TMI Blog2015 (7) TMI 1310X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n they have pleaded in their written statement that the suit schedule properties mentioned in the schedules A C have already been partitioned amongst themselves, therefore, the plaintiff is not entitled for any further share in the suit properties. In so far as the B schedule property, bearing No. 45, Sant Nagar, East of Kailash, New Delhi, is concerned, it is stated by them that the same cannot be a subject matter of partition as it is the self acquired property of the deceased-first defendant (who is the father-in-law of the plaintiff) as he had acquired the same out of his self earned savings from his employment and he has constructed the building on the said property out of his own funds. Therefore, it is pleaded that the plaintiff is not entitled for the reliefs as prayed by her in respect of the suit schedule B property. It is further contended by them that the deceased-first defendant was working in the defence department. While he was in employment, he had purchased the said property in the year 1954 vide sale deed dated 22.3.1954 for a sum of ₹ 400/-. In the year 1954, he was getting the salary of ₹ 201/- per month i.e. ₹ 120/- + (9 increments X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 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 ₹ 1,82,000/- to the husband of the plaintiff while the balance amount from ₹ 6,00,000/- was distributed amongst defendant Nos.1 to 4 and the wife of defendant No.2. 7. In so far as the ancestral property of the agricultural land at Ropar District is concerned, it is stated in the written statement of the deceased-first defendant that the aforesaid ancestral property was divided between him, his two brothers and one sister and during the division of that property, a piece of land measuring about 8 kanals and 18 marlas situated in village Patial, District Ropar came to the share of the deceased-first defendant in the year 1972. The said land was given on Batai for cultivation and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, urging various legal grounds in justification of her claim. The First Appellate Court, after adverting to the various rival legal submissions urged on behalf of the parties and on re-appreciation of the evidence on record, examined the correctness of the findings recorded on issue No.4 by the trial court in its judgment dismissing the suit of the plaintiff and not granting any share in the suit schedule B property to her, has held that the said property is the self acquired property of the deceased-first defendant and declined to interfere with the judgment of the trial court in respect of the said property. 11. We have taken into consideration the relevant facts pleaded by the plaintiff that her husband had sent money from Kuwait to the deceased-first defendant for construction of the building situated at No.45, Sant Nagar, East of Kailash, New Delhi during the period of October, 1980 and December, 1981. Further, as per the document produced at Ext.P-5, an amount of ₹ 1 lakh was sent by the husband of the plaintiff to his father by way of bank draft and cash. Out of that an amount of ₹ 17,350/- was given to the plaintiff and the remaining amount of ₹ 82,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offer to pay ₹ 15 lakhs to the plaintiff, provided that she undertakes not to litigate the case any further and vacate and hand over the possession of the second floor of the schedule B property to the deceased-first defendant or his nominee which offer was rejected by the plaintiff. 12. We have examined the correctness of the findings recorded by the First Appellate Court on the contentious issue no.4 with reference to the evidence on record. During the cross-examination of the deceased-first defendant by the plaintiff s counsel before the trial court, he has categorically admitted certain facts and elicited the following relevant positive evidence on record which supports the plaintiff s case. The English translation of certain admitted portions of the evidence of the deceased-first defendant furnished by the plaintiff s counsel is recorded and extracted hereunder for our consideration and examination of the findings of fact recorded on the contentious issue No.4:- Evidence of PW-1 Shri Ram Singh, the father-in-law of the plaintiff: 2 The house at Sant Nagar was built from his retirement benefits of ₹ 1 lakh and loans from friends. 3. Admits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ₹ 1 lakh by way of bank draft and cash from the deceased husband of the plaintiff, while he was working in Kuwait which amount was utilised by the deceased-first defendant for the reconstruction of the building in the B suit schedule property. In view of the above evidence elicited from the deceased-first defendant, the First Appellate Court was not right in making an observation in the impugned judgment that the plaintiff is only entitled for the refund of the said amount from the deceased first defendant even though there is substantive and positive evidence on record to the effect that the amount sent by the deceased husband ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before this Court and he has also not requested for a leave before this Court by filing an application as required under Order 22 Rule 10 CPC to defend his claim that the schedule B property was devolved upon him on the basis of the said gift deed. Therefore, the defendants counsel was directed by us to produce the copy of the will/gift deed, alleged to have been executed after the passing of the impugned judgment by the First Appellate Court, in favour of the second defendant by the deceased first defendant in respect of the schedule B property and before the filing of special leave petition by the plaintiff. The same was produced by the defendants counsel by way of compilation of the documents including the copy of the alleged Will dated 1.10.2004 along with the gift deed dated 8.02.2011, purported to have been executed by the deceased-first defendant in favour of the second defendant-J.P. Singh in respect of the suit schedule B property. The learned counsel for the defendants has also furnished copies of the judgments upon which she has placed reliance in support of the case of the defendants. 16. This Court on 16.8.2013 issued notice on the prayer of the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule 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 merely because the interest of a party in the subject-matter of the suit has devolved upon another during the pendency of the suit but that suit may be continued against the person acquiring the interest with the leave of the court. The relevant paragraph from the said decision of Dhurandhar Prasad Singh case (supra) reads thus: 9. In the case of Rikhu Dev, Chela Bawa Harjug Dass v. Som Dass while considering the effect of devolution of interest within the meaning of Order 22 Rule 10 of the Code, on the trial of a suit during i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhar Prasad Singh (supra) at paras 6, 7 and 8 with regard to the above said proposition of law, the relevant paras from the above judgment are extracted hereunder: 6. In order to appreciate the points involved, it would be necessary to refer to the provisions of Order 22 of the Code, Rules 3 and 4 whereof prescribe procedure in case of devolution of interest on the death of a party to a suit. Under these Rules, if a party dies and right to sue survives, the court on an application made in that behalf is required to substitute legal representatives of the deceased party for proceeding with a suit but if such an application is not filed within the time prescribed by law, the suit shall abate so far as the deceased party is concerned. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit other than those referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made to be brought on the record in the original court during the pendency of the suit. (emphasis laid by this Court) The legal principles laid down in the aforesaid paragraphs from the judgment referred to supra would clearly go to show that this Court has laid down the legal principle to the effect that the absence of any leave sought by the second defendant on the ground that his interest has devolved upon the schedule B property of the deceased-first defendant, would not affect the relief sought by the plaintiff during the pendency of the proceedings before this Court when no application has been submitted either by the plaintiff or by the second defendant in this regard. 21. The legality of the alleged gift deed executed in favour of the second defendant by the deceased-first defendant in respect of the schedule B property has been further examined by us and the same is hit by Section 52 of the of the Transfer of Property Act, 1882, in the light of the decision of this Court in the case of Jagan Singh v. Dhanwanti(2012) 2 SCC 628), wherein this Court has laid down the legal principle that under Section 52 of the Transfer of Property Act, 1882, the lis cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit under Order 9 Rule 2 of the Civil Procedure Code and the date of its restoration, the lis does not continue. 33. It is relevant to note that even when Section 52 of the TP Act was not so amended, a Division Bench of the Allahabad High Court had following to say in Moti Chand v. British India Corpn. Ltd.: The provision of law which has been relied upon by the appellants is contained in Section 52, TP Act. The active prosecution in this section must be deemed to continue so long as the suit is pending in appeal, since the proceedings in the appellate court are merely continuation of those in the suit. 34. If such a view is not taken, it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail. The Explanation to this section lays down that the pendency of a suit or a proceeding shall be deemed to continue until the suit or a proceeding is disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the senior counsel on behalf of the plaintiff, we have examined the case on merit in these proceedings based on proper appreciation of evidence on record and we have to reverse the concurrent finding on the contentious issue no.4 for the reasons recorded by us in the preceding paragraphs of this judgment. Accordingly, we set aside the concurrent finding recorded by both the trial court and the First Appellate Court on issue no.4. We conclude that the courts below have failed to exercise their jurisdiction and power properly, thereby causing a grave miscarriage of justice to the rights of the plaintiff upon the B schedule property. 24. The plaintiff must succeed for one more alternate reason viz. that the deceased-first defendant died during the pendency of the proceedings and therefore, Section 8 of the Hindu Succession Act, 1956, will come into operation in respect of the suit schedule B property even if it is considered that the said property is a self acquired property of the deceased-first defendant. 25. Therefore, we have to record the finding of fact with respect to the gift deed and hold that the same is invalid as it is evident from the factual and legal aspec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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