Supreme Court: The 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ., has set aside the order of High Court of Judicature for Andhra Pradesh at Hyderabad and, thereby restored the findings of Trial Court.
In the instant case, a claim for partition and division was made by the appellant in four equal shares amongst herself and her three siblings, who were arrayed as defendants 1, 2 and 3. The property was left by deceased step-mother of the appellant. Defendant 4, brother of step-mother of the appellant, alleged that his sister had sold Item 1 of Schedule A of the plaint to Defendant 15 under an agreement for sale dated 05-11-1976; and that she had also executed a Will dated 15-06-1978 in favour of her mother and an attendant, defendants 14 and 13 respectively. The appellant denied and disputed the alleged agreement for sale as also the alleged Will.
Findings of the Courts below
The Trial Court held that both the documents, of the alleged agreement for sale and of the alleged Will, were false and fabricated. The Court observed that the deceased, who was only 45 years of age at the time of her death, would never choose to bequeath the major part of property to her mother, who was about 80 years of age. It was observed that suggestions about the deceased being in her high level of indebtedness were not correct as the defendant could not point out the names of creditors and could not say as to how much was discharged. On contrary, the High Court had affirmed the findings of the Trial Court in relation to Will in question and has held that the Will was not valid. However, it had reversed the findings of the Trial Court in relation to alleged agreement for sale and held that the same was binding on the appellant. It was also ordered that the property forming the subject matter of the said agreement would not be available for partition.
Observations and Considerations
In the backdrop of the aforementioned facts, the Court formed three points for determination in the instant appeal:
Whether suit for partition filed was not maintainable for want of relief of declaration against the agreement for sale deed?
The Court clarified that the expression “declaration”, for the purpose of a suit for partition, refers to the declaration of the plaintiff’s share in the suit properties. It was observed that the appellant had not shown awareness about any agreement for sale initially, and later on, the appellant did raise a claim for sale deed being frivolous.
It was also observed that, as per Section 54 of the Transfer of Property Act, 1882, an agreement for sale of immoveable property does not, of itself, create any interest in or charge on such property. A person having an agreement for sale in his favour did not get any right in the property, except the right of obtaining sale deed on that basis and the alleged agreement for sale did not invest the vendee with any such right that the appellant could not have maintained her claim for partition in respect of the properties left by her deceased mother without seeking declaration against the agreement.
What is the effect and consequence of not bringing the legal representatives of defendant who expired during the pendency of appeal in the High Court on record?
Order XXII, Rule 1 of CPC lays down that the death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives. The Court clarified that the same procedure would apply in appeal where one of the several appellants or respondents dies and right to sue survives to the surviving parties alone. Reliance was placed on State of Punjab v. Nathu Ram,(1962) 2 SCR 636, wherein it was held that, “if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.” The Court held that, the instant case could definitely proceed even in the absence of the legal representatives of defendant 2 because in case of success of this appeal, there would be no likelihood of any inconsistent decree vis-à-vis defendant 2 coming into existence. The decree of the Trial Court had been in favour of the plaintiff and defendants 1 to 3 and the result of success of this appeal would only be of restoration of the decree of the Trial Court, which would be of no adverse effect on the estate of the deceased defendant 2.
Whether the High Court was justified in reversing the findings of the Trial Court in relation to the said agreement for sale?
The Court noticed that the two documents were intrinsically intertwined, particularly
because it was suggested by the contesting defendants that in the Will, apart from making bequest, the deceased also directed her mother (legatee) to execute a registered sale deed in favour of defendant 15 after receiving the balance sale consideration from him as per the agreement executed in his favour; and that the deceased also directed her mother to discharge the debts. This unmistakable inter-mixing of the two documents had been the primary reason that the Trial Court examined the matters related with them together, while indicating that to give a colour of reality to the Will and to show that the deceased was highly indebted to others which compelled her to sell the property, the suggestions were made about sale to the husband of the deceased’s sister. The High Court had missed out this fundamental feature of the case that two documents, Will and agreement for sale, as put forward by the contesting defendants could not be analysed independent of each other.
When the Will was found surrounded by suspicious circumstances, the agreement must also be rejected as a necessary corollary.
While examining preponderance of probabilities about the existence of such an agreement for sale, the overall relationship of the parties, the beneficiaries of the alleged agreement and their conduct could not be kept at bay. The Court stated, “If the story of indebtedness of the deceased goes in doubt, the suspicions surround not only the Will but agreement too.” Trial Court was right in questioning that if at all any such agreement was executed on 05-11-1976, there was no reason that the vendee did not get the sale document registered for a long length of time because the deceased expired 1½ years later.
It was held that the Trial Court had examined the matter in its correct perspective and had rightly come to the conclusion that the agreement for sale was as invalid and untrustworthy as was the Will. The findings of Trial Court, based on proper analysis and sound reasoning, called for no interference. On the other hand, the High Court had been clearly in error in interfering with the findings of the Trial Court in relation to the agreement in. Therefore, the Court restored the decree of the Trial Court with further directions that the appellant should be entitled to the costs of the litigation in the High Court and in this Court from the contesting respondents. [Venigalla Koteswaramma v. Malampati Suryamba, 2021 SCC OnLine SC 26, decided on 19-01-2021]