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,
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2820 OF 2015
KIRPAL KAUR
Vs.
JITENDER PAL SINGH & ORS.
Dated; July 14, 2015
Citation;(2015) 9 SCC356,2016(2) MHLJ542
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.
2. 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.
3. 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:-
A Agricultural land at village Jahgirpur
and at village Patial
B Property bearing No.45, Sant Nagar, East
of Kailash, New Delhi
C Property situated at Kothi No.56, Giani
Zail Singh Nagar, Ropar
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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
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
2
nd floor.
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….”
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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
1
(2001) 6 SCC 534
(deceased) Through Chela Shiama Dass2 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
2
(1976) 1 SCC 103
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)
19. 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.
20. 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, 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.
21. 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. Dhanwanti3,
wherein this Court has laid down the legal principle
that under Section 52 of the Transfer of Property
3
(2012) 2 SCC 628
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
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 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)
22. 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.
23. 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.
24. 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.
25. 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.
26. 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
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2820 OF 2015
KIRPAL KAUR
Vs.
JITENDER PAL SINGH & ORS.
Dated; July 14, 2015
Citation;(2015) 9 SCC356,2016(2) MHLJ542
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.
2. 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.
3. 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:-
A Agricultural land at village Jahgirpur
and at village Patial
B Property bearing No.45, Sant Nagar, East
of Kailash, New Delhi
C Property situated at Kothi No.56, Giani
Zail Singh Nagar, Ropar
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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
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
2
nd floor.
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….”
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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
1
(2001) 6 SCC 534
(deceased) Through Chela Shiama Dass2 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
2
(1976) 1 SCC 103
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)
19. 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.
20. 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, 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.
21. 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. Dhanwanti3,
wherein this Court has laid down the legal principle
that under Section 52 of the Transfer of Property
3
(2012) 2 SCC 628
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
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 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)
22. 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.
23. 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.
24. 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.
25. 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.
26. 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
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