2015 (7) TMI 1310 - SC - Indian Laws

Grant of the decree of partition of her share in the B suit schedule property - self acquired property of the deceased-first defendant - Whether the property bearing No.45 Sant Nagar East of Kailash New Delhi has been constructed out of joint family funds or out of funds received by the first defendant from late Shri R.D. Singh the husband of the plaintiff? - Held that - The First Appellate Court was not right in making an observation in the impugned judgment that the plaintiff is only entitled for the refund of the said amount from the deceased first defendant even though there is substantive and positive evidence on record to the effect that the amount sent by the deceased husband of the plaintiff was utilised by the deceased first defendant for the purpose of construction of the building upon the suit schedule B property. The physical possession of the entire suit schedule B property could not have been given to the second defendant in the light of the undisputed fact that the physical possession of the second floor of the schedule B property is with the plaintiff. Further the plaintiff is in the possession of the second floor in her independent right of her husband s share after they separated from the family. Therefore the alleged gift deed executed by the deceased-first defendant in favour of the second defendant during the pendency of the proceedings with respect to the suit schedule B property is not legally correct as it is the joint family property and even otherwise the same cannot be acted upon by the parties - the courts below have failed to exercise their jurisdiction and power properly thereby causing a grave miscarriage of justice to the rights of the plaintiff upon the B schedule property. The plaintiff must succeed for one more alternate reason viz. that the deceased-first defendant died during the pendency of the proceedings and therefore Section 8 of the Hindu Succession Act 1956 will come into operation in respect of the suit schedule B property even if it is considered that the said property is a self acquired property of the deceased-first defendant. The said property of the deceased-first defendant would devolve upon the deceased husband of the plaintiff along with the second defendant and the other daughters of the deceased-first defendant as they are the joint owners of the said property by virtue of being Class I legal heirs of the deceased-first defendant as per the schedule to the Hindu Succession Act 1956 upon the death of the first defendant - the plaintiff is entitled for 1/4th share in the suit schedule B property. The impugned judgments and decree passed by the trial court and the First Appellate Court are hereby set aside in so far as B schedule property is concerned - civil appeal allowed.

Issues Involved:
1. Whether the property bearing No. 45, Sant Nagar, East of Kailash, New Delhi, has been constructed out of joint family funds or out of funds received by the first defendant from the plaintiff's late husband.
2. The validity of the alleged gift deed executed by the deceased-first defendant in favor of the second defendant during the pendency of the proceedings.
3. The applicability of Section 8 of the Hindu Succession Act, 1956, upon the death of the first defendant.

Issue-wise Detailed Analysis:

1. Construction of Property No. 45, Sant Nagar:
The plaintiff sought partition of several properties, including Property No. 45, Sant Nagar, East of Kailash, New Delhi (Schedule 'B' property). The defendants argued that this property was self-acquired by the deceased-first defendant using his savings and retirement benefits. The trial court and the First Appellate Court both ruled in favor of the defendants, concluding that the property was self-acquired and not subject to partition. However, the Supreme Court found substantive evidence indicating that the plaintiff's husband had sent money from Kuwait, which was used for the construction of the property. The deceased-first defendant admitted receiving Rs. 82,000 from the plaintiff's husband, which was used for the construction. Therefore, the Supreme Court held that the concurrent findings of the lower courts were erroneous, and the property should be considered part of the joint family property.

2. Validity of the Gift Deed:
The second defendant claimed ownership of the Schedule 'B' property based on a gift deed executed by the deceased-first defendant. The Supreme Court examined the legality of this gift deed and found it invalid. The gift deed was executed during the pendency of the proceedings, which is prohibited under Section 52 of the Transfer of Property Act, 1882. The second defendant failed to seek leave from the court to continue the suit as required under Order 22 Rule 10 of the CPC. Additionally, the gift deed falsely claimed that the second defendant had physical possession of the entire property, while the plaintiff was in possession of the second floor. Therefore, the gift deed could not be acted upon, and the property remained part of the joint family property.

3. Applicability of Section 8 of the Hindu Succession Act, 1956:
The Supreme Court noted that the deceased-first defendant died during the pendency of the proceedings. As a result, Section 8 of the Hindu Succession Act, 1956, came into operation. Even if the property was considered self-acquired, it would devolve upon the deceased-first defendant's heirs, including the plaintiff, her deceased husband, and the other defendants. The Court concluded that the plaintiff was entitled to a 1/4th share in the Schedule 'B' property.

Conclusion:
The Supreme Court allowed the appeal, granting the plaintiff a 1/4th share in the Schedule 'B' property and setting aside the judgments of the trial court and the First Appellate Court. The trial court was directed to draw up a decree in terms of the Supreme Court's judgment, ensuring the plaintiff's share is divided by metes and bounds and putting her in absolute possession of her share. The Supreme Court also addressed the issue of costs, directing the trial court to include them in the decree.

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