TMI Blog2012 (1) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle Judge of Allahabad High Court dismissing the Second Appeal No.982 of 2004 filed by the appellant herein (original plaintiff). By dismissing this Second Appeal, the learned Single Judge has confirmed the judgment and order dated 28.7.2004 passed by the Additional District Judge, Bijnaur in Civil Appeal No.97 of 2002 whereby the learned Additional District Judge has dismissed the said appeal of the appellant herein against the judgment and order dated 13.2.2002 passed by the Civil Judge, Junior Division, Najibabad which dismissed the Original Suit No.121 of 1994 filed by the appellant. leading to this present appeal are as follows:- Facts leading to this present appeal are as follows:- 2. One Umrao Singh S/o Jiraj Singh, R/o village Sarkara Khed in Tehsil Najibabad, District Bijnaur, U.P. owned certain parcels of bhumidhari lands which are covered under the provisions of the above U.P. Act. He executed a will on 30.12.1985 concerning these lands. He stated in the will that he had no issues, and had a younger brother by name Jagan Singh (the appellant herein) who was looking after him. The will further stated that during the testator's life the testator will remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No.1 in the land was only on account of the will made by deceased Umrao Singh. He declined to accept that her right was restricted under Section 14 (2) of the Hindu Succession Act, 1956, and dismissed the suit. 6. The appellant carried the matter in appeal, but the learned Additional District Judge also dismissed the appeal. Thereafter, when the appellant filed the Second Appeal to the High Court, the High Court dismissed the same by holding that no substantial question of law arose in the matter. The learned Judge held that under section 152 of the U.P. Act a bhumidhar had a right to transfer his property, and such right was subject only to the restrictions contained in the Act as provided in section 152 (1) itself. The learned High Court Judge referred to Section 169 (2) of the U.P. Act, and observed that the said Sub-section which restricted the right of a female bhumidhar to bequeath her holding by will has now been deleted. The learned Judge went on to hold that the right to transfer cannot be restricted either by contract or by a will of a tenure holder, and that the restriction contained in the will that the legatee would not have a right to transfer the property w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a will. Sub-section (3) however requires that this has to be done in writing, and the will has to be attested by two persons and it has to be registered. The only restrictions on this right are those provided under Sub-section (2), which in turn refers to sections 157- A and 157-B of the said Act. Section 157-A provides that in relation to a bhumidhar belonging to a Scheduled Caste, such land cannot be transferred to a person not belonging to a Scheduled Caste except with the prior approval of the collector. The other restriction is under section 157-B viz. that the land belonging to a Scheduled Tribe cannot be transferred except to a person belonging to a Scheduled Tribe. 10. (i) In the present case the facts are very clear. Umrao Singh was owner of the concerned land. He made a will, it was duly attested by two persons, and it was registered as required by section 169 (3) of the U.P. Act. Under that will he created a restricted interest in favour of respondent No.1 in plot No. 140-8-10-19. This cannot be said to be impermissible under section 169 (1) of the U.P. Act. It is nobody's case that section 169 (2) thereof applied to the present case. (ii) Section 14 of the Hin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 169 (1) of the Act . 12. In Amar Singh (supra) this Court explained an earlier judgment Ramji Dixit Vs. Bhirgunath reported in AIR 1968 SC 1058. In that matter after the death of the owner, the land had devolved upon his wife as a Hindu widow's estate. A dispute arose about the alienations effected by her, and it was held that undoubtedly she had the right to alienate. But as can be seen, in that matter the estate had devolved by inheritance, and not by will. That is why in para 8 of Amar Singh (Supra) this Court specifically observed that the facts in Ramji Dixit were quite distinguishable. Besides, as held by this Court in Mst. Karmi Vs. Amru reported in AIR 1971 SC 745, a widow who succeeds to the property of her deceased husband on the strength of his will, cannot claim any right other than those conferred by the will. Thus life estate given to her under a will cannot become an absolute estate under the provisions of Section 14 (2) of the Hindu Succession Act, 1956. 13. The learned Single Judge of the High Court held the transfer by respondent No.1 was not invalid since sub-section (2) of Section 169 of the U.P. Act had been deleted, which has been so done by U.P. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as by the Additional District Judge and by the Civil Judge are clearly erroneous in law and on facts. The question of applicability of doctrine of `lis pendes' 14. However, there are some subsequent developments which we must note. On 15.02.2010, one Smt. Poonam Rajput filed Interim Applications Nos. 3 and 4 of 2010 in this Civil Appeal. In I.A No. 3 she has applied for being impleaded as respondent, and in I.A No. 4 she sought exemption from filing the official translation of the annexures to I.A No. 3 of 2010. By its order dated 10.8.2010, this Court directed that both these I.A. Nos. 3 4 to be listed alongwith the main appeal. We have heard the learned senior counsel for the applicant in support of the I.A.s and the counsel for the appellant in reply thereto. In I.A No. 3 the applicant has claimed that the respondent No. 1 Dhanwanti has executed a registered sale deed in her favour on 27.9.2004, and her name had been directed to be mutated in the revenue records vide order dated 4.11.2004, and recorded in the Khatauni on 13.5.2005. She has submitted that this sale had taken place at a time when the suit No. 121/1994 and the First Appeal No. 97/2002 filed by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they had no knowledge about this second suit No. 731/2004 which was filed by the appellant, their predecessor in interest. In any case they contend that the transfer made by the respondent No. 1 in favour of the applicant was `pendente lite', and therefore will have to be subject to the final decision of the Civil Appeal. Inasmuch as a plea based on the principle of `lis pendens' has been raised, we may now examine the applicability thereof to the facts of the present case. 17. The facts which have come on the record through I.A. No.3 and 4 of 2010 and the reply thereto disclose that the respondent No. 1 had entered into the agreement of sale of the land in dispute with applicant Smt. Poonam Rajput on 27.9.2004 when suit No. 121/1994 and Civil Appeal No. 97/2002 filed by the appellant had already been dismissed by orders dated 13.12.2002 and 28.7.2004 respectively. It is however necessary to note that this sale is within the period of limitation when the second appeal could have been filed. The appellant however chose first to file the second suit on 8.10.2004 for cancellation of the sale deed, wherein he joined the aforesaid Smt. Poonam Rajput as respondent No. 2. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed off by a final decree or order and complete satisfaction or discharge or such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. 19. The broad principle underlying section 52 of the T.P. Act is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed, as held in Krishanaji Pandharinath Vs. Anusayabai AIR (1959) Bom 475. In that matter the respondent (original plaintiff) had filed a suit for maintenance against her husband and claimed a charge on his house. The suit was dismissed on 15.7.1952 under order IX, Rule 2, of Code of Civil Procedure 1908, for non-payment of process fee. The husband sold the house immediately on 17.7.1952. The respondent applied for restoration on 29.7.1952, and the suit was restored leading to a decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. In the present case, it would be canvassed on behalf of the respondent and the applicant that the sale has taken place in favour of the applicant at a time when there was no stay operating against such sale, and in fact when the second appeal had not been filed. We would however, prefer to follow the dicta in Krishanaji Pandharinath (supra) to cover the present situation under the principle of lis-pendens since the sale was executed at a time when the second appeal had not been filed but which came to be filed afterwards within the period of limitation. The doctrine of lis-pendens is founded in public policy and equity, and if it has to be read meaningfully such a sale as in the present case until the period of limitation for second appeal is over will have to be held as covered under section 52 of the T.P. Act. 22. In the circumstances, we hold as follows:- (i) The judgment and order dated 13.2.2002 rendered by the Civil Judge, Junior Division, Najibabad in the suit No. 121/1994, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
