Judgment:
M.S. Parikh, J.
1. This First Appeal under Section 96 of the Code of Civil Procedure, 1908 (for short 'the C.P.C') has been directed against the impugned order dated 22-4-1997 rendered by the learned Judge of the executing Court in Special Darkhast No. 7 of 1992 [Civil Judge (S.D.), Palanpur]. For the purpose of proper appreciation of the factual background of the matter, it would be necessary to first set out the pedigree for locating where the parties to this appeal stand in that pedigree.
Cheldas Bhikhabhai died on 2-5-1950
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Kashibai, widow of Cheldas Bhikhabhai died on 27-1-1957
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Amrutlal Narmada Mangu Hira Adopted son
(son) died on (daughters .. .. .. .. .. .. .. .. ..) Ambalal Cheldas
29-2-1948 (respondenl-orgn.
| plaintiff-decree
Kantaben (wife) holder-Execution
died on 22-7-1992 petitioner).
(Orgn. Deft. Judgment-debtor)
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Vasanti (daughter)
(appellant-objector).
Once again, it would be important to note what are the properties, which were the subject-matter of the suit, decree in which is sought to be executed by the respondent. They are:
(1) House property bearing Municipal No. 619 situated in Rajpur, Deesa.
(2) House property bearing Municipal No. 685 situated in Rajpur, Deesa.
(3) House property bearing Municipal No. 684 situated in Rajpur, Dessa.
(4) House property bearing Municipal Nos. 679 and 680 situated in Rajpur, Deesa.
(5) House property bearing Municipal No. 682 situated in Rajpur, Deesa.
(6) House property bearing Municipal Nos. 113 and 114 situated in Rajpur, Deesa.
(7) Godown bearing Gram Panchayat No. 4/5 in village Sherganj.
Out of the aforesaid properties house bearing Municipal No. 684 is occupied by the present appellant and is one of the properties being the subject-matter of the execution application.
Factual Background:
2. Cheldas Bhikhabhai had a son Amratlal by name, who died on 29-2-1948 leaving behind his wife Kantaben, who happened to be the judgment-debtor insofar as the present proceedings are concerned. She is presently not alive having died on 22-7-1992. At the time of Amratlal's death she was pregnant and gave birth to a daughter Vasanti by name being appellant-objector insofar as present proceedings are concerned. As there was no male member in the family, Cheldas and his wife Kashibai being aged, adopted the present respondent Ambalal on April 14, 1950. After his adoption the respondent had gone to reside with his adoptive parents, one of whom, namely, Cheldas died after about a month of the adoption. After the death of Cheldas, his widow Kashibai the plaintiff-decree-holder, Kantaben (the judgment-debtor) and her daughter were residing together. The plaintiff was got married and his wife also came to reside in the family. Bai Kashi died on January 27, 1957. During her life-time she was in possession of the properties of Cheldas and after her death judgment-debtor came in possession of the properties, both movable and immovable. The plaintiff claiming to be entitled to the properties of deceased Cheldas being his adopted son, filed Special Civil Suit No. 4 of 1962 in the Court of Civil Judge (S.D.) at Palanpur, claiming possession of 7 properties detailed in the plaint on the ground that he was the absolute owner thereof. The suit was contested by the judgment-debtor Kantaben (respondent's mother) and ultimately the trial Court came to the conclusion that the plaintiff has successfully established his case with regard to his legal and valid adoption and with regard to his legal title to the suit properties. The trial Court, therefore, decreed the respondent's suit for possession and directed the judgment-debtor to render account in respect of profits and expenses.
3. The matter was carried in First Appeal bearing First Appeal No. 417 of 1963 by the judgment-debtor before This Court. A Division Bench consisting of A.D. Desai and S.S. Sheth, JJ.-per Desai, J. (as their Lordships then were) by judgment dated 21/22-12-1970 confirmed the decree for possession in favour of the respondent while observing as under:
It was next contended by Mr. Oza that 7 houses which are the properties in dispute were not self-acquired properties of Cheldas. The properties were ancestral properties which had come to the hands of Cheldas as he was the last sole surviving coparcerner of the joint family. In the adoption deed Cheldas has described the properties as his self-acquired properties. The question agitated at the bar was whether the properties were self-acquired by Cheldas. The disputed houses are situated in Rajpur and they bear Deesa Municipal Nos. 619, 685, 684. 679 and 680. 682 and 113 and 114 and Gram Panchayat Nos. 4 and 5. The title deeds in respect of some of these properties are produced in this case and we shall now refer to them.... The recital in the deed of adoption that the properties were self-acquired properties of Cheldas cannot be accepted.
It was contended by Mr. Oza that Cheldas has a son named Amratlal, who had married the defendant and thus there is a joint family of Cheldas and Amratlal. Amratlal died on February 29, 1948 leaving his widow Kantaben and, therefore, in view of the provisions of Hindu Women's Right to the Property Act, 1937, (hereinafter referred to as 'the Act'), Bai Kanta derived the interest as her husband Amratlal had in the joint family properties after his death. The parties were the residents of the Palanpur State and governed by the Hindu Law prevalent therein. The answer to the contention depends upon whether the Act was made applicable to the Palanpur State within whose limits the properties in disputes were admittedly situated. There is no dispute that the Palanpur State merged with the Union of India on March 14, 1948. On July 28, 1948 the Government of Bombay, in exercise of the powers conferred under Section 4 of the Extra Provincial Act, 1947, issued an order called the Indian States (Application of Laws) Order, 1948. By virtue of this order the Act was made applicable to the Palanpur State. It is thus clear that the said Act was made applicable to the Palanpur State area on and from July 28, 1948. Amratlal had died on February 29, 1948, i.e., before the Act was applied. The provisions of Section 4 of the Act make it clear that it has no retrospective effect. The argument of Mr. Oza, therefore, that the widow of Amratlal had the same interest in the joint family as her husband had after the latter's death cannot be accepted.
Now it is true that Cheldas being the last surviving coparcener had the right to alienate the properties during his life-time. By the arrangement which was entered into between Cheldas and the mother of the plaintiff it was agreed that Cheldas was to enjoy all his properties absolutely during his life-time and after his death the plaintiff was to be the owner of his properties as his adopted son. Conveyance of the ownership of the properties to the plaintiff was thus to take place in future, i.e., on the death of Cheldas and there was no immediate vesting of the properties. The vesting of the properties was postponed till the death of Cheldas. Cheldas died on May 4,1950. The question is whether the condition that Cheldas was to be the absolute owner of the properties till his death and the properties thereafter to vest in the plaintiff is valid and legal. There is no dispute that at the date of adoption the plaintiff was a minor and the agreement regarding the arrangement of the properties was entered into by his natural mother Bai Kanta. The agreement entered into between the parties that Cheldas was to be absolute owner of the properties and the plaintiff was to be the owner of his properties after his death evidently restricts the plaintiff's right in Cheldas's properties. No sooner the plaintiff was adopted he became a coparcener with Cheldas and was entitled to rights in the said properties as a coparcener because the properties were ancestral. There is no evidence on the record in regard to anycustom which would validate the aforesaid arrangement. The result is that the condition that Cheldas was to enjoy the properties during his life-time absolutely as the owner and that the properties were to go to the plaintiff only on his death cannot be said to be legal and valid. The consequence is that at the time of the adoption of the plaintiff there was joint family of Cheldas and the plaintiff both being coparceners therein Cheldas died in May 1950 and on that day the Hindu Women's Right to Properties Act, 1937 was made applicable and the succession, therefore, would be governed by the provisions of the said Act. When Cheldas died he had left his wife Bai Kashi. Bai Kashi under the provisions of Section 3(2) will be entitled to the same interest in the joint family properties as her husband had. There is no dispute that in the present case Bai Kashi remained in possession of the properties after the death of Cheldas. This possession of properties by Bai Kashi was not in pursuance of the adoption deed, but independently of ii and in her own right. Bai Kashi died on January 27, 1957. Bai Kashi was possessed of the properties in her right as the widow of Cheldas. She had a widow's interest in the properties which she possessed. At the time when she died, Hindu Succession Act of 1955 had come into operation and under Section 14 of the said Act her widow's interest was entered into full ownership right. She was absolute owner of the properties in her possession. Thus, she had half interest in the joint family properties, she being the widow of Cheldas. The other half belonged to the plaintiff as the adopted son of Cheldas. On the death of Bai Kashi, as she died intestate, the succession would be governed by Section 15 of the Hindu Succession Act. The plaintiff is one of the heirs of Bai Kashi and would be entitled to 1/5th share in the half share of Bai Kashi. The other heirs of Bai Kashi being her three daughters and Vasanti, the daughter of Amratlal. The plaintiff has thus failed to prove that he is the absolute and exclusive owner of the properties. The plaintiff is the coparcener in the joint family properties. The properties being joint family properties and the defendant being the widow of Amratlal is entitled to maintenance out of the joint family properties. She is also entitled to a right of residence in a joint family property. Bai Vasanti being the daughter of Amratlal is also entitled to maintenance and marriage expenses out of the joint family properties. The plaintiff, therefore, has established that he has a title to the suit properties as a coparcener. The plaintiff being entitled to the suit properties can file a suit for possession against a person who is not entitled to remain in possession of all the suit properties. The defendant had no right to remain in possession of properties except a right of maintenance and residence for herself and for her daughter (until she is married). There is no evidence on the record that the plaintiff had paid any amount to the defendant or her daughter towards maintenance. Therefore, the plaintiff is not entitled to an account of the joint family properties from the defendant. The decree of trial Court requiring the defendant to render account is set aside and the decree for possession is confirmed with this direction that the defendant and her daughter have a right of maintenance and residence in joint family property. There shall be no order as to costs of this appeal.
4. It can be seen from what is stated above that the decree for possession in favour of the respondent was confirmed by This Court subject to the right of the judgment-debtor and the appellant for maintenance and residence till the appellant married. It is not in dispute that the appellant was married long back, much prior to she having come to reside with the judgment-debtor in one of suit properties as stated above.
5. The respondent being the decree-holder filed Regular Darkhast No. 7 of 1992 against the judgment-debtor Kantaben being the mother of the appellant, who died on or around 22-7-1992, joining the appellant and her husband as the legal representatives of deceased judgment-debtor. The appellant objected to the issuance of warrant for possession on number of grounds, but in substance on the ground that she was entitled to retain the possession of one or the other of the properties in question, as she had share/interest in all the properties including the properties in question as held by This Court in aforesaid First Appeal No. 417 of 1963 Her stand before the executing Court was that she was the objector and in substance her objection amounted to obstruction and, therefore, order passed by the executing Court was in substance an order for removal of obstruction.
6. A few more facts which cannot be disputed need also be stated here : After the decree for possession was confirmed by This Court in the aforesaid First Appeal, the respondent had filed Special Civil Darkhast No. 3 of 1973 (Execution application) against the judgment-debtor Kantaben and there was an adjustment of decree entered into between the respondent (decree-holder) and Kantaben-judgment-debtor and pursuant to such an adjustment of decree execution application in question was filed.
7. The adjustment which is not in dispute is at page 80 in the compilation referred to by the learned Advocate for the appellant. Accordingly, the decree-holder and the judgment-debtor Kantaben, the appellant's mother, first set out the immovable properties situated in Rajpur: Deesa as under:
(i) Deesa Municipal No. 619
(ii) Deesa Municipal No. 685
(iii) Deesa Municipal No. 684
(iv) Deesa Municipal Nos. 679 and 680
(v) Deesa Municipal No. 682
(vi) Deesa Municipal Nos. 113 and 114
(vii) Godown bearing Kumpur Gram Panchayat No. 4-5 in village Sherganj.
In the description of the aforesaid properties it has been recited that the property at serial No. 6 bearing Municipal Nos. 113 and 114 had fallen down and the same consisted only of the land area. With regard to the godown at serial No. 7 it has been recited that the said godown had also fallen down and consisted only of the land area. It has then been recited that house bearing Deesa Municipal No. 619 at serial No. 1 above has been in possession of the decree-holder (respondent herein). The judgment-debtor has been shown to be in possession of Deesa Municipal Nos. 685, 679, 680, 682 and 684, the properties shown at serial Nos. 2, 3, 4 and 5. These properties were agreed to be kept in possession of the judgment-debtor - Kantaben for her right of maintenance and residence.
In order that peace in the family was maintained it was agreed between the decree-holder and the judgment-debtor that the decree should be adjusted in the following manner:
The property bearing Deesa Municipal No. 685 (described at serial No. 2 above), Deesa Municipal Nos. 113 and 114 (described at serial No. 6 above) and godown bearing Kumpur Gram Panchayat No. 4-5 (described at serial No. 7 above) was handed over to the decree-holder by the judgment-debtor and accordingly the judgment-debtor had released the said properties from her right of maintenance and the possession of the said properties was handed over to the decree-holder as the absolute owner thereof on the date of the adjustment. She declared that she was not keeping any right or claim over the said properties.
It has then been agreed between the parties to the adjustment that the decree-holder has been the absolute owner of Deesa Municipal Nos. 679, 680, 682 and 684. but the decree-holder will not take possession of the said houses and the judgment-debtor's possession of the said houses would be continued till she is alive and she would take the rent thereof for her life and the income of the said properties would be utilised by her for her maintenance and the decree-holder would have no right or interest over the rental and other income from the said properties till the judgment-debtor Kantaben is alive.
It has then been agreed between the parties to the adjustment that after the death of judgment-debtor (the appellant's mother) the decree-holder would have to take possession of all the aforesaid properties and he would be entitled to recover the possession thereof with the aid of the Court pursuant to the decree for possession which was sought to be adjusted between the parties. It has also been agreed between the parties to the adjustment that the decree-holder would be entitled to deal with the said properties as he liked.
It has finally been agreed between the parties that the cost of the suit as stated in the decree would not be recovered by the decree-holder from the judgment-debtor and the said amount of cost was being foregone.
8. Accordingly, the aforesaid adjustment was recorded on or around 13-10-1976 is Special Darkhast Application No. 3 of 1973 pending in the Court of the Civil Judge (S.D.) at Palanpur. That was at Exh. 30 in that proceeding.
9. It has finally not been in dispute that on or around 17-7-1977 out of the aforesaid properties the house property bearing No. 685 of village Rajpur in Deesa Taluka was gifted by the decree-holder (respondent herein) to the appellant by the gift-deed dated 17-7-1977.
10. It is a fact that upon the death of judgment-debtor Kantaben (appellant's mother) on or around 22-7-1992 Special Execution Application No. 7 of 1992 was filed for executing the decree and since the appellant being daughter of deceased judgment-debtor came to reside with the judgment-debtor in one of the properties under execution she was joined as a legal representative alongwith her husband in the said execution application. It is finally not in dispute that she had given objections to the execution asserting her own right as recognised by This Court as above. However, it would be important and pertinent to note that she was in possession of one of the properties under execution obviously on account of the fact that she had gone to reside with her mother, the judgment-debtor, since there was none to look after her mother. It is only after her death when the execution application was filed as stated above, that she has raised the objections with regard to her share in the properties including the properties in question as recognised by This Court. The question, then, is whether the appellant is in law justified to object to the execution of the decree in question or is required to follow the remedy of filing a suit for partition, if any, available to her.
11. Mr. Acharya, learned Advocate appearing for the appellant submitted that the appellant's objections ought to have been treated as an objection application and bearing in mind the appellant's recognised share in all the properties, her objections should have been upheld, leaving the decree-holder to file a suit for partition. Instead the learned trial Judge being the executing Court rejected the objections of the appellant and issued warrant for possession in respect of the properties in question In support of his submissions Mr. Acharya read before This Court the provisions contained in Order 21 Rules 97, 98, 101 and 103 of the C.P.C. Said Rules might be reproduced here:
97. Resistance or obstruction to possession of immovable property: (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
98. Orders after adjudication: (1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of Sub-rule (2)-
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
101. Question to be determined: All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time-being in force, be deemed to have jurisdiction to decide such questions.
103. Orders to be treated as decrees: Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.
12. Mr. Acharya submits in the first instance from the reading of the aforesaid rules that all questions arising between the parties should be decided by the executing Court and a separate suit is barred. However, on being asked as to what would happen to the share of other parties, namely, the daughters of deceased Cheldas Bhikhabhai (Narmadaben, Manguben and Hiraben), he answered that in that event suit forpartition will have to be filed by the decree-holder or by any of the three daughters of deceased Cheldas Bhikhabhai. Once again on being asked as to what would happen to even the appellant's share in the properties other than the properties under the execution, he replied that in a proposed suit that might be filed the appellant would claim her share in the properties including the properties in question. Finally, on being asked as to what would happen to properties which had been gifted in 1977 by the respondent (decree-holder) to the appellant, he replied that the appellant would offer the said property also for the partition when such a suit is filed. Bearing in mind such questions that would obviously arise in the present matter provisions contained in the aforesaid rules might have to be viewed. For the purpose of finding out what would be the remedy in the background of the aforesaid facts, Mr., Acharya made reference to a number of decisions which might be considered one after the other.
13. Two of the decisions are from This Court and they might first be dealt with. Chandravati Co-operative Housing Society Ltd. v. Bhairavnath Education & Cultural Society reported in 1993 (1) XXXIV (1) GLR 116 is the case where the holder of a decree for possession was obstructed by a third party. A learned single Judge of This Court, referring to Rule 97 observed as under in para 7 of the citation:.From the aforesaid gist of the rights of holder of decree for possession it can be said that when holder for decree of possession was obstructed by third party, Rule 97 provides him a remedy to apply to the Court complaining of such resistance or obstruction and Sub-rule (2) of Rule 97 which is substituted for old Sub-rule (2) provides that the Court shall proceed to adjudicate upon the application in accordance with the provisions contained therein. The Sub-rule (2) of Rule 97 is major departure from the scheme of removal of obstruction enacted under old Rule 97. It is pertinent to note that once such application is given by the holder of decree for possession, the executing Court is obliged to adjudicate upon the application. The use of the words 'shall' proceed to 'adjudicate' leave no room for doubt that the exercise which the Court is to undertake is that of adjudicating the claims of the parties. The legislature has by introduction of the aforesaid Sub-rule (2) of Rule 97 submitted the summary remedy provided to a decree-holder by a full-fledged adjudication proceedings and the order made therein has the force of the decree and is subject to an appeal. The period of limitation to an application complaining of resistance or obstruction to delivery of possession of immovable property is 30 days from the date of resistance or obstruction under Article 129 of the Limitation Act, 1963. It, therefore, becomes clear that the remedy which is provided to a holder of decree for possession of immovable property under Rule 97 of Order 21 is now a substantive remedy wherein even adjudication of right, title and interest of the obstructor can be gone into by the executing Court in view of the language employed in Rule 101 of Order 21 of C. P. Code. It may be mentioned that over and above the remedy by Rule 97(2), it is open to him to file a regular suit for possession when obstruction is by third party.
14. It has been ruled that the holder of a decree for possession can also resort to remedy by instituting independent suit to recover property against such third party in possession and that this remedy is even otherwise available to a holder and the same is not and cannot be barred.
15. It can thus be seen that it was a case of obstruction of a third party with regard to the property in question against the decree for possession thereof. This Court granted the Civil Revision Application and directed to decide the obstruction removal application No. 799 of 1986 pending in the City Civil Court to be decided in accordance with the observations made in the judgment. It might be noted here that the question involved in the present matter is quite different both on facts and in law. The appellant's right in the properties including the property in question came to be decided by This Court by declaring that she would have 1/5th share in the share of deceased Bai Kashi, who again had 1/2 share in the properties of deceased Cheldas. She accordingly would have 1/10th undivided share in the properties. However, it has also been finally concluded in the suit proceedings that she did not have right to possession in the sense that she did not have right to residence upon her marriage. It is a fact that upon her marriage, she went lo reside with her husband and she was not in possession of any of the properties in question after her marriage. To reiterate she came to reside with her mother, the judgment-debtor on account of the judgment-debtor's old age/ailment in order that she would look after her mother Kantaben, the judgment-debtor. It is thus clear that she is in occupation of one of the properties in question as a legal representative of deceased Kantaben, the judgment-debtor, and according to the adjustment recorded by the executing Court as stated above, since the judgment-debtor is bound to abide by the adjusted decree for possession, the appellant is as much bound to abide by the same. Question is what would happen to her determined undivided share in all the properties, including the properties in her occupation and including the properties which had been gifted to her. In my opinion, it would be she who have to undertake remedy of partition, by filing the suit, of course the respondent would be entitled to defend such suit on all grounds including the ground with regard to family arrangement and/or release of share by one or the other heir or settlement on account of the gift deed as aforesaid or bar of limitation, or any ground available from the subsequent events including the event witnessing the gift of one of the properties by him to the appellant. Thus, the decision in the case of Chandravati Co-operative Housing Society (supra) will not help the appellant's cause. Instead it holds good for the proposition that a decree-holder can have the remedy of suit against a third party-objector.
16. Another decision is one contained in the case John M. Desai v. Dineshbhai K. Vora reported in 1997 (2) GLH 506 : 1997(3) GLR 2103. Here also a learned single Judge of This Court was required to consider the provisions of aforesaid rules in the context of brief facts to the effect that a decree for specific performance, when sought to be executed, was obstructed by a third party agitating his exclusive possessory right - possessory title to the property in question in that matter. Even this decision will not be applicable to the present case as stated above.
17. A learned single Judge of Sikkim High Court in the case of Ram Chandra Verma v. Manmal Singh reported in AIR 1983 Sikkim 1, was required to deal with objections of a party who was not the judgment-debtor and not otherwise bound by the decree for delivery of immovable property. It was held that where in the course of the execution of a decree of delivery for any immovable property a person in possession of the property who was not party to the decree gave an objection to the execution of the decree by filing an application that he was not bound by the decree, the executing Court, without holding a person bound by the decree could not reject the application as not maintainable under the law and order execution to proceed. It was held that the executing Court should have stayed its hands so as 10 proceed under Rule 97 or such other manner as he might have thought fit.
18. In Bhagwat v. Kasturi reported in : AIR1974MP26 a Division Bench of the Madhya Pradesh High Court has observed that the executing Court has no jurisdiction to remove a third party not bound by the decree from possession and deliver possession to the decree-holder or auction-purchaser, unless and until (a) it holds that such a person is bound by the decree, or (b) it makes an order under Order 21, Rule 98, Civil Procedure Code which pre-supposes the making of a complaint by the decree-holder under Order 21, Rule 97 of the Code. The Bench observed in para 16 that it would be hard and unjust to remove a third party from possession of the property sought to be executed if such third person is a person under bona fide possession.
19. In Tahera Sayeed v. M. Shanmugam reported in : AIR1987AP206 a learned single Judge of the Andhra Pradesh High Court has observed that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21, Rule 97, it must be treated to be an intimation to the Court as caveat to the decree-holder or a person claiming through him and the Court is to treat it as a complaint or as an application for the purpose of Order 21, Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties. This approach is consistent with ubi jus ibi remedium, shortens the litigation, prevents needless protraction and expenditure. Accordingly, the learned single Judge has held that the application under Order 21, Rule 97 is maintainable.
20. The last decision which might be referred to is in the case of Dakshinamoorthy v. Padmavathy Ammal reported in 1990 Mad. LJ 179. In para 12 the Madras High Court observed as under:
Normally it is the decree-holder who can initiate action under Order 21, Rule 97, Civil Procedure Code for removal of obstruction. But, when the obstructor himself argues before the Court seeking direction for reception of his obstruction memo as in the present case and the executing Court gives opportunity to the decree-holder to file her counter and holds a full-fledged inquiry in investigating the alleged title and possession of the obstructor to the suit property treating the said proceeding as one under Order 21, Rule 97, Civil Procedure Code and the obstructor acquiesces in the said procedure being followed without raising any objection to the executing Court adopting the said procedure and gives all necessary evidence oral and documentary in support of his case, he cannot later on complain that the abovesaid procedure adopted was wrong. By his conduct, he should also be deemed to have waived any such objection which he could have raised earlier as against the different procedure adopted.
This decision deals with the procedure adopted in the facts of the case before the Court. It is true that in the present case also the appellant had given her objections and the executing Court has not accepted the objections holding that the appellant would be liable to hand over possession of the properties under execution, but the true nature of her objections might be noticed from the fact that she was not in possession of any of the properties under execution prior to the death of the judgment-debtor and she is in possession of one of the said properties since she had been attending to the judgment-debtor when she died.
21. It has been vehemently submitted by Mr. Acharya that the executing Court ought to have followed the procedure like a trial for deciding the objections of the appellant. Now, the Division Bench did point out the shares of the respective members of the family including the parties to these proceedings. What has been left out by all the concerned parties is a remedy of partition even till this date. In my opinion, the executing Court could not have gone into the question of partition which obviously would have to be dealt with in a regular suit for partition bearing in mind the fact that number of questions would arise in such a suit, that over and above the parties to the execution application, other parties would also be concerned and over and above the property/properties under execution other properties would also be involved in such a suit.
22. Much has been submitted and discussed about transfer by partition and about the nature of partition. However, partition is not a transfer. It is only renouncement of existing rights in common properties in consideration of getting exclusive right in specified property by this process, common unspecified rights in larger extents are located into exclusive right over specific plots. In Panchali v. Panningdau Manni reported in : AIR1963Ker66 , the Court has held that the true nature of partition is that each co-owner gets a specific property in lieu of his rights in all the joint properties, that is to say, each co-sharer renounces his rights in the other common properties in consideration of his getting exclusive right to, and possession of, specific properties in which the other co-owners have renounced their rights. It is, thus, a renunciation of mutual rights and does not involve any transfer by one co-sharer of his interest in the properties to the others. So, a partition spells not a transfer but a transformation by a process of renunciation. In other words, partition is transformation of antecedent subsisting title over the totality of the family properties held jointly into separate titles of individual members over specific plots. Whether it be co-ownership, joint family or tenancy, each member is having right over every inch in the common property before partition. No transfer of rights is involved in partition as such. In this connection, it may be advantageous to advert to what has been observed in Sarin v. Ajit Kumar reported in : [1966]1SCR349 : 'Having regard to the basic character of joint Hindu family property, each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparcerners had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate titles of the individual coparcerners in respect of several items of properties allotted to them respectively'.
23. From what is stated above, it would clearly appear that till the remedy of partition is followed, the person who is entitled to possession in his own right as well as for the purpose of management of the properties cannot be permitted to be obstructed without due process of law, the process of law being the remedy of partition. In the present case what the appellant has done is to hold the properties under execution, more particularly the property in which the judgment-debtor was residing, as the legal representative of the judgment-debtor and she would accordingly be bound by the decree for possession passed by the trial Court and confirmed by the Division Bench of This Court as stated above. The Division Bench has recognised the respondent's right to possession of all the properties as can be seen from the passage excerpted from the judgment of the Division Bench. The appellant cannot claim any of the properties exclusively. She also cannot claim possession of the property/properties in question exclusively. It would, therefore, be obvious that she will have to follow the remedy of partition, in which case she will have to offer the property gifted to her for being treated as one of the properties to the partition amongst the parties. Once again such a remedy of partition would always be open to the defences including defences of limitation, release of share, family arrangement and the like, which can be set up by the respondent. What is important to be noticed is that objections of the appellant will not be entertainable by the executing Court. For that purpose, now reference may be made to Rule 102 of Order 21 of the C.P.C. Rule 102 reads as under:
102. Rules not applicable to transferee pendente lite: Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
Explanation: In this rule, 'transfer' includes a transfer by operation of law.
24. Since the word 'transfer' used in the provision includes transfer by operation of law, the appellant's possession of the properties under execution, more particularly the property in which the judgment-debtor was residing will obviously amount to a transfer by operation of law. The appellant being such a transferee her objections will not be governed by Rules 98 and 100 as aforesaid. Rule 98 deals with determination of the questions referred to in Rule 101 and Rule 100 deals with an application complaining of dispossession of the property. Rule 101 refers to all questions arising between the parties to a proceeding under an application under Rule 97 or Rule 99 of Order 21. It, therefore, clearly appears that in the present case the provisions of Order 21 Rules 97, 98, 99, 100 and 101 would not be applicable by virtue of Rule 102. In that view of the matter, order for issuance of warrant for possession and granting prayers in the execution passed by the executing Court would be quite legal, proper and justified and cannot be interfered with.
25. In the result, this appeal will fail. The same is accordingly dismissed with no order as to cost.
At this stage Mr. D.K. Acharya, learned Advocate for the appellant prays for extending stay of warrant for possession for a further period of eight weeks with a view to enable the appellant to follow appropriate remedy, including remedy for filing a suit for partition and praying for interim injunction with regard to her possession of property bearing Deesa Municipal No. 684.
26. Having heard the learned Advocates for the parties, I extend the stay insofar as the possession of the aforesaid property bearing Deesa Municipal No. 684 is concerned by making it clear that in case a suit for partition is filed and in case application for interim injunction has been moved in such a suit, it would be open to the respondent to defend the same as stated above.