Karnataka High Court
C Raja Ram S/O Naryanappa Kambelkar vs Saroja W/O Mallikarjun Ubhale on 5 October, 2018
Bench: B.Veerappa, H.T.Narendra Prasad
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05 T H DAY OF OCTOBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE B.VEERAPPA
AND
THE HON'BLE MR.JUSTICE H.T. NARENDRA PRASAD
R.F.A.No.4159 OF 2012 (PAR/POS)
BETWEEN
1. C. RAJA RAM
S/O. NARYANAPPA KAMBELKAR,
AGE: 81 YEARS, OCC: NIL,
R/O. PINJAR ONI, GANGAVATHI,
DIST: KOPPAL - 583227.
2. DASHARATH
S/O. RAJA RAM KAMBELKAR
AGE: 49 YEARS,
OCC: FLOUR MILL BUSINESS,
R/O. PINJAR ONI, GANGAVATHI,
DIST: KOPPAL - 583227.
3. RAMESH
S/O. SANNA RAJA RAM KAMBELKAR
AGE: 46 YEARS,
OCC: WORK SHOP BUSINESS,
R/O. PINJAR ONI, GANGAVATHI,
DIST: KOPPAL - 583227.
... APPELLANTS
(BY SRI.SYED R. H. ADVOCATE)
AND
1. SMT. TARABAI
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W/O MALLIKARJUN UBHALE
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O GANGAVATHI,
NOW AT P&T QUARTERS,
OLD JEVERGI ROAD,
GULBARGA -585102.
2. SMT. SHASHIKALA
W/O RAVI UBHAL,
AGE: 43 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GANGAVATHI NOW AT CHILUR,
TQ: HONNALI, DIST:SHIMOGA-577217.
3. SMT. SAROJA
W/O RAJENDRA YENDE,
AGE: 39 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GANGAVATHI
NOW AT SHAHA BAZAR,
GULBARGA - 585703.
4. SMT. LAKSHMIBI
W/O. C. RAJA RAM
(DIED ON 16.07.2014)
DELETED AS PER ORDER OF
THIS COURT DATED 01.12.2014.
APPELLANTS No.1 TO 3 AND
RESPONDENTS No.1 TO 3 ARE
THE LEGAL HEIRS OF RESPONDENT NO.4
... RESPONDENTS
(BY SRI. M. G. NAGANURI, ADVOCATE,)
THIS RFA FILED UNDER SEC. 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED
07.09.2012 PASSED IN O.S.NO.15/2011 ON THE
FILE OF THE SENIOR CIVIL JUDGE AT
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GANGAVATHI, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR FINAL HEARING,
THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The unsuccessful defendants No. 1, 3 and 4/appellants herein have filed the present Regular First Appeal against the judgment and decree dated 07.09.2012 made in O.S.No.15/2011, on the file of the Senior Civil Judge, Gangavathi, decreeing the suit of the plaintiffs/respondents No.1 to 3, holding that the plaintiffs are entitled to 1/6th share each in the suit schedule properties.
2. For the sake of convenience, the parties are referred to as per their rankings before the Trial Court.
3. The respondents No.1 to 3 who are the plaintiffs before the Trial Court had filed a suit for partition and separate possession in respect of the suit :4: schedule properties, more fully described in the schedule to the plaint, contending that the plaintiffs are the daughters of defendants No.1 and 2. The 1st plaintiff is the elder sister of defendant No.3 and younger sister of defendant No.4. The suit schedule properties are the ancestral joint family properties of the plaintiffs and defendants and there was no partition in the suit schedule properties between the plaintiffs and the defendants, who are the members of joint family. Defendant No.4 was looking after the ancestral and joint family properties as he is younger son of defendant No.1 and 2. Defendant No.4 had sold some of the joint family properties and out of the income derived from sale proceedings, defendant No.4 purchased Item No.III of suit schedule properties from one Nagaraj S/o. Ramachandra Rao. As such, all the plaintiffs and defendants are legally entitled to get their separate shares in the entire suit schedule properties. :5:
4. It is further case of the plaintiffs that the defendants have been evading the separate share of the plaintiffs in the suit schedule properties in spite of demand made by the plaintiffs on so many occasions. The 4th defendant is trying to alienate some of the suit schedule properties. Finally, on 20.05.2011, when the plaintiffs demanded their share in the suit schedule properties, the defendants denied to give their share. Therefore, suit came to be filed by the plaintiffs seeking relief of partition and separate possession.
5. Defendants No.1 to 4 represented through their counsel before the Trial Court and only defendant No.4 filed written statement and other defendants filed a memo adopting the written statement filed by him. Defendant No.4 in his written statement contended that the suit filed by the plaintiffs is not maintainable for non-joinder of necessary parties. According to the defendants, some of the properties have been sold to somebody; however the suit of the plaintiffs seeking :6: partition of the sold properties without seeking the relief of declaration, is not maintainable. He further contended that the defendants are in possession and enjoyment of the suit schedule properties jointly along with the plaintiffs. Defendant No.4, out of his own earnings, has purchased Item No.III of the suit schedule property. Therefore, the plaintiffs are not entitled to any share in the suit schedule properties. Therefore, sought for dismissal of the suit.
6. Based on the above rival pleadings, the Trial Court framed following issues:-
ISSUES
1. Whether the plaintiffs prove that suit properties are ancestral and joint family properties of themselves and defendants?
2. Whether the plaintiffs prove that the defendant No.4 has purchased some of the properties of item No.III of schedule property out of the sale proceeds from the joint family and ancestral properties as per para 3 of the plaint?:7:
3. Whether the defendants prove that the properties standing in the name of the defendant No.4 are his self acquired properties?
4. Whether the defendants prove that the suit is bad for non joinder by necessary parties to the suit?
5. Whether the defendants proves that without seeking the relief of declaration, suit is not maintainable?
6. Whether the plaintiffs are entitle for the relief of partition and separate possession of 1/6 share each in the suit properties?
7. To what order or decree?
7. In order to prove the case of the plaintiffs, plaintiff No.2 got examined as P.W.1 and one witness as P.W.2 and also produced and got marked documents as per Ex.P1 to 11. In order to prove their defence, defendant No.4 got examined himself as D.W.1 and got marked documents as per Ex.D1 to 5.
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8. The Trial Court after considering the entire oral and documentary evidence on record, recorded a finding that the plaintiffs have proved that the suit schedule properties are the joint family properties of the plaintiffs and defendants and the plaintiffs have also proved that the defendant No.4 has purchased some of the properties of Item No. III of the suit schedule out of the income of derived from sale proceedings of ancestral joint family properties, as stated in para No.3 of the plaint. The Trial Court held that the defendants have failed to prove that the properties standing in the name of defendant No.4 are his self-acquired properties, the defendants have failed to prove that the suit is bad for non joinder of necessary parties and the defendants have filed to prove that without seeking the relief of declaration, the suit of the plaintiffs is not maintainable and accordingly, the plaintiffs are entitled to partition and separate possession of 1/6th share each in the suit schedule properties. Accordingly, the Trial Court by the impugned judgment and decree dated 07.09.2012 :9: decreed the suit holding that the plaintiffs No. 1 to 3 are entitled to 1/6th share each in the suit schedule properties. Hence, the present appeal is filed by the defendants 1 to 4.
9. During the pendency of the present appeal, the 2nd defendant/Smt. Laxmibai, who is respondent No.4 in the present appeal died. The plaintiffs No.1 to 3 and defendants No. 1, 3 and 4 are the only legal heirs of deceased defendant No.2 and they are already on record.
10. The appellants/defendants 1, 3 and 4 filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC" for short), along with certain documents as additional documents/evidence stating that in the written statement, the defendants have taken specific contention that some of the properties are already disposed of, but the Trial Court has not framed any : 10 : issue in this regard. Though the counsel for the defendants knowing fully well did not produce any documents before the Court regarding sale deeds. It is further contended that many of the suit schedule properties were mortgaged to various banks to avail loans to run family business and to maintain the affairs of the family. On account of the loss incurred in the business, the male folk could not be able to credit the loans and the bank authorities, in due course of law, started recovery proceedings and initiated proceedings under Negotiable Instruments Act also. The whole family of the defendants suffered monetarily and many of the suit schedule properties were sold out to third persons to meet the liabilities. It is further stated that it was brought to the notice of the Hon'ble Court regarding unwanted developments in respect of the suit properties, while submitting the arguments by the learned counsel for the appellant, but the documents were not produced before this Court. It is also stated that most of the suit schedule properties were sold out : 11 : after passing of the decree and also pendente lite above Regular First Appeal. These developments occurred subsequent to the disposal of the trial proceedings and pendency of the appeal proceedings. These documents are essential to elucidate the present position of the suit properties and to pass a final decree. Therefore, sought to allow the application.
11. The respondents have filed objections to the said application denying the averments made in the application with regard to the mortgage of suit schedule properties to various banks to avail loans and also denied that the suit schedule properties are sold during the pendency of this appeal and documents were not produced in the Trial Court. Further stated that the appellants have not produced documents in the Court below. The documents now sought to be produced before this Court, by way of additional documents, are not necessary to decide the matter in controversy. The application filed by the appellants is only to protract the proceedings and thereby to harass plaintiffs/ : 12 : respondents No.1 to 3. Therefore, sought for dismissal of the application.
12. We have heard the learned counsel for the parties to the lis.
13. Sri. Syed R. H., the learned counsel appearing for the appellants/defendants has vehemently contended that the impugned judgment and decree passed by the Trial Court is erroneous and contrary to the material on record. He would further contend that the Trial Court erred in decreeing the suit based on non-production of partition deed by the defendants on the demand made by the plaintiffs under Order XII Rule 8 of CPC, taking adverse inference for non-production of documents. The Trial Court ought to have observed that the deed called for is a registered partition deed and ought to have directed the plaintiffs to obtain certified copy of the partition to elucidate the issues in the suit. He would further contend that whatever properties the defendants are holding are the : 13 : self-acquired properties of the defendants and purchased from their hard earned money. The plaintiffs have failed to produce any documents to prove that the suit schedule properties are the ancestral joint family properties of the plaintiffs and defendants.
14. He would further contend that some of the properties are already mortgaged and the said properties are not included in the suit and also some of the properties are sold during the pendency of the present appeal. Therefore, the judgment and decree passed by the Trial Court granting 1/6th share to each plaintiff is erroneous and contrary to the material on record. He would further contend that the documents sought to be produced along with the application filed under Order XLI Rule 27 of CPC are subsequent event i.e. after passing the decree. Therefore, they are necessary and proper to decide the controversy between the parties and hence, sought to allow the application filed seeking production of additional documents and : 14 : also sought to allow the appeal by setting aside the judgment and decree passed by the Court below.
15. Per contra, Sri. M. G. Naganuri, the learned counsel for the plaintiffs/respondents herein sought to justify the impugned judgment and decree passed by the Trial Court and contended that the very application filed by the appellants seeking production of additional documents, when the matter was posted for final arguments, is not maintainable and the appellants have not fulfilled the conditions stipulated under Order XLI Rule 27 of CPC to admit the documents at this stage. He would further contend that the alleged documents are not necessary to decide the matter and denied that some of the properties were sold during the pendency of the proceedings. He would further contend that no documents are produced before the Court and therefore he sought for dismissal of the application filed by the appellants seeking production of additional documents as the relevancy of the documents is not stated in the : 15 : application. Therefore, he sought to reject the application.
16. He would further contend that the Court below, based on the pleadings, framed issues and after recording oral and documentary evidence, came to the conclusion that all the suit schedule properties are the joint family properties of the plaintiffs and defendants and the plaintiffs are entitled to 1/6th share each in the suit schedule properties. Accordingly, the Court below decreed the suit. He would further contend that the 4th defendant, who got examined as D.W.1 has categorically admitted in his cross examination that the suit schedule properties are the joint family properties of the plaintiffs and defendants. Therefore, he sought to dismiss the appeal.
17. This appeal came to be filed by the appellants on 08.12.2012 and came to be admitted on 14.02.2013. The present application filed under Order : 16 : XLI Rule 27 of CPC for production of additional documents is only on 07.03.2018 and it is stated in the affidavit accompanying the application that the proposed documents were not produced by the learned counsel for the defendants, as evidence, before the Court below. It is further contended that some of the suit schedule properties were mortgaged to various banks to avail loans to run the family business. To avoid the sale of properties in auction, on the request of defendant No.4, the financial institutions allowed him to dispose of the properties by way of sale. Though it was brought to the notice of the Trial Court by the learned counsel regarding unwanted developments in respect of the suit schedule properties, no documents were produced before the Court below. The developments were occurred subsequent to disposal of the suit and almost all the suit schedule properties sold after passing of the decree and pendente lite above appeal. This Court while admitting the appeal, by its order dated 14.02.2013 has passed an interim order to the : 17 : effect that while final decree proceedings can go on, drawing up of the final decree proceedings is stayed until further orders. The documents produced along with the application is a sale deed dated 30.11.2010. It was prior to filing of the suit by the plaintiffs. Three more sale deeds, for some properties, dated 12.12.2012 are produced. The said documents are disputed by the other side and it is contended that the said properties are not suit schedule properties. Some of the documents are not tallying with the suit schedule properties. Even otherwise, when this Court while admitting the appeal on 14.02.2013 granted interim order that, "without permission from the Court, the appellant cannot alienate the suit schedule properties. Any alienation made during the pendency of the present appeal, is hit by the provisions of section 52 of the Transfer of Property Act. This Court is aware of the fact that while allowing the application filed under Order XLI Rule 27 of CPC, 1) The parties to an appeal shall not be entitled to : 18 : produce additional evidence, whether oral or documentary, in the Appellate Court. But if -
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.: 19 :
Sub-clause 2 of Order XLI Rule 27 of CPC states that -
"wherever additional evidence is allowed to be produced in any Appellate Court, the Court shall record the reason for its admission."
18. Admittedly, in the present case, the conditions mentioned in Order XLI Rule 27 of CPC are not fulfilled by the appellant to allow the application. Moreover, it is not the case of the defendants that how the documents, produced along with the application, are relevant to dispose of the appeal or pronounce the judgment. In the absence of any reasons assigned, the application filed for production of additional documents cannot be allowed at this stage. That too some of the properties were sold during the pendency of the appeal and two sale deeds sought to be produced are of the year 2010. It was available for the defendants to produce them before the Trial Court since the suit was filed in the year 2011. No reasons assigned in the : 20 : application for non-production of the sale deeds of the year 2010 before the Trial Court.
19. It is well settled that additional evidence is a discretionary of the Appellate Court to allow production of documents, in exceptional circumstances and it should be exercised judicially and with circumspection, only where any of the prerequisite conditions provided under Order XLI Rule 27 of CPC exist. Admittedly, in the present case, the appellant has not made out any case to allow the application filed under Order XLI Rule 27 of CPC, which depicts prerequisite conditions as provided under Order XLI Rule 27 of CPC. In the absence of the same, the application seeking production of additional documents, at this stage, before this Court is devoid of merits and the documents sought to be produced are of no relevancy to decide the present appeal. Our view is fortified by the dictum of the Hon'ble Apex Court in the case of in the case of Union of India v. Ibrahim Uddin and another, reported in (2012) 8 : 21 : Supreme Court Cases 148, wherein the Hon'ble Apex Court at para No.36 to 49 has held as under:-
Order 41 Rule 27 C.P.C.
36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence.
Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy, Municipal Corporation of Greater Bombay v. Lala Pancham, Soonda Ram v. Rameshwaralal and Syed Abdul Khader v. Rami Reddy.)
37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in : 22 : such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohamed Iqbal and Mohamed Ali and Co.).
38. Under Order 41, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide Lala Pancham.]
39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted : 23 : in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava and S. Rajagopal v. C.M. Armugam).
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.
42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub- rule (2)). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this Rule has been : 24 : properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule.
43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough comp1iance with the requirement as to recording of reasons.
44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. : 25 : The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide State of Orissa v. Dhaniram Luhar, State of Uttaranchal v. Sunil Kumar Singh Negi, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Sant Lal Gupta v. Modern Cooperative Group Housing Society Ltd).
45. In City Improvement Trust Board v. H. Narayanaiah, while dealing with the issue, a three judge Bench of this Court held as under: (SCC p.20, para 28) "28. ... We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its insistence by leading other evidence." (Emphasis added) : 26 : A similar view has been reiterated by this Court in Basayya I. Mathad v. Rudrayya S. Mathad.
46. A Constitution Bench of this Court in K. Venkataramiah, while dealing with the same issue held:
(AIR p. 1529, para 13) "13. It is very much to be desired that the courts of appeal should not overlook the provisions of clause (2) of the Rule and should record their reasons for admitting additional evidence..... The omission to record reason must, therefore, be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory."
(Emphasis added) In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact situation, the order allowing such application did not vitiate for want of reasons.
47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record such application may be allowed. : 27 :
48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.
Stage of Consideration :
49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had : 28 : an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide Arjan Singh v. Kartar Singh and Natha Singh v. Financial Commr., Taxation, Punjab).
20. It is also not in dispute that during the pendency of the present appeal some of the properties were sold. According to the learned counsel for the appellants, almost all the suit schedule properties were sold after the decree and during the pendency of the present appeal. Even if the said submission is accepted, it is always hit by the provisions of Section 52 of the Transfer of Property Act. That transfer pendente lite is neither illegal nor void ab-initio but remains subservient to rights eventually determined by Court in the pending : 29 : litigation. The transfer in favour of purchaser pendente lite is effective in transferring title subject to certain obligations as decision of court in a suit is binding not only on litigating parties but also on those who derive title pendente lite. Our view is fortified by the Hon'ble Apex Court in the case of Thomson Press (India) Limited v. Nanak Builders and investors Private Limited and others, reported in (2013) 5 Supreme Court Cases 397, wherein the Hon'ble Apex Court at para No. 26 to 29 and 39 to 45 held as under:-
26. It would also be worth to discuss some of the relevant laws in order to appreciate the case on hand.
Section 52 of the Transfer of Property Act speaks about the doctrine of lis pendens. Section 52 reads as under:
"52. Transfer of property pending suit relating thereto. - During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be : 30 : transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation - For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation 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 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."
It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.
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27. Discussing the principles of lis pendens, the Privy Council in Gouri Dutt Maharaj v. Sk. Sukur Mohammed observed as under : (IA p. 170) "...The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment and in the view of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact that the agreement of 8.6.1932, had not been registered."
28. In Kedar Nath Lal v. Ganesh Ram this Court referred the earlier decision in Samarendra Nath Sinha v. Krishna Kumar Nag and observed: (Kedar Nath Lal case, SCC p. 792, para 17) "17. ... 16. ... The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person driving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder vs. Monohar Mookerji where the facts were almost similar to those in : 32 : the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well- established that the principle of lis pendens applies to such alienations.(See Nilkant Banerji v. Suresh Chander Mullick and Moti Lal v. Karrab-ul-Din)' (Samarendra Nath case, AIR p. 1445 para 16)"
29. The aforesaid Section 52 of the Transfer of Property Act again came up for consideration before this Court in Rajender Singh v. Santa Singh and Their Lordship with approval of the principles laid down in Jayaram Mudaliar v. Ayyaswami reiterated:
(Ranender Singh case, SCC p. 711 para 15) "15. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute of frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as : 33 : others, who seek to acquire rights in immovable property which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated."
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38. xxxxx
39. As discussed above, a decree for specific performance of a contract may be enforced against a person who claimed under the plaintiff (sic defendant), and title acquired subsequent to the contract. There is no dispute that such transfer made in favour of the subsequent purchaser is subject to the rider provided under Section 52 of the Transfer of Property Act and the restrain order passed by the Court.
40. The aforesaid question was considered by the Calcutta High Court in Kafiladdin v. Samiraddin, where Their Lordships referred the English Law on this point and quoted one of the passages of the Book : 34 : authored by Dart, on "Vendors and Purchasers" 8th Edn., Vol.2, which reads as under : (Kafiladdin case, AIR p.68) " 'Equity will enforce specific performance of the contract for sale against the vendor himself and against all persons claiming under him by a title arising subsequently to the contract except purchaser for valuable consideration who have paid their money and taken a conveyance without notice to the original contract.' "
Discussing elaborately, the Court finally observed:
(Kafiladdin case, AIR 68)-
"This statement of the law is exactly what is meant by the first two clauses of Section 27 of the Specific Relief Act. It is not necessary to refer to the English cases in which decrees have been passed against both the contracting party and the subsequent purchaser. It is enough to mention some of them : Daniels v. Davison, Potters v. Sanders and Lightfoot v. Heron. The question did not pertinently arise in any reported case in India; but decrees in case of specific performance of contract have been passed in several cases in different forms. In Chunder Kanta Roy v. Krishna Sundar Roy the decree passed against the contracting party only was upheld. So it was : 35 : in Kannan v. Krishan. In Himmatlal Motilal v. Basudeb Ganesh Mhaskar the decree passed against the contracting defendant and the subsequent purchaser was approved.In Faki Ibrahim v. Faki Gulam Mohidin the decree passed against the subsequent purchaser only was adopted. In Gangaram v. Laxman Ganoba Shet Chaudole the suit was by the subsequent purchaser and the decree was that he should convey the property to the person holding the prior agreement to sale. It would appear that the procedure adopted in passing decrees in such cases is not uniform. But it is proper that English procedure supported by the Specific Relief Act should be adopted. The apparent reasoning is that unless both the contracting party and the subsequent purchaser join in the conveyance it is possible that subsequently difficulties may arise with regard to the plaintiff's title."
41. The Supreme Court in Durga Prasad v. Deep Chand referred to the aforementioned decision of Calcutta High Court in Kafiladdin case and finally held:- (Durga Prasad case, AIR p.81, para 42) "42 In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title : 36 : which resides in him to the plaintiff. He does not join in any special covenants made between plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in - Kafiladdin v. Samiraddin, and appears to be the English practice. See Fry on Specific Performance, 6th Edn., Page 90, paragraph 207 and also Potter v. Sanders.) We direct accordingly."
42. Again in R. C. Chandiak v. Chunil Lal Sabharwal this Court referred to their earlier decision and observed:- (SCC p. 146, para 9) "9. It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at SCR p. 369 in Durga Prasad v. Deep Chand viz. 'to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff'. (AIR p.81, para 42) : 37 : We order accordingly. The decree of the courts below is hereby set aside and the appeal is allowed with costs in this court and the High Court."
43. This Court again in Dwarka Prasad Singh v. Harikant Prasad Singh subscribed to its earlier view and held that in a suit for specific performance against a person with notice of a prior agreement of sale is a necessary party.
44. Having regard to the law discussed hereinabove and in the facts and circumstances of the case and also for the ends of justice the appellant is to be added as party-defendant in the suit. The appeal is, accordingly, allowed and the impugned orders passed by the High Court are set aside.
45. Before parting with the order, it is clarified that the appellant after impledment as party-defendant shall be permitted to take all such defences which are available to the vendor Sawhneys as the appellant derived title, if any, from the vendor on the basis of purchase of the suit property subsequent to the agreement with the plaintiff and during the pendency of the suit.
: 38 :
21. In view of the above, the application filed under Order XLI Rule 27 of CPC, seeking production of additional documents, being devoid of merits, accordingly it is rejected.
22. It is specific case of the plaintiffs that the suit schedule properties are joint family properties of the plaintiffs and defendants and there was no partition in the suit schedule properties among the plaintiffs and defendants.
23. The defendants have not disputed the relationship between the parties and subject matter of the suit properties except item No.III of the suit schedule property. It is contended by defendant No.4 that he has purchased the said property out of the sale proceeds not from the joint family properties and therefore, it is his self acquired property. The plaintiffs have specifically contended that the defendant No.4 was looking after ancestral and joint family properties, as he was younger son : 39 : of the defendants No.1 and 2. The defendant No.4 had sold some of the joint family properties and out of the sale proceeds, the 4th defendant purchased item No.III of the suit schedule property and therefore, it is not his self acquired property and therefore, the plaintiffs and defendants are legally entitle to get their separate shares in the entire suit schedule properties.
24. It is the specific case of the plaintiffs that some portion of the properties are sold by the defendant No.4 and acquired item No.III of the schedule property out of the joint family nucleus. Therefore, the said property is also a joint family property.
25. The materials on record clearly depicts that the 4th defendant examined as DW.1, who stated on oath in the cross examination and admitted that suit properties are ancestral properties having been acquired by his father in a : 40 : partition effected in the year 1987 in between defendant No.1 and his brothers and he also admitted that as per the partition deed the defendant No.1 and his brothers are in possession of their respective shares. He also admitted that the properties which are fallen to the share of the defendant No.1 under a partition deed dated 31.12.1987 was not divided between the plaintiffs and the defendants. The relevant portion of cross examination of D.W.1, which reads as under:
"¢:31-12-1987 gÀ°è £À£Àß vÀAzÉ ªÀÄvÀÄÛ DvÀ£À ¸ÀºÉÆÃzÀgÀgÀÄ PÀÄlÄA§zÀ J¯Áè D¹ÛUÀ¼À£ÀÄß «¨sÁUÀ ªÀiÁrPÉÆArzÁÝgÉAzÀgÉ ¸Àj. «¨sÁUÀ ¥ÀvÀæzÀ PÁ¦ £À£Àß vÀAzÉ ªÀÄvÀÄÛ DvÀ£À J¯Áè ¸ÀºÉÆÃzÀgÀgÀ §½ MAzÉÆAzÀÄ PÁ¦ EzÉ JAzÀgÉ ¸Àj. «¨sÁUÀ ¥ÀvÀæzÀ PÁ¦AiÀÄ£ÀÄß ºÁdgÀÄ ªÀiÁqÀĪÀAvÉ £ÉÆÃn¸ÀÄ PÉÆlÖgÀÆ ¸ÀºÀ ºÁdgÀÄ ªÀiÁr®è JAzÀgÉ D PÁ¦ §½ E®è J£ÀÄßvÉÛãÉ. ¢:31-12-87gÀ°è DzÀ «¨sÁUÀ ¥ÀvÀæzÀAvÉ w¥ÉÆàÃfgÁªï E¸ÉìUÉ 'J' µÀqÀÆå¯ï, zÉÆqÀØ gÁdgÁªï E¸ÉìUÉ '©' µÀqÀÆå¯ï D¹Û ¹. ºÀ£ÀĪÀÄAvÀgÁªïgÀªÀjUÉ 'r' : 41 : µÀqÀÆå¯ï D¹Û ªÀÄvÀÄÛ gÁªÀÄZÀAzÀægÁªïgÀªÀjUÉ 'E' µÀqÀÆå¯ï D¹Û §A¢zÉ JAzÀgÉ ¸Àj."
26. PW2 is the real brother of the defendant No.1, who is one of the sharer of the partition deed dated 31.12.1987, in his evidence categorically stated that he and his brothers have got divided the joint family properties on 31.12.1987 and "C" Schedule properties in the said partition deed was fallen to the share of the defendant No.1, which clearly depicts that there was a partition effected in the year 1987 between the defendant No.1 and his brothers.
27. D.W.4 in a categorical terms admitted in his cross examination with regard to Ex.D.3-Mortgage deed that by virtue of the partition deed dated 31.12.1987, the sharers have failed to get the entries in records of right, even though sharers were in their respective possession of the properties fallen to their share. Therefore, the rest : 42 : of the brothers of the defendant No.1 have affixed their signatures to the EX.D.3-Mortgage Deed, but the property mortgaged to the bank is exclusively fallen to the share of the defendant No.1. Therefore, partition was effected in the year 1987 between the defendant No.1 and his brothers.
28. Contention taken by the learned counsel for the defendants that the item No.III of the suit schedule properties were standing in the name of the 4th defendant are his self acquired properties cannot be accepted as the defendant No.4 neither produced any documents to prove his independent source of income to purchase the item No.III of the suit property nor produced any document to show that he has not purchase the item No.III of the suit property out of the joint family nucleus.
29. It is also relevant to state at this stage that the plaintiffs have not claimed any share in non-suited properties. When a person is not : 43 : intended to claim any share in non-suited properties in that case, the prospective purchasers are neither the necessary parties nor the proper parties to the case on hand. Therefore, the contention of the learned counsel for the defendants that the suit of the plaintiffs suffers from non- joinder of necessary parties also cannot be accepted.
30. The entire oral and documentary evidence on record clearly depicts that suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants. Therefore, the contention taken by the learned counsel for the appellants that the item No.III of the suit schedule properties are the self acquired properties of the defendant No.4 and he has purchased the item No.III of the suit schedule property from his self earning is without any basis. : 44 :
31. In view of the aforesaid reasons, the impugned judgment and decree granting 1/6th share to the plaintiffs each in the suit schedule properties is in accordance with law and the appellants have not made out any ground to interfere with the impugned judgment and decree passed by the trial Court in exercise of powers under the provisions of Section 96 of Code of Civil Procedure.
32. Accordingly, the Regular First Appeal is dismissed as devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE Yan/vb