In exercise of powers conferred by Section 9 of Suits Valuation Act, Punjab High Court made rules which are applicable to Delhi.

Suits for partition of property–

Courtfee–(a) as determined by the Courtfees Act, 1870 Value–(b) For the purpose of theSuit Valuation Act, 1887, and the Punjab Court Act, 1918 the value of the whole of the property as determined by Sections 3, 8 and 9 of the Suits Valuation Act, 1887.

6. It would thus be seen that in view of the rules framed by Punjab High Court under Section 9 ofSuits Valuation Act, which admittedly are applicable to Delhi, there can be separate valuations for the purpose of Court fee and jurisdiction. The valuation for the purpose of jurisdiction has to be the value of the whole of the properties subject matter of partition, whereas valuation for the purpose of Court fee would be such as is provided by the Courtfees Act.

————————————————————————————————————————–

            THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on:   25.02.2011
                      Judgment Pronounced on: 04.03.2011

+           CS(OS) No. 2642/2008


SUSHMA TEHLAN DALAL                             .....Plaintiff


                            - versus -


SHIVRAJ SINGH TEHLAN & ORS                      ....Defendant

Advocates who appeared in this case:
For the Plaintiff:      Mr. Y.P. Narula, Sr. Adv. with
                        Ms. Nandita Rao, Adv.

For the Defendant:            Mr. Mohinder Madan, Adv. for
                              D-1. Mr Vivek Singh, Adv. for D-
                              7.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

Whether Reporters of local papers may Yes be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported Yes in Digest?

V.K. JAIN, J IA No. 10367/2010 (O.7 R.11 CPC by D-1)

1. This is a suit for partition, cancellation of sale deeds, permanent injunction, rendition of accounts and mesne profits. Late Chaudhary Hukum Singh was the owner of the following properties:

(a) 2/28, Roop Nagar, Delhi of 246 square yards on GT Road.

(b) Lands in Village Nunglai Sakrawati, Najafgarh Tehsil Jila, Delhi, Delhi in Khasra Nos. 32/3,4,7/1,12/16,13/20,19,25/21/1,27/5/1,1 3/2,242,49,49/1.

(c) 3 Farm Land Plots, Alipur Delhi, approximately 18 bighas.

(d) Sansar Service Station, Najafgarh (Near Vikas Puri), Delhi;

(e) Anup Service Station, Alaknanda upon land on 99 year lessee from DDA;

(f) Harjeet Filling Statin with adjoining plot Alipur (on GT Karnal Road), Delhi;

(g) 189 Bighas of land situated in Alwar at Khaderpur, Tehsil, Tejara Distt. Alwar, Rajasthan in Khasra No.2 to 16, 23 to 26, 38, 140, 138, 142M, 34M, 1M, 46, 43, 44, 930, 939, 942/1058, 918, 920, 940, 928, 870, 871, 911, 893, 908, 909, 1029, 905, 890, 891, 894, 892, 868, 869, 872 to 875, 878, 906, 907, 1026, 1027, 1028, 896, 897 and 1023 total area around 189 bighas.

He died intestate on 15th August, 1969, leaving six legal heirs, including his widow Smt. Barfo Devi. Smt. Berfo Devi died on 26 th June, 1981, leaving five legal heirs, namely, her son, late Shri Anup Singh Tehlan, her other son Harjeet Singh Tehlan, defendant No.1 Shivraj Singh Tehlan, defendant No. 6 Kaushalya Chaudhary and the plaintiff Sushma Singh Tehlan. Shri Harjeet Singh Tehlan died intestate in the year 2003, without any issues and his wife, who was estranged from him, is stated to have since re- married. It is alleged that his share in the above-referred properties devolved on the plaintiff and the defendants, they being his Class-II legal heirs. Defendants 2 to 5 are the legal heirs of late Shri Anup Singh Tehlan.

2. The plaintiff claims to be in possession of two rooms, two verandahs, two stores, two toilets and washroom in the western wing of the first floor of house No. 2/28, Roop Nagar, Delhi and joint possession of the kitchen, open terrace of the second floor, the flat on second floor and shops and garage on the ground floor. It is further alleged that defendant No. 1 sold some portion of the parental property by executing a General Power of Attorney dated 26th May, 1987. One sale deed in respect of land in village Nangli is alleged to have been executed by defendant No. 1 on 02nd July, 2008 in favour of defendant No. 7, Bharat Singh and another sale deed of the same date is alleged to have been executed in favour of defendant No. 8 Vijay Sharma. The plaintiff has sought partition of the above- referred properties, besides seeking rendition of accounts and mesne profit with respect to the profits earned from the service stations. She has also sought cancellation of the sale deeds dated 02nd July, 2008, executed by defendant No. 1 in favour of defendant Nos. 7 and 8.

3. Para 2 of the plaint which deals with valuation reads as under:

“The suit is valued over a crore for the purpose of jurisdiction. As regards the reliefs of permanent injunction, the suit is valued at Rs 20,01,000/- and a court fee of Rs 22,000/ has been paid. As regards the relief of partition and mesne profits, the suit is valued at Rs 200/- and a court fee of Rs 20 has been paid. As regards the relief of cancellation for the documents being sale deeds dated 02.07.2008 which are a fraud, nullity the suit is valued at Rs 200. The plaintiff also undertakes to pay any further court fee which may be required to be paid on actual partition of the property.”

4. IA No. 10367/2010 has been filed by defendant No. 1, seeking rejection of the plaint on the ground that the plaintiff has not paid requisite Court fee.

5. Section 8 of the Suits Valuation Act, 1887 provides that where other than those referred to in the Court-fees Act, 1870 Section 7, paragraph v, vi and ix, and paragraph x, clause (d), Court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same. Section 9of the above- referred Act provides that when the subject-matter of suits of any class, other than suits mentioned in the Court-fees Act, 1870, Section 7, paragraph v and vi, and paragraph x, clause (d) is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may with the previous sanction of the State Government, direct that suits of that class shall, for the purposes of the Court-fees Act, 1870, and of this Act and any other enactment for the time being in force, be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf.

In exercise of powers conferred by Section 9 of Suits Valuation Act, Punjab High Court made rules which are applicable to Delhi.

Suits for partition of property–

Court-fee–(a) as determined by the Court-fees Act, 1870 Value–(b) For the purpose of the Suit Valuation Act, 1887, and the Punjab Court Act, 1918 the value of the whole of the property as determined by Sections 3, 8 and 9 of the Suits Valuation Act, 1887.

6. It would thus be seen that in view of the rules framed by Punjab High Court under Section 9 of Suits Valuation Act, which admittedly are applicable to Delhi, there can be separate valuations for the purpose of Court fee and jurisdiction. The valuation for the purpose of jurisdiction has to be the value of the whole of the properties subject matter of partition, whereas valuation for the purpose of Court fee would be such as is provided by the Court-fees Act.

7. Section 7(iv)(b) of Court Fees Act, provides that in a suit to enforce the right to share in any property on the ground that it is a joint family property, the amount of fee payable under Court-fee Act, shall be computed according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. It further provides that in all such suits the plaintiff shall state the amount at which he values the relief sought by him. Article 17(vi) of Schedule II of Court-fees Act provides for payment of a fixed Court fee in a suit where it is not possible to estimate at a money value the subject matter in dispute, and which is not otherwise provided for by this Act.

8. In S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar AIR 1958 SC 245, Supreme Court, inter alia, read as under:

“If the scheme laid down for the computation of fees payable in suits covered by the several sub-sections of S. 7 is considered it would be clear that in respect of suits falling under sub-section

(iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court- fees. The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property in respect of which a share is claimed is joint family property. In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiff’s alleged undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. That is why legislature has left it to the option of the plaintiff to value his claim for the payment of court-fees. It really means that in suits falling under S. 7(iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court-fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief.”

9. In Neelavathi and Ors. v. N. Natarajan and Others, AIR 1980 SC 691, which arose out of a suit for partition, the plaintiff averred in the plaint that they were in joint possession of the property along with the defendants. The plaintiffs had valued their share of the property and paid fixed court fee of Rs 200/- under Section 37(2) of Tamil Nadu Court-Fee and Suits Valuation Act. It was contended by the defendants in that suit that the plaintiff were not in joint possession and, therefore, were required to pay ad valorem Court fee at the market rate. The suit was dismissed on the ground that ad valorem Court fee had not been paid. Allowing the appeals, filed by the plaintiff, Supreme Court held that the question of Court fee was to be considered in the light of allegations made in the plaint and decision of this issue cannot be influenced either by the plea taken in the written statement or by final decision of the suit on merits. In that case, the plaintiff had stated in the plaint that the defendants had failed to give their share of income and they could not remain in joint possession. It was held that this averment would not mean that the plaintiffs had been excluded from possession of the suit property. During the Course of judgment, Supreme Court, inter alia, observed as under:

“It will be seen that the Court-fee is payable under Section 37(1) if the plaintiff is ‘excluded’ from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family, and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act having at the time of the death an interest in the mitakshara coparcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided joint family property’ though not in the strict sense of the term. The general principle of law is that in the case of co-owners, the possession of one is law possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay Court-fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been ‘excluded’ from joint possession to which they are entitled to in law.”

(emphasis supplied)

10. In Jagannath Amin vs. Seetharama (dead) by Lrs. and Ors. 2007 (1) SCC 674, a suit for partition of agricultural land was filed seeking its division into two equal shares. The plaintiff had paid Court fee of Rs 200 under Section 35(2) of Karnataka Court-fees and Suit Valuation Act, 1958. The plaintiffs had also alleged to be in joint possession of the suit property. During the course of the judgment, Supreme Court, referred to the following observation made by it in Commercial Aviation and Travel Co. Vs. Vimla Panna Lal, AIR 1988 SC 1636:

“It is true that the Court did not consider whether the plaintiff had been given an absolute right or option to place any valuation whatever on his relief under the provision of Section 7(iv) of the Court-fees Act, but the difficulty that would be felt by the Court in exercising its power under Order VII, Rule 11(b) of the Code of Civil Procedure is that if it is unable to determine the correct value of the relief, it cannot direct the plaintiff to correct the valuation. Order VII, Rule 11(b) contemplates correct valuation and not approximate correct valuation and such correct valuation of the relief has to be determined by the Court. If the Court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and, consequently. Order VII, Rule 11(b) will not be applicable.”

11. The following legal proposition of law emerges from the above-referred decisions:

(i) In order to ascertain whether the suit has been property valued for the purpose of Court fee or not, only the averments made in the plaint have to be seen, without reference to the plea taken by the defendants;

(ii) If the plaintiff claims to be in joint possession of the suit property, he has to pay a fixed Court fee in terms of Article 17(vi) of Court-fees Act.

(iii) If the averments made in the plaint show that the plaintiff has been completely ousted from possession and is not in possession of any part of the suit property, he is required to claim possession and also pay ad valorem Court fee on the market value of his share in the suit property.

12. In the present case, the plaintiff has specifically alleged that she is in exclusive possession of house No. 2/28, Roop Nagar, Delhi and in joint possession of certain other parts of the aforesaid house. Thus, the plaintiff has undisputedly claimed joint possession with respect to one of the properties in respect of which partition has been sought by her. In my view, in order to constitute joint possession, it is not necessary that the plaintiff should claim to be in joint possession of each of the properties in respect of which partition is sought by him/her. If she claims to be in joint possession of even one of the properties either wholly or partly, that would be sufficient to bring the case within the ambit of Article 7(iv) of Court-fees Act, because what is relevant is joint possession of the estate in respect of which partition is sought. The plaintiff is seeking partition not with respect to any one property, but with respect to all the properties which were owned by her late parents. If partition is sought in respect of more than one property and one of the co-owners possesses one property or a part of it and the other co-owners possess the remaining properties, all of them will be deemed to be in joint possession of the properties subject matter of partition. In this regard, the following observations made by this Court in Sudershan Kumar Seth vs. Pawan Kumar Seth & Ors. 124 (2005) DLT 305:

“It is settled that in order to decide as to what relief has been claimed by the plaintiff, the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the plaintiff is in possession of the any of properties to be partitioned, then the court fees shall be payable under Article 17 (6) of Schedule II of the Court fees Act i.e. fixed court fees at the time of institution of the suit but if the conclusion is that the plaintiff is not in possession of any part of the properties then the plaintiff has to pay Court fees under section 7(iv)(b) of the Court fees Act i.e. on the value of plaintiff’s share.”

13. Moreover, in the case before this Court, there is no averment in the plaint that the plaintiff has been ousted from the possession of the other properties which were owned by her parents. It is true that she has not specifically averred that she is in joint possession of the other properties, but, it is also equally true that she does not claim or admit ouster from those properties. She being one of the co-owners of the other properties is by fiction of law, deemed to be in joint possession of those properties along with other co-owners unless she pleads or admits complete ouster from those properties. This view also confirms to the observations made by Supreme Court in the case of Neelavathi (supra) that the general principle of law is that in case of co-owners, it is not necessary that the plaintiff should be in actual possession of the property, the possession of one co-owner is in law the possession of all unless ouster or exclusion is proved and so long as his right to share and the nature of the property as joint is not disputed, the law presumes that he is in joint possession, unless he is excluded from such possession.

14. The logic behind not insisting on payment of ad valorem Court fee in a case of joint possession was explained by Supreme Court in the case of Sathappa Chettiar (supra) when the Court said that in such cases what the plaintiff seeks by claiming partition is to ask the Court to give certain specific properties to him for his absolute and exclusive enjoyment, to the exclusion of other co-owners of that property and, thereby what he is seeking only a conversion of his undivided share into a separate share. Moreover, as observed by Supreme Court in the case of Jagannath Amin (supra), the Court needs to have exact valuation before it, before it can reject the plaint under Order VII Rule 11(d) of Code of Civil Procedure and that determination cannot be made in such a case.

15. Therefore, there is no ground to reject the plaint, as far as Court fee on the relief of partition is concerned. During the course of arguments, the learned counsel for the plaintiff fairly stated that as far as relief of cancellation of sale deeds are concerned, the plaintiff would pay ad valorem Court fee on the sale consideration, shown in the sale deeds, executed in favour of defendants 7 and 8. Therefore, the plea taken by the plaintiff with regard to inadequate Court fee on the relief of cancellation of sale deeds does not survive anymore. The plaintiff is directed to pay deficient Court fee on the relief of cancellation of sale deeds within two weeks.

The application stands disposed of accordingly.

(V.K. JAIN) JUDGE MARCH

 

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Civil Litigation

Civil Law is known for civil procedure code, 1908, in India. There are three things in this Act by which this act is going on/functioning:

  1. SECTION
  2. ORDER
  3. RULES
  4. CIVIL PROCEDURE CODE: It is a complete code itself. Once proceedings are initiated there under, rights and remedies have to be looked into.

There are four modes to decide the matters under the civil procedure code by the courts:

  • CIVIL JUDGE
  • ADDITIONAL DISTRICT JUDGE
  • SMALL CLAUSES COURT
  • HIGH COURTS, IN CERTAIN CASES (WHERE THE JURISDICTION IS MORE THAN 2 Crore after amendment in Delhi High Court Rules 2015.)

We Deals in Certain Matters under This Laws and Act:-

  • CIVIL MONEY RECOVERY SUIT
  • CIVIL RIGHTS CASES
  • SUIT FOR INJUNCTION AND DAMAGES
  • MONEY RECOVERY SUIT UNDER SECTION XXXVII CIVIL PROCEDURE CODE
  • RENT SUIT
  • PROBATE OF WILL SUIT.
  • SUIT FOR DECLARATION & POSSESSION SUIT
  • ANTI INJUNCTION SUIT
  • SUIT FOR PERMANENT & MANDATORY INJUNCTION SUIT
  • SUIT FOR PARTITION & POSSESSION
  • SUIT FOR DIVISION,PARTITION AND POSSESSION OF PROPERTY
  • SUIT UNDER INDIAN SUCCESSION ACT
  • SUIT FOR PROBATE IN RESPECT OF WILL OF PROPERTY
  • SUIT FOR POSSESSION OF PROPERTY AND DECLARATION
  • SUIT FOR STAY IN RESPECT OF PROPERTY
  • SUIT FOR PARTITION AND DIVISION IN PROPERTY
  • ALL THE SUITS UNDER THE CIVIL PROCEDURE CODE AND CIVIL LAWS.

the Supreme Court had been approached by the NRI husband whose defence had been struck off in a maintenance suit filed by the wife in the High Court as he had not appeared in the High Court despite the High Court�s order directing him to personally appear and giving him several opportunities. The High court had directed him to personally appear to give clarifications to the court on the circumstances in which the US court had proceeded with and granted decree in a divorce petition filed by the husband in the US despite order of restraint having been issued by the Indian court against the proceedings in the US. The High Court had also rejected his application for exemption from personal appearance on the basis that he apprehended that he would be arrested in the case under Section 498 A, IPC filed by the wife.

The Supreme Court upheld the High Court�s order and held that Order X of CPC is an enabling �provision that gives powers to courts for certain purposes. The Delhi High Court was therefore justified in requiring the husband to personally appear before the Court for his clarification, especially since the affidavit of his counsel in America annexed with the affidavit filed in the trial court was not enough to clarify the position and his father, as found by the trial court, could not throw further light in the matter, having not been present during the proceedings in America. Also the inherent powers of the Court under Section 151 C.P.C. can always be exercised to advance interests of justice and it was open for the Court to pass a suitable consequential order under Section 151 CPC as may be necessary for ends of justice or to prevent the abuse of process of Court.

————————————————————————————————————————————————————————————————

Supreme Court of India
Vikas Aggarwal vs Anubha on 12 April, 2002
Author: B Kumar
Bench: D.P. Mohapatra, Brijesh Kumar
           CASE NO.:
Appeal (civil) 2660  of  2002



PETITIONER:
VIKAS AGGARWAL

	Vs.

RESPONDENT:
ANUBHA

DATE OF JUDGMENT:	12/04/2002

BENCH:
D.P. Mohapatra & Brijesh Kumar




JUDGMENT:

BRIJESH KUMAR, J.

Leave granted.

Heard learned counsel for the parties. This appeal has been preferred against the judgment and order dated 18.10.2000 passed by Delhi High Court dismissing the appeal challenging the order by which appellant’s defence was struck of in the proceeding, suit No.1966 of 1999 pending in Delhi High Court on the Original side.

The appellant and the respondent were married on 11.05.1999. Thereafter they went to USA. They do not seem to have pulled on well so much so that the appellant filed a divorce petition in America as early as on 22.7.1999. The notice of the said proceedings was served on the respondent. She however, left America and somehow managed to come back to India. She filed a suit on 6.9.1999 in Delhi High Court being Suit No.1966 of 1999 impleading the appellant Shri Vikas Agarwal as defendant and praying that a decree be passed declaring that the plaintiff is entitled to live separately, for maintenance amounting to 1500 dollars (Rs.65,250/-) expenses pendantalite etc. and for such other, further orders, directions as the Court would deem fit and proper in the circumstances of the case, so as to meet the ends of justice. The learned Single Judge of Delhi High Court passed an interim order on 5.11.1999 in the following terms:-

“For the present in the interest of justice, and since no permanent prejudice is likely to be caused to the Defendants if the hearing in divorce case pending in the Superior Court, State of Connecticut, U.S.A. is deferred for a short period, I restrain the Defendant from proceeding further in the Superior Court, State at Connecticut, U.S.A. for a period of thirty days from today.”

The appellant however, moved an application on 12.11.1999 for recall of the order dated 5.11.1999. The Court was later on informed on 16.12.1999 that decree for divorce had been passed at Connecticut U.S.A. The learned Single Judge, on 9.3.2000 passed an order, directing the defendant to appear in person, under order 10 C.P.C. The defendant preferred an appeal against the Order dated 9.3.2000 before the Division Bench which was withdrawn with a statement that an application will be moved before the learned Single Judge for recall of the order. It will not be necessary to mention about many other applications, which have been moved in that connection from time to time. The fact remains that ultimately by order dated 24.8.2000, the Court struck of the defence of the appellant: The operative part of the order reads as under:-

“It is quite clear that despite several opportunities granted to the defendant to appear before this Court he has resolutely refused to do so. The defence of defendant is therefore, struck of.”

An appeal preferred against the said order before the Division Bench of the High Court has also been dismissed which order has been impugned in the present appeal. It appears that need to seek clarification from the defendant-appellant arose when it came to the notice of the learned Single Judge of Delhi High Court that on 23rd November, 1999 the Court in America passed decree of divorce despite the order of restraint against the defendant passed on 5.11.1999. The Court seems to have doubts if the order passed by it was truly communicated to the American Court since there was no mention at all about that fact in the order passed by the American Court. The appellant also moved an application for seeking exemption from appearing in the Court in Delhi, as he apprehended that on coming to India he may be arrested in pursuance of the proceedings initiated against him under Section 498-A of the Indian Penal Code. By order dated July 3, 2000 the learned Single Judge took care of the same and provided that the defendant would not be arrested in pursuance to any complaint or pending FIR filed by the plaintiff. The defendant was required to appear on August 24, 2000. He again failed to appear in the Court, instead an affidavit of the Attorney of the appellant in America was filed stating that he had brought the injunction order to the notice of the American Court, but the Court had refused to enforce any restraint order, as Indian Court had no jurisdiction over the U.S. Court’s proceedings. Such information, it is submitted on behalf of Respondent, as furnished through affidavit also leads to the inference that the interim order dated November 5, 1999 was not correctly placed at all before the American Court as the Delhi High Court had not passed any order putting any restraint on the American Court to proceed with the matter. The restraint order was against the defendant, namely the appellant before us. It is submitted on behalf of the Respondent that the defendant-appellant should also have moved appropriate application along with interim order before the court in America. In this back ground, the learned Single Judge ordered for presence of the defendant in Court under Order 10 CPC. On non-compliance of the said order, ultimately the defence was struck of.

Shri Vikas Singh learned counsel appearing for the appellant has vehemently urged that Order X CPC would not be applicable at all and the order of the Delhi High Court in that respect is invalid. Our attention has been brought to Order X CPC which reads as under:-

Examination of parties by the Court.

1. Ascertainment whether allegations in pleadings are admitted or deniedAt the first hearing of the suit the court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The court shall record such admission and denials.

2. Oral examination of party, or companion of party.– (1) At the first hearing of the suit, the court

(a) shall, with a view to elucidating matters in controversy in the suit examine orally such of the parties to the suit appearing in person or present in the court, as it deems fit; and

(b) may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in court or his pleader is accompanied.

(2) At any subsequent hearing the court may orally examine any party appearing in person or present in court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied.

(3) The court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party.}

3. Substance of examination to be written. the substance of the examination shall be reduced to writing by the Judge, and shall form part of the record.

4. Consequence of refusal or inability of pleader to answer.(1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.

(2) If such party fails without lawful excuse to appear in person on the day so appointed, the court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.”

On the basis of the above provision, it is submitted that a party can be examined under Order X CPC on the first hearing of the suit, but that stage has not yet reached in the present case. It is submitted that first hearing of the suit would not be any date before a date fixed for settlement of issues. In that connection, he has placed reliance upon certain decisions in which first date of hearing has been indicated in reference to rent control disputes between landlord and tenant. The next contention is that under Rule 4 of Order X a party may be required to appear where the counsel or the person accompanying the pleader refuses to or is unable to answer any material question relating to the suit. In the present case, it is submitted that the information sought was furnished to the Court. There was no refusal on the part of the counsel or the person accompanying the counsel, namely father of the defendant appellant to answer the questions. Therefore, it was not necessary to order for personal attendance of the defendant. Yet another submission is that question in relation to which a party is required to be present to be examined should be an important or material question relating to the suit. It is submitted that the defendant was not required to give clarification to any such important or material question. It is submitted that for the above three reasons the order is bad. Yet another submission which has been made is that no order of injunction could be passed against a foreign court in view of the provisions contained under Section 41(a) & (b) of the Specific Relief Act.

Shri Shanti Bhushan, learned Senior Counsel appearing for the respondent submitted that the questions raised by the learned counsel for the appellant are not relevant, since undisputedly there is non-compliance of the order passed by the Court requiring the defendant to be personally present in the Court. It is submitted that the Section 41 (a) & (b) of the Specific Relief Act would not bar passing of an order as passed on 5.11.1999 by the learned Single Judge of Delhi High Court since such a bar is in relation to the superior Courts i.e. to say the Courts in India, it would not apply to Courts out side India and next that the restraint order is against the party namely, the defendant, who was restrained from proceedings in the matter for a period of one month. (reliance has been placed on 1987(1) SCC 496 Oil and Natural Gas Commission Vs. Western Company of North America). It has been held in an appropriate case, it is open to pass a restraint order against a party in proceedings pending in foreign courts. It is further submitted that the learned Single Judge had passed the injunction order on 5.11.1999 for a period of one month, but the decree was granted on 23.11.1999. The defendant was bound by the order and should not have taken any steps in furtherance of the proceedings pending in American Court. On the other hand, the decree of divorce shows that the decree was sought and passed on agreement (no fault divorce) between the parties which is described as fair and equitable. The agreement is also stated to be attached with the decree. It is also to be seen that columns meant for alimony etc. were left blank. The defendant was restrained by the learned Single Judge of Delhi High Court, at the instance of the wife, the respondent, from further proceeding in the divorce case. It is submitted that this itself shows that the divorce was far from one on the basis of agreement. In this view of the matter, learned counsel for the respondent submits that the Court rightly felt need for personal appearance of the defendant for clarification. The defendant failed to appear on one ground or the other and lastly on the ground of apprehension of loosing job in America.

This Court also gave time to the learned counsel for the appellant to find out in case it would be possible for him to appear before the learned Single Judge of Delhi High Court. The learned counsel has placed before the Court a letter received from the appellant addressed to his counsel dated March 7,2002 expressing his inability to visit India for another 6 to 9 months due to financial and job constraints. He further informs that he is involved in many mission- critical projects. Therefore, granting of leave, would also not be possible, to him. It is also indicated that he has no property, no house, no bank account, no job and no place to live in India. These facts are hardly relevant for the purposes of present matter. We need not go into the other facts and circumstances, which have been placed by the learned counsel for the respondent to show the manner in which, within two months of the marriage, the appellant had filed “no fault divorce” in American Court and obtained decree on agreement in the teeth of injunction order dated 5.11.1999 passed by Delhi High Court and the appellant having abandoned the plaintiff-respondent in America and the difficulties with which she managed to return to India.

Shri Shanti Bhushan, learned senior counsel appearing on behalf of the respondent submits that in the facts and circumstances of the case as indicated above, the learned Single Judge of the Delhi High Court was quite justified in requiring the defendant-appellant to personally appear before the Court for his clarification. It is further submitted that the affidavit of the counsel for the appellant in America annexed with the affidavit filed in the trial court was not enough to clarify the position and the father of the appellant, as found by the trial court, could not throw further light in the matter, having not been present during the proceedings in America. So far the question regarding first date of hearing is concerned, it is too technical a ground to consider the matter like one in hand. The decisions which have been relied upon relate to the disputes between tenant and landlord and while interpreting the term “first date”, the provisions of the Rent Control Statutes have also been taken into account. It is submitted that inherent powers of the Court under Section 151 C.P.C. can always be exercised to advance interests of justice and the technicalities will have no place in such matters. In this connection a reference has been made to a decision of this Court reported in (1966) 3 S.C.R. 856 – M/s. Ram Chand and Sons Sugar Mills Pvt. Ltd. Versus Kanhaya Lal Bhargava and others. In this case also the defendant was required to attend the Court to answer certain questions but flouted the order and did not appear. Ultimately the defence was struck of. The contention that inherent powers under Section 151 CPC could not be exercised was repelled and it was held that there was nothing in Order XXXIX of the Code which expressly or by necessary implication precluded the exercise of inherent power of Court under Section 151 CPC and it was open for the Court to pass a suitable consequential order under Section 151 CPC as may be necessary for ends of justice or to prevent the abuse of process of Court. A reference has also been made to a decision reported in 1962 Supp. (1) S.C.R. 450 – Manohar Lal Chopra versus Rai Bahadur Rao Raja Seth Hiralal so as to indicate the wide scope of Section 151 CPC where as per the majority view, in the facts and circumstances of the case, it was open to pass an injunction order under Section 151 CPC where it may not be in conflict with any provision of Order XXXIX of the Code or other provision of law. The submission which has been advanced by the learned counsel for the respondent is that in the present case the learned trial court was totally justified in requiring the presence of the defendant and on his failure to comply with that order the trial court rightly struck of defence which order would be perfectly justified in view of inherent powers of the Court under Section 151 CPC besides other powers vested in it.

We would like to observe that Order X CPC in an enabling provision providing that the court at the first hearing of the suit shall ascertain from each party about their pleadings. It does not in any manner place any bar on the powers of the court to seek clarification from any party in an appropriate case, at any date earlier than one fixed for framing of issues so as to advance the interest of justice. It would not be in violation of Order X CPC or in conflict thereof. Considering the facts and circumstances of the case we agree with the submission made on behalf of the respondent and find that the appeal lacks merit so as to call for any interference by us under Article 136 of the Constitution.

In the result the appeal is dismissed with costs.

In the instant case, the suspicious circumstance appears to be that
when the Will was being executed, the thumb impression over the alleged
Will was also taken by the beneficiaries and the document-writer was shown
to be scribe of the document, whereas the document was not scribed by him.
However, late Phoolbasa Bai although filed written statement before her
death, but she did not whisper anything about the Will in the written
statement. Admittedly, the Will was allegedly executed in 1977 whereas the
written statement was filed some time in 1987. Taking into consideration
all these facts, we do not filed any error in the conclusion arrived at by
the High Court. The said finding, therefore, needs no interference by this
Court.
—————————————————————————————————————————

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

Civil Appeal No.3410 of 2007

DHANNULAL AND OTHERS …..Appellant(s)

versus

GANESHRAM AND ANOTHER …..Respondent(s)

WITH

Civil Appeal No.3411 of 2007
GANESHRAM …..Appellant(s)

versus

DHANNULAL AND OTHERS …..Respondent(s)

JUDGMENT

M. Y. EQBAL, J.

Aggrieved by the judgment and order passed by the High Court, partly
dismissing First Appeal No.92 of 2001, both the plaintiff and the
defendant have filed the aforementioned two appeals. While confirming
judgment and decree, the High Court reversed the finding recorded by the
trial court on the issue of will executed by the testatrix.

2. The plaintiff-Ganeshram, appellant in Civil Appeal No.3411 of 2007,
filed suit for declaration, possession and damages in relation to the two
suit houses described in Schedule A & B of the plaint, pleading inter alia
that the registered sale deed of 1987, executed by Phoolbasa Bai (original
defendant no.1, who died during the pendency of the suit) in favour of
defendant no.5 Mukesh Kumar Chourasia, which relates to some portion of
suit house, be declared illegal, void and not binding on him.

3. To understand factual matrix and issue involved in the case, we would
like to reproduce here the pedigree table as submitted before us:

Shivram
(Died in 1932)
____________________________________|_____________________________
| |
Sumitrabai (Daughter)(died in 1976) Chhatrapati(Son) (died in
1945)
Husband of Sumitra-Mangal Prasad Kept-wife: Phulbasabai (def.no.1)
(Died in 1954) |
| Mannulal (son)(
| (died unmarried on 14.4.1967)
______|___________________________
| |
Shyamlal (son) Radha Bai (daughter)
(died in 1973)
|
_______|____________________________________________________
| | |
Ganeshram (son) Laxmi Bai (daughter) Ganga Bai (daughter)
Plaintiff

4. The suit property was originally owned by Shivram who had a daughter
Sumitrabai and a son Chhatrapati. The plaintiff, the grandson of
Sumitrabai, filed a suit for declaration of ownership, possession and
damages in relation to the suit property against defendant nos.1 to 5. The
plaintiff challenged the validity of the Will dated 18.08.1977 purported to
have been executed by Phoolbasa Bai in favour of the sons of her brother
Gayaprasad, defendant nos.1-4. The plaintiff also challenged the validity
of the sale deed purported to have been executed by Phoolbasa Bai in 1987
in favour of defendant no. 5 in relation to a portion of the suit property.

5. The plaintiff alleged that Sumitrabai (plaintiff’s grandmother) had
become the owner of the suit property by adverse possession having stayed
therein, after the death of her husband Mangal, with her father Shivram
till his death in 1932 and till her own death in 1976. Phoolbasa Bai was
alleged to have been the mistress and not the legally wedded wife of
Chhatrapati and their son was alleged to have died unmarried and issueless
in 1967. The sale deed and the Will purported to have been executed by
Phoolbasa Bai were alleged to be illegal.

6. The suit was contested firstly by filing joint written statement by
the original defendants namely Phoolbasa Bai and Gaya Prasad stating that
after the death of Shiv Ram the entire property was succeeded by
Chhatrapati (his only son) as Sumitrabai was a married daughter. It was
further pleaded that Phoolbasa Bai, being the lawful wedded wife of
Chhatrapati, became the owner of the suit property after Chhatrapati’s
death in 1945. During the pendency of the suit, when Phoolbasa died, she
was substituted by defendant nos.1 to 4, who also filed separate written
statement in addition to earlier written statement filed by the original
defendants. Defendant no.5 also filed separate written statement claiming
to be the owner of the portion of property by virtue of a sale deed
executed in his favour in 1987.

7. The trial court dismissed the civil suit holding that the Will
executed by Phoolbasa in the year 1977 in favour of defendants nos.1 to 4
is legal and the sale effected by her during the pendency of the civil suit
in favour of defendant no.5 is also legal and valid. The trial judge
recorded the finding that Sumitra Bai had not perfected her title by
adverse possession and the plaintiff could not establish that Phoolbasa Bai
was a concubine of late Chhatrapati. The trial court also recorded a
finding that the plaintiff failed to establish that the Will was a
fraudulent and fabricated document.

8. Aggrieved by the judgment and decree of the trial court, plaintiff
moved the High Court preferring First Appeal, which was partly dismissed by
the learned Single Judge of the High Court. Although learned Single Judge
set aside the finding of the trial court on the issue of validity of the
Will on the ground that the Will was not proved as per law, but upheld the
sale deed executed by Phoolbasa Bai in favour of defendant no.5. The
concluding paragraphs of the impugned order are, therefore, quoted
hereinbelow:

“In the facts and circumstances, the sale in favour of defendant no.5 was a
valid sale and the same cannot be held to be illegal, void and not binding
against the plaintiff. The arguments advanced in this regard cannot be
accepted.

Now the question arises, what should be the legal position after the death
of Smt. Phoolbasa and her son namely Mannulal when it has been held that
the alleged will executed in favour of defendants nos.1 to 4 was not
proved. Certainly these properties were succeeded by her from her husband
or from her father-in-law, therefore, according to Section 15(2)(b) of the
Hindu Succesion Act, this shall devolve, in the absence of any son or
daughter of the deceased (including the children of any predeceased son or
daughter) upon the heirs of her husband. In this case, if we look to the
pedigree set forth in the plaint, the succeeding heir of her husband,
namely Chhatrapati, would be sister’s daughter which finds place as serial
no.4 in Entry IV of Class II of Schedule. When Radha Bai, the sister’s
daughter is said to be alive on the date of succession according to the
plaint allegations itself, then the plaintiff, in the reversionary right
will not get the ownership of the property.

In the result, the appeal is dismissed. The judgment and decree passed by
the trial court are hereby confirmed with the aforesaid modifications in
the finding regard the ‘Will’.”

9. Hence, present cross appeals filed by both side against each other
including purchaser-defendant no.5. Defendants nos.1 to 4 have preferred
Civil Appeal No.3410 of 2007 and the plaintiff has preferred Civil Appeal
No.3411 of 2007.

10. Mr. Naveen Prakash, learned counsel appearing for the plaintiff-
appellant in C.A. No.3411 of 2007 assailed the finding on the relationship
of Chhatrapati and Phoolbasa Bai as husband and legally married wife.
Learned counsel submitted that no witness from the side of defendant has
been examined to prove the marriage of Phoolbasa Bai with Chhatrapati.
Learned counsel further submitted that no finding has been recorded by the
Trial Court or the Appellate Court as to when Chhatrapati died. However,
in course of argument, learned counsel does not deny that Phoolbasa Bai was
living with the joint family when Chhatrapati was alive for the last 20
years, but there is no evidence of valid marriage.

11. We are unable to accept the submissions made by Mr. Naveen Prakash,
learned counsel appearing for the plaintiff-appellant. Indisputably, the
first wife of Chhatrapati died in the very early age and immediately
thereafter the original defendant No.1 Phoolbasa Bai started living with
Chhatrapati as his second wife. Out of the wedlock of Phoolbasa Bai and
Chhatrapati, one son was born, whose name was Mannu Lal. The said son of
Chhatrapati and Phoolbasa Bai died unmarried. It is also not in dispute
that the original owner Shiv Ram had only one son namely, Chhatrapati and
one daughter Sumitrabai. Phoolbasa Bai died during the pendency of the suit
in the year 1992. The relationship of Chhatrapati and Phoolbasa Bai has
not been denied. It has also not been denied that they had been living
together as husband and wife in a joint family.

12. In the fact of the case there is strong presumption in favour of the
validity of a marriage and the legitimacy of its child for the reason that
the relationship of Chhatrapati and Phoolbasa Bai are recognized by all
persons concerned.

13. In the case of A. Dinohamy vs. W.L. Balahamy, AIR 1927 PC 185, it was
held that where a man and woman are proved to have lived together as
husband and wife, the law will presume, unless the contrary is clearly
proved, that they were living together in consequence of a valid marriage,
and not in a state of concubinage. The Court observed as follows-

“The parties lived together for twenty years in the same house, and eight
children were born to them. The husband during his life recognized, by
affectionate provisions, his wife, and children, The evidence’ of the
Registrar of the District shows that for a long course of years the parties
were recognized as married citizens, and even the family functions and
ceremonies, such as, in particular, the reception of the relations and
other guests in the family house by Don Andris and Balahamy as host and
hostess–all such functions were conducted on the footing alone that they
were man and wife. No evidence whatsoever is afforded of repudiation of
this relation by husband or wife or anybody.”

14. In the case of Gokal Chand vs. Parvin Kumari, AIR 1952 SC 231, this
Court observed that continuous co-habitation of woman as husband and wife
and their treatment as such for a number of years may raise the presumption
of marriage, but the presumption which may be drawn from long co-habitation
is rebuttable and if there are circumstances which weaken and destroy that
presumption, the Court cannot ignore them.

15. It is well settled that the law presumes in favour of marriage and
against concubinage, when a man and woman have cohabited continuously for a
long time. However, the presumption can be rebutted by leading
unimpeachable evidence. A heavy burden lies on a party, who seeks to
deprive the relationship of legal origin. In the instant case, instead of
adducing unimpeachable evidence by the plaintiff, a plea was taken that the
defendant has failed to prove the fact that Phoolbasa Bai was the legally
married wife of Chhatrapati. The High Court, therefore, came to a correct
conclusion by recording a finding that Phoolbasa Bai was the legally
married wife of Chhatrapati.

16. For the aforesaid reason, we do not find any merit in C.A. No.3411 of
2007.

17. So far the validity of will is concerned, the High Court after
considering a catena of decisions came to the following conclusion:-

“26. If we apply the above law in the present matter it would appear that
the attesting witnesses were not examined because they were not alive and
will has been proved by only examining the scribe as P.W.3. Though it has
been stated by the Scribe that he has drafted and typed the will on the
instructions of the testatrix, but this fact appears to be false on the
face of the document itself; There are many suspicious circumstances
appearing on the face of document which go to suggest that in fact, nothing
was drafted or typed by the scribe on the instructions of the testatrix,
but a typed matter was placed before him for getting it registered showing
as the will of the testatrix. First of all, it would appear that though the
will has ended in the very second sheet but there is no space left for
signature of the scribe and the scribe has inserted his signature in
between the last two lines by using an ink pen. Secondly it appears that
the complete date like 18.8.1977 was not typed in the second page and only
-8-1977 was typed and figures like 18 have been inserted by an ink pen
showing as the document was executed on 18.8.1977. EX.D-72 Muktarnama was
also written and signed on the said date and the suspicious circumstance
appears that when this document (Muktarnama) was being executed, the thumb
impression over the alleged will was also taken by the beneficiaries and
the document writer was shown to be the Scribe of the document whereas, in
fact, the document was not scribed by him. Another important circumstance
is that the original defendant namely Smt. Phoolbasa had died on 20.9.1992
after filing of her written statement on 14.7.1987. The date of execution
of the will is 18.8.1977 but there is no whisper of her will in her written
statement which she had filed on the said date. Though it was not a
requirement of law, but under a normal human nature if she has pleaded the
detailed administration of property, vide para 9 of her written statement,
right from its acquisition by Shiv Ram to the date of filing of the suit,
(please see para 9 of the written statement). She should have mentioned
something about the will, if this alleged will was in her knowledge and she
in fact had executed the same in favour of defendant no. 1 to 4. These
circumstances which are highly suspicious, have not been removed or cleared
by the beneficiaries of the will and only by examining the scribe, who is
not an attesting witness and whose statement is not very satisfactory in
appreciation on all above points, particularly in the situation when the
testatrix was residing in the dominion of the beneficiaries and their
father and was keeping a fiduciary relations with them, it cannot be held
that a due execution of will has been proved by the defendants in
accordance with the provisions of section 68 or other provisions of the
Evidence Act. The finding recorded by the court below that due execution of
the will is proved, is not in accordance with law and the same is set
aside. The will is held to be not proved in this case.”

18. It is evident from the findings recorded by the High Court in the
paragraph referred to hereinabove that the Will suffers from serious
suspicious circumstances. The execution of a document does not mean
mechanical act of signing the document or getting it signed, but an
intelligent appreciation of the contents of the document and signing it in
token of acceptance of those contents.

19. Proof of a Will stands in a higher degree in comparison to other
documents. There must be a clear evidence of the attesting witnesses or
other witnesses that the contents of the Will were read over to the
executant and he, after admitting the same to be correct, puts his
signature in presence of the witnesses. It is only after the executant
puts his signature, the attesting witnesses shall put their signatures in
the presence of the executant.

20. In the instant case, the suspicious circumstance appears to be that
when the Will was being executed, the thumb impression over the alleged
Will was also taken by the beneficiaries and the document-writer was shown
to be scribe of the document, whereas the document was not scribed by him.
However, late Phoolbasa Bai although filed written statement before her
death, but she did not whisper anything about the Will in the written
statement. Admittedly, the Will was allegedly executed in 1977 whereas the
written statement was filed some time in 1987. Taking into consideration
all these facts, we do not filed any error in the conclusion arrived at by
the High Court. The said finding, therefore, needs no interference by this
Court.

21. For the reasons aforesaid, we do not find any merit in these appeals
which are accordingly dismissed.

…………………………….J.
(M.Y. Eqbal)

…………………………….J.
(Amitava Roy)
New Delhi,
April 08, 2015.

suit for declaration and permanent injunction,

The respondent herein filed the suit against the appellants seeking for
the relief of declaration of his title to the suit property and for
consequential relief of permanent injunction restraining the appellants
herein from interfering with his physical possession. Briefly the case of
the plaintiff is that the suit property belonged to Guramma wife of the
first defendant and the mother of the plaintiff and on her death the first
defendant had given declaration before the revenue authorities to change
the Katha in the name of the plaintiff in respect of the suit schedule
property and mutation was effected accordingly and the revenue record stood
in the name of the plaintiff for a long period of time. It is the further
case of the plaintiff that the first defendant entered into second
marriage with one Jayamma and defendants 2 to 5 are their children and they
denied the ownership of the plaintiff in the suit property and therefore,
the suit came to be filed.
—————————————————————————————————————

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 3725-3726 OF 2015
[Arising out of Special Leave Petition (Civil) Nos. 3377-3378 of2011]

H. Lakshmaiah Reddy & Ors. .. Appellants

-vs-

L. Venkatesh Reddy .. Respondent

J U D G M E N T

C. NAGAPPAN, J.

Leave granted.
These appeals are preferred against judgment dated 8.9.2010 in R.S.A.
No.1500 of 2009 by which the High Court of Karnataka at Bangalore allowed
the Second Appeal filed by the respondent herein and against the final
order dated 25.11.2010 in RP No.398/2010 by which the High Court dismissed
the Review Petition filed by the appellant.
The respondent herein filed the suit against the appellants seeking for
the relief of declaration of his title to the suit property and for
consequential relief of permanent injunction restraining the appellants
herein from interfering with his physical possession. Briefly the case of
the plaintiff is that the suit property belonged to Guramma wife of the
first defendant and the mother of the plaintiff and on her death the first
defendant had given declaration before the revenue authorities to change
the Katha in the name of the plaintiff in respect of the suit schedule
property and mutation was effected accordingly and the revenue record stood
in the name of the plaintiff for a long period of time. It is the further
case of the plaintiff that the first defendant entered into second
marriage with one Jayamma and defendants 2 to 5 are their children and they
denied the ownership of the plaintiff in the suit property and therefore,
the suit came to be filed.
A common written statement was filed by the defendant stating that the suit
property was purchased in the name of Guramma under registered sale deed
dated 14.11.1959 and sale consideration was paid by the first defendant and
after the death of Guramma, the first defendant married Jayamma in 1973 and
defendants 2 to 5 were born out of the wedlock and the plaintiff as well as
the first defendant being the legal heirs of Guramma had succeeded to the
suit property and the first defendant gifted a portion of suit property
measuring 5 acres in favour of defendants 2 to 5 by registered gift deed
dated 12.12.2003 and the suit is liable for dismissal.
The trial court framed seven issues and after consideration of oral and
documentary evidence dismissed the suit. On the appeal preferred by the
plaintiff, the lower appellate court held that the plaintiff and the first
defendant being class-I heirs of deceased Guramma are entitled to half
share each in the suit property and decreed the suit in part. Challenging
the same the plaintiff preferred second appeal and the High Court allowed
the same by setting aside the judgment of the lower appellate court and
decreed the suit in full as prayed for. Aggrieved by the same the
defendants have preferred the present appeals. For the sake of convenience,
the parties are described in this judgment as arrayed in the suit.
6. Mr. Basavaprabhu S. Patil, the learned senior counsel appearing for
the appellants mainly contended that the High Court has failed to note that
the plaintiff himself had never pleaded a case of relinquishment of the
share by the first defendant in the suit property and what was pleaded in
the plaint was that he had succeeded to the property of his mother
absolutely and his father namely the first defendant has consented before
the revenue authorities for change of name in the Katha in favour of the
plaintiff in respect of the suit schedule property and thus the first
defendant had acquiesced to the fact of the entire suit property being put
in the name of the plaintiff and according to the learned counsel the
mutation entry can never be considered as relinquishment of right or title
and the High Court has committed a serious error in accepting the case of
the plaintiff and in support of his submissions relied on the decision of
this Court in Balwant Singh and another vs. Daulat Singh (Dead) by Lrs.
And ors. [(1997) 7 SCC 137].
7. Per contra the learned Senior counsel appearing on behalf of the
respondents contended that pursuant to the statement made by the 1st
defendant to the Revenue Authorities, the entire suit property was put in
the name of plaintiff, by effecting mutation entry in Katha and revenue
records and thus the 1st defendant, by his conduct had acquiesced to the
said fact, as rightly held by the High Court. Alternatively the learned
senior counsel contended that even if this Court holds in law that the 1st
defendant continues to be the title holder of half of suit property as
class-I heir of deceased Guramma, in view of special circumstances, the
justice of the case does not require interference or the relief could be
moulded in a different fasion. In support of his submission he relied on
Taherakhatoon (D) By Lrs. Vs. Salambin Mohammad (1999) 2 SCC 635 and
Chandra Singh & Ors. Vs. State of Rajasthan & Anr. (2003) 6 SCC 545).
8. We considered the rival contentions. There is no dispute in the
factual matrix. Guramma was the first wife of 1st defendant and the
plaintiff was their only son and suit property was purchased by Guramma by
Exh. P-1 sale deed dated 14.11.1959 and the property stood in her name in
revenue record. The plaintiff was born on 1.10.1965 and Guramma died on
20.1.1966. As per Section 15 of the Hindu Succession Act, the husband and
the son of deceased Guramma, namely 1st defendant and the plaintiff, being
class-I heirs succeeded to the suit property. As per Exh. P-8, Katha of
suit property was changed to the name of plaintiff from his mother on
9.1.1990 and the endorsement therein made by the Tahsildar reveals that
the 1st defendant accepted the mutation of entry in the name of the
plaintiff, being their only son and on the basis of the said declaration,
the mutation was effected and it was not challenged. Exh. D-10 is the RTC
extract covering the period from 1989 to 1992 and the plaintiff was shown
as the owner of the suit property.
9. As rightly contended by the learned senior counsel apearing for the
appellants, 1st defendant did not relinquish or release his right in
respect of the half share in the suit property at any point of time and
that is also not the case pleaded by the plaintiff. The assumption on the
part of the High Court that as a result of the mututation, 1st defendant
divested himself of the title and possession of half share in suit
property is wrong. The mutation entries do not convey or extinguish any
title and those entries are relevant only for the purpose of collection
of land revenue. The observations of this Court in Balwant Singh’s case
(supra) are relevant and are extracted below :
“21. We have considered the rival submissions and we are of the view that
Mr Sanyal is right in his contention that the courts were not correct in
assuming that as a result of Mutation No. 1311 dated 19-7-1954, Durga Devi
lost her title from that date and possession also was given to the persons
in whose favour mutation was effected. In Sawarni vs. Inder Kaur (1996) 6
SCC 223, Pattanaik, J., speaking for the Bench has clearly held as
follows: (SCC p. 227, para 7)
“7. … Mutation of a property in the revenue record does not create or
extinguish title nor has it any presumptive value on title. It only enables
the person in whose favour mutation is ordered to pay the land revenue in
question. The learned Additional District Judge was wholly in error in
coming to a conclusion that mutation in favour of Inder Kaur conveys title
in her favour. This erroneous conclusion has vitiated the entire judgment.”

22. Applying the above legal position, we hold that the widow had not
divested herself of the title in the suit property as a result of Mutation
No. 1311 dated 19-7-1954. The assumption on the part of the courts below
that as a result of the mutation, the widow divested herself of the title
and possession was wrong. If that be so, legally, she was in possession on
the date of coming into force of the Hindu Succession Act and she, as a
full owner, had every right to deal with the suit properties in any manner
she desired.”

In the circumstances, we are of the opinion that the High Court erred in
concluding that the 1st defendant by his conduct had acquiesced and
divested himself of title of his half share in suit property and the
said erroneous conclusion is liable to be set aside.
10. The learned senior counsel appearing for the respondent/plaintiff
strenuously contended that the 1st defendant is now 90 years old and owns
lots of properties as enumerated in the list furnished by him before this
Court and the plaintiff is his only son through first wife and litigation
pertains to only one property namely the suit property and though this
Court gave ample opportunities, no settlement could be arrived at
between the parties and considering the special circumstances, this Court
in exercise of jurisdiction under Article 142 of the Constitution may not
interfere with the High Court judgment, which will do complete justice to
the parties and relied on the decisions cited supra.
11. We are not in a position to appreciate this contention. The High
Court misdirected itself and committed serious error warranting our
interference with the impugned judgment.
12. In the result the impugned judgment and decree of the High Court are
set aside and the judgment and decree of the lower appellate court is
restored and the appeals are allowed in the above terms. No costs.

…………………………….J.
(V. Gopala Gowda)

…………………………….J.
(C. Nagappan)
New Delhi;
April 17 , 2015

Aggrieved by the judgment and order passed by the High Court, partly
dismissing First Appeal No.92 of 2001, both the plaintiff and the
defendant have filed the aforementioned two appeals. While confirming
judgment and decree, the High Court reversed the finding recorded by the
trial court on the issue of will executed by the testatrix.

2. The plaintiff-Ganeshram, appellant in Civil Appeal No.3411 of 2007,
filed suit for declaration, possession and damages in relation to the two
suit houses described in Schedule A & B of the plaint, pleading inter alia
that the registered sale deed of 1987, executed by Phoolbasa Bai (original
defendant no.1, who died during the pendency of the suit) in favour of
defendant no.5 Mukesh Kumar Chourasia, which relates to some portion of
suit house, be declared illegal, void and not binding on him.

——————————————————————————————————————————————————————————————

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.3410 of 2007

DHANNULAL AND OTHERS …..Appellant(s)

versus

GANESHRAM AND ANOTHER …..Respondent(s)

WITH

Civil Appeal No.3411 of 2007
GANESHRAM …..Appellant(s)

versus

DHANNULAL AND OTHERS …..Respondent(s)

JUDGMENT

M. Y. EQBAL, J.

Aggrieved by the judgment and order passed by the High Court, partly
dismissing First Appeal No.92 of 2001, both the plaintiff and the
defendant have filed the aforementioned two appeals. While confirming
judgment and decree, the High Court reversed the finding recorded by the
trial court on the issue of will executed by the testatrix.

2. The plaintiff-Ganeshram, appellant in Civil Appeal No.3411 of 2007,
filed suit for declaration, possession and damages in relation to the two
suit houses described in Schedule A & B of the plaint, pleading inter alia
that the registered sale deed of 1987, executed by Phoolbasa Bai (original
defendant no.1, who died during the pendency of the suit) in favour of
defendant no.5 Mukesh Kumar Chourasia, which relates to some portion of
suit house, be declared illegal, void and not binding on him.

3. To understand factual matrix and issue involved in the case, we would
like to reproduce here the pedigree table as submitted before us:

Shivram
(Died in 1932)
____________________________________|_____________________________
| |
Sumitrabai (Daughter)(died in 1976) Chhatrapati(Son) (died in
1945)
Husband of Sumitra-Mangal Prasad Kept-wife: Phulbasabai (def.no.1)
(Died in 1954) |
| Mannulal (son)(
| (died unmarried on 14.4.1967)
______|___________________________
| |
Shyamlal (son) Radha Bai (daughter)
(died in 1973)
|
_______|____________________________________________________
| | |
Ganeshram (son) Laxmi Bai (daughter) Ganga Bai (daughter)
Plaintiff
4. The suit property was originally owned by Shivram who had a daughter
Sumitrabai and a son Chhatrapati. The plaintiff, the grandson of
Sumitrabai, filed a suit for declaration of ownership, possession and
damages in relation to the suit property against defendant nos.1 to 5. The
plaintiff challenged the validity of the Will dated 18.08.1977 purported to
have been executed by Phoolbasa Bai in favour of the sons of her brother
Gayaprasad, defendant nos.1-4. The plaintiff also challenged the validity
of the sale deed purported to have been executed by Phoolbasa Bai in 1987
in favour of defendant no. 5 in relation to a portion of the suit property.
5. The plaintiff alleged that Sumitrabai (plaintiff’s grandmother) had
become the owner of the suit property by adverse possession having stayed
therein, after the death of her husband Mangal, with her father Shivram
till his death in 1932 and till her own death in 1976. Phoolbasa Bai was
alleged to have been the mistress and not the legally wedded wife of
Chhatrapati and their son was alleged to have died unmarried and issueless
in 1967. The sale deed and the Will purported to have been executed by
Phoolbasa Bai were alleged to be illegal.

6. The suit was contested firstly by filing joint written statement by
the original defendants namely Phoolbasa Bai and Gaya Prasad stating that
after the death of Shiv Ram the entire property was succeeded by
Chhatrapati (his only son) as Sumitrabai was a married daughter. It was
further pleaded that Phoolbasa Bai, being the lawful wedded wife of
Chhatrapati, became the owner of the suit property after Chhatrapati’s
death in 1945. During the pendency of the suit, when Phoolbasa died, she
was substituted by defendant nos.1 to 4, who also filed separate written
statement in addition to earlier written statement filed by the original
defendants. Defendant no.5 also filed separate written statement claiming
to be the owner of the portion of property by virtue of a sale deed
executed in his favour in 1987.

7. The trial court dismissed the civil suit holding that the Will
executed by Phoolbasa in the year 1977 in favour of defendants nos.1 to 4
is legal and the sale effected by her during the pendency of the civil suit
in favour of defendant no.5 is also legal and valid. The trial judge
recorded the finding that Sumitra Bai had not perfected her title by
adverse possession and the plaintiff could not establish that Phoolbasa Bai
was a concubine of late Chhatrapati. The trial court also recorded a
finding that the plaintiff failed to establish that the Will was a
fraudulent and fabricated document.

8. Aggrieved by the judgment and decree of the trial court, plaintiff
moved the High Court preferring First Appeal, which was partly dismissed by
the learned Single Judge of the High Court. Although learned Single Judge
set aside the finding of the trial court on the issue of validity of the
Will on the ground that the Will was not proved as per law, but upheld the
sale deed executed by Phoolbasa Bai in favour of defendant no.5. The
concluding paragraphs of the impugned order are, therefore, quoted
hereinbelow:
“In the facts and circumstances, the sale in favour of defendant no.5 was a
valid sale and the same cannot be held to be illegal, void and not binding
against the plaintiff. The arguments advanced in this regard cannot be
accepted.
Now the question arises, what should be the legal position after the death
of Smt. Phoolbasa and her son namely Mannulal when it has been held that
the alleged will executed in favour of defendants nos.1 to 4 was not
proved. Certainly these properties were succeeded by her from her husband
or from her father-in-law, therefore, according to Section 15(2)(b) of the
Hindu Succesion Act, this shall devolve, in the absence of any son or
daughter of the deceased (including the children of any predeceased son or
daughter) upon the heirs of her husband. In this case, if we look to the
pedigree set forth in the plaint, the succeeding heir of her husband,
namely Chhatrapati, would be sister’s daughter which finds place as serial
no.4 in Entry IV of Class II of Schedule. When Radha Bai, the sister’s
daughter is said to be alive on the date of succession according to the
plaint allegations itself, then the plaintiff, in the reversionary right
will not get the ownership of the property.
In the result, the appeal is dismissed. The judgment and decree passed by
the trial court are hereby confirmed with the aforesaid modifications in
the finding regard the ‘Will’.”
9. Hence, present cross appeals filed by both side against each other
including purchaser-defendant no.5. Defendants nos.1 to 4 have preferred
Civil Appeal No.3410 of 2007 and the plaintiff has preferred Civil Appeal
No.3411 of 2007.

10. Mr. Naveen Prakash, learned counsel appearing for the plaintiff-
appellant in C.A. No.3411 of 2007 assailed the finding on the relationship
of Chhatrapati and Phoolbasa Bai as husband and legally married wife.
Learned counsel submitted that no witness from the side of defendant has
been examined to prove the marriage of Phoolbasa Bai with Chhatrapati.
Learned counsel further submitted that no finding has been recorded by the
Trial Court or the Appellate Court as to when Chhatrapati died. However,
in course of argument, learned counsel does not deny that Phoolbasa Bai was
living with the joint family when Chhatrapati was alive for the last 20
years, but there is no evidence of valid marriage.

11. We are unable to accept the submissions made by Mr. Naveen Prakash,
learned counsel appearing for the plaintiff-appellant. Indisputably, the
first wife of Chhatrapati died in the very early age and immediately
thereafter the original defendant No.1 Phoolbasa Bai started living with
Chhatrapati as his second wife. Out of the wedlock of Phoolbasa Bai and
Chhatrapati, one son was born, whose name was Mannu Lal. The said son of
Chhatrapati and Phoolbasa Bai died unmarried. It is also not in dispute
that the original owner Shiv Ram had only one son namely, Chhatrapati and
one daughter Sumitrabai. Phoolbasa Bai died during the pendency of the suit
in the year 1992. The relationship of Chhatrapati and Phoolbasa Bai has
not been denied. It has also not been denied that they had been living
together as husband and wife in a joint family.

12. In the fact of the case there is strong presumption in favour of the
validity of a marriage and the legitimacy of its child for the reason that
the relationship of Chhatrapati and Phoolbasa Bai are recognized by all
persons concerned.
13. In the case of A. Dinohamy vs. W.L. Balahamy, AIR 1927 PC 185, it was
held that where a man and woman are proved to have lived together as
husband and wife, the law will presume, unless the contrary is clearly
proved, that they were living together in consequence of a valid marriage,
and not in a state of concubinage. The Court observed as follows-

“The parties lived together for twenty years in the same house, and eight
children were born to them. The husband during his life recognized, by
affectionate provisions, his wife, and children, The evidence’ of the
Registrar of the District shows that for a long course of years the parties
were recognized as married citizens, and even the family functions and
ceremonies, such as, in particular, the reception of the relations and
other guests in the family house by Don Andris and Balahamy as host and
hostess–all such functions were conducted on the footing alone that they
were man and wife. No evidence whatsoever is afforded of repudiation of
this relation by husband or wife or anybody.”

14. In the case of Gokal Chand vs. Parvin Kumari, AIR 1952 SC 231, this
Court observed that continuous co-habitation of woman as husband and wife
and their treatment as such for a number of years may raise the presumption
of marriage, but the presumption which may be drawn from long co-habitation
is rebuttable and if there are circumstances which weaken and destroy that
presumption, the Court cannot ignore them.

15. It is well settled that the law presumes in favour of marriage and
against concubinage, when a man and woman have cohabited continuously for a
long time. However, the presumption can be rebutted by leading
unimpeachable evidence. A heavy burden lies on a party, who seeks to
deprive the relationship of legal origin. In the instant case, instead of
adducing unimpeachable evidence by the plaintiff, a plea was taken that the
defendant has failed to prove the fact that Phoolbasa Bai was the legally
married wife of Chhatrapati. The High Court, therefore, came to a correct
conclusion by recording a finding that Phoolbasa Bai was the legally
married wife of Chhatrapati.

16. For the aforesaid reason, we do not find any merit in C.A. No.3411 of
2007.

17. So far the validity of will is concerned, the High Court after
considering a catena of decisions came to the following conclusion:-

“26. If we apply the above law in the present matter it would appear that
the attesting witnesses were not examined because they were not alive and
will has been proved by only examining the scribe as P.W.3. Though it has
been stated by the Scribe that he has drafted and typed the will on the
instructions of the testatrix, but this fact appears to be false on the
face of the document itself; There are many suspicious circumstances
appearing on the face of document which go to suggest that in fact, nothing
was drafted or typed by the scribe on the instructions of the testatrix,
but a typed matter was placed before him for getting it registered showing
as the will of the testatrix. First of all, it would appear that though the
will has ended in the very second sheet but there is no space left for
signature of the scribe and the scribe has inserted his signature in
between the last two lines by using an ink pen. Secondly it appears that
the complete date like 18.8.1977 was not typed in the second page and only
-8-1977 was typed and figures like 18 have been inserted by an ink pen
showing as the document was executed on 18.8.1977. EX.D-72 Muktarnama was
also written and signed on the said date and the suspicious circumstance
appears that when this document (Muktarnama) was being executed, the thumb
impression over the alleged will was also taken by the beneficiaries and
the document writer was shown to be the Scribe of the document whereas, in
fact, the document was not scribed by him. Another important circumstance
is that the original defendant namely Smt. Phoolbasa had died on 20.9.1992
after filing of her written statement on 14.7.1987. The date of execution
of the will is 18.8.1977 but there is no whisper of her will in her written
statement which she had filed on the said date. Though it was not a
requirement of law, but under a normal human nature if she has pleaded the
detailed administration of property, vide para 9 of her written statement,
right from its acquisition by Shiv Ram to the date of filing of the suit,
(please see para 9 of the written statement). She should have mentioned
something about the will, if this alleged will was in her knowledge and she
in fact had executed the same in favour of defendant no. 1 to 4. These
circumstances which are highly suspicious, have not been removed or cleared
by the beneficiaries of the will and only by examining the scribe, who is
not an attesting witness and whose statement is not very satisfactory in
appreciation on all above points, particularly in the situation when the
testatrix was residing in the dominion of the beneficiaries and their
father and was keeping a fiduciary relations with them, it cannot be held
that a due execution of will has been proved by the defendants in
accordance with the provisions of section 68 or other provisions of the
Evidence Act. The finding recorded by the court below that due execution of
the will is proved, is not in accordance with law and the same is set
aside. The will is held to be not proved in this case.”

18. It is evident from the findings recorded by the High Court in the
paragraph referred to hereinabove that the Will suffers from serious
suspicious circumstances. The execution of a document does not mean
mechanical act of signing the document or getting it signed, but an
intelligent appreciation of the contents of the document and signing it in
token of acceptance of those contents.

19. Proof of a Will stands in a higher degree in comparison to other
documents. There must be a clear evidence of the attesting witnesses or
other witnesses that the contents of the Will were read over to the
executant and he, after admitting the same to be correct, puts his
signature in presence of the witnesses. It is only after the executant
puts his signature, the attesting witnesses shall put their signatures in
the presence of the executant.

20. In the instant case, the suspicious circumstance appears to be that
when the Will was being executed, the thumb impression over the alleged
Will was also taken by the beneficiaries and the document-writer was shown
to be scribe of the document, whereas the document was not scribed by him.
However, late Phoolbasa Bai although filed written statement before her
death, but she did not whisper anything about the Will in the written
statement. Admittedly, the Will was allegedly executed in 1977 whereas the
written statement was filed some time in 1987. Taking into consideration
all these facts, we do not filed any error in the conclusion arrived at by
the High Court. The said finding, therefore, needs no interference by this
Court.

21. For the reasons aforesaid, we do not find any merit in these appeals
which are accordingly dismissed.

…………………………….J.
(M.Y. Eqbal)

…………………………….J.
(Amitava Roy)
New Delhi,
April 08, 2015.

real estate law

On a plain reading of the words of Sections 52 and 54 of the Transfer of Property Act, we have no doubt that a sale which takes place after the institution of the suit in pursuance of a prior agreement to sell, is hit by Section 52 of the Transfer of Property Act. It is not necessary that the person who is adversely affected by Section 52 should have been made a party to the suit or that he should have had notice of the suit, (see Lakshmanan v. Kamal, AIR 1959 Kerala 67 and Krishnabai v. Savlaram, AIR 1927 Bom.

———————————————————————————————————————————————————————————————————-

 

Madhya Pradesh High Court

Munnilal Shyamle And Anr. vs Bhaiyalal Hazari And Ors. on 29 August, 1960

Equivalent citations: AIR 1962 MP 34

Author: Shrivastava

Bench: T Shrivastava, S Bhargava

JUDGMENT Shrivastava J.

  1. This Letters Patent appeal has been filed against the judgment of a single Judge of this Court (Chaturvedi J.) in Second Appeal No. 278 of 1957.
  2. The suit out of which that second appeal arose was filed by respondents 1 and 2 (Bhaiyalal and Bhajni) against the appellants Munnilal and Ramdayal as defendants 1 and 2 and respondent No. 3 Bharosa as defendant No. 3. For convenience we shall refer to respondents 1 and 2 as the plaintiffs and the appellants Munnilal and Ramdayal as the defendants.
  3. The subject-matter of the suit was 29.29 acres of land, situated in Khiria Khawas, Tahdil Rebli District Sagar, as also a house in that village. These properties belonged to Bharosa (respondent No. 3). On 30-9-1953 he contracted to sell these properties to the defendants. On 3-10-1953 the defendants gave a notice to the plaintiffs and others that they were purchasing the suit properties from Bharosa. On 2-12-1953 they filed a suit for specific performance against Bharosa and that suit was decreed. In April 1955, the defendants, dispossessed the plaintiffs from the land in execution of the decree obtained in the suit for specific performance.
  4. The plaintiffs’ (respondents 1 and 2) case was that on 20-9-1953, i.e., 10 days prior to the contract in favour of the defendants, Bharosa had contracted to sell the suit properties to them and had taken Rs. 600/- as part payment towards the sale price. The agreement was to execute a sale-deed within two months from that date. Such a sale-deed was executed in their favour on 25-1-1954. They continued in possession of the suit properties thereafter till they were dispossessed in April 1955 by the defendants. The plaintiffs, therefore, prayed that the decree obtained by the defendants in the suit for specific performance of the contract was not binding on them and they were entitled to get back possession of the suit properties.
  5. The defendants resisted the suit on the ground that the contract, dated 20-9-1953, was really entered into to defeat their claim on the basis of the contract dated 30-9-1953. According to them, it was an ante-dated document without consideration. They further contended that the sale-deed, dated 25-1-1954, which was executed during the pendency of the suit for specific performance, was hit by Section 52 of the Transfer of Property Act and was not, therefore, binding on them.
  6. The trial Court dismissed the suit upholding the contentions of the defendants that the plaintiffs’ contract was ante-dated and was entered into on 2-10-1953 after the contract with the defendants and with full knowledge of that contract. The Court also held that as the transfer was pendente lite, the plaintiffs were bound by the result of the suit for specific performance. The lower appellate Court, however, reversed these findings of the trial Court and concluded that the agreement, dated 20-9-1953 was real, genuine and for consideration. It further held that the defendant’s took the subsequent agreement, dated 30-9-1953, with the knowledge of the agreement in favour of the plaintiffs. Accordingly, it held that the doctrine of lis pendens did not apply to case and under Section 40 of the Transfer of Property Act the defendants could not claim possession of the lands as against the plaintiffs. The suit was accordingly decreed.

In second appeal, though the appellants had raided several grounds, the appeal was decided only on the question whether the transaction in favour of the plaintiffs was hit by Section 52 of the Transfer of Property Act. The learned single Judge came to the conclusion that that section did not apply to the facts of the case. The appeal was accordingly dismissed and it is against that decision that the defendants 1 and 2 have filed this Letters Patent appeal.

  1. Section 52 of the Transfer of Property Act provides that the property in suit cannot be transferred or otherwise dealt with by any party to the suit, so as to affect the rights of any other party thereto under any decree or order which may be made therein. The requirements of Section 52 were stated to be: (i) the pendency of a suit (ii) non-collusive character of the suit, (iii) any right to immovable property being in question in that suit and (iv) the other party having some right under the decree in that suit. If these requirements are satisfied, the other party is not bound by the transfer made during the pendency of the suit. (See Hiranya Bhusan v. Gouri Dutt, AIR 1943 Cal 227). The doctrine with which Section 52 is concerned rests upon the foundation that 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.
  2. As provided in Section 54 of the Transfer of Property Act, a contract for the sale of immoveable property does not, of itself, create any interest in or charge on such property. On the basis of such a contract, it is not therefore possible to contend that an interest in the property has been created. If a sale takes place in enforcement of such, a contract during the pendency of a suit, the sale cannot affect the parties to the suit. Under the English Law, a contract of sale for real property makes the purchaser the owner in equity of the estate. Such a distinction is not recognised in India. (See Maung Shwe Goh v. Maung Inn, AIR 1916 PC 139 and also Mohammad Saddiq v. Ghasi Ram, AIR 1946 Lah 322 (FB)). Accordingly, by a mere agreement to sell no interest in the immoveable property is created. The observations from Blackwood v. London Chartered Bank of Australia, 1874 LR 5 PC 92 at p. 111, quoted by the learned single Judge have no application to India where the distinction between legal and equitable estate does not exist
  3. The first case referred to by the learned single Judge is Sheikh Bikala v. Sheik Ali, AIR 1950 Orissa 210. In that case, a mortgage was created by the defendant prior to the institution of the suit during the pendency of which sale in enforcement of the mortgage took place. It was held that that transfer was not affected by Section 52 of the Transfer of Property Act. The reason for this is that the transfer had already taken place prior to the institution of the suit and it was only that right which was later enforced. The only principle which was laid down in that case is that rights prior to the institution of the suit are not affected by Section 52. The same principle has been laid down in Renuka Bala v. Nagendra Nath, AIR 1939 Cal 055, which is the second case referred to.
  4. In the third case, Narayan Prasad v. Rajkishore, AIR 1951 Pat 613, A had agreed to grant a lease to B of a cinema theatre at a future date provided B made the necessary repairs to make it fit for purpose of cinema shows within a period of 9 months. B entered into possession under the agreement to make the repairs. C who had notice of this contract took a lease from A of the theatre within the period of 9 months. On A’s failure to give possession, C sued A for specific, performance and obtained a decree. During the pendency of the suit, A executed a registered lease in favour of B in pursuance of the prior agreement. B then brought a suit against C for injunction restraining him from executing the decree against him. It was held, under these circumstances, that B was not bound by the result of the suit filed by C as his rights were in enforcement of a prior agreement.

It appears from the discussion in paragraph 4 of that judgment that the agreement to lease was actually treated as a lease, as Section 2 of the Transfer of Property Act defines a lease to include “an agreement to lease”. According to that definition, an agreement to lease is not just an agreement but it “effects an actual demise and operates as a lease”. Under these circumstances, the agreement in that case operated as a transfer of property and the doctrine of lis pendens did not therefore apply, as the subsequent transfer was merely to enforce the earlier transfer. That case, therefore, fell within the principle laid down in the Orissa and the Calcutta cases, cited in the earlier paragraph.

  1. The fourth case which has been cited by the learned single Judge is Guru Basappa v. Santhappa, 48 Mad LJ 496 : AIR 1925 Mad 710. In that case, a sale-deed was executed prior to the suit for specific performance, but it was registered after the institution thereof. In such a case, the registration of a document under the Registration Act operates from the date of the document and therefore in that case the transfer really took place before the suit. Naturally, “therefore, the doctrine of lis pendens did not apply, as the case did not at all fall within Section 52 of the Transfer of Property Act. The observations of their Lordships that the mere filing of a Plaint by any person in respect of the property already conveyed would not prevent the vendee from enforcing his rights under the document, which had been executed, fully disposed of the case before them. And the further observations that the vendee in such a case could sue for specific performance of the contract of sale were unnecessary and are in the nature of obiter. The respondents 1 and 2, in the instant case, do not derive any help from that decision.
  2. In the cases relied upon by the learned single Judge we do not find anything directly laying down that a sale after the suit in pursuance of an agreement before the suit is protected against the operation of Section 52 of the Transfer of Property Act
  3. In Bishan Singh v. Khazan Singh, AIR1958 SC 838, their Lordships of the Supreme Court laid down the principle in the following words:

“The doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a preexisting right. If the sale is a transfer in recognition of a pre-existing, and subsisting right, it would not be affected by the doctrine, as the said transfer did not create new right pendente lite; but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite.”

In our opinion, the expression “pre-existing and subsisting” right was intended by their Lordships to refer to a transaction amounting to a transfer of interest in property and not to a mere agreement to sell.,

  1. In Dakshinamurthi v. Sitharamayya, 1958-1 Andh WR 85, the question arose in the context of a transfer of a specific item of joint Hindu family property by a co-sharer pending a partition action in pursuance of an agreement entered into prior to that suit. It was held that the sale was hit by Section 52 of the Transfer of Property Act, though the alienee was entitled to work out his equities in the partition suit. The conclusion was supported thus:

“The terms of Section 52 are quite clear that the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as So affect the rights of any other party thereto during the pendency of the suit Or proceeding. The transfer under Section 54 can be effected only by a registered instrument. The facts establish beyond doubt that the sale was effected only after the institution of the suit. So, on the date of the filing of the suit, defendants 2 and 3 had a right in the B schedule properties. The fact that they entered into an agreement prior to that date to sell the properties to the 5th defendant does not affect the application of Section 52 of the Transfer of Property Act.”

  1. On a plain reading of the words of Sections 52 and 54 of the Transfer of Property Act, we have no doubt that a sale which takes place after the institution of the suit in pursuance of a prior agreement to sell, is hit by Section 52 of the Transfer of Property Act. It is not necessary that the person who is adversely affected by Section 52 should have been made a party to the suit or that he should have had notice of the suit, (see Lakshmanan v. Kamal, AIR 1959 Kerala 67 and Krishnabai v. Savlaram, AIR 1927 Bom 93). The contention that respondents 1 and 2 did not have any notice of the suit, which was filed by the appellants for specific performance, has therefore no force.
  2. Shri R. K. Pandey for the respondents points out that the lower appellate Court had found that respondents 1 and 2 had been placed in possession of the property on 20-9-1953 and the appellants had notice of their contract on 30-9-1953. Shri Pandey further contends that as the sale in favour of respondents 1 and 2 was in writing and as they were placed in possession, they had a right to contest the appellants’ claim under Section 53A of the Transfer of Property Act. If the vendor himself could not claim possession from the respondents, the position of the appellants could be no better. Shri B. L. Seth, learned counsel for the appellants, on the other hand, contests the accuracy of these findings on the ground that they are contrary to the pleadings of the plaintiffs in the case and are not supported by any evidence.
  3. As we have said earlier, the learned single Judge decided the second appeal on the abstract proposition of law that a transfer in pursuance of a prior agreement to sell cannot be affected by Section 52, The other points, which were raised in the grounds of appeal, were not considered by him, as the decision on this point was considered sufficient to dispose of the appeal. The decision in the Letters Patent appeal should be confined to examining the correctness of the point actually decided by the learned single Judge. It will not be right for us to decide all the other grounds raised in support of the appeal. Accordingly, the only proper course which should, in our opinion, be adopted in this case is to send back the case for a decision on the other points.
  4. Accordingly, the decision of the learned single Judge dismissing the second appeal is set aside. The appeal shall now be heard as a second appeal on other grounds raised by the appellants. Costs of this Letters Patent appeal shall be borne in accordance with such orders as may be passed in second appeal in this respect.