KIRPAL KAUR Vs. JITENDER PAL SINGH & ORS.

Tags CPC

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 2820 of 2015, Judgment Date: Jul 14, 2015

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2820 OF 2015

KIRPAL KAUR ………APPELLANT
Vs.

JITENDER PAL SINGH & ORS. ……RESPONDENTS

J U D G M E N T

V. GOPALA GOWDA, J.

This appeal is directed against the impugned judgment and order dated
31.10.2012 passed by the High Court of judicature of Delhi at New Delhi
(the First Appellate Court) in Regular First Appeal (OS) No.41 of 2011,
whereby the First Appellate Court has confirmed the judgment and decree
dated 21.1.2011 passed by the learned single Judge of the High Court
(hereinafter called as “the trial court”) in CS(OS)No. 2172 of 2003 and
dismissed the suit filed by the appellant. In this appeal, the appellant
has questioned the correctness of the impugned judgment and order urging
various facts and legal contentions and prayed for granting of the decree
of partition of her share in the ‘B’ suit schedule property.

In this judgment, for the sake of convenience, we will advert to the rank
of the parties as assigned to them before the trial court in C.S. No. 2172
of 2003. The brief facts of the case are stated hereunder for the
consideration of the case with reference to the rival legal contentions
urged on behalf of the parties.

The plaintiff (the appellant herein) filed civil suit No.2172 of 2003
before the trial court against the defendants (the respondents herein) for
the partition of the following properties in favour of her late husband’s
share, contending thereby that all the properties are jointly owned by the
family:-

The said civil suit was contested by the defendants wherein they have
pleaded in their written statement that the suit schedule properties
mentioned in the schedules ‘A’ & ‘C’ have already been partitioned amongst
themselves, therefore, the plaintiff is not entitled for any further share
in the suit properties. In so far as the ‘B’ schedule property, bearing No.
45, Sant Nagar, East of Kailash, New Delhi, is concerned, it is stated by
them that the same cannot be a subject matter of partition as it is the
self acquired property of the deceased-first defendant (who is the father-
in-law of the plaintiff) as he had acquired the same out of his self earned
savings from his employment and he has constructed the building on the said
property out of his own funds. Therefore, it is pleaded that the plaintiff
is not entitled for the reliefs as prayed by her in respect of the suit
schedule ‘B’ property. It is further contended by them that the deceased-
first defendant was working in the defence department. While he was in
employment, he had purchased the said property in the year 1954 vide sale
deed dated 22.3.1954 for a sum of Rs.400/-. In the year 1954, he was
getting the salary of Rs.201/- per month i.e. Rs.120/- + (9 increments X 9
= 81). At that time, admittedly, the husband of the plaintiff (since
deceased) was only seven years old.

When the first phase of construction of the ground floor on the said
property was made in the year 1957, the husband of the plaintiff was only
ten years old. The second phase of construction of the said building was
done between October 1980 and December 1981. The case of the deceased-first
defendant before the trial court was that he retired from his employment in
September, 1980. He has reconstructed the aforesaid property using his
retirement benefits such as gratuity and provident fund and he had also
borrowed some amount as loan from various friends and relatives and he also
used the old building materials for the construction of the building. He
also produced receipts at Ex.DW1/5 to DW 1/18 as evidence to substantiate
his case that he had borrowed some loan amount from M/s Sahara Deposits and
Investments (India) Ltd. which amount was repaid by him to it, in
instalments. It was specifically mentioned by the deceased-first defendant
that the husband of the plaintiff did not contribute any amount either
towards the purchase of the said suit schedule property or for the
construction of the building upon the said property.

When the construction of the said building was in progress between October
1980 and December 1981, the plaintiff’s husband was in the process of
settling himself at Kuwait and he did not have sufficient money to send to
the deceased-first defendant for the purpose of construction of the
building. The total amount spent on the construction of the building was
Rs.1,42,451.60. It has been contended by the defendants that no proof of
contribution of money made by the deceased husband of the plaintiff towards
the construction of the said building is produced by the plaintiff before
the trial court to justify her claim. The second defendant was also
examined in the case as DW-2 in support of the case of the deceased-first
defendant with regard to the suit schedule ‘B’ property. The trial court on
the basis of the pleadings made before it, has framed certain issues for
its determination and the same are answered against the plaintiff by it on
the basis of the evidence produced by the parties on record.

The case of the plaintiff is that the dispute arose between the plaintiff’s
husband and the defendants when her husband returned from Kuwait to Delhi.
With the intervention of relatives and well-wishers of the parties, it was
decided between them that the basement, ground floor and second floor of
the Sant Nagar property will devolve upon him and the rent earned from the
same will also be paid to him. The deceased-first defendant had purchased a
plot of land in Saini Farms in the name of the late husband of the
plaintiff. The said plot was sold by the deceased-first defendant who gave
an amount of only Rs.1,82,000/- to the husband of the plaintiff while the
balance amount from Rs.6,00,000/- was distributed amongst defendant Nos.1
to 4 and the wife of defendant No.2.

In so far as the ancestral property of the agricultural land at Ropar
District is concerned, it is stated in the written statement of the
deceased-first defendant that the aforesaid ancestral property was divided
between him, his two brothers and one sister and during the division of
that property, a piece of land measuring about 8 kanals and 18 marlas
situated in village Patial, District Ropar came to the share of the
deceased-first defendant in the year 1972. The said land was given on Batai
for cultivation and the deceased-first defendant used to get 50 sears of
Wheat in May and 30 sears of Maize in October every year out of the said
agricultural produce from the said agriculture land which was used for
consumption by the family. No cash amount was received by the deceased-
first defendant in respect of the said agricultural property.

On the basis of the pleadings of the parties and the evidence on record,
the trial court had framed five issues for its determination. Issue No.4 is
most relevant for the purpose of examining the rival legal submissions made
on behalf of the parties with a view to find out the correctness of the
concurrent findings of fact recorded by the First Appellate Court on the
above contentious issue. The issue no. 4 reads thus:
“(iv)Whether the property bearing No.45, Sant Nagar, East of Kailash, New
Delhi, has been constructed out of joint family funds or out of funds
received by the first defendant from late Shri R.D. Singh, the husband of
the plaintiff?”

The trial court has answered the said contentious issue no.4 against
the plaintiff and in favour of the deceased-first defendant in so far as
the claim of share by the plaintiff in the schedule ‘B’ property bearing
No. 45, Sant Nagar, East of Kailash, New Delhi is concerned. The suit of
the plaintiff was dismissed by it by holding that the said property is the
self acquired property of the deceased-first defendant.

In so far as the suit schedule ‘A’ property is concerned, the trial
court has further partially decreed the same in favour of the plaintiff by
granting 1/5th share in the agricultural land in the village Patial. A
preliminary decree for partition was passed by the trial court on 21.1.2011
holding that the plaintiff has got the 1/5th share in the agricultural
land, measuring about 8 kanals and 18 marlas. However, she was not granted
any share in the suit schedule ‘B’ property, holding that it is the self
acquired property of the deceased first defendant.

Aggrieved by the same, the plaintiff filed Regular First Appeal(OS) No.41
of 2011 before the Division Bench of the High Court under Section 96 of the
Civil Procedure Code, 1908 (“C.P.C.”) read with Section 10 of the Delhi
High Court Act, 1966, against the judgment and decree dated 21.1.2011
passed by the trial court in so far as the dismissal of the suit in respect
of the suit schedule ‘B’ property is concerned, urging various legal
grounds in justification of her claim. The First Appellate Court, after
adverting to the various rival legal submissions urged on behalf of the
parties and on re-appreciation of the evidence on record, examined the
correctness of the findings recorded on issue No.4 by the trial court in
its judgment dismissing the suit of the plaintiff and not granting any
share in the suit schedule ‘B’ property to her, has held that the said
property is the self acquired property of the deceased-first defendant and
declined to interfere with the judgment of the trial court in respect of
the said property.

We have taken into consideration the relevant facts pleaded by the
plaintiff that her husband had sent money from Kuwait to the deceased-first
defendant for construction of the building situated at No.45, Sant Nagar,
East of Kailash, New Delhi during the period of October, 1980 and December,
1981. Further, as per the document produced at Ext.P-5, an amount of Rs.1
lakh was sent by the husband of the plaintiff to his father by way of bank
draft and cash. Out of that an amount of Rs.17,350/- was given to the
plaintiff and the remaining amount of Rs.82,650/- was left with the
deceased-first defendant which amount was utilised by him for construction
of the building. The First Appellate Court with reference to the above said
plea and on the basis of the evidence placed on record by the plaintiff has
held that no cogent evidence was produced by the plaintiff to prove the
fact that the said amount sent by her deceased husband to the deceased-
first defendant was utilised by him for carrying out the second phase of
construction of the building at No.45, Sant Nagar, New Delhi between the
period October, 1980 to December, 1981 and therefore, the same would not
entitle the deceased husband of the plaintiff to a share in the said
property, as the plot mentioned in schedule ‘B’ property was purchased by
the deceased-first defendant out of his own earnings in the year 1954.
Undisputedly, the sale deed was in the name of the deceased-first defendant
who had purchased the same for Rs.400/-, out of his own funds. Further, the
First Appellate Court has held that there is no title document either in
favour of the husband of the plaintiff or in her name as the deceased-first
defendant had purchased the property in his name exclusively, from his own
funds and mere use of the money sent by either the deceased husband of the
plaintiff or the funds provided by other family members for the purpose of
raising the second phase of construction of the said building would not
give them the right for the share in that property. Thus, the First
Appellate Court has held that the deceased husband of the plaintiff could
not have become the co-owner of the said property. Therefore, the First
Appellate Court has concurred with the finding of fact recorded on the
contentious issue No.4 by the trial court and accordingly, it has answered
the other issues by recording its reasons in the impugned judgment in
favour of the defendants. Further, it has been held by the First Appellate
Court that at best, the plaintiff would be entitled for refund of the
amount which was sent by her deceased husband to the deceased-first
defendant for the construction of the building upon the schedule ‘B’
property with interest or compensation. The First Appellate Court in its
penultimate paragraph of the impugned judgment has observed that to bring
the curtains down and to obviate any further litigation before the
Supreme Court, the second defendant has made an offer to pay Rs.15 lakhs to
the plaintiff, provided that she undertakes not to litigate the case any
further and vacate and hand over the possession of the second floor of the
schedule ‘B’ property to the deceased-first defendant or his nominee which
offer was rejected by the plaintiff.

We have examined the correctness of the findings recorded by the First
Appellate Court on the contentious issue no.4 with reference to the
evidence on record. During the cross-examination of the deceased-first
defendant by the plaintiff’s counsel before the trial court, he has
categorically admitted certain facts and elicited the following relevant
positive evidence on record which supports the plaintiff’s case. The
English translation of certain admitted portions of the evidence of the
deceased-first defendant furnished by the plaintiff’s counsel is recorded
and extracted hereunder for our consideration and examination of the
findings of fact recorded on the contentious issue No.4:-
“Evidence of PW-1 Shri Ram Singh, the father-in-law of the plaintiff:

2 ………The house at Sant Nagar was built from his retirement benefits of Rs.1
lakh and loans from friends.

3. Admits that he had received Rs. 82,000/- from the Plaintiff’s husband
but say it was not used for building his house.

4. Admits the existence of the agricultural land and agricultural income
received out of it. The land was the ancestral property. He also admits
that this income was used for construction of the said house. Immediately
thereafter, he claims that it was used for his illness.

XXX XXX XXX

6. He retired in September, 1980 and started reconstruction of the house in
October 1980.

7. Relations with appellant’s husband became strained when he
misappropriated Rs. 6 lakhs for the sale of the plot at Saini Enclave.

8. That the plot at Saini Enclave was sold for Rs.6 lakhs.

9. Admits that according to document at Exh. P-7 (which is in his own
handwriting) Rs. 6 lakhs were distributed amongst various personnel
including R.D. Singh.

10. Denies that Rs.6 lakhs were distributed to the various persons
mentioned in Exh.P/7.

11. Admits receiving money from R.D. Singh from Kuwait as per Exh.P.2 to
P.3 but denies the quantum suggested.

XXX XXX XXX

15. Admits that the Plaintiff was staying with him from the date of
marriage. Further, that on his return from Kuwait, R.D. Singh had been
separated from the deceased father and started staying on the 2nd floor.

XXX XXX XXX

17. He admits in his statement before the learned ADJ to the effect that he
had received Rs. 82,000/- in the shape of bank draft and cash from the
Plaintiff’s husband. He further admits that the statement made before the
learned ADJ was correct. Immediately thereafter he denies it.

18. That the ancestral land consisted of 8 kanal and 18 marla.
19. He further admits that the plaintiff’s husband (R.D. Singh) had a share
in his 1/4th share in the ancestral land.

XXX XXX XXX

21. He further admits that he has no documentary proof that the appellant’s
husband had received Rs. 6 lakhs from the sale of plot at Saini Enclave.

22. He states that he spent approximately Rs.1,42,000/- on the construction
of the house in Sant Nagar i.e. basement, ground, first and second floor
together one common store on the 3rd floor.

23. ……That the loan from Sahara investment was to the tune of Rs. 30,000/-.
A further loan of Rs. 30,000/- was obtained from one Mr. Harydaya….”

In the light of the above admissions made by the deceased-first defendant
in his statement of evidence deposed before the trial court, the most
important fact that has come to light in his admission is that he had
received money from the plaintiff’s husband while he was in Kuwait. He has
also admitted that the plaintiff’s husband had a share in the ancestral
property that consists of 8 kanals and 18 marlas. Further, the deceased-
first defendant has admitted in his statement of evidence before the
Additional District Judge on 11.12.2003 in another proceeding between the
parties that he had received an amount of Rs.1 lakh by way of bank draft
and cash from the deceased husband of the plaintiff, while he was working
in Kuwait which amount was utilised by the deceased-first defendant for the
reconstruction of the building in the ‘B’ suit schedule property. In view
of the above evidence elicited from the deceased-first defendant, the First
Appellate Court was not right in making an observation in the impugned
judgment that the plaintiff is only entitled for the refund of the said
amount from the deceased first defendant even though there is substantive
and positive evidence on record to the effect that the amount sent by the
deceased husband of the plaintiff was utilised by the deceased first
defendant for the purpose of construction of the building upon the suit
schedule ‘B’ property.

Both the trial court as well as the First Appellate Court have misread and
mis-directed themselves with regard to the positive and substantive
evidence placed on record in justification of the claim of the plaintiff
and they have not appreciated and re-appreciated the same in favour of the
plaintiff in the proper perspective to record the finding of fact on her
claim for the division of the share in her favour in respect of the
schedule ‘B’ property. Therefore, the concurrent finding of fact recorded
by both the trial court as well as the First Appellate Court on the
contentious issue No.4 are not only erroneous in law but also suffer from
error in law for the reason that there is a positive and substantive
evidence elicited by the deceased-first defendant during the course of his
cross examination before the trial court, the relevant portion of which is
extracted above, wherein he had in unequivocal terms admitted in his
evidence that he, his sons and daughters have an ancestral property in his
village and the same has not been divided between them and that he used to
get the income from the said agricultural land and the same was utilized by
him for the construction of the building at Sant Nagar, i.e. schedule ‘B’
property. Therefore, it amounts to putting the said property in the
hotchpot of joint family property. The non-consideration of the above
positive and substantive evidence by the trial court as well as the First
Appellate Court in justification of the claim of the plaintiff in respect
of the schedule ‘B’ property has rendered the concurrent finding recorded
by it as erroneous in law and therefore, the same are liable to be set
aside.

We have heard both the learned senior counsel Mr. J.P. Cama on behalf of
the plaintiff and the learned counsel Ms. Rakhi Ray on behalf of the
defendants. On 11.3.2015, when the arguments were concluded on merits, we
directed the parties to file a compilation of the pleadings. The fact
regarding the will/gift deed was brought to our notice by the learned
senior counsel on behalf of the plaintiff only at the time of concluding
his submissions in this appeal, at the stage of final disposal of the SLP.
The said fact has not been disclosed by the second defendant before this
Court and he has also not requested for a leave before this Court by filing
an application as required under Order 22 Rule 10 CPC to defend his claim
that the schedule ‘B’ property was devolved upon him on the basis of the
said gift deed. Therefore, the defendants’ counsel was directed by us to
produce the copy of the will/gift deed, alleged to have been executed after
the passing of the impugned judgment by the First Appellate Court, in
favour of the second defendant by the deceased first defendant in respect
of the schedule ‘B’ property and before the filing of special leave
petition by the plaintiff. The same was produced by the defendants’ counsel
by way of compilation of the documents including the copy of the alleged
‘Will’ dated 1.10.2004 along with the gift deed dated 8.02.2011, purported
to have been executed by the deceased-first defendant in favour of the
second defendant-J.P. Singh in respect of the suit schedule ‘B’ property.
The learned counsel for the defendants has also furnished copies of the
judgments upon which she has placed reliance in support of the case of the
defendants.

This Court on 16.8.2013 issued notice on the prayer of the plaintiff for
condonation of delay on the special leave petition as the same was barred
by limitation. The learned counsel for the defendants, Ms. Rakhi Ray
accepted the notice who entered a caveat on behalf of defendant Nos.2 to 4
and sought six weeks time to file the reply affidavit. On 16.9.2013, the
application for condonation of delay was allowed and deletion of the name
of deceased-first defendant from the array of parties from the cause title
of the SLP was also allowed at her request.

After the perusal of pleadings of the parties and the material evidence on
record, we find that both the trial court and the First Appellate Court
have gravely erred in their decisions in not granting a share to the
plaintiff in the schedule ‘B’ property by recording an erroneous finding
even though she is legally entitled for the same. Having regard to the fact
that immediately within two weeks from the date of disposal of the first
appeal by the High Court and before the expiry of the period of limitation
for filing special leave petition before this Court challenging the
impugned judgment, the gift deed was allegedly executed by the deceased-
first defendant in favour of the second defendant (the second son) which
was made available for our perusal only after this Court directed the
second defendant’s counsel to do so. The said gift deed was executed by the
deceased-first defendant in favour of the second defendant reciting certain
factually incorrect facts regarding the physical delivery of possession of
the suit schedule ‘B’ property to him, as it is an undisputed fact that the
plaintiff has been in peaceful possession of the second floor of the said
building ever since she and her husband had started living separately from
the defendants.

The execution of the alleged gift deed by the deceased-first defendant in
favour of the second defendant is also hit by Section 52 of the Transfer of
Property Act, 1882, as the said deed was executed during the pendency of
the proceedings and before the expiry of the period of limitation for
filing SLP. Further, during the pendency of these proceedings, the second
defendant, who has claimed to be the alleged beneficiary of the suit
schedule ‘B’ property on the basis of alleged gift deed should have sought
leave of this Court as the donee and brought the aforesaid fact of
execution of the alleged gift deed in respect of ‘B’ schedule property by
the deceased first defendant, which property has been devolved in his
favour, to the notice of this Court as provided under Order 22 Rule 10 of
the C.P.C. and defended his right as required under the law as laid down by
this Court in a catena of cases. In the case of Dhurandhar Prasad Singh v.
Jai Prakash University & Ors.[1], this Court has interpreted Order 22 Rule
10 of the C.P.C. after adverting to its earlier decision in the case of
Rikhu Dev Chela Bawa Harjug Dass v. Som Das (deceased) Through Chela Shiama
Dass[2] in support of the proposition of law that the trial of a suit
cannot be brought to an end merely because the interest of a party in the
subject-matter of the suit has devolved upon another during the pendency of
the suit but that suit may be continued against the person acquiring the
interest with the leave of the court. The relevant paragraph from the said
decision of Dhurandhar Prasad Singh case (supra) reads thus:
“9. In the case of Rikhu Dev, Chela Bawa Harjug Dass v. Som Dass while
considering the effect of devolution of interest within the meaning of
Order 22 Rule 10 of the Code, on the trial of a suit during its pendency,
this Court has laid down the law which runs thus:

“8. This rule is based on the principle that trial of a suit cannot be
brought to an end merely because the interest of a party in the subject-
matter of the suit has devolved upon another during the pendency of the
suit but that suit may be continued against the person acquiring the
interest with the leave of the court. When a suit is brought by or against
a person in a representative capacity and there is a devolution of the
interest of the representative, the rule that has to be applied is Order 22
Rule 10 and not Rule 3 or 4, whether the devolution takes place as a
consequence of death or for any other reason. Order 22 Rule 10 is not
confined to devolution of interest of a party by death; it also applies if
the head of the mutt or manager of the temple resigns his office or is
removed from office. In such a case the successor to the head of the mutt
or to the manager of the temple may be substituted as a party under this
rule.”
(emphasis laid by this Court)

Likewise, where the interest of the second defendant has devolved upon the
suit schedule ‘B’ property on the basis of the alleged gift deed referred
to supra, the suit may be continued against such second defendant and for
the sake of continuance of the suit against the persons upon whom such
interest has devolved during the pendency of the suit, leave of the court
has to be obtained. Leave can be obtained only by that person upon whom
interest has devolved during the pendency of the suit, otherwise, there may
be preposterous results, as such a party might be unaware of the pending
litigation and the same would not be consequently feasible. If a duty is
cast upon him then in such an eventuality he is bound by the decree even in
case of failure to apply for leave. Therefore, as a rule of prudence, the
initial duty lies upon the person on whom such an interest has devolved
upon any such property to apply for leave of the court in case the factum
of devolution was within his knowledge or with due diligence could have
been known by him.

The factum of the said alleged gift deed was not made known to this Court
by the second defendant who is the beneficiary of the said gift deed till
the last stage of conclusion of submission by the learned counsel. Reliance
has been placed upon the decision of this Court in the case of Dhurandhar
Prasad Singh (supra) at paras 6, 7 and 8 with regard to the above said
proposition of law, the relevant paras from the above judgment are
extracted hereunder:

“6. In order to appreciate the points involved, it would be necessary to
refer to the provisions of Order 22 of the Code, Rules 3 and 4 whereof
prescribe procedure in case of devolution of interest on the death of a
party to a suit. Under these Rules, if a party dies and right to sue
survives, the court on an application made in that behalf is required to
substitute legal representatives of the deceased party for proceeding with
a suit but if such an application is not filed within the time prescribed
by law, the suit shall abate so far as the deceased party is concerned.
Rule 7 deals with the case of creation of an interest in a husband on
marriage and Rule 8 deals with the case of assignment on the insolvency of
a plaintiff. Rule 10 provides for cases of assignment, creation and
devolution of interest during the pendency of a suit other than those
referred to in the foregoing Rules and is based on the principle that the
trial of a suit cannot be brought to an end merely because the interest of
a party in the subject-matter of the suit has devolved upon another during
its pendency but such a suit may be continued with the leave of the court
by or against the person upon whom such interest has devolved. But, if no
such step is taken, the suit may be continued with the original party and
the person upon whom the interest has devolved will be bound by and can
have the benefit of the decree……..

7. Under Rule 10 Order 22 of the Code, when there has been a devolution of
interest during the pendency of a suit, the suit may, by leave of the
court, be continued by or against persons upon whom such interest has
devolved and this entitles the person who has acquired an interest in the
subject-matter of the litigation by an assignment or creation or devolution
of interest pendente lite or suitor or any other person interested, to
apply to the court for leave to continue the suit. But it does not follow
that it is obligatory upon them to do so. If a party does not ask for
leave, he takes the obvious risk that the suit may not be properly
conducted by the plaintiff on record, [pic]and yet, as pointed out by Their
Lordships of the Judicial Committee in Moti Lal v. Karrabuldin he will be
bound by the result of the litigation even though he is not represented at
the hearing unless it is shown that the litigation was not properly
conducted by the original party or he colluded with the adversary. It is
also plain that if the person who has acquired an interest by devolution,
obtains leave to carry on the suit, the suit in his hands is not a new
suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath Roy
Chowdry v. Rookea Begum, a cause of action is not prolonged by mere
transfer of the title. It is the old suit carried on at his instance and he
is bound by all proceedings up to the stage when he obtains leave to carry
on the proceedings.

8. The effect of failure to seek leave or bring on record the person upon
whom the interest has devolved during the pendency of the suit was the
subject-matter of consideration before this Court in various decisions. In
the case of Saila Bala Dassi v. Nirmala Sundari Dassi T.L. Venkatarama
Aiyar, J., speaking for himself and on behalf of S.R. Das, C.J. and A.K.
Sarkar and Vivian Bose, JJ. laid down the law that if a suit is pending
when the transfer in favour of a party was made, that would not affect the
result when no application had been made to be brought on the record in the
original court during the pendency of the suit.”
(emphasis laid by this Court)

The legal principles laid down in the aforesaid paragraphs from the
judgment referred to supra would clearly go to show that this Court has
laid down the legal principle to the effect that the absence of any leave
sought by the second defendant on the ground that his interest has devolved
upon the schedule ‘B’ property of the deceased-first defendant, would not
affect the relief sought by the plaintiff during the pendency of the
proceedings before this Court when no application has been submitted either
by the plaintiff or by the second defendant in this regard.

The legality of the alleged gift deed executed in favour of the second
defendant by the deceased-first defendant in respect of the schedule ‘B’
property has been further examined by us and the same is hit by Section 52
of the of the Transfer of Property Act, 1882, in the light of the decision
of this Court in the case of Jagan Singh v. Dhanwanti[3], wherein this
Court has laid down the legal principle that under Section 52 of the
Transfer of Property Act, 1882, the ‘lis’ continues so long as a final
decree or order has not been obtained from the Court and a complete
satisfaction thereof has not been rendered to the aggrieved party
contesting the civil suit. It has been further held by this Court that it
would be plainly impossible that any action or suit could be brought to a
successful termination if alienations pendente lite were permitted to
prevail. The relevant paras of the aforesaid decision read thus:

“32. The broad principle underlying Section 52 of the TP Act is to maintain
the status quo unaffected by the act of any party to the litigation pending
its determination. Even after the dismissal of a suit, a purchaser is
subject to lis pendens, if an appeal is afterwards filed, as held in
Krishanaji Pandharinath v. Anusayabai. In that matter the respondent
(original plaintiff) had filed a suit for maintenance against her husband
and claimed a charge on his house. The suit was dismissed on 15-7-1952
under Order 9 Rule 2, of the Code of Civil Procedure, 1908 for non-payment
of process fee. The husband sold the house immediately on 17-7-1952. The
respondent [pic]applied for restoration on 29-7-1952, and the suit was
restored leading to a decree for maintenance and a charge was declared on
the house. The plaintiff impleaded the appellant to the darkhast as
purchaser. The appellant resisted the same by contending that the sale was
affected when the suit was dismissed. Rejecting the contention the High
Court held in para 4 as follows:

“… In Section 52 of the Transfer of Property Act, as it stood before it was
amended by Act 20 of 1929, the expression ‘active prosecution of any suit
or proceeding’ was used. That expression has now been omitted, and the
Explanation makes it abundantly clear that the ‘lis’ continues so long as a
final decree or order has not been obtained and complete satisfaction
thereof has not been rendered. At p. 228 in Sir Dinshah Mulla’s ‘Transfer
of Property Act’, 4th Edn., after referring to several authorities, the law
is stated thus:

‘Even after the dismissal of a suit a purchaser is subject to “lis
pendens”, if an appeal is afterwards filed.’If after the dismissal of a
suit and before an appeal is presented, the ‘lis’ continues so as to
prevent the defendant from transferring the property to the prejudice of
the plaintiff, I fail to see any reason for holding that between the date
of dismissal of the suit under Order 9 Rule 2 of the Civil Procedure Code
and the date of its restoration, the ‘lis’ does not continue.’

33. It is relevant to note that even when Section 52 of the TP Act was not
so amended, a Division Bench of the Allahabad High Court had following to
say in Moti Chand v. British India Corpn. Ltd.:

“… The provision of law which has been relied upon by the appellants is
contained in Section 52, TP Act. The active prosecution in this section
must be deemed to continue so long as the suit is pending in appeal, since
the proceedings in the appellate court are merely continuation of those in
the suit.”

34. If such a view is not taken, it would plainly be impossible that any
action or suit could be brought to a successful termination if alienations
pendente lite were permitted to prevail. The Explanation to this section
lays down that the pendency of a suit or a proceeding shall be deemed to
continue until the suit or a proceeding is disposed of by a final decree or
order, and complete satisfaction or discharge of such decree or order has
been obtained or has become unobtainable by reason of the expiration of any
period of limitation prescribed for the execution thereof by any law for
the time being in force.

35. In the present case, it would be canvassed on behalf of the respondent
and the applicant that the sale has taken place in favour of the applicant
at a time when there was no stay operating against such sale, and in fact
when the [pic]second appeal had not been filed. We would however, prefer to
follow the dicta in Krishanaji Pandharinath to cover the present situation
under the principle of lis pendens since the sale was executed at a time
when the second appeal had not been filed but which came to be filed
afterwards within the period of limitation. The doctrine of lis pendens is
founded in public policy and equity, and if it has to be read meaningfully
such a sale as in the present case until the period of limitation for
second appeal is over will have to be held as covered under Section 52 of
the TP Act.”

(emphasis laid by this Court)

Notwithstanding the above legal principle, we have examined the legality
and validity of the alleged gift deed. The recital of the gift deed,
particularly, the recital clause 2 is extracted hereunder:
“2. That since the physical possession of the said property is already with
the Donee hence the proprietary possession of the same is being handed over
by the Donor unto the Donee who shall enjoy the same peacefully without any
interference or disturbance of the Owner/Donor or anybody claiming through
him. On this the Donee shall become the absolute Owner of the said Property
and shall be at liberty to deal with same in the manner he likes.”

A careful reading of the above recital would clearly go to show that the
physical possession of the entire suit schedule ‘B’ property could not have
been given to the second defendant in the light of the undisputed fact that
the physical possession of the second floor of the schedule ‘B’ property is
with the plaintiff. Further, the plaintiff is in the possession of the
second floor in her independent right of her husband’s share after they
separated from the family. Therefore, the alleged gift deed executed by the
deceased-first defendant in favour of the second defendant during the
pendency of the proceedings with respect to the suit schedule ‘B’ property
is not legally correct as it is the joint family property and even
otherwise the same cannot be acted upon by the parties.

On the basis of the legal submissions made by the senior counsel on behalf
of the plaintiff, we have examined the case on merit in these proceedings
based on proper appreciation of evidence on record and we have to reverse
the concurrent finding on the contentious issue no.4 for the reasons
recorded by us in the preceding paragraphs of this judgment. Accordingly,
we set aside the concurrent finding recorded by both the trial court and
the First Appellate Court on issue no.4. We conclude that the courts below
have failed to exercise their jurisdiction and power properly, thereby
causing a grave miscarriage of justice to the rights of the plaintiff upon
the ‘B’ schedule property.

The plaintiff must succeed for one more alternate reason viz. that the
deceased-first defendant died during the pendency of the proceedings and
therefore, Section 8 of the Hindu Succession Act, 1956, will come into
operation in respect of the suit schedule ‘B’ property even if it is
considered that the said property is a self acquired property of the
deceased-first defendant.

Therefore, we have to record the finding of fact with respect to the gift
deed and hold that the same is invalid as it is evident from the factual
and legal aspect of the case that the gift deed of the schedule ‘B’
property was executed by the deceased first defendant in favour of the
second defendant during the pendency of the proceedings and the same could
not have been acted upon by the defendants as the plaintiff has been in
possession of the second floor of the said property in her husband’s
independent right. The same is also not acted upon by the parties for the
reason that the plaintiff has been in physical possession of the second
floor of the ‘B’ suit schedule property and therefore, in fact, she could
not have delivered the possession to the second defendant and acted upon
the same, hence, Section 8 of the Hindu Succession Act, 1956, would come
into operation in respect of the above said property. The said property of
the deceased-first defendant would devolve upon the deceased husband of the
plaintiff along with the second defendant and the other daughters of the
deceased-first defendant as they are the joint owners of the said property
by virtue of being Class I legal heirs of the deceased-first defendant as
per the schedule to the Hindu Succession Act, 1956, upon the death of the
first defendant. For this reason also, the plaintiff is entitled for 1/4th
share in the suit schedule “B” property.

For the reasons stated above, we allow this civil appeal and assign equally
1/4th share to the plaintiff and each one of the defendants in the suit
schedule “B” property. The impugned judgments and decree passed by the
trial court and the First Appellate Court are hereby set aside, in so far
as ‘B’ schedule property is concerned. We further allow the plaintiff to
retain the second floor of the property bearing No. 45, Sant Nagar, East of
Kailash, New Delhi, till the 1/4th share of the schedule ‘B’ property is
divided by metes and bounds by following the procedure as provided under
law and put her in absolute possession of the same. The trial court is
directed to draw up a decree in terms of this judgment along with costs.

………………………………………………………J.
[V.GOPALA GOWDA]

………………………………………………………J.
[C. NAGAPPAN]

New Delhi,
July 14, 2015
-----------------------
[1] (2001) 6 SCC 534
[2] (1976) 1 SCC 103
[3] (2012) 2 SCC 628

-----------------------
|REPORTABLE |

Back to Judgments