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TMI Blog2015 (7) TMI 1310X X X X Extracts X X X X X X X X Extracts X X X X ..... he consideration of the case with reference to the rival legal contentions urged on behalf of the parties. 3. The plaintiff (the appellant herein) filed civil suit No.2172 of 2003 before the trial court against the defendants (the respondents herein) for the partition of the following properties in favour of her late husband's share, contending thereby that all the properties are jointly owned by the family:- A Agricultural land at village Jahgirpur and at village Patial B Property bearing No.45, Sant Nagar, East of Kailash, New Delhi C Property situated at Kothi No.56, Giani Zail Singh Nagar, Ropar The said civil suit was contested by the defendants wherein they have pleaded in their written statement that the suit schedule properties mentioned in the schedules 'A' & 'C' have already been partitioned amongst themselves, therefore, the plaintiff is not entitled for any further share in the suit properties. In so far as the 'B' schedule property, bearing No. 45, Sant Nagar, East of Kailash, New Delhi, is concerned, it is stated by them that the same cannot be a subject matter of partition as it is the self acquired property of the deceased-first defendant (who is the father- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... band of the plaintiff towards the construction of the said building is produced by the plaintiff before the trial court to justify her claim. The second defendant was also examined in the case as DW-2 in support of the case of the deceased-first defendant with regard to the suit schedule 'B' property. The trial court on the basis of the pleadings made before it, has framed certain issues for its determination and the same are answered against the plaintiff by it on the basis of the evidence produced by the parties on record. 6. The case of the plaintiff is that the dispute arose between the plaintiff's husband and the defendants when her husband returned from Kuwait to Delhi. With the intervention of relatives and well-wishers of the parties, it was decided between them that the basement, ground floor and second floor of the Sant Nagar property will devolve upon him and the rent earned from the same will also be paid to him. The deceased-first defendant had purchased a plot of land in Saini Farms in the name of the late husband of the plaintiff. The said plot was sold by the deceased-first defendant who gave an amount of only Rs. 1,82,000/- to the husband of the plaintiff while th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e agricultural land, measuring about 8 kanals and 18 marlas. However, she was not granted any share in the suit schedule 'B' property, holding that it is the self acquired property of the deceased first defendant. 10. Aggrieved by the same, the plaintiff filed Regular First Appeal(OS) No.41 of 2011 before the Division Bench of the High Court under Section 96 of the Civil Procedure Code, 1908 ("C.P.C.") read with Section 10 of the Delhi High Court Act, 1966, against the judgment and decree dated 21.1.2011 passed by the trial court in so far as the dismissal of the suit in respect of the suit schedule 'B' property is concerned, urging various legal grounds in justification of her claim. The First Appellate Court, after adverting to the various rival legal submissions urged on behalf of the parties and on re-appreciation of the evidence on record, examined the correctness of the findings recorded on issue No.4 by the trial court in its judgment dismissing the suit of the plaintiff and not granting any share in the suit schedule 'B' property to her, has held that the said property is the self acquired property of the deceased-first defendant and declined to interfere with the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the other issues by recording its reasons in the impugned judgment in favour of the defendants. Further, it has been held by the First Appellate Court that at best, the plaintiff would be entitled for refund of the amount which was sent by her deceased husband to the deceased-first defendant for the construction of the building upon the schedule 'B' property with interest or compensation. The First Appellate Court in its penultimate paragraph of the impugned judgment has observed that to bring the curtains down and to obviate any further litigation before the Supreme Court, the second defendant has made an offer to pay Rs. 15 lakhs to the plaintiff, provided that she undertakes not to litigate the case any further and vacate and hand over the possession of the second floor of the schedule 'B' property to the deceased-first defendant or his nominee which offer was rejected by the plaintiff. 12. We have examined the correctness of the findings recorded by the First Appellate Court on the contentious issue no.4 with reference to the evidence on record. During the cross-examination of the deceased-first defendant by the plaintiff's counsel before the trial court, he has categorical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmits that he has no documentary proof that the appellant's husband had received Rs. 6 lakhs from the sale of plot at Saini Enclave. 22. He states that he spent approximately Rs. 1,42,000/- on the construction of the house in Sant Nagar i.e. basement, ground, first and second floor together one common store on the 3rd floor. 23. ......That the loan from Sahara investment was to the tune of Rs. 30,000/-. A further loan of Rs. 30,000/- was obtained from one Mr. Harydaya...." 13. In the light of the above admissions made by the deceased-first defendant in his statement of evidence deposed before the trial court, the most important fact that has come to light in his admission is that he had received money from the plaintiff's husband while he was in Kuwait. He has also admitted that the plaintiff's husband had a share in the ancestral property that consists of 8 kanals and 18 marlas. Further, the deceased-first defendant has admitted in his statement of evidence before the Additional District Judge on 11.12.2003 in another proceeding between the parties that he had received an amount of Rs. 1 lakh by way of bank draft and cash from the deceased husband of the plaintiff, while he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned senior counsel Mr. J.P. Cama on behalf of the plaintiff and the learned counsel Ms. Rakhi Ray on behalf of the defendants. On 11.3.2015, when the arguments were concluded on merits, we directed the parties to file a compilation of the pleadings. The fact regarding the will/gift deed was brought to our notice by the learned senior counsel on behalf of the plaintiff only at the time of concluding his submissions in this appeal, at the stage of final disposal of the SLP. The said fact has not been disclosed by the second defendant before this Court and he has also not requested for a leave before this Court by filing an application as required under Order 22 Rule 10 CPC to defend his claim that the schedule 'B' property was devolved upon him on the basis of the said gift deed. Therefore, the defendants' counsel was directed by us to produce the copy of the will/gift deed, alleged to have been executed after the passing of the impugned judgment by the First Appellate Court, in favour of the second defendant by the deceased first defendant in respect of the schedule 'B' property and before the filing of special leave petition by the plaintiff. The same was produced by the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant is also hit by Section 52 of the Transfer of Property Act, 1882, as the said deed was executed during the pendency of the proceedings and before the expiry of the period of limitation for filing SLP. Further, during the pendency of these proceedings, the second defendant, who has claimed to be the alleged beneficiary of the suit schedule 'B' property on the basis of alleged gift deed should have sought leave of this Court as the donee and brought the aforesaid fact of execution of the alleged gift deed in respect of 'B' schedule property by the deceased first defendant, which property has been devolved in his favour, to the notice of this Court as provided under Order 22 Rule 10 of the C.P.C. and defended his right as required under the law as laid down by this Court in a catena of cases. In the case of Dhurandhar Prasad Singh v. Jai Prakash University & Ors. (2001) 6 SCC 534), this Court has interpreted Order 22 Rule 10 of the C.P.C. after adverting to its earlier decision in the case of Rikhu Dev Chela Bawa Harjug Dass v. Som Das (deceased) Through Chela Shiama Dass(1976) 1 SCC 103) in support of the proposition of law that the trial of a suit cannot be brought to an end me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty lies upon the person on whom such an interest has devolved upon any such property to apply for leave of the court in case the factum of devolution was within his knowledge or with due diligence could have been known by him. 20. The factum of the said alleged gift deed was not made known to this Court by the second defendant who is the beneficiary of the said gift deed till the last stage of conclusion of submission by the learned counsel. Reliance has been placed upon the decision of this Court in the case of Dhurandhar Prasad Singh (supra) at paras 6, 7 and 8 with regard to the above said proposition of law, the relevant paras from the above judgment are extracted hereunder: "6. In order to appreciate the points involved, it would be necessary to refer to the provisions of Order 22 of the Code, Rules 3 and 4 whereof prescribe procedure in case of devolution of interest on the death of a party to a suit. Under these Rules, if a party dies and right to sue survives, the court on an application made in that behalf is required to substitute legal representatives of the deceased party for proceeding with a suit but if such an application is not filed within the time prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failure to seek leave or bring on record the person upon whom the interest has devolved during the pendency of the suit was the subject-matter of consideration before this Court in various decisions. In the case of Saila Bala Dass i v. Nirmala Sundari Dass i T.L. Venkatarama Aiyar, J., speaking for himself and on behalf of S.R. Das, C.J. and A.K. Sarkar and Vivian Bose, JJ. laid down the law that if a suit is pending when the transfer in favour of a party was made, that would not affect the result when no application had been made to be brought on the record in the original court during the pendency of the suit." (emphasis laid by this Court) The legal principles laid down in the aforesaid paragraphs from the judgment referred to supra would clearly go to show that this Court has laid down the legal principle to the effect that the absence of any leave sought by the second defendant on the ground that his interest has devolved upon the schedule 'B' property of the deceased-first defendant, would not affect the relief sought by the plaintiff during the pendency of the proceedings before this Court when no application has been submitted either by the plaintiff or by the second def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered. At p. 228 in Sir Dinshah Mulla's 'Transfer of Property Act', 4th Edn., after referring to several authorities, the law is stated thus: ' Even after the dismissal of a suit a purchaser is subject to "lis pendens", if an appeal is afterwards filed.'If after the dismissal of a suit and before an appeal is presented, the 'lis' continues so as to prevent the defendant from transferring the property to the prejudice of the plaintiff, I fail to see any reason for holding that between the date of dismissal of the suit under Order 9 Rule 2 of the Civil Procedure Code and the date of its restoration, the 'lis' does not continue.' 33. It is relevant to note that even when Section 52 of the TP Act was not so amended, a Division Bench of the Allahabad High Court had following to say in Moti Chand v. British India Corpn. Ltd.: "... The provision of law which has been relied upon by the appellants is contained in Section 52, TP Act. The active prosecution in this section must be deemed to continue so long as the suit is pending in appeal, since the proceedings in the appellate court are merely continuation of those in the suit." 34. If such a view is not taken, it would plainly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, the plaintiff is in the possession of the second floor in her independent right of her husband's share after they separated from the family. Therefore, the alleged gift deed executed by the deceased-first defendant in favour of the second defendant during the pendency of the proceedings with respect to the suit schedule 'B' property is not legally correct as it is the joint family property and even otherwise the same cannot be acted upon by the parties. 23. On the basis of the legal submissions made by the senior counsel on behalf of the plaintiff, we have examined the case on merit in these proceedings based on proper appreciation of evidence on record and we have to reverse the concurrent finding on the contentious issue no.4 for the reasons recorded by us in the preceding paragraphs of this judgment. Accordingly, we set aside the concurrent finding recorded by both the trial court and the First Appellate Court on issue no.4. We conclude that the courts below have failed to exercise their jurisdiction and power properly, thereby causing a grave miscarriage of justice to the rights of the plaintiff upon the 'B' schedule property. 24. The plaintiff must succeed for one more ..... X X X X Extracts X X X X X X X X Extracts X X X X
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