Calcutta High Court
Case BriefsHigh Courts


Calcutta High Court : While deciding an application under Article 227 of the Constitution of India dealing with issue of maintenance and welfare of parents, Kesang Doma Bhutia, J. directed the daughter to allow her aged parents to reside with her in a residential flat which was gifted to her by her parents via gift deed. The Court also directed both son and daughter to pay Rs. 10,000/- per month respectively as maintenance to their parents.

Facts of the Case

The instant application was filed by the petitioner-daughter from being aggrieved by the order of cancellation of gift deed dated 10.07.2017 by the Additional District Magistrate in favor of her father.

The father of the petitioner, out of love and affection gifted the flat to petitioner before her marriage via gift deed. The father used to live with his wife and petitioner in that flat. Even after the petitioner's marriage, she along with her husband used to live with her parents in that flat. The relationship between petitioner and parents had deteriorated after the marriage of the petitioner. The petitioner had driven the parents out from the flat and they had taken shelter in the house of their married son.

The father filed an application under S. 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 seeking maintenance as well as for cancellation of the gift deed executed by him. The ADM after inquiry directed the cancellation of gift deed and ordered the son to pay maintenance of Rs. 5000/- per month to the parents.

Court's Observation

The Court observed that “…it has become a part of Indian society to see aged parents and aged senior citizens seeking shelter of the Courts for their social and economic safety as we see some of them driven away from their home by their own children and not being provided proper maintenance and basic necessaries. And some is taking shelter in old age home run by government or by NGOs.”

The Court placed reliance on Debashish Mukherjee v. Sanjib Mukherjee, 2018 SCC OnLine Cal 616 where it was held that gift deed for transfer of immovable property executed by the parents in favor of their children cannot be declared null & void by the Tribunal until and unless such deed contains a clause that the child in whose favor the deed is being executed is liable to maintain their parents and provide them with basic amenities then such cancellation.

The Court also observed that since the gift deed is not conditional as per S. 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, therefore order of the ADM is not maintainable.

Taking into consideration of the facts of the case, age and health conditions of the parents, the Court directed the petitioner to provide shelter to her parents in the disputed flat and restrained her from alienating the disputed flat during the life-time of her both parents. The Court further directed the petitioner to pay Rs. 10,000/- per month maintenance towards basic needs and medical expenses of her parents and also, directed the son to pay Rs. 10,000/- per month towards the maintenance of his parents.

[Piyali Tewari Dey v. Baidyanath Dey, C.O. 2059 of 2021, order dated 09.03.2022]

*Ritu Singh, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: In a case where a portion of a joint Hindu Family was alienated ‘out of love and affection’ by way of a gift deed, the bench of SA Nazeer* and Krishna Murari, JJ has explained the scope of powers of members of Joint Hindu Family and has held that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a ‘pious purpose’.

In the case at hand, a gift deed was executed by the Karta of a Joint Hindi Family in favour of the appellant, who was raised by the Karta, ‘out of love and affection’ and by virtue of which the appellant was given a portion of the joint family property.

The Court, however, held that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a ‘pious purpose’ and what is understood by the term ‘pious purpose’ is a gift for charitable and/or religious purpose. Therefore, a deed of gift in regard to the ancestral property executed ‘out of love and affection’ does not come within the scope of the term ‘pious purpose’.

Observing that it is irrelevant if such gift or settlement was made by a donor in favour of a donee who was raised by the donor without any relationship, the Court held that the gift deed in the instant case was not for any charitable or religious purpose.

[KC Laxmana v. KC Chandrappa Gowda, 2022 SCC OnLine SC 471, decided on 19.04.2022]

*Judgment by: Justice SA Nazeer


For appellant/Donee: Advocate Anand Sanjay M. Nuli

For Respondent/Plaintiff: Senior Advocate Arvind Varma

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The Division Bench of V.M. Deshpande and Amit Borkar, JJ., expressed that a transaction by a natural guardian of a minor with respect to his immovable properties is valid till a Court strikes it down.

It was stated that one Arvindkumar Narayandas Khandelwal had gifted property by registered gift-deed in favour of the complainant. On the date of execution of the said deed, the complainant was three years old and therefore, the gift deed was executed in favour of the complainant through a natural guardian – accused 1.

The Complainant was the absolute owner and in possession of the land given to him by the above-said gift deed. In February 2020 the complainant came to know that the accused 1 had sold out a plot to accused 4 to 6.

It was alleged that after getting knowledge of the said transaction, on enquiry by the complainant, it was revealed that the accused 1 permitted Narayandas Hiralal to seek permission for conversion of gifted property and started using the said property for his personal use without obtaining permission from the Court.

Further, accused 1 transferred the minor’s property to the society established by him without obtaining permission from the competent Court.

It was alleged that accused 1 showed that the complainant had purchased the property from the housing society with the intention to cheat the complainant. Hence, accused 1 committed a criminal breach of the complainant’s trust.

Issues for Consideration:

Whether the natural guardian having executed the sale-deed of property of a minor in favour of a third party and thereafter repurchased part of it, can be prosecuted for offences under Sections 420, 467, 468, 471 of the Penal Code, 1860 that too, after more than 35 years from the date of attaining majority by the minor and after more than 48 years from the date of execution of sale-deed?

Analysis, Law and Decision

High Court referred to the decision of the Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534, wherein the distinction between void and voidable was explained.

Well Settled Principle of Law

Transfer of immovable property by the natural guardian of a Hindu minor far from being void or being a nullity is, in fact, one which fully binds the other party unless set aside by a competent Court. The minor can always enjoy the benefit thereof and enforce the contract after ratifying or accepting the same. Such a transaction is perfectly valid until duly avoided by the minor before a competent Court.

Bench expressed that, the transfer is by the minor as the principal through the agency of his guardian.

Coming to the facts of the present matter, an FIR was registered against the applicants who include the father, mother, sister and purchasers.

To attract Section 420 IPC, there should be deception or fraudulent inducement of a person to deliver property. As a consequence of such cheating, the accused should have dishonestly induced the person who is deceived to deliver such property to any person or to have made, altered or destroyed the whole or any part of a valuable security or anything which is signed or sealed and being capable of converted into a valuable security.

Further, to hold a person guilty of cheating under Section 415 IPC, it is necessary to show that he had the fraudulent or dishonest intention at the time of making the promise with an intention to retain the property and the inducement must be intentional.

As per the facts of the case, it was not the case of non-applicant 2 (complainant) that the applicants by fraudulent and dishonest inducement, deceived him either by making a false or misleading representation to deliver any property or to give consent to retention thereof or intentionally induced him to do or omit to do anything, which he would not do or omits, if he were not so deceived.

As the position of law on the alienation of the property of minor stands, the sale deed in favour of housing society was de jure executed by the minor (non-applicant 2) through natural guardian applicant 1.

High Court opined that it could not be transpired that by execution of sale deed and thereafter, repurchasing part in the form of individual plots by applicants 1 to 3 it cannot be said that the applicants 1 to 3 had altered or tampered with the documents nor it can be said that applicants had obtained documents by practicing deception.

No false documents were executed; hence no question of forgery arose under Section 468 IPC.

Further, the High Court referred to the decision of the Supreme Court in Mohammed Ibrahim v. State of Bihar, (2009) 8 SCC 75.

In Murugan v. Kesava Gounder (Dead), (2019) 20 SCC 633 summarised law as regards alienation of the immovable property by natural guardian holding that, disposal of immovable property of minor by his natural guardian (father) by registered sale-deeds in contradistinction of Section 8(2) are voidable under Section 8(3).

Bench found that the FIR was filed against applicants 1, 2 and 3 in order to cause pressure on them and to cause harassment.

“Criminal proceedings cannot be allowed to be used for settling, coercing or causing harassment to the accused persons.” 

While concluding the matter, Court quashed and set aside the FIR registered with non-applicant 1 for the offences punishable under Sections 420, 467, 468, 471 and Section 34 of the Penal Code, 1860. [Vasantkumar v. State of Maharashtra, 2022 SCC OnLine Bom 712, decided on 28-3-2022]

Advocates before the Court:

In Cr.APL No.91/2021.

Shri S. V. Manohar, Senior Advocate assisted by Shri M.G. Sarda, Advocate for Applicants.

Shri S. M. Ghodeswar, A.P.P. for Non-applicant/State.

Shri Avinash Gupta, Senior Advocate Assisted by Shri Aakash Gupta, Advocate for Non applicant No.2.

In Cr.APL No.312/2021.

Shri H. M. Mohata and Shri S. P. Bhave, Advocates for applicants Shri S. M. Ghodeswar, A.P.P. for Non-applicant/State.

Shri S. P. Bhandarkar, Advocate for Non-applicant No.2.

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah* and Sanjiv Khanna, JJ., held that an independent suit questioning the Compromise Decree would not be maintainable. The Bench observed that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law.

Factual Background

Brief facts of the case were such that the suit schedule property was gifted to the respondent 1–original plaintiff during his minority by his paternal grandmother, respondent 2 vide registered Gift Deed dated 13-02-2003, however the deed was revoked on 10-12-2004 and thereafter a registered Development Agreement-cum- General Power of Attorney dated 18-01-2008 came to be executed between the grandmother and the appellant–M/s. Sree Surya Developers and Promoters. Under the said Development Agreement, the grandmother was entitled to 35,000 sq. ft. of fixed saleable super built-up area along with proportionate number of car parking spaces and undivided share in the land.

The father of the respondent 1 filed a suit as the next friend of then minor respondent 1 seeking for declaration that revocation of Gift Deed as being illegal and not binding on the plaintiff therein and also for perpetual injunction. Subsequently, a compromise was arrived at between the parties vide Compromise Deed Dated 30-12-2015 under which it was agreed that the respondent 1 would be entitled to entire 35,000 sq. ft. of the constructed area and the Developer would be entitled to assign the development rights accrued to it under the said Development Agreement to the third parties. Thereafter the appellant–Developer assigned its development rights to respondent 4 and on the basis of the same, the respondent 4 had started developing the subject property.

On attaining the age of majority, the respondent 1 filed a suit before the Trial Court praying inter alia declaration of right, title and interest over the suit schedule property and declaration of Compromise Decree. He also prayed the revocation of deed as null and void.

Findings of the Courts below

The Trial Court rejected the plaint on the ground that in view of Order XIII Rule 3A CPC, no independent suit would be maintainable against the Compromise Decree. In appeal, the High Court had quashed and set aside the order passed by the Trial Court and has remanded the matter to the Trial Court by observing that the effect of the provisions of Order XXXII Rules 1 to 7 CPC had not been considered by the Trial court, which would have a direct bearing on the validity of the Compromise Decree.

Analysis and Observations

The Bench observed that the High Court had not at all dealt with and considered the provisions of Order XXIII Rule 3A CPC and had not considered whether in fact the suit challenging the Compromise Decree and/or for the reliefs sought in the suit would be maintainable or not. The Bench opined,

“What was required to be considered by the High Court was whether the independent suit questioning the Compromise Decree would be maintainable or not. The aforesaid crucial aspect had not been dealt with by the High Court at all and High Court had gone into the validity of the Compromise Decree in view of Order XXXII Rule 7 CPC.”

The Bench held that the plaint in exercise of powers under Order VII Rule 11 of CPC to challenge the Compromise Decree would be barred under Order XXIII Rule 3A of CPC and the party to a consent decree based on a compromise has to approach the same court, which recorded the compromise to challenge a decree based on compromise.

Rejecting the argument of the respondent that he had not specifically prayed for setting aside the Compromise Decree and what was prayed was to declare that the Compromise Decree was not binding on him and that for the other reliefs sought, the suit would not be barred, the Bench held that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. The Bench remarked,

If we consider the reliefs of declaration of title, recovery of possession, cancellation of revocation of Gift Deed, declaration for DGPA and Deed of Assignment-cum-DGPA, the said reliefs can be granted only if the Compromise Decree is set aside.


In the light of the above, the Bench concluded that the High Court had erred in setting aside the order of the Trial Court. Accordingly, the impugned judgment and order passed by the High Court was set aside and quashed and the order of the Trial Court was restored.

[Sree Surya Developers and v. N. Sailesh Prasad, 2022 SCC OnLine SC 165, decided on 09-02-2022]

*Judgment by: Justice M.R. Shah

Kamini Sharma, Editorial Assistant has put this report together



Case BriefsSupreme Court

Supreme Court: In an issue relating to the alleged gift deed by an old illiterate woman, the bench of MR Shah and Sanjiv Khanna*, JJ has held that when a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document. While the corollary to this principle finds recognition under sub-section (3) to Section 16 of the Contract Act, 1872 which relates to pardanashin ladies, the courts can apply it to old, illiterate, ailing or infirm persons who may be unable to comprehend the nature of document or contents thereof.

Factual Background

The dispute relates to land owned by Hardei, who died issueless in 1991. Gian Chand is the son of Hardei’s brother, whereas Keshav is her sister’s son. Gian Chand and Dhanbir, contended that late Hardei had gifted the land to them during her lifetime vide gift deed dated 23rd December 1985.

Keshav, on the other hand, claimed that he was a tenant in occupancy of the land for over 15 years, a fact admitted by Hardei before the revenue authorities. Keshav had therefore acquired rights over the land. Hardei, during her lifetime, had denied execution of the gift deed and opposed the request of mutation of the land in favour of Gian Chand and Dhanbir, which request for mutation was rejected in 1989.

Both the Trial Court and the first appellate court decided in favour of Keshav to hold that the execution of the gift deed by Hardei in favour of the plaintiffs was a delusion, bease on the following facts:

Hardei was an old illiterate lady who used to live in a village with her sister’s son Keshav. The gift deed statedly executed on 23rd December 1985 and registered on 1st January 1986, was not produced for mutation till 1989, where also, Hardei had opposed the mutation and denied execution of gift deed in favour of the plaintiffs. She had stated before the revenue authority that Keshav was in possession of the land in dispute for about the last 15 years. Further, there was ample evidence to show that Keshav was looking after Hardei and taking care of her needs. Therefore, there was no reason for Hardei to execute a gift deed favouring the plaintiffs. The plaintiffs were never in possession of the suit land even for the period after execution of gift deed in 1986, and till the institution of the suit in 1991. The revenue entries for the said period did not support the plaintiffs.

The Himachal Pradesh High Court, however, reversed the concurrent findings on the ground that the trial court and the first appellate court had misread and misinterpreted the documentary and oral evidence.


The Court noticed that the concurrent findings of the lower courts delve into the context and factual aspects surrounding the primary evidence viz., gift deed, to conclude that the plaintiffs case lacks base for a bona fide claim for decree of declaration. Appreciation of evidence is an exercise based on facts and circumstances where the preponderance of probability can take varying form and configurations. What facts and circumstances have to be established to prove the execution of a document depends on the pleas put forward. Ordinarily, no one is expected to sign or execute a document without knowing its contents, but if it is pleaded that the party executing the document did not know the contents thereof then it may, in certain circumstances, be necessary for the party seeking to prove the document to place material before the court to satisfy it that the party who executed the document had the knowledge of its contents.

When a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document. Corollary to this principle finds recognition in sub-section (3) to Section 16 of the Contract Act, 1872 which relates to pardanashin ladies. The courts can apply this principle to old, illiterate, ailing or infirm persons who may be unable to comprehend the nature of document or contents thereof.

Equally, one who bargains in the matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The burden of establishing perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. Therefore, in cases of fiduciary relationships when validity of the transaction is in question it is relevant to see whether the person conferring the benefit on the other had competent and independent advice.

The question whether a person was in a position to dominate the will of the other and procure a certain deed by undue influence is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly in accordance with the procedure prescribed, it is not liable to be reopened in second appeal.

Ruling on facts

Considering that the very origin of the gift deed was disputed by the executant during her lifetime, the lower courts were right in weighing the evidence of the gift deed on the touchstone of its validity first, rather than its form and content.

The fact in issue in the present case is the voluntariness and animus necessary for the execution of a valid gift deed, which is to be examined on the basis of evidence led by the parties who could depose for the truth of this fact in issue. Decision and determination of the fact in issue is by examination of the oral evidence of those persons who can vouchsafe for the truth of the facts in issue.

The impugned judgment in the second appeal by the High Court, unfortunately, chose to ignore and not deal with the fact in issue in the background of the case, but was completely influenced by the evidence led to support execution and registration of the document, and not whether execution was voluntary and in exercise of unfettered will to effect gratuitous transfer of land in favour of the plaintiffs.

Concurrent findings of facts arrived at in the present case were based upon a holistic examination of the entire evidence relating to execution and validity of the gift deed. The lower courts did not adopt a legalistic approach but took into account not one but several factual facets to accept the version given by Keshav that the gift deed was not a valid document.

“These concurrent findings are not perverse but rather good findings based upon cogent and relevant material and evidence on record. These findings of the facts can be interfered in the second appeal only if they are perverse or some gross illegalities have been committed in arriving at such findings. To reverse the findings is not only to assess errors but also deal with the reasons given by the court below and record findings and grounds for upsetting the conclusion.”

The Court hence held that the views and findings recorded by the lower courts are well reasoned and have taken into account several factors that repel and contradict the claim of a valid execution of the gift deed by Hardei favouring the plaintiffs. Hence, the impugned judgment of the High Court was set aside.

[Keshav v. Gian Chand, 2022 SCC OnLine SC 81, decided on 24.01.2022]

*Judgment by: Justice Sanjiv Khanna

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: N. Anil Kumar, J., decided a matter wherein the son-in-law claimed his right on father-in-law’s property while pleading that he was adopted by his wife’s family after marriage and hence had a right on the property.

Plaintiff aged 69 years was the respondent in the appeal claiming for permanent injunction interdicting the defendant from trespassing into the plaint schedule property or interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property and the house therein or committing any waste therein.

The said suit property belonged to the plaintiff by virtue of a gift deed.

Plaintiff also submitted that he had constructed a concrete house spending his own funds and was also residing with his family on the said property.

The defendant was the son-in-law of the plaintiff and he had no manner of right over the property.

Reason for filing the suit was that the defendant was disturbing the plaintiff’s peaceful possession and enjoyment of the suit property.

What was the son-in law’s contention?

Son-in-law contended that he had married the only daughter of the plaintiff and has been practically adopted as a member of the family subsequent to the marriage. Hence, he maintained that he has a right to reside in the house, as of right. He also added that he had constructed a building in the property expending his own money and has no other place of abode.

Trial Court’s decision

Trial Court held that the plaintiff is the owner in possession of the plaint schedule property and the defendant, who is the son-in-law of the plaintiff, has no manner of right in interfering with the possession of the plaint schedule building.

First Appellate Court upheld the trial court’s decision.

Question for Consideration:

Does a son-in-law have any legal right to his father-in-law’s property and building?

High Court expressed that it would be difficult to hold that the defendant was a member of the family.

It was noted by the Court that the defendant’s behaviour became intolerable, due to which the plaintiff filed a suit seeking a permanent prohibitory injunction restraining the defendant from entering into the plaint schedule property and building.

High Court stated that it is a settled principle of law that even a trespasser, who is in established possession of the property, could obtain an injunction.

In the present matter, the matter would have been different if the plaintiff was the true owner of the property.

Defendant was the son-law in the present case, it is shameful for him to plead that he had been adopted as a member of the family, subsequent to the marriage with the plaintiff’s daughter.

Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, in this decision the 3-Judge Bench of the Supreme Court reiterated the principle that possession is good against all but the true owner.


“A person in possession of the land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner.”

The rightful owner filed a suit for injunction restraining him from entering into the property. The residence of the defendant, if any, in the plaint schedule building is only permissive in nature. The defendant cannot contend that he is in legal possession of the suit property or the building.

Further, the Court opined that it was not necessary to decide the validity of the Gift Deed executed by the Church in favour of the plaintiff.

Contention that the plaintiff was a man of bad character and not on good terms with family members was rejected in view of Section 52 of the Indian Evidence Act which provides that in civil cases, a fact pertaining to the character of an individual is not relevant.

The said section lays down the principle that the character of a party as a piece of evidence cannot be used to manifest that conduct attributed to him is not probable or improbable.

 To be a question of law involved in the case, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

Bench dismissed the appeal on finding no error in the decision of lower courts. [Davis Raphel v. Hendry Thomas, 2021 SCC OnLine Ker 3491, decided on 6-09-2021]

Advocates before the Court:

For Appellant:

Blaze K. Jose, Advocate

Deepa Narayanan, Advocate

For Respondent:

V.A. Satheesh, Advocate

V.T. Madhavanunni

Case BriefsHigh Courts

Bombay High Court: A.K. Menon, J., addressed a matter wherein an arrangement was executed between the parties for taking care of the elderly mother in light of a conditional gift deed.

The instant application was filed by the plaintiffs praying for urgent relief. Plaintiff 1 is not a resident of India and plaintiff 2 being his mother, was being looked after by the defendant under an arrangement between them.

As a part of the above-stated arrangement, plaintiff 1 contended that defendant executed an undertaking by which the defendant agreed and undertook to look after plaintiff 2 i.e. the elderly mother of plaintiff 1.

A Gift Deed was also executed on the same date in favour of the defendant when the above-stated undertaking was executed by the defendant.

The subject matter of the said Gift Deed was a flat situated in Mumbai in a co-operative housing society. Plaintiffs contended that the gift was conditional upon compliance with the undertaking and hence sought the gift deed needed to be revoked as the defendant had declined to honour the undertaking.

The reason for seeking urgent ad-interim relief is the plaintiffs’ apprehension that the defendant may dispose of the said flat to the detriment of the plaintiffs since the plaintiffs sought to revoke the said gift deed.

Prima facie, the documents stated that the gift deed was indeed executed and so was the undertaking.

Further, there was no satisfactory explanation as to why the execution of the undertaking was denied since it appears that the undertaking was initially shared by the defendant himself in the draft form by e-mail, copy of which was found in the additional compilation of documents filed by the plaintiffs.

Hence, prima facie it appeared that there was a link between the undertaking, obligation therein and the gift deed.

Further, it was submitted that the gift deed purported to gift the flat described therein out of love and affection to the defendant. It was contended on behalf of the defendant by Mr Petkar that even under Section 126 of the Transfer of Property Act, 1882, such a gift deed cannot be revoked and that no case is made out for revocation even assuming that there was an undertaking in place.

In the Court’s opinion, the denial of the execution of the undertaking is suspect and will have to be examined in greater detail. If the defendant had in fact not executed the undertaking, there was no reason for him to have sent those undertaking in draft form and in PDF form to plaintiff 1.

Hence, prima facie case was made out for grant of an ad-interim relief. Bench directed the co-operative housing society housing the suit flat shall make note of this injunction and shall not permit the transfer of the flat till further orders.

Flat in question is to be protected from alienation.[Edward D’Cunha v. Mark Madhu Suvarna, 2020 SCC OnLine Bom 3083, decided on 23-11-2020]

Advocates who appeared in the matter:

Rashmin Khandekar, i/by Taurus Legal, for the Applicants-Original Plaintiffs.

Akshay Petkar, with Aniket Malu, for the Defendant.

Patna High Court
Case BriefsHigh Courts

Patna High Court: Mohit Kumar Shah, J., while addressing the instant partition suit decided on the question as to whether:

transferee pendente lite have a right to be added as parties to the partition suit?


Facts pertinent to the present case were that the plaintiffs-respondents had filed a title suit against the defendants-respondents.

Plaintiffs and main defendants belonged to the branches of two brothers. The suit property belonged to the daughter of Late Tikam Mahton namely Balkesia who was murdered in 1952 and was issueless.

Husband of Balkesia, who predeceased her, gifted the suit property to her vide registered deed of gift dated 18-12-1928.

After her death, the two brothers of Balkesia, namely Late Ramcharan Mahton and Late Beni Mahton, fought tooth and nail for the suit property with Ram Chandra Mahton, Ram Das Mahton, Tuntun Mahton, Sheonath Mahton and Ram Prasad Mahton who claimed to be reversioners of Late Balkesia.

Second Appeal

Good sense prevailed on the parties and the dispute culminated into a compromise decree passed on 22-07-1958 in the second appeal, where the branches of two brothers namely Late Ramcharan Mahton and Late Beni Mahton were given 8 annas share each of the suit property.

Subsequently wife of Late Ramcharan Mahton namely Quadri Devi fraudulently executed some sale deeds in favour of different persons (defendants/respondents) with respect to more land than what had actually fallen in the share of Late Ramcharan Mahton.

Therefore the plaintiffs/respondents were forced to file title suit.

In the above-stated title suit, plaintiffs very cleverly suppressed the subsequent agreement entered into between the Late Ramcharan Mahton and Late Beni Mahton by virtue of which the entire half share of total land, which fell in equal share of the two brothers as per the decree passed in the Second Appeal was relinquished by Late Beni Mahton in favour of his brother late Ramcharan Mahton in lieu of the cost of litigation and Rs 100 paid by Late Ramcharan Mahton.

After the death of Quadri Devi, plaintiffs/respondents chose to file a Tite Suit for half share of the suit property by suppressing the said agreement and misrepresenting facts. In fact, the son of Late Ramcharan Mahton namely Rameshwar Mahton had also died earlier leaving behind his wife and two minor children who were the vulnerable target for the plaintiffs/ respondents.

Analysis and Decision

Bench stated that there is no quarrel or dispute regarding the proposition of law that no period of limitation is prescribed under Order 22 Rule 10 of the Code of Civil Procedure, 1908 inasmuch as the right to apply under the said rule is a continuous right and application can thereafter be made at any stage till the proceedings are pending.

High Court found that the petitioner admitted that the land n question was sold by Quadri Devi, wife of late Ramcharan Mahton to different persons.

Proforma defendant/respondent 15 purchased one katha of land vide registered sale deed dated 20-10-1982 and proforma defendants/respondents 16, 17 and 18 purchased one katha of land vide sale deed dated 14-12-1982.

Petitioners stated to have purchased one katha of land each from defendants/respondents 15 and 16 to 18 who were defendants 10 and 11 to 13 respectively in the title suit, vide two registered sale deeds, both dated 28-11-2001 and thereafter, they sold the said pieces of land by two registered sale deeds both dated 13-02-2012 in favour of Sanjay Kumar Gupta and Punam Rai.

In view of the above Court referred to the Supreme Court decision in Udit Narain Singh Mahapaharia v. Additional Member Board of Revenue, Bihar, AIR  1963 SC 786.

Thrust of arguments of petitioners counsel was that the transferees in the interest of other co-owners acquiring interest during the pendency of a partition suit filed by a co-owner is a necessary and proper party in a partition suit filed by a co-owner, hence the trial court wrongly rejected the petition of the partitioners.

Court stated that in the present case, petitioners are the transferee pendente lite, however, whether they have a right to be added as parties to the partition suit, is the issue to be decided in the present proceedings.

Bench referred to the broad purpose of Section 52 of the Transfer of Property Act which states to maintain status quo unaffected by the act of any party to the litigation pending its determination since if alienations pendente lite are permitted to prevail, it would be impossible to bring an action or suit to a successful termination.

In the decision of Supreme Court, Marirudraiah v. Sarojamma, (2009) 12 SCC 710, it was observed that courts are not supposed to encourage pendente lite transactions and regularise their conduct by showing equity in their favour at the cost of co-sharers.

Doctrine of lis pendens is expressed in the well-known maxim; ‘pendente lite nihil innovature’ which means ‘during pendency of any suit regarding title of a property, any new interest in respect of that property should not be created.

Section 52 of the Transfer of Property Act incorporates the well-known principle of lis pendens, which was enunciated in Bellamy v. Sabine [(1857) 1 De G&J 566: 44 ER 842].

The above-stated doctrine is based upon expediency and it is immaterial whether the transferee pendente lite had or had not any notice of the suit.

This doctrine had or “had not notice of the suit” has been fully expounded by the Privy Council in Faiyaz Hussain Khan v. Prag Narain, (1907) 29 All 339 PC where their lordship quote with approval the observations of Lord Justice Turner is Bellamy’s case.

In the Supreme Court decision of Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403 it was held that a transferee pendente lite cannot claim his addition in the pending suit as of right, though the Court has the discretion to make him a party, he can be added as a proper party only if his interest in the subject matter of the suit is substantial and not just peripheral.

Court also observed that

“…Courts must be cautious and vigilant and impleadment of a stranger in the partition suit must be for substantial cause and a purchaser pendente lite if impleaded in a partition suit has a very limited right.”

Bench held that, a purchaser pendente lite like the petitioners herein, who have purchased the suit property / a portion thereof from another purchaser/purchaser pendente lite and not from the co-sharer, have no right to equities and thus cannot be impleaded in a partition suit, more so, since the petitioners herein have also alienated the property in question in favour of Sanjay Kumar Gupta and one Punam Rani.

Court added that though the petitioners had already alienated their interest in the suit property vide two sale deeds dated 13-02-2012, before filing the present writ petition, they had suppressed the said fact and obtained a stay, which also disentitles the petitioners to any relief under an equitable and discretionary jurisdiction of the High Court under Article 226 of the Constitution of India.

In view of the above discussion, Court found no infirmity in the impugned order passed by the lower court. [Pushpa Drolia v. Sohrai Mahton, 2020 SCC OnLine Pat 1921, decided on 14-08-2020]

Case BriefsHigh Courts

Calcutta High Court: Bibek Chaudhuri J. allowed an appeal challenging the judgment whereby a gift deed was held as void and donee of the deed were restrained from claiming the title in the gifted property.

Respondents herein were the plaintiffs in a suit filed for setting aside of a gift deed vide which the suit property had allegedly been transferred to the petitioners herein (defendants in suit). Respondents also sought a permanent injunction restraining petitioners from claiming title over the suit property. The trial court ruled in favor of the petitioner-defendants and dismissed the suit. However, the appeal filed against the said judgment was allowed and the suit was decreed in favour of respondent-plaintiffs.  Aggrieved thereby, this second appeal was filed.

Counsels for the appellant Bholanath Mukherjee and Mukteswar Maity submitted that though the plaintiff’s had originally contended that the donor (mother) of the deed was not in full sense while executing the deed. However, a prosecution witness in cross-examination stated that her mother was under the care of the defendants and that she did not know if the gift deed passed by her mother was unintentional. Further, she also admitted to the execution of the deed of gift in favor of the defendants thus demolished all chances of a fake deed. It was further contended that the plaintiff failed to provide any evidence to support their charge, and according to Section 102 of the Evidence Act, 1872 the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side. He further contended that since the respondents had imposed the allegations of fraud against the appellants, the burden of proof was on them to prove the negative.

Counsels for the respondent Ashish Sanyal and Pratip Kumar Chatterjee contended that since the mother used to live with the appellants they were in a position to dominate, and the onus of proof may be reversed in a case of undue influence and misrepresentation. He further submitted that the acceptance to a deed of a gift must be made by the donee while the donor is still alive. Respondents raised serious doubt over the authenticity of the gift deed because of the fact that it was registered after the death of the donor.

The Court opined that it is not necessary for the validity of a gift deed that it should be registered by the donor himself, and subsequent registration of a deed of gift after the death of the donor at the instance of the donee does not offend Section 123 of the Transfer of Property Act, 1882. It was observed that the burden of proof may be reversed if the transaction appears to be unconscionable, but the same could not be proved in the present case. Thus, the appeal was allowed and the decision of the trial court was restored.[Dinabandhu Mondal v. Laxmi Rani Mondal, 2019 SCC OnLine Cal 1118, decided on 17-06-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Arun Mishra and Indira Banerjee, JJ. allowed an appeal while setting aside the judgment and order of the Kerala High Court concerning a ‘gift deed’.

In the present case, the facts of the case are that the appellant executed a purported gift deed in favour of the respondent with the expectation that the respondent will look after the appellant and her husband. The said deed was to come into effect only after the death of the appellant and her husband. On 02-06-1999, the appellant executed the deed of cancellation and after a period of 8 months, respondent filed a suit for declaration that the cancellation deed executed by the appellant is null and void. Appellant filed original suit for permanent injunction restraining the respondent or his men from trespassing or committing waste or mischief in suit property.

The Original Suit was challenged before the Munsif, however, it was decreed. The district court upheld the decree, but the High Court set aside the concurrent findings and dismissed the suit.

The Supreme Court on placing the analysis of provisions of Transfer of Property Act along with the decisions pertaining to the same subject matter stated that:

“A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled.”

On placing reliance on Reninkuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 445, in which it was stated that “there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property”, the Court stated that the deed of transfer was executed for consideration and was, in any case, conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. Therefore, the Court held that there was no completed gift of the property and the appellant was within her right in cancelling the deed.

The appeal was allowed and judgment and order under appeal were set aside. [S. Sarojini Amma v. Velayudhan Pillai Sreekumar,2018 SCC OnLine SC 2200, decided on 26-10-2018]