Mian ABDUL RASHEED KHAN AND OTHERS vs Mst. NAZIR AKHTAR AND Other
This matter arises from a petition seeking leave to appeal against the order of the High Court, which dismissed the petitioners' revisional application concerning the execution and adjustment of shares in a partition suit. The core legal question involved whether co-sharers who made payments under a compromise final decree—subsequently set aside by a declaratory suit on the ground of fraud—could claim the shares of those co-sharers in final decree proceedings based on those earlier payments. The Supreme Court held that once the earlier compromise decree was set aside by a final decree, the petitioners could not be allotted the shares claimed on the basis of payments made under the defunct decree, and must instead seek the return of money through restitution or a separate suit. The Court laid down the principle that payments made pursuant to a decree subsequently nullified do not confer rights to property shares under that superseded decree.
- Can a party claim property shares based on payments made under a compromise decree that has subsequently been set aside by a court?
- What is the appropriate remedy for a party who has paid money under a compromise decree that was later declared void due to fraud?
1. SALAHUDDIN AHMED, J.-The petitioner has appeared in person.
2. A Suit by respondent No. 3 for partition and possession of 14/ 104 share of the property left by his father Fazal Din was filed. Ultimately on the basis of a compromise a preliminary decree for partition and for possession of 7/65 share of one of the houses and 14/104 share by the other big property was passed in favour of the plaintiff-respondent No. 3. On 24-2-1962 on an application for final decree again a compromise was entered into between the parties and a final decree in terms of the compromise was passed on 19-12-1962. According to this decree certain portions of the properties were allotted to some of the parties while some others were given money in lieu of their shares to the properties. On 19-7-1963 respondents Mst. Nazir Akhtar and Mst. Zakia, two of the daughters of Fazal Din deceased instituted a suit against respondent Abdul Latif and other heirs of Fazal Din for a declaration that the compromise and final decree which directed the payment of money to respondents Mst. Nazir Akthar and Mst. Zakia in lieu of their specific shares in the properties, was the result of fraud and as such not binding on- them. .The suit was decreed on contest on 27-3-1964 and the requisite declaration was given and a preliminary decree was passed declar--ing that the plaintiff-respondents were entitled to 14/ 130 share in the properties.
3. There was no appeal from this decree and it became final. On 31-IC-1969 the two plaintiffs- respondents applied for passing a final decree. In course of this proceedings petitioners Abdur Rashid and Abdul Majid stated that they had paid to certain co-sharers money in terms of the said decree dated 19-12-1962. Inasmuch as, however, the decree dated 19-12-1962 was set aside the said petitioners should be allowed the shares of those co-sharers. The learned Civil Judge, however, rejected this prayer and directed them to sue the co-sharers concerned for the return of the money if so advised.
4. Petitioners Abdur Rashid and Abdul Majid therefore, moved the High Court in revision. The Court dismissed the revisional application and held that the said decree dated 19-12-1962 having been set aside, the petitioners cannot be allotted the shares as claimed. The Court further observed that the said petitioners should either ask the Court concerned for return of the money by way of restitution or institute a separate suit for the purpose.
5. We are unable to find any fault with the impugned order of the High Court. The petition is accordingly dismissed.