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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2820 OF 2015

KIRPAL KAUR ………APPELLANT

Vs.

JITENDER PAL SINGH & ORS. ……RESPONDENTS

J U D G M E N T

V. GOPALA GOWDA, J.

This appeal is directed against the impugned

judgment and order dated 31.10.2012 passed by the

High Court of judicature of Delhi at New Delhi (the

First Appellate Court) in Regular First Appeal (OS)

No.41 of 2011, whereby the First Appellate Court has

confirmed the judgment and decree dated 21.1.2011

REPORTABLE

Page 2 C.A. No 2820 of 2015 -2-

passed by the learned single Judge of the High Court

(hereinafter called as “the trial court”) in

CS(OS)No. 2172 of 2003 and dismissed the suit filed

by the appellant. In this appeal, the appellant has

questioned the correctness of the impugned judgment

and order urging various facts and legal contentions

and prayed for granting of the decree of partition

of her share in the ‘B’ suit schedule property.

2. In this judgment, for the sake of convenience,

we will advert to the rank of the parties as

assigned to them before the trial court in C.S. No.

2172 of 2003. The brief facts of the case are stated

hereunder for the 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

Page 3 C.A. No 2820 of 2015 -3-

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-in-law

of the plaintiff) as he had acquired the same out of

his self earned savings from his employment and he

Page 4 C.A. No 2820 of 2015 -4-

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 Rs.400/-. In

the year 1954, he was getting the salary of Rs.201/-

per month i.e. Rs.120/- + (9 increments X 9 = 81).

At that time, admittedly, the husband of the

plaintiff (since deceased) was only seven years old.

4. When the first phase of construction of the

ground floor on the said property was made in the

year 1957, the husband of the plaintiff was only ten

years old. The second phase of construction of the

said building was done between October 1980 and

December 1981. The case of the deceased-first

Page 5 C.A. No 2820 of 2015 -5-

defendant before the trial court was that he retired

from his employment in September, 1980. He has

reconstructed the aforesaid property using his

retirement benefits such as gratuity and provident

fund and he had also borrowed some amount as loan

from various friends and relatives and he also used

the old building materials for the construction of

the building. He also produced receipts at Ex.DW1/5

to DW 1/18 as evidence to substantiate his case that

he had borrowed some loan amount from M/s Sahara

Deposits and Investments (India) Ltd. which amount

was repaid by him to it, in instalments. It was

specifically mentioned by the deceased-first

defendant that the husband of the plaintiff did not

contribute any amount either towards the purchase of

the said suit schedule property or for the

construction of the building upon the said property.

5. When the construction of the said building was

in progress between October 1980 and December 1981,

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the plaintiff’s husband was in the process of

settling himself at Kuwait and he did not have

sufficient money to send to the deceased-first

defendant for the purpose of construction of the

building. The total amount spent on the construction

of the building was Rs.1,42,451.60. It has been

contended by the defendants that no proof of

contribution of money made by the deceased husband

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.

Page 7 C.A. No 2820 of 2015 -7-

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 the balance amount from

Rs.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

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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

deceased-first defendant used to get 50 sears of

Wheat in May and 30 sears of Maize in October every

year out of the said agricultural produce from the

said agriculture land which was used for consumption

by the family. No cash amount was received by the

deceased-first defendant in respect of the said

agricultural property.

8. On the basis of the pleadings of the parties

and the evidence on record, the trial court had

framed five issues for its determination. Issue No.4

is most relevant for the purpose of examining the

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rival legal submissions made on behalf of the

parties with a view to find out the correctness of

the concurrent findings of fact recorded by the

First Appellate Court on the above contentious

issue. The issue no. 4 reads thus:

“(iv)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?”

The trial court has answered the said contentious

issue no.4 against the plaintiff and in favour of the

deceased-first defendant in so far as the claim of

share by the plaintiff in the schedule ‘B’ property

bearing No. 45, Sant Nagar, East of Kailash, New

Delhi is concerned. The suit of the plaintiff was

dismissed by it by holding that the said property is

the self acquired property of the deceased-first

defendant.

Page 10 C.A. No 2820 of 2015 -10-

9. In so far as the suit schedule ‘A’ property is

concerned, the trial court has further partially

decreed the same in favour of the plaintiff by

granting 1/5

th

share in the agricultural land in the

village Patial. A preliminary decree for partition

was passed by the trial court on 21.1.2011 holding

that the plaintiff has got the 1/5

th

share in the

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

Page 11 C.A. No 2820 of 2015 -11-

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 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

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during the period of October, 1980 and December,

1981. Further, as per the document produced at

Ext.P-5, an amount of Rs.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 Rs.17,350/-

was given to the plaintiff and the remaining amount

of Rs.82,650/- was left with the deceased-first

defendant which amount was utilised by him for

construction of the building. The First Appellate

Court with reference to the above said plea and on

the basis of the evidence placed on record by the

plaintiff has held that no cogent evidence was

produced by the plaintiff to prove the fact that the

said amount sent by her deceased husband to the

deceased-first defendant was utilised by him for

carrying out the second phase of construction of the

building at No.45, Sant Nagar, New Delhi between the

period October, 1980 to December, 1981 and therefore,

the same would not entitle the deceased husband of

Page 13 C.A. No 2820 of 2015 -13-

the plaintiff to a share in the said property, as the

plot mentioned in schedule ‘B’ property was purchased

by the deceased-first defendant out of his own

earnings in the year 1954. Undisputedly, the sale

deed was in the name of the deceased-first defendant

who had purchased the same for Rs.400/-, out of his

own funds. Further, the First Appellate Court has

held that there is no title document either in favour

of the husband of the plaintiff or in her name as the

deceased-first defendant had purchased the property

in his name exclusively, from his own funds and mere

use of the money sent by either the deceased husband

of the plaintiff or the funds provided by other

family members for the purpose of raising the second

phase of construction of the said building would not

give them the right for the share in that property.

Thus, the First Appellate Court has held that the

deceased husband of the plaintiff could not have

become the co-owner of the said property. Therefore,

Page 14 C.A. No 2820 of 2015 -14-

the First Appellate Court has concurred with the

finding of fact recorded on the contentious issue

No.4 by the trial court and accordingly, it has

answered 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

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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:

Page 16 C.A. No 2820 of 2015 -16-

2 ………The house at Sant Nagar was built

from his retirement benefits of Rs.1 lakh

and loans from friends.

3. Admits that he had received Rs.

82,000/- from the Plaintiff’s husband but

say it was not used for building his

house.

4. Admits the existence of the

agricultural land and agricultural income

received out of it. The land was the

ancestral property. He also admits that

this income was used for construction of

the said house. Immediately thereafter, he

claims that it was used for his illness.

XXX XXX XXX

6. He retired in September, 1980 and

started reconstruction of the house in

October 1980.

7. Relations with appellant’s husband

became strained when he misappropriated

Rs. 6 lakhs for the sale of the plot at

Saini Enclave.

8. That the plot at Saini Enclave was sold

for Rs.6 lakhs.

9. Admits that according to document at

Exh. P-7 (which is in his own handwriting)

Page 17 C.A. No 2820 of 2015 -17-

Rs. 6 lakhs were distributed amongst

various personnel including R.D. Singh.

10. Denies that Rs.6 lakhs were

distributed to the various persons

mentioned in Exh.P/7.

11. Admits receiving money from R.D. Singh

from Kuwait as per Exh.P.2 to P.3 but

denies the quantum suggested.

XXX XXX XXX

15. Admits that the Plaintiff was staying

with him from the date of marriage.

Further, that on his return from Kuwait,

R.D. Singh had been separated from the

deceased father and started staying on the

2

nd

floor.

XXX XXX XXX

17. He admits in his statement before the

learned ADJ to the effect that he had

received Rs. 82,000/- in the shape of bank

draft and cash from the Plaintiff’s

husband. He further admits that the

statement made before the learned ADJ was

correct. Immediately thereafter he denies

it.

18. That the ancestral land consisted of 8

kanal and 18 marla.

Page 18 C.A. No 2820 of 2015 -18-

19. He further admits that the plaintiff’s

husband (R.D. Singh) had a share in his

1/4

th

share in the ancestral land.

XXX XXX XXX

21. He further admits 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 3

rd

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

Page 19 C.A. No 2820 of 2015 -19-

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 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

Page 20 C.A. No 2820 of 2015 -20-

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.

14. Both the trial court as well as the First

Appellate Court have misread and mis-directed

themselves with regard to the positive and

substantive evidence placed on record in

justification of the claim of the plaintiff and they

have not appreciated and re-appreciated the same in

favour of the plaintiff in the proper perspective to

record the finding of fact on her claim for the

division of the share in her favour in respect of

the schedule ‘B’ property. Therefore, the concurrent

finding of fact recorded by both the trial court as

well as the First Appellate Court on the contentious

issue No.4 are not only erroneous in law but also

suffer from error in law for the reason that there

is a positive and substantive evidence elicited by

Page 21 C.A. No 2820 of 2015 -21-

the deceased-first defendant during the course of

his cross examination before the trial court, the

relevant portion of which is extracted above,

wherein he had in unequivocal terms admitted in his

evidence that he, his sons and daughters have an

ancestral property in his village and the same has

not been divided between them and that he used to

get the income from the said agricultural land and

the same was utilized by him for the construction of

the building at Sant Nagar, i.e. schedule ‘B’

property. Therefore, it amounts to putting the said

property in the hotchpot of joint family property.

The non-consideration of the above positive and

substantive evidence by the trial court as well as

the First Appellate Court in justification of the

claim of the plaintiff in respect of the schedule

‘B’ property has rendered the concurrent finding

recorded by it as erroneous in law and therefore,

the same are liable to be set aside.

Page 22 C.A. No 2820 of 2015 -22-

15. We have heard both the learned 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

Page 23 C.A. No 2820 of 2015 -23-

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 for condonation of delay on

the special leave petition as the same was barred by

limitation. The learned counsel for the defendants,

Page 24 C.A. No 2820 of 2015 -24-

Ms. Rakhi Ray accepted the notice who entered a

caveat on behalf of defendant Nos.2 to 4 and sought

six weeks time to file the reply affidavit. On

16.9.2013, the application for condonation of delay

was allowed and deletion of the name of

deceased-first defendant from the array of parties

from the cause title of the SLP was also allowed at

her request.

17. After the perusal of pleadings of the parties

and the material evidence on record, we find that

both the trial court and the First Appellate Court

have gravely erred in their decisions in not

granting a share to the plaintiff in the schedule

‘B’ property by recording an erroneous finding even

though she is legally entitled for the same. Having

regard to the fact that immediately within two weeks

from the date of disposal of the first appeal by the

High Court and before the expiry of the period of

limitation for filing special leave petition before

Page 25 C.A. No 2820 of 2015 -25-

this Court challenging the impugned judgment, the

gift deed was allegedly executed by the

deceased-first defendant in favour of the second

defendant (the second son) which was made available

for our perusal only after this Court directed the

second defendant’s counsel to do so. The said gift

deed was executed by the deceased-first defendant in

favour of the second defendant reciting certain

factually incorrect facts regarding the physical

delivery of possession of the suit schedule ‘B’

property to him, as it is an undisputed fact that

the plaintiff has been in peaceful possession of the

second floor of the said building ever since she and

her husband had started living separately from the

defendants.

18. The execution of the alleged gift deed by the

deceased-first defendant in favour of the second

defendant is also hit by Section 52 of the Transfer

of Property Act, 1882, as the said deed was executed

Page 26 C.A. No 2820 of 2015 -26-

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.

1

, 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

1

(2001) 6 SCC 534

Page 27 C.A. No 2820 of 2015 -27-

(deceased) Through Chela Shiama Dass

2

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 its pendency,

this Court has laid down the law

which runs thus:

“8. This rule is based on the

principle that 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

2

(1976) 1 SCC 103

Page 28 C.A. No 2820 of 2015 -28-

acquiring the interest with the

leave of the court. When a suit

is brought by or against a

person in a representative

capacity and there is a

devolution of the interest of

the representative, the rule

that has to be applied is Order

22 Rule 10 and not Rule 3 or 4,

whether the devolution takes

place as a consequence of death

or for any other reason. Order

22 Rule 10 is not confined to

devolution of interest of a

party by death; it also applies

if the head of the mutt or

manager of the temple resigns

his office or is removed from

office. In such a case the

successor to the head of the

mutt or to the manager of the

temple may be substituted as a

party under this rule. ”

(emphasis laid by this Court)

19. Likewise, where the interest of the second

defendant has devolved upon the suit schedule ‘B’

property on the basis of the alleged gift deed

referred to supra, the suit may be continued against

such second defendant and for the sake of

continuance of the suit against the persons upon

whom such interest has devolved during the pendency

Page 29 C.A. No 2820 of 2015 -29-

of the suit, leave of the court has to be obtained.

Leave can be obtained only by that person upon whom

interest has devolved during the pendency of the

suit, otherwise, there may be preposterous results,

as such a party might be unaware of the pending

litigation and the same would not be consequently

feasible. If a duty is cast upon him then in such an

eventuality he is bound by the decree even in case

of failure to apply for leave. Therefore, as a rule

of prudence, the initial 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

Page 30 C.A. No 2820 of 2015 -30-

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 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

Page 31 C.A. No 2820 of 2015 -31-

because the interest of a party in the

subject-matter of the suit has devolved

upon another during its pendency but

such a suit may be continued with the

leave of the court by or against the

person upon whom such interest has

devolved. But, if no such step is

taken, the suit may be continued with

the original party and the person upon

whom the interest has devolved will be

bound by and can have the benefit of

the decree……..

7. Under Rule 10 Order 22 of the Code,

when there has been a devolution of

interest during the pendency of a suit,

the suit may, by leave of the court, be

continued by or against persons upon

whom such interest has devolved and

this entitles the person who has

acquired an interest in the

subject-matter of the litigation by an

assignment or creation or devolution of

interest pendente lite or suitor or any

other person interested, to apply to

the court for leave to continue the

suit. But it does not follow that it is

obligatory upon them to do so. If a

party does not ask for leave, he takes

the obvious risk that the suit may not

be properly conducted by the plaintiff

on record, and yet, as pointed out by

Their Lordships of the Judicial

Committee in Moti Lal v. Karrabuldin he

will be bound by the result of the

litigation even though he is not

represented at the hearing unless it is

shown that the litigation was not

Page 32 C.A. No 2820 of 2015 -32-

properly conducted by the original

party or he colluded with the

adversary. It is also plain that if the

person who has acquired an interest by

devolution, obtains leave to carry on

the suit, the suit in his hands is not

a new suit, for, as Lord Kingsdown of

the Judicial Committee said in Prannath

Roy Chowdry v. Rookea Begum, a cause of

action is not prolonged by mere

transfer of the title. It is the old

suit carried on at his instance and he

is bound by all proceedings up to the

stage when he obtains leave to carry on

the proceedings.

8. The effect of 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 Dassi v. Nirmala

Sundari Dassi 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

Page 33 C.A. No 2820 of 2015 -33-

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

3

,

wherein this Court has laid down the legal principle

that under Section 52 of the Transfer of Property

3

(2012) 2 SCC 628

Page 34 C.A. No 2820 of 2015 -34-

Act, 1882, the ‘lis’ continues so long as a final

decree or order has not been obtained from the Court

and a complete satisfaction thereof has not been

rendered to the aggrieved party contesting the civil

suit. It has been further held by this Court that it

would be plainly impossible that any action or suit

could be brought to a successful termination if

alienations pendente lite were permitted to prevail.

The relevant paras of the aforesaid decision read

thus:

“32. The broad principle underlying Section

52 of the TP 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 v. Anusayabai. 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 9 Rule 2, of the 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

for maintenance and a charge was declared on

Page 35 C.A. No 2820 of 2015 -35-

the house. The plaintiff impleaded the

appellant to the darkhast as purchaser. The

appellant resisted the same by contending

that the sale was affected when the suit was

dismissed. Rejecting the contention the High

Court held in para 4 as follows:

“… In Section 52 of the Transfer of

Property Act, as it stood before it

was amended by Act 20 of 1929, the

expression ‘active prosecution of any

suit or proceeding’ was used. That

expression has now been omitted, and

the Explanation makes it abundantly

clear that the ‘lis’ continues so

long as a final decree or order has

not been obtained and complete

satisfaction thereof has not been

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

Page 36 C.A. No 2820 of 2015 -36-

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 thereof by any

law for the time being in force.

35. In the present case, it would be

canvassed on behalf of the respondent and

the applicant that the sale has taken place

Page 37 C.A. No 2820 of 2015 -37-

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

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 TP Act.”

(emphasis laid by this Court)

22. Notwithstanding the above legal principle, we

have examined the legality and validity of the

alleged gift deed. The recital of the gift deed,

particularly, the recital clause 2 is extracted

hereunder:

“2. That since the physical possession

of the said property is already with

the Donee hence the proprietary

possession of the same is being handed

over by the Donor unto the Donee who

shall enjoy the same peacefully

without any interference or

disturbance of the Owner/Donor or

anybody claiming through him. On this

Page 38 C.A. No 2820 of 2015 -38-

the Donee shall become the absolute

Owner of the said Property and shall

be at liberty to deal with same in the

manner he likes.”

A careful reading of the above recital would clearly

go to show that 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.

Page 39 C.A. No 2820 of 2015 -39-

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

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

Page 40 C.A. No 2820 of 2015 -40-

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 aspect of the case that the gift deed of the

schedule ‘B’ property was executed by the deceased

first defendant in favour of the second defendant

during the pendency of the proceedings and the same

could not have been acted upon by the defendants as

the plaintiff has been in possession of the second

floor of the said property in her husband’s

independent right. The same is also not acted upon by

the parties for the reason that the plaintiff has

been in physical possession of the second floor of

the ‘B’ suit schedule property and therefore, in

fact, she could not have delivered the possession to

the second defendant and acted upon the same, hence,

Page 41 C.A. No 2820 of 2015 -41-

Section 8 of the Hindu Succession Act, 1956, would

come into operation in respect of the above said

property. 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. For this reason also, the plaintiff

is entitled for 1/4

th

share in the suit schedule “B”

property.

26. For the reasons stated above, we allow this

civil appeal and assign equally 1/4

th

share to the

plaintiff and each one of the defendants 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

Page 42 C.A. No 2820 of 2015 -42-

‘B’ schedule property is concerned. We further allow

the plaintiff to retain the second floor of the

property bearing No. 45, Sant Nagar, East of Kailash,

New Delhi, till the 1/4

th

share of the schedule ‘B’

property is divided by metes and bounds by following

the procedure as provided under law and put her in

absolute possession of the same. The trial court is

directed to draw up a decree in terms of this

judgment along with costs.

……………………………………………………… J.

[V.GOPALA GOWDA]

……………………………………………………… J.

[C. NAGAPPAN]

New Delhi,

July 14, 2015