and that the suit was not bad for nonjoinder of necessary parties. The Appellate Court observed that defendant No. 1 did not agitate his claim as to ownership of the suit house on the basis of sale deed dated 11th October, 1976 alleged to have been executed by Sikanderkhan. In the appeal which was preferred by heirs of Sabdarkhan challenging dismissal of Regular Civil Suit No. 187 of 1974. The Appellate Court has observed with emphasis that defendant No. 1, in the earlier suit, unequivocally contended that the legal heirs of deceased Sabdarkhan are not entitled to succeed and Akbarkhan was the only legal heir to succeed the property of deceased Rahim Khan. In addition to this, the Appellate Court has observed that defendant No. 1 cannot agitate his claim of ownership vis avis the suit property on the basis of the sale deed executed by Sikanderkhan, when, initially, his claim was that his father was owner of the plot on which deceased Rahim Khan, admittedly, raised construction of the suit house. Consequently, the Appellate Court also discarded the claim of defendant No. 1 as to the claim of co-sharer in the suit property. As stated earlier, feeling aggrieved by dismissal of the appeal, the appellant has preferred the present Second Appeal.
10. This Court, on 19th January, 1990, admitted this Second Appeal on substantial question of law as contained in Annexure ‘A’ to the appeal memo. The substantial questions of law raised in this Appeal are as under:
(a) Whether his (Sabdarkhan) widow namely Chandbi can pass a valid title to the respondents in respect of property of Rahim Khan by sale deed dated 17th July, 1979?
(b) Whether the widow of Sabdarkhan (Chandbi) and Akbarkhan could execute sale deed on 17.7.1979 in respect of the suit property despite during the pendency of Regular Civil Suit No. 27 of 1977, particularly when such property was involved in the said Appeal, in view of expressed bar of Section 52 of the Transfer of Property Act?
(c) Is the suit for eviction of the appellant legally competent, from the property in dispute even when the appellant had admittedly purchased by sale deed dated 27th October, 1976 from Sikanderkhan, who was admittedly a nearer residing of the deceased Rahim Khan, he (Sikanderkhan) being Rahim Khan’s paternal uncle’s (Chhotekhan) son?
(d) Does not the finding that the appellant is estopped from raising issue of non-joinder of necessary parties, per se erroneous amounting to an obvious error in exercise of learned Judge’s jurisdiction, since such a finding runs totally counter to the facts obtained on record?
11. I have heard Mrs. Munshi, the learned Counsel for the appellant. She submitted that admission given by defendant No. 1 in the earlier Suit No. 187 of 1974 that only Akbarkhan was legal heir who was entitled to inherit the property of deceased Rahim Khan is not binding on defendant No. 1 inasmuch as that earlier suit was withdrawn by plaintiffs therein. Defendant No. 1, in the subsequent suit filed by respondents, has rightly contended that besides Akbarkhan there are other co-sharers who are cousins of deceased Rahim Khan and that they also inherited the property of deceased Rahim Khan. Therefore, the Courts below were not right in holding that defendant No. 1 was not entitled to agitate that other co-sharers were also entitled to inherit the property of deceased Rahim Khan. She submitted that plaintiff deceased Maroti purchased entire suit property by sale deed (Exh. 61) dated 17th July, 1979 when Appeal No. 21 of 1977 was pending. In the background that there were other co-sharers namely Sikanderkhan, Samsherkhan etc. who were entitled to inherit the property of deceased Rahim Khan on equal footing with that of Sabdarkhan and Akbarkhan, deceased Maroti, did not acquire title in respect of entire suit property as Akbarkhan, who was one of the executants of the sale deed who had only 1/6th share in the suit property. The Courts below committed an error in holding that plaintiff has acquired title in respect of the suit property on the basis of sale deed (Exh. 41). It is submitted that the said transact ion is hit by the provisions of Section 52 of the Transfer of Property Act and therefore, the Courts below were in error in passing decree for possession in respect of the suit land in favour of original plaintiff himself on the basis of sale deed.
12. The learned Counsel also submitted that the Courts below were totally wrong in holding that the suit was not bad for non-joinder of necessary parties, when, admittedly. It was brought to the notice of the Court that there were other co-shares having right of heritance in the property of deceased Rahim Khan besides Akbarkhan. The learned Counsel pointed out that, initially, the suit i.e. Regular Civil Suit No. 187 of 1974 was filed by Sabdarkhan against defendant No. 1. After his death, during pendency of the suit, his heirs were brought on record comprising his wife Chandbi and daughters and a son. The Trial Court has dismissed the suit holding that Chandbi and her daughters and son were not the legal heirs of Safdarkhan and on admission by plaintiffs witness Khwajanaziruddin namely plaintiff No. 1-C in Regular Civil Suit No. 187 of 1974 Akbarkhan, who was son of parental uncle of deceased Rahim Khan was the only person having right of inheritance. If that is so, Chandi, who was widow of Sabdarkhan, had no right to sell the suit property to original plaintiff himself by sale deed (Exh. 61).
13. The learned Counsel further submitted that both the Courts below have committed an error in holding that defendant No. 1 is a trespasser so far as suit property is concerned. Both the Courts below have not taken into consideration the fact that defendant No. 1 has purchased 1/6th share in the suit property from Sikanderkhan who was residuary on the same footing of Akbarkhan. The property was purchased by defendant No. 1 under the sale deed (Exh. 61) which came to be executed by Sikander on 27.10.1976 after dismissal of the suit. The Courts below have discarded the sale deed only on the ground that defendant No. 1 did not raise contention in the earlier suit that Sikanderkhan was also one of the residuaries having claim of inheritance in the property of Rahim Khan. The learned Counsel submitted that defendant No. 1 has acquired title in respect of 1/6th share in the suit property on the basis of sale deed and he is in possession of the property and therefore, the Courts below committed an error in decreeing the suit for possession in respect of the entire suit property. It is submitted that the Trial Court has committed an error in ignoring the legal evidence on record substantiating defendant’s title over the suit property to the extent of 1/6th share. She, therefore, urged that the appeal be allowed and the suit filed by the plaintiff should be dismissed.
14. Mr. Joharapurkar, the learned Counsel for the respondent, submitted that, in the earlier suit, the stand taken by defendant No. 1 was that only Akbarkhan alone was heir of Rahim Khan. It was his contention that his father was owner of the land and he permitted Rahim Khan to construct the house. Therefore, the Trial Court as well as the Appellate Court were right in rejecting contention of the defendant. The Courts below were also right in holding that sale deed in favour of plaintiff was not hit by Section 52 of the Transfer of Property Act as plaintiff has purchased the share or right of inheritance of Akbarkhan, which has been held so by the Court in earlier suit and the same has been conceded by defendant No. 1. Defendant No. 1 is bound by that admission and the Courts below were absolutely right in decreeing the plaintiffs suit taking into consideration the admission by defendant No. 1, as also, the fact that defendant No. 1 has not agitated the fact that, besides Akbarkhan, there were other co-sharers namely Sikanderkhan, Samsherkhan etc. entitled to inherit the property of Rahim Khan. The learned Counsel pointed out that these admissions by defendant No. 1 in the earlier suit are binding on him and judgment passed by the Courts below on the basis of these admissions cannot be challenged by a party in Second Appeal. The learned Counsel, therefore, submitted that defendant No. 1 cannot seek protection from eviction on the basis of sale deed executed by Sikanderkhan. The Courts below were right in holding that original plaintiff Maroti derived title under the sale deed Exh. 61 executed by Akbarkhan as defendant No. 1 had not contended in the earlier suit that besides Akbarkhan there were other co-sharers including Sikanderkhan. It is submitted that, in the earlier suit, defendant No. 1 did not dispute the geneological tree filed by the plaintiff showing Sabdarkhan and Akbarkhan as the persons entitled to inherit the property of Rahim Khan. Therefore, both the Courts below were right in holding that: defendant No. 1 is estopped from contending that other cousins of deceased Rahim Khan are entitled to inherit the property of deceased Rahim Khan. The learned Counsel further submitted that: right of inheritance has been created in favour of Akbarkhan in view of admission by defendant No. 1 in the earlier suit and subsequently, on the basis of those admissions, right of ownership is created in favour of plaintiff in the present suit and therefore, both the Courts below have held that defendant No. 1 cannot be heard now contending that Sikanderkhan also had 1/6th share in the suit property.
15. The learned Counsel placed reliance on the decision in Traders Syndicate v. Union of India AIR 1983 Cal. 337 to substantiate his proposition that statement of a witness in his examination-in-chief if challenged by the other side, that is accepted as admission of fact stated by the witness. In this connection, he pointed out that plaintiffs witness has categorically stated about exclusive ownership of original plaintiff on the basis of sale deed executed by Akbarkhan. This statement has not been controverted by defendant. Therefore, the Courts below were right in decreeing the plaintiff suit for possession vis-a-vis the entire suit property.
16. The learned Counsel for respondent submitted that plaintiff has examined witness Samsher who is, admittedly, real brother of Sikanderkhan. In his examination-in-chief, he has stated that he has no share in the property of Rahim Khan. This statement has gone unchallenged. That plaintiff has purchased the property by sale deed which was duly registered. The learned Counsel pointed out from Section 3 of the Transfer of Property Act that registration of a document of sale deed itself is a notice to all the persons concerned. Explanation I to Section 3 reads as under :
When any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in such property shall be deemed to have notice of such instrument as from the date of registration or when the property is not at all situated in one Sub-District or where the registered instrument has been registered under Sub-section (2) of Section 30 of the Indian Registration Act, 1908 (16 of 1908) from the earliest date of which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose Sub-District any part of the property which is acquired or of the property wherein a share or interest is being acquired is situated.
17. The learned Counsel submitted that other co-sharers have judicial notice of registration of sale deed in favour of the plaintiff. But, they have not challenged. Therefore, right acquired by the plaintiff under the sale deed (Exh. 61) is protected and the plaintiff is entitled to get possession of the suit property on the basis of sale deed. Therefore, the learned Counsel submitted that there is no reason to dismiss the suit on the ground that co-sharers were not impleaded as a party to the suit. The learned Counsel submitted that both the Courts below have found that defendant No. 1 has failed to establish his title vis-a-vis the suit property to the extent of 1/6th share of Sikanderkhan and therefore, no interference in the judgment and decree is called for. The learned Counsel submitted that even accepting that defendant No. 1 has acquired title in the suit property to the extent of 1/6th share of Sikanderkhan, plaintiff is entitled to decree for possession in respect of suit property excluding 1/6th share of defendant No. 1.
18. Before adverting to submissions made by the learned Counsel for the parties, it is appropriate to state few facts about which there is no dispute. In Regular Civil Suit No. 37 of 1980, which is filed by original plaintiff Maroti, after purchasing the suit property from Chandbi and Akbarkhan, defendant No. 1 has filed written statement Exh. 11 and in that, he has given correct geneology. In fact, the original plaintiff Maroti, in his plaint, has also given geneological tree. It is needless to say that this geneological tree given by the plaintiff in his plaint was partly correct. There is no controversy over the parties as regards the geneological tree given by defendant No. 1 in his written statement (Exh. 11). That is accepted by the plaintiff as correct. Relationship vis-a-vis deceased Rahim Khan shown in geneological tree is accepted. It is admitted that one Daulatkhan was the original ancestor and he was survived by four sons namely Shahbaz Khan, Ranbajkhan, Chhotekhan and Kale Khan and of them, deceased Rahim Khan was son of Shahbaz Khan. Deceased Rahim Khan had a sister by name Sakurabi who predeceased Rahim Khan and she is survived by her son namely Nizamuddin who is present defendant No. 1, It. is admitted that all the uncles of deceased Rahim Khan predeceased him. His uncle Kalekhan had no issues. His uncle Chhotekhan was survived by two sons namely Sikanderkhan and Samsherkhan and two daughters namely Sugrabi and Urkudibi. The other uncle Rambal Khan was survived by Sabdarkhan, Akbarkhan, Tahirbi and Banubi. Deceased Sabdarkhan died in the year 1974 during pendency of Regular Civil Suit No. 187 of 1974. He is survived by his wife Chandbi and two daughters and a son who came to be substituted as legal heirs in that suit.
19. It is submitted that the land on which his house is constructed by deceased Rahim Khan in the year 1962 was owned by him. Defendant No. 1, in the earlier suit, and in this suit also, raised a contention claiming that, the plot of land on which super structure of house was constructed by deceased Rahim Khan was owned by his father Jan Mohammed. Both the Courts below have given a concurrent finding that defendant No. 1 has failed to establish that his father was owner of the plot. That finding of fact is not challenged by the appellants. Defendant No. 1 also raised contention that his father allowed deceased Rahim Khan to construct a house and as such the house property was in possession of deceased Rahim Khan as a licensee and since after his death, that license stood terminated and therefore, the house property becomes the ownership of defendant No. 1. It was also contention in the earlier suit by defendant No. 1 that Rahim Khan, in his last days, gifted the suit house to him. Defendant No. 1 claim ownership over the property on the basis of that contention. But the Courts below have rightly rejected that contention of defendant No. 1. It is also a matter of record that plot of land has been recorded in the Gram Panchayat record in the name of deceased Rahim Khan that has not been challenged so far by either of the co-sharers much less by defendant No. 1. That apart, after death of Rahim Khan the suit house was mutated in Gram Panchayat record in the name of Sabdarkhan. It is pertinent to note that deceased Rahim Khan sought, permission to construct house on the plot by giving application to Gram Panchayat and in that application, he has categorically stated that the plot belonging to him. Therefore, it is concluded that the suit property exclusively belongs to deceased Rahim Khan. The suit property includes structure of the house raised on the plot owned by deceased Rahim Khan. It is further not disputed that the present defendant No. 1 being son of sister of deceased Rahim Khan cannot claim any inheritance in the suit property as his mother Sakurabi predeceased Rahim Khan. That is why, defendant No. 1 has claimed ownership in respect of the suit property on the basis of sale deed executed by Sikanderkhan who is, admittedly, one of the residuaries claiming inheritance in the suit property of deceased Rahim Khan.
20. It is not disputed that, under the Mohammedan Law, under general principles of inheritance, as per Section 122, right of a heir comes into existence on death of a person of whom he is an heir. The right of each heir is several and distinct and arises immediately on death of the person. An heir cannot get any right whatsoever in the property of another person by birth. It is also very clear as per Section 123 that the right of inheritance to the estate of deceased Mohammedan vests in his heirs at the moment of his death and is not lost by death of any heir before distribution of the property. The natural consequence of this is that an heir who has predeceased cannot have right of inheritance. In other words, right of inheritance is available to those who are alive at the time of death of the deceased. That is why, Sakurabi, who was sister of deceased Rahim Khan, could not inherit the property of Rahim Khan as she was not alive when Rahim Khan died. Consequently, her son i.e. appellant-defendant No. 1 cannot claim any inheritance in the property of deceased Rahim Khan. It is accepted that Sabdarkhan and his brother Akbarkhan inherited the property of deceased Rahim Khan in their capacity as heirs in category Residuary. In fact, as per the classification of heirs who are entitled to have inheritance of property of deceased Mohammedan, these two persons who are cousins of deceased fell in the category of Distant Kindred. But, as per the provisions of Mohammedan Law, in absence of heirs belonging in the category or Sharers and Residuaries. Distant Kindreds get inheritance as Residuaries. The estate of deceased Mohammedan devolves in absence of Sharers or Residuaries on his every blood relations. They are called as “Distant Kindred”. In the instance case, admittedly, besides Sabdarkhan and Akbarkhan, other cousins namely Sikandarkhan, Samsherkhan, Sugrabi and Urkudibi being children of deceased Rahim Khan’s uncle Chhotekhan and real sisters of Akbarkhan namely Tahirbi and Banubi, were alive at the time of death of Rahim Khan and they being cousins of the same degree as that of Sabdarkhan and Akbarkhan, are entitled to inherit the property of deceased Rahim Khan. This legal position as to entitlement of share in the property of deceased Rahim Khan to these eight cousins is not now disputed by the learned Counsel for the parties.
21. It is further very clear from the general principles of inheritance under the Mohammedan Law that a male member gets share in comparison with female member in the ratio of 2:1. Therefore, in the instant case, each male member would get 1/6th share, while each female member would get 1/12th share. After death of Rahim Khan, the suit property was mutated in the name of Sabdarkhan. Therefore, it was Sabdarkhan alone who filed the earlier suit (Regular Civil Suit No. 187 of 1974) against the appellants claiming possession of the entire property. He, however, died during pendency of the suit and his legal heirs namely his wife, two daughters and a son came to be substituted in his place as legal representatives in the suit. As stated earlier, in that suit, defendant No. 1 claimed to be exclusive owner of the suit property of deceased Rahim Khan and as regards the legal heir of Sabdarkhan, the original plaintiff in that suit, it was contended that Akbarkhan alone was entitled to succeed and inherit the property of deceased Rahim Khan. The Trial Court dismissed the suit holding that the legal heirs of Sabdarkhan were not entitled to continue with the suit. However, the Trial Court observed that Akbarkhan, who was the real brother of deceased Sabdarkhan, alone was entitled to inherit the property of deceased Rahim Khan. It was also observed by the Trial Court in that suit that defendant No. 1 i.e. present appellant failed to establish his title over the suit property and that, he was not competent to inherit the property of deceased Rahim Khan. It is admitted that the legal representatives of deceased Sabdarkhan preferred an appeal before the District Court bearing Civil Appeal No. 27 of 1977. During pendency of that appeal, admittedly, original plaintiff himself purchased the suit property of deceased Rahim Khan from Chandbi and Akbarkhan under the sale deed dated 17th July, 1979.
22. It is also a matter of record that the appellants in that appeal (Civil Appeal No. 27 of 1977) moved the Appellate Court, with an application for permission to withdraw the suit with permission to file fresh one on the ground that, during pendency of that appeal, original plaintiff Maroti purchased the suit property under the sale deed and he would file fresh suit against the defendant No. 1. It is significant to note that the present appellant, who was respondent No. 1 in that appeal, had no objection to that application, but he insisted for costs. It is not disputed that the Appellate Court allowed that application by an order dated 19th September, 1979 vide Exh. 43 and permission was granted to withdraw the suit with liberty to institute fresh suit in respect of subject matter in the suit. The Court also ordered that, as a consequence of withdrawal of the suit, the decree recorded by the Trial Court in Regular Civil Suit No. 187 of 1974 stood set aside. Thereafter, the original plaintiff Maroti filed Regular Civil Suit No. 37 of 1989 against the appellant for possession. Therefore, undisputed position that prevailed when the suit was filed by the original plaintiff Maroti was that he has become owner of the suit property of deceased Rahim Khan. Therefore, the contention of the learned Counsel for the appellant that the sale deed in favour of the deceased-plaintiff Maroti is void in view of the provisions contained in Section 52 of the Transfer of Property Act, the transfer being during pendency of the suit, carries no substance at all.
23. The appellant, however, contended right from the beginning that the appellant is owner of the suit property of deceased Rahim Khan by virtue ofthe sale deed (Exh. 61), dated 27th October, 1976 executed by Sikandarkhan. By this sale deed, defendant No. 1 became owner of the suit property of deceased Rahim Khan to the extent of 1/6th share of Sikandarkhan. But, both the Courts below rejected the appellant’s claim of ownership on the basis of sale deed observing that the defendant has not proved the sale deed and also purchased all the property under the sale deed and that, defendant No. 1 cannot agitate to have become owner of the suit property on the basis of the sale deed because, in the earlier suit, he has candidly admitted that Akbarkhan was the only legal heir entitled to inherit the property of deceased Rahim Khan and the Trial Court has given finding to that effect in the judgment while deciding the suit. The learned Counsel for the respondent Mr. Joharapurkar submitted that the sale deed (Exh. 61) obtained by defendant No. 1 is also hit by Section 52 of the Transfer of Property Act as the same was obtained during pendency of the suit. There is no substance in saying that the sale deed (Exh. 61) is hit by Section 52 of the Transfer of Property Act. It is true that defendant No. 1 could not bring to the notice of the Appellate Court in the Civil Appeal No. 27 of 1977 the fact that defendant No. 1 has purchased 1/6th share of Sikandarkhan under the sale deed (Exh. 61). But, in my opinion, that by itself did not preclude defendant No. 1 from agitating in the present suit his claim of ownership in the property of deceased Rahim Khan to the extent of 1/6th share. It is very material to note that the Trial Court in the judgment in Regular Civil Suit No. 187 of 1974 has observed that plaintiffs witness namely Khawja Nijamuddin s/o Sabdarkhan, who was plaintiffs No. 1-C, has stated in his examination-in-chief that one Akbarkhan, his parental uncle, is alive. It was on the basis of this admission of one of the plaintiffs that the Trial Court found that Akbarkhan, who was real brother of deceased Sabdarkhan, was also a Residuary and he is entitled to inherit the property of Rahim Khan. The Court further observed that plaintiff No. 1-C i.e. son of deceased Sabdarkhan was a Residuary standing at Sr. No. 17 while Akbarkhan, who was real brother of Sabdarkhan, is a Residuary, being full parental uncle’s son of deceased Rahim Khan, would be the Residuary in Serial Order No. 15. That is why, the Court found that Akbarkhan was entitled to inherit the property of deceased Rahim Khan after death of Sabdarkhan.
24. The legal position as to heir entitled to inherit the property of Rahim Khan has been already made clear. It is found that eight cousins of deceased Rahim Khan, who stand on the same footing, are entitled to inherit the property as Residuaries. Therefore, Sikandarkhan being one of the Residuaries, was entitled to Inherit 1/6th share and defendant No. 1 was right in claiming ownership in the suit property to the extent of 1/6th share on the basis of the sale deed (Exh. 61). The Trial Court rejected defendant’s contention first by observing that defendant No. 1 has not proved the sale deed. This finding of the Trial Court, which is confirmed by the Appellate Court, is absolutely erroneous inasmuch as this finding is arrived at ignoring the material relevant evidence in that regard of defendant No. 1. The defendant has stated in his evidence as to purchase of the property under the sale deed from Sikandarkhan. What is more striking is that this fact of purchase under the sale deed is not denied by the plaintiff. It may be that the appellant-defendant No. 1 did not examine Sikandarkhan, who executed the sale deed. But, that makes no difference so far as validity of the sale deed is concerned. That apart, having sale deed (Exh. 61) executed in favour of defendant No. 1, no oral evidence was required to prove the sale deed unless execution of the sale deed was denied by plaintiff. Therefore, both the Courts below committed an error in rejecting the sale deed and holding that defendant No. 1 has failed to establish his title over the suit property on the basis of sale deed (Exh. 61).
25. The learned Counsel for the respondent vehemently contended that both the Courts below were right in observing that defendant No. 1 was bound by his admission in the earlier suit contending that Akbarkhan was the only legal heir entitled to inherit the property of Rahim Khan and in the Trial Court, in the earlier suit, nowhere defendant No. 1 contended that other Residuaries have also share in the property of Rahim Khan, much less his vendor Sikandarkhan. There is no substance in the submission of the learned Counsel for the respondents. Even assuming that defendant No. 1 gave admission that Akbarkhan was only the person entitled to inherit the property of Rahim Khan, that by itself does not estop defendant No. 1 from contending in this suit that besides Akbarkhan there are other Residuaries, being cousins of deceased Rahim Khan, entitled to inherit his property. It is significant to note that, even the Trial Court, in the earlier suit, held that Akbarkhan was the person entitled to inherit the property of Rahim Khan. This was obvious for the reason that none of the parties disclosed that rest of the cousins of deceased Rahim Khan were alive and they were entitled to inherit the property. This was also because the plaintiff in that suit filed geneological tree which displayed Sabdarkhan only as a cousin of deceased Rahim Khan. It is already pointed out that defendant No. 1, in his written statement Exh. 11 in this suit, gave geneological tree in which all the cousins of deceased Rahim Khan have been shown, as Residuaries. It is further admitted that all these eight Residuaries were alive at the time of death of Rahim Khan and they are entitled to inherit his property as Residuaries. Therefore, admission on the part of defendant No. 1 in the earlier suit, was on the basis of disclosure in the geneological tree given by the plaintiff in that suit. That was obviously incorrect. Therefore, the findings arrived at by the Trial Court in that suit that Akbarkhan alone was entitled to inherit the property was on the wrong assumption of factual position. It is needless to say that much had been brought to the notice of the Trial Court in the earlier suit that besides Akbarkhan and Sabdarkhan there were other cousins alive, the Court would have certainly held that all the cousins were Residuaries entitled to inherit the property of deceased Rahim Khan. In short, admission on the part of defendant No. 1 was on the basis of factual position as to presence of the Residuary. That being absolutely incorrect, defendant No. 1 cannot be estopped from contending that there are other Residuaries including Sikandarkhan who were entitled to inherit the property of Rahim Khan along with Sabdarkhan and Akbarkhan.
26. I would like to emphasize on incorrectness on the part of the Courts below, so also, the submission of the learned Counsel the respondents in submitting that defendant appellant was estopped on account of his admission in the earlier suit by saying that it involves the question of law as to who is entitled to succeed the property of deceased Rahim Khan as residuary. That is purely a question of law. When it is found that factually besides Sabdarkhan and Akbarkhan, there were six other cousins entitled to inherit the property, it is very difficult to say that defendant No. 1 is estopped from contending because, in the earlier suit, he has admitted that only Akbarkhan was legal heir entitled to inherit the property of Rahim Khan. There cannot be any estoppel against law. That apart, the learned Counsel for the appellant Mrs. Munshi was right in her submission that unless defendant No. 1 was confronted by his admission in the earlier suit by bringing to his notice his contention in the written statement in that suit, defendant No. 1 cannot be restrained from raising contention in the written statement and in his evidence as there could be no stoppage against him. Therefore, the authorities on which the learned Counsel for the respondents placed reliance in Nagindas Ramdas v. Dalpatram Iccharam @ Brijram and Ors. . and can have no application in the facts and circumstances of the case before hand. It is true that admissions in the pleadings or judicial admissions by themselves can be made foundation of rights of the parties. But, that is so far the admission as to the facts are concerned. If it is found that factual admission is incorrect and that admission to that fact is related to some issues of law, as in the present case as to the right of inheritance, that cannot be a reason to estop a party from contending contrary to the incorrect address in earlier proceedings. That apart, it is also to be taken note of that the judgment passed in the earlier suit has been set aside as a consequence of withdrawal of the suit in appeal. Therefore, in my opinion, so-called admission by defendant No. 1 in the earlier suit and in his pleadings does not preclude him from contending that Sikandarkhan was also entitled to inherit property of Rahim Khan to the extent of 1/6th share. That is why, I say that both the Courts below committed an error in first rejecting the contention of defendant No. 1 in that regard and holding that defendant No. 1 has failed to prove that he has. acquired title in the property of deceased Rahim Khan on the basis of sale deed (Exh. 61). It has to be said that the findings arrived at by the Courts below are absolutely erroneous without proper and correct application of mind and legal provisions.
27. It is, thus, clear that defendant No. 1 has become owner to the extent of 1/6th share of the suit property on the basis of sale deed (Exh. 61). It is undisputed that defendant No. 1 is in possession of the entire suit property. So far as plaintiff is concerned, both the Courts below have found that the plaintiff is entitled to the suit property on the basis of sale deed executed by Chandbi and Akbarkhan. Said sale deed is at Exh. 41. It was on the basis of that finding that the Courts below have decreed the plaintiffs suit for possession in respect of the entire suit property of deceased Rahim Khan. As now we have found that defendant No. 1 has become owner of 1/6th share in the property of Rahim Khan, he is entitled to retain possession to that extent. The learned Counsel for the respondents vehemently contended that other Residuaries who were entitled to inherit the property were aware of purchase of the entire suit property by plaintiffs under the sale deed (Exh. 41). In support of his submission, he placed reliance on the provisions under Section 3 of the Transfer of Property Act whereunder explanation to Section 3 which has laid down that purchase of immovable property by sale deed which is duly registered is notice to all the concerned because of the Jactum of registration of the document. The learned Counsel for the respondents, on the basis of this, submitted that other Residuaries have not claimed possession to the extent of their share in the suit property. He also pointed out from the evidence that one Samsherkhan, who happens to be real brother of Sikandarkhan, has been examined as witness by plaintiff and in his evidence, he has candidly stated that he had no share in the suit house. So, it is submitted with emphasis by the learned Counsel for the respondents that the plaintiff is entitled to recover possession from the defendant No. 1 of the suit property excluding 1/6th share of defendant No. 1. It is true that other Residuaries have not claimed possession from plaintiff though plaintiff is having litigations since the year 1974.
28. That apart, defendant No. 1 is not entitled to retain possession of the suit property beyond 1/6th share of Sikanderkhan which he has purchased by sale deed (Exh. 61). It is clear that deceased Sabdarkhan was having 1/6th share in the property as one of the Residuaries. It is also found that after his death his 1/6th share in the property had gone to his real brother Akbarkhan. It is also very clear that Akbarkhan and Chandbi sold the suit property to plaintiff by sale deed (Exh. 41). It is obvious that, by sale deed (Exh. 41), plaintiff would get right to the extent of 1/3rd share (l/6th of Sabdarkhan + 1/6th of Akbarkhan) in the suit property. Therefore, plaintiff is entitled to get possession of the suit property to the extent of 1/3rd share which he has purchased under the sale deed (Exh. 41). In other words, the decree passed by the Courts below making the plaintiff entitled to get possession of the entire house cannot sustain. The submission of the learned Counsel for respondents to maintain the decree of possession of entire house property, as other co-shares have not claimed possession, cannot be accepted. The reason is there would be multiplicity of litigations inasmuch as other sharers would be required to file suit for possession against plaintiff, in case the plaintiff is allowed to take possession of the entire suit property in pursuance of the decree passed by the Courts below. As against that, the plaintiff is entitled to get possession of the suit property to the extent of the share which he is legitimately entitled to. If plaintiffs had been entitled to possession of the entire suit property, there was justification for maintaining decree for possession. Therefore, the decree passed by the Courts below is required to be modified. It is found that plaintiffs are entitled to get possession. It is also found that defendant No. 1 is entitled to retain possession in respect of the suit property to the exent of 1/6th share. In that view of the matter, the appeal will have to be allowed partly. Hence, the order.
ORDER
The appeal is partly allowed.
The judgment and decree passed by the Courts below in Regular Civil Suit No. 37 of 1980 is modified as under :-
The defendants do deliver possession of the suit property to the extent of 1/3rd share to the plaintiffs.
Enquiry into the mesne profit from the date of the suit till delivery of possession of the property be made under Order XX, Rule 12 of the Code of Civil Procedure.
Possession be given to the plaintiffs by effecting necessary partition.
No order as to costs throughout.