Partition

Case BriefsSupreme Court

Supreme Court: In a family property dispute wherein the legitimacy of one of the contenders was questioned, the bench of SA Nazeer and Vikram Nath, JJ has held that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock and since in the present case, the defendants had failed to rebut the presumption in favour of a marriage between the plaintiff’s parents on account of their long co-habitation, he cannot be held to be an illegitimate son.

In the case at hand, the suit property belonged to a family governed by the Mitakshara Law of Inheritance. The said property originally belonged to one Kattukandi Edathil Kanaran Vaidyar who had   four sons, namely, Damodaran, Achuthan, Sekharan and Narayanan. Achuthan had a son. Sekharan and Narayanan did not marry. Damodaran married one Chiruthakutty and they had a son by the name of Krishnan. However, the defendants contended that Damodaran never married Chiruthakutty and hence, by virtue of illegitimacy, Krishnan, the first plaintiff, cannot claim share in the property.

The Trial Court on examination of the evidence on record held that Damodaran had a long co-habitation with Chiruthakutty and that due to such co-habitation, it could be concluded that Damodaran had married Chiruthakutty and that the first plaintiff was the son born in the said wedlock.  The Trial Court accordingly passed a preliminary decree for partition of the suit property into two shares and one such share was allotted to the plaintiffs.

The Kerala High Court, however, held that the first plaintiff was the son of Damodaran and Chiruthakutty, but not a legitimate son.

Before the Supreme Court, the plaintiff argued that since their marriage took place more than 50 years prior to filing of the suit (now 90 years), there is no possibility of having any documentary evidence of their marriage. He, however, produced documents wherein there were references to periodical payments made to Chiruthakutty from the husband’s house. Witnesses also examined on behalf of the plaintiffs in support of his contention. Hence, it was submitted that the documents would conclusively show that the first plaintiff was the son of Damodaran and Chiruthakutty and the contention of the defendants that Damodaran died as a bachelor or without any legitimate son, cannot be believed at all.

At the outset, the Court reiterated the settled law that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.

Coming to the facts of the case, the Court took note of the contention of the plaintiffs that the marriage of Damodaran and Chiruthakutty was performed in the year 1940. There was clear evidence that the first plaintiff was born on 12.05.1942. The documents produced by the plaintiffs were in existence long before the controversy arose between the parties. Hence, these documents, coupled with the evidence of witnessed, showed the long duration of cohabitation between Damodaran and Chiruthakutty  as husband and wife.

The Court held that the defendants failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co-habitation. Hence, the impugned judgment of the High Court was set aside and the judgment and decree passed by the Trial Court was restored.

[Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 SCC OnLine SC 737, decided on 13.06.2022]

*Judgment by: Justice SA Nazeer

For plaintiffs: Senior Advocate V. Chitambaresh

For defendants: Senior Advocates R. Basant and V. Giri

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., decided on the following questions for consideration:

  • Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
  • Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
  • Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?

Factual Background

A suit for partition and separate possession of the suit property was filed by respondents against the predecessor of the appellants by the name Mr Gumansing, claiming that they had 1 / 2 share of the suit property.

It was stated that the respondents were the wife and children of Harising who contested the suit by his written statement and admitted that the suit property was the ancestral property.

Further, he had put up a plea of the previous partition about 70 years back, however, admitted that the suit property remained joint and he claimed to be the exclusive owner of the suit property and also claimed to be in possession.

Trial Court concluded that the suit property was the ancestral and joint family property but denied giving any share on the ground of non-joinder of all coparceners. Though the District Court quashed and set aside the judgment of the trial Court and decreed the suit partly.

Analysis and Decision

High Court noted that as per the provisions of the Hindu Succession Act, the suit property was simultaneously inherited by Shivam and Totaram who were real brothers and each one of them would be entitled to half share.

In a suit for partition, the heads of all the branches are the necessary parties.

Further, even if all the sons of Shivaram and Totaram were not covered by Order XLI Rule 33 of the Code of Civil Procedure, having found that there was due representation of both the branches and there could not have been any dispute as to equal share of each of these two branches, the interest of justice was met by decreeing the suit partly and by directing the suit property to be divided into two halves only.

Bench found that the District Court had not directed a further division amongst the coparceners inter se from each of the branches.

Hence, High Court answered the substantial questions in favour of the respondents and the Second Appeal, therefore must fail.

There was absolutely no evidence to show that the respondents were completely excluded from receiving any yield from the suit property and the entire usufructs were being enjoyed by the appellant to their exclusion.

In view of the above, civil application was disposed of. [Late Gumansing Shivram Patil v. Abhiman Gumansing Patil, 2022 SCC OnLine Bom 866, decided on 22-4-2022]

Advocates before the Court:

Advocate for Appellants: Mr. S.B. Yawalkar h/f. Mr. B.R. Yawalkar

Advocate for Respondents1 to 5: Mr. S.V. Dixit

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B.R. Gavai*, JJ., upheld the impugned judgment of the High Court wherein the High Court had granted property rights to the step children of the deceased in her mehar property by declaring the mehar deed as unenforceable for being nominal.

The Disputed Family History

  • The parties have claimed through Mohiyuddin Pasha. According to the plaintiffs, Mohiyuddin Pasha had earlier married Noorbi and out of the said wedlock, two sons namely Rahaman Barid and Azgar Barid, the appellant herein were born.
  • Rahaman Barid was married to Rahamathunnisa plaintiff 1 and out of the said wedlock, plaintiff 2 was born.
  • Rahaman Barid died in 1945 i.e. prior to Mohiyuddin Pasha, who died in 1964.
  • After the death of Noorbi in 1944, Mohiyuddin Pasha married Mazambi, plaintiff 3 and had five children out of said wedlock, namely plaintiff 4 to 8.

Issue before the Court

The appellant contended that plaintiff 1 and 2 i.e. wife and daughter respectively, of Rahaman Barid were not entitled to any share in the suit schedule properties inasmuch as Rahaman Barid had died in 1944 i.e. prior to Mohiyuddin Pasha, who died in 1964. Further, he denied that plaintiff 3 was married to Mohiyuddin Pasha and that plaintiff 4 to 8 were children of Mohiyuddin Pasha. The appellant also contended that Mohiyuddin Pasha had executed a Mehar Deed in favour of his first wife Noorbi, which was registered on 30-07-1936, and as such, the said properties ceased to be the properties of Mohiyuddin Pasha.

Analysis and Findings

The High Court found that the voluminous documents of evidence; namely birth certificates of plaintiffs 4 to 8, the transfer certificates issued by the Government Higher Primary School established that plaintiffs 4 to 8 were the children born to Mohiyuddin Pasha through Mazambi. With regard to Mehar Deed, the High Court opined that it was a nominal one and was not acted upon as in an earlier suit for partition i.e. O.S. No.514 of 1961, the deceased Mohiyuddin himself had pleaded that the first son of Noorbi and Mohiyuddin Pasha, namely Rahaman Barid, was demanding separate share in the properties and was residing separately and it was to avoid any share in the suit schedule properties the Mehar Deed was created in favour of his first wife Noorbi.

Hence, the High Court reversed the findings of the Appellate Court that plaintiff 3 was not married to Mohiyuddin Pasha for being erroneous in law, the High Court had relied on the oral as well as the documentary evidence specifically the evidence of Noorbi’ brother who had admitted existence of second marriage. Consequently, the High Court vide held that all the suit schedule properties were required to be divided amongst appellant and plaintiffs 3 to 8. However, it was held that plaintiffs 1 and 2 were not entitled for any share in the suit schedule properties as Rehaman Barid, husband of plaintiff 1 and father of plaintiff 2 predeceased the propositus i.e., Mohiyuddin Pasha.

In the light of the above and considering the records available and reasoning behind the impugned judgment of the High Court, the Bench opined that the High Court had rightly interfered with the findings as recorded by the First Appellate Court, inasmuch as the First Appellate Court was not justified in reversing the findings of the Trial Court in that regard which were based on proper appreciation of evidence.

[Azgar Barid v. Mazambi, 2022 SCC OnLine SC 212, decided on 21-02-2022]

*Judgment by: Justice B.R. Gavai

Appearance by:

For the Appellant: Naresh Kaushik, Advocate

For the Respondents: Girish Ananthamurthy, Advocate

Kamini Sharma, Editorial Assistant has put this report together

 

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao, BR Gavai and BV Nagarathna*, JJ has held that a document of partition which provides for effectuating a division of properties in future would be exempt from registration under section 17(2)(v) of the Registration Act, 1908.

The Court explained that the test in such a case is whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document does not by itself create a right or interest in immovable property, but merely creates a right to obtain another document, which will, when executed create a right in the person claiming relief, the former document does not require registration and is accordingly admissible in evidence.

The Court was deciding a case where the panchayatdars had passed an award in the form of a resolution in relation to a family property. It had details as to how the properties had to be dealt with in future. There was no right created in any specific item or asset of the joint family properties in any person but the parties resolved to take certain actions in pursuance of a family arrangement.

The Supreme Court observed that the said award was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also division of joint family properties by metes and bounds in specific properties. Hence it was exempted from registration under Section 17(2)(v) of the Act.

[K. Arumuga Velaiah v. PR Ramasamy, 2022 SCC OnLine SC 95, decided on 27.01.2022]

*Judgment by: Justice BV Nagarathna

Counsels

For appellant: Advocate V. Prabhakar

For respondent: Advocate K.K. Mani

Case BriefsSupreme Court

Supreme Court: The bench of SA Nazeer and Krishna Murari*, JJ has held that if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. However, if she dies leaving behind her husband or any issue, then Section 15(1)(a) of the Hindu Succession Act, 1956 comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

Scheme of the Hindu Succession Act, 1956 and the relevant provisions

The main scheme of the Act is to establish complete equality between male and female with regard to property rights and the rights of the female were declared absolute, completely abolishing all notions of a limited estate. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. The Act lays down a uniform and comprehensive system of inheritance and applies, inter-alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri Laws. The Act applies to every person, who is a Hindu by religion in any of its forms including a Virashaiva, a Lingayat or a follower of the Brahmo Pararthana or Arya Samaj and even to any person who is Buddhist, Jain or Sikh by religion excepting one who is Muslim, Christian, Parsi or Jew or Sikh by religion.

Section 15 lays down the general rules of succession in the case of female Hindus. The scheme of sub-Section (1) of Section 15 goes to show that property of Hindu females dying intestate is to devolve on her own heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). Sub-Section (2) of Section 15 carves out exceptions only with regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter or children of the pre-deceased son or daughter.

The basic aim of the legislature in enacting Section 15(2) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source.

Thus, if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. In case, a female Hindu dies leaving behind her husband or any issue, then Section 15(1)(a) comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

Section 15(1)(d) provides that failing all heirs of the female specified in Entries (a)-(c), but not until then, all her property howsoever acquired will devolve upon the heirs of the father. The devolution upon the heirs of the father shall be in the same order and according to the same rules as would have applied if the property had belonged to the father and he had died intestate in respect thereof immediately after her death.

Applicability of the law on the case at hand

Suit for partition was filed by Thangammal, daughter of one Ramasamy Gounder, claiming 1/5th share in the suit property. The said Ramasamy Gounder had an elder brother by the name of Marappa Gounder. Ramasamy Gounder, predeceased his brother Marappa Gounder who died on 14.04.1957 leaving behind the sole daughter by the name of Kuppayee Ammal who also died issueless in 1967. Further case set up by the plaintiff/appellant was that after the death of Marappa Gounder, his property was inherited by Kuppayee Ammal and upon her death in 1967, all the five children of Ramasamy Gounder are heirs in equal of Kuppayee and entitled to 1/5th share each.

Noticeably Kupayee Ammal, after inheriting the suit property upon the death of Marappa Gounder, died after enforcement of Hindu Succession Act, 1956, which has amended and codified the Hindu Law relating to intestate succession among Hindus.

Since the property in question was admittedly the self-acquired property of Marappa Gounder despite the family being in state of jointness upon his death intestate, his sole surviving daughter Kupayee Ammal, will inherit the same by inheritance and the property shall not devolve by survivorship.

Further, since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughter’s being Class-I heirs of their father too shall also be heirs and entitled to 1/5th Share in each of the suit properties.

[Arunachala Gounder v. Ponnusamy, 2022 SCC OnLine SC 72, decided on 20.01.2022]

*Judgment by: Justice Krishna Murari

Counsels

For appellant: Advocate P.V. Yogeswaran

For respondent: Advocate K.K. Mani

Case BriefsHigh Courts

Andhra Pradesh High Court: M. Satyanarayana Murthy, J., expressed that,

“If a party to the document wants to annul the document, he has to file a suit under Section 31 of the Specific Relief Act before the competent Civil Court and if, third party wants to annul the document, he has to approach the competent Civil Court and seek relief under Section 34 of the Specific Relief Act.”

Murthy and Sodemma were husband and wife with no children. Murthy was the absolute owner of agricultural land and a house, he had alienated his entire property to his wife during his lifetime.

Sodemma who was the maternal aunt of the petitioner, bequeathed the said property to him as he had taken care of their welfare at the old age. Therefore, petitioner became the absolute owner and possessor of the said property as per the registered Will deed executed by Sodemma.

Respondent 15, son of younger brother of Murthy with a mala fide intention to become the owner of Murthy’s property hatched a plan and fabricated an adoption deed to claim that Murthy and Sodemma adopted respondent 14 and got the signature of Murthy and Sodemma on the said fabricated deed by fraud and misrepresentation.

Later, in the year 2002, respondent 15 fabricated unregistered agreement of sale on the blank stamp papers signed by Murthy having believed him.

Respondent 14 filed for partition of the above-mentioned property by claiming that he is adopted son of Murthy and Sodemma.

Respondent 15 also filed for specific performance of unregistered sale agreement alleged to have been executed by Murthy after lapse of more than 17 years from the date of alleged execution of the said unregistered agreement. Murthy and Sodemma contested both the suits and denied the execution of both the fabricated adoption deed dated 24.05.1993 and alleged unregistered agreement of sale.

Further, it was submitted that during the pendency of both the said suits, respondent 17, the then Minister for Animal Husbandry alleged to have purchased the property, which is the subject matter of those two suits, and started construction of palatial building in the subject property and he by abusing his power as the Minister for Animal Husbandry made the authorities concerned to issue antedated permissions in contravention of Rules.

This Court had directed that there shall not be any construction on the subject property.

Crux of the Matter

Alleged playing of fraud on Sub-Registrar in mutating the name of respondents 14 and 15,  registration of property in the name of respondent 16 allegedly at the instance of respondent 17.

Petitioners claim was that when the decree was passed, appeal were pending against both the decrees and common judgment, execution of sale deed by respondents 14 and 15 in favour of respondent 16 allegedly at the instance of respondent 17 deviating the decree was serious illegality and it amounted to ‘fraud’.

Tahsildar, respondent 8 was not supposed to mutate the names of respondents 14 and 15 and only due to influence of respondent 17.

Petitioner claimed that the very mutation of the name of respondents 14 and 15 in the revenue record, now mutated the name of respondent 16 after completion of sale transaction, registered document was tainted by ‘fraud’.

Analysis, Law and decision

To constitute fraud, there must be a suggestion, as a fact, of that which is not true, by one who does not believe it to be true; the active concealment of a fact by one having knowledge or belief of the fact; a promise made without any intention of performing it; any other act fitted to deceive; any such act or omission as the law specially declares to be fraudulent. 

In the present matter, Court stated that,

In the absence of any interim direction, registration of a document when presented for registration satisfying the requirements under the Stamp Act and Registration Act is justified.

 Court added that Registrar is bound to register the document presented for registration unless there is prohibition from registration of such document pertaining to the land covered by Section 22A, 35 (3) and Section 71 of the Registration Act. But no such ground was raised in the present matter.

In Court’s opinion, execution of registered sale deed by respondent 14 and 15 in favour of respondent 16 by playing fraud was purely a mixed question of fact and law, such a question cannot be decided in writ petition while exercising power under Article 226 of the Constitution of India.

Supreme Court in Satya Pal Anand v. State of M.P., AIR 2016 SC 4995, held that “a party aggrieved by registration of a document is free to challenge its validity before a competent Civil Court.”

High Court held that while exercising jurisdiction under Article 226, this Court cannot annul document on the ground of ‘fraud’ and ‘misrepresentation’ since they are both mixed questions of fact and law, such roving enquiry cannot be conducted by the Constitutional Court to issue a writ of Mandamus as it is an extraordinary and discretionary relief.

When the documents are presented for registration before the Sub-Registrar, his duty is to register the same subject to any bar contained in any law and satisfying the requirements under the provisions of the Stamps and Registration laws. Such registration of document is nothing but discharging public duty.

Therefore, registration of document while discharging public duty by public officer cannot be said to be fraudulent act and such act will not attract the definition of fraud under Section 17 of the Indian Contract Act.

When can a document be cancelled?

It is settled law that the document can be cancelled only by filing suit before the Civil Court under Section 31 of the Specific Relief Act by a person, who is a party to the document.

If a third party intended to annul the document, he has to file a suit to declare the suit document as illegal and not binding on the plaintiff.

Due to lack of merits, no relief was granted and petition was dismissed.[Mangipudi Nagaraju v. State of Andhra Pradesh, 2021 SCC OnLine AP 3148, decided on 8-10-2021]

Case BriefsDistrict Court

South East, Saket Courts, New Delhi: Naresh Kumar Laka, Additional District Judge, decided a suit with respect to partition and permanent injunction.

Instant suit was filed for partition and other reliefs by claiming that the plaintiff was a joint owner of 1/3rd share of the suit property and Defendants 1 to 5 were the joint shareholders of another 1/3rd share and Defendant 6 for remaining 1/3rd share. According to the plaintiff, the suit property was purchased by the plaintiff along with his two brothers. Defendants 1 to 5 were legal heirs of one of the brothers, and Defendant 6 was widow of the other brother. Defendants 1 to 5 contested the suit, while Defendant 6 supported the case of the plaintiff.

Preliminary Objections/Arguments

Objection 1: Defendants 1 to 5 argued that the sale deed in question (as per which the suit property was purchased by the plaintiff and his two brothers) had not been proved by the plaintiff since PW 4 (Record Keeper, Department of Delhi Archives) had failed to identify the sale deed.

Court’s Opinion: PW 4 duly proved the factum of registration of the sale deed on the basis of official record and, as such, as per proviso to Section 68 of the Indian Evidence Act, 1872, the said sale deed stood proved and there was no other requirement under law to prove the said document.

Objection 2: It was argued by Defendants 1 to 5 that the parentage of the vendee/buyer have not been mentioned in the sale deed and, therefore, the said sale deed was not valid.

Court’s Opinion: Information mentioned on the reverse side of the sale deed was sufficient to identity the parties.

Moreover, there is no requirement under law to compulsorily mention the parentage name of transferor or transferee.

Objection 3: Defendants 1 to 5 argued that the suit property was constructed out of the funds of Raj Rani Sharma or her husband (one of the brothers, through whom Defendants 1 to 5 laid claim to the suit property as legal heirs) and plaintiff did not contribute anything and he had no source of income at that time being minor.

Court’s Opinion: As per law, the right, title and interest on immovable property are required to be decided on the basis of the title documents and even if it is presumed that the plaintiff did not contribute anything, it cannot be said that the said transaction was invalid.

Out of love and affection, a person can also contribute in the sale amount on behalf of other person and unless said fact is challenged by the former, the other persons have no right to question it. The mentioning of names as vendees in the registered sale deed clearly demonstrates the intention of the persons at the time of execution of the said document to create a right in favour of such persons. Had there been any contrary intention, names of such persons would not have been mentioned in the said sale deed.

The Court also observed it to be settled law that amount spent in raising construction of a house cannot disentitle the title holder of the said property and instead thereof such person who raised construction can claim recovery of the said amount, if desired, as per law by filing separate suit.

Objection 4: It was argued by Defendants 1 to 5 that the plaintiff was minor at the time of registration of sale deed and, therefore, the said document was invalid.

Court’s Opinion: The Court found no provision under the Transfer of Property Act, 1882 which provided that any sale transaction in favour of a minor was invalid rather there are other various provisions in the Act which provide that an interest can be transferred in favour of an unborn child in womb.

Noting that the rule that a minor’s agreement is void ab initio which was laid down in the famous case of Mohiri Bibi v. Dharmodass Ghose, (1903) 30 Cal. 539, was propounded in minors’ favour for their protection, the Court observed that the law does not regard a minor as incapable for accepting a benefit.

Further, the Court stated that even if it is presumed that the plaintiff was minor at the time of registration of sale deed, it does not make the said sale deed invalid. At the most it could have been challenged by the vendor or the person claiming through said vendor and not by the other joint shareholders/transferee or the person claiming through them, which is not permissible under the law.

Objection 5: There was assertion by Defendants 1 to 5 that the instant suit was barred by limitation and the plaintiff did not claim any share for the last more than 40 years.

Court’s Opinion: A cause of action for a suit for partition accrues only when partition is claimed and it is denied or when the plaintiff is ousted from the property and the defendant starts claiming his own exclusive ownership adversely to the plaintiff. In the plaint, it was claimed by plaintiff that his claim for partition was denied in September, 2013 and the present suit was filed in November 2014. No contrary evidence was led by the defendants to prove that the plaintiff ever demanded partition earlier which was denied.

Issues in Detail

  • Whether the suit property against which partition has been claimed and the property in occupation of defendant are same or different? Onus on both parties.

Physical Identification

In the present matter, plaintiff as well as Defendants 1 to 5 have placed on record the site plan of the suit property and from comparison of both, it was clear that both represent to the same physical structure of the property. Defendants 1 to 5 had also admitted that the site plan on record by the plaintiff was correct. Hence, there was no dispute on the physical identification of the said property.

Identification of the suit property vis-a-vis sale deed 

The Court stated that it is well settled that the standard of proof in civil cases and criminal cases is quite different. Plaintiff in civil suit had to merely establish his case on the touchstone of preponderance of probabilities and the defendant is not necessarily entitled to the benefit of every reasonable doubt. In the Court’s opinion, plaintiff duly proved on record the sale deed and identification of the suit property.

Therefore, the Court held that the plaintiff duly proved on record the identification of the suit property as well as the fact that it was purchased on the basis of sale deed in question only and that its subsequent municipal no. T-823A belongs to the same property i.e. plot no. 100 which has been mentioned in sale deed in question and is presently in possession of the defendants.

  • Whether plaintiff is entitled for partition of the suit property as claimed?

The Court decided in view of Issue 1 that the plaintiff was the joint owner of 1/3rd share in the suit property besides shares of Defendants 1 to 5 as 1/3rd and Defendant 6 as 1/3rd. Hence this issue was decided in favour of plaintiff and against Defendants 1 to 5.

  • Whether the plaintiff has no right, title or interest in the suit property or that the defendants are the exclusive or absolute owners of the suit property?

In view of the findings on Issue 1, the Court decided this issue in favour of plaintiff by holding that plaintiff was the joint owner of 1/3rd share in the suit property besides shares of Defendants 1 to 5 as 1/3rd and defendant 6 as 1/3rd. Defendants 1 to 5 also failed to prove the absolute ownership of Raj Rani Sharma.

  • Whether the plaintiff is entitled to a decree of perpetual injunction?

In view of the findings on Issue 1, this issue was decided in favour of the plaintiff and against the defendants and all the defendants were restrained to create any third party interest in the suit property against the interest of plaintiff or without due process of law.

Conclusion

(i) A preliminary decree was passed by holding that the plaintiff is the joint owner of 1/3rd share in the suit property and Defendants 1 to 5 are joint owners collectively of 1/3rd share and Defendant 6 joint owner of 1/3rd share in the said property.

(ii) The parties were given an opportunity to suggest ways and means for partition of the suit property by metes and bounds (physically) or by inter se sale of the respective shares amongst themselves before passing a final decree.

(iii) A decree of permanent injunction was also passed against the defendants and they were restrained to create any third party interest in the suit property against the interest of the plaintiff or without due process of law.

(iv) Cost of the suit was also awarded to the plaintiff against Defendants 1 to 5, which will be shown in the decree-sheet.

(v) An exemplary cost was also awarded against Defendants 1 to 5 for unnecessarily contesting the instant suit without any plausible basis, which was quantified at Rs 1,00,000, out of which Rs 80,000 to be paid to the plaintiff and Rs 20,000 to the Saket Bar Association Welfare Fund within 30 days.

[Ved Prakash Sharma v. Hunny Sharma, CS No. 11084 of 2016, decided on 1-10-2021]

Case BriefsSupreme Court

Supreme Court: The Division Bench of K.M Joseph* and S. Ravindra Bhat, JJ., held that an unregistered family settlement document is admissible to be placed “in” evidence if it does not by itself affect the transaction though the same cannot be allowed “as” evidence. The Bench expressed,

“Merely admitting the Khararunama containing record of the alleged past transaction, is not to be understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the Khararunama and the receipt would produce any legal effect on the immovable properties in question.”

The Court was dealing with the impugned order of the Telangana High Court, whereby the High Court had set aside the order passed by the Trial Court by holding that the unregistered and unstamped family settlement “Khararunama” and receipt of Rs. 2,00,000 by the respondent were not admissible in evidence.

Factual Contours

The respondent, younger brother of the appellants had instituted a suit seeking declaration of title over the plaint schedule property and for eviction of the appellants and consequential perpetual injunction was also sought against the appellants. Evidently, there was a partition between the appellants, the respondent and their other siblings. Pursuant to some disputes between the parties a Khararunama dated 15-04-1986 was executed recording the facts.

It was contended by the respondent that the Khararunama required registration under section 17(1)(b) of the Registration Act, 1908 and under the said settlement, appellants ought to pay certain sum to the respondent. The document would come into force after the receipt of the consideration.

Statutory Requirements

Undoubtedly, Section 17(1)(b) makes ‘other non-testamentary instruments’, which purport or operate to create, assign, limit or extinguish whether in present or in future any right or interest whether vested or contingent of the value of Rs.100/- and upwards in an immovable property compulsorily registrable. Section 17(1)(c) reads as follows:

“17(1)(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and”

Section 49(c) of Registration Act prohibits the admitting of compulsorily registrable documents which are unregistered as evidence of any transaction affecting immovable property unless it has been registered.

Opinion and Analysis

Opining that unregistered document can be used as evidence of any collateral transaction, the Bench stated, however, the said collateral transaction should not itself be one which must be affected by a registered document. In K. Panchapagesa Ayyar v. K. Kalyanasundaram Ayyar, 1956 SCC OnLine Mad 141, the Madras High Court was of the view:

“To sum up it is well settled in a long series of decisions which have since received statutory recognition by the Amending Act of 1929 (vide the concluding words of the new proviso to Section 49 of the Registration Act) that a compulsorily registrable but an unregistered document is admissible in evidence for a collateral purpose that is to say, for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property”.

Whether the Khararunama by itself affected rights in the immovable properties in question?

The next question before the Bench was whether the Khararunama by itself ‘affects’, i.e., by itself creates, declares, limits or extinguishes rights in the immovable properties in question or whether it merely refers to what the appellants alleged were past transactions which had been entered into by the parties, the Bench answered, going by the words used in the document, they indicate that the words were intended to refer to the arrangements allegedly which the parties made in the past and the document did not purport to by itself create, declare, assign, extinguish or limit right in properties.

Evidentiary Value of Khararunama

As per Section 49(1) (a), a compulsorily registrable document, which is not registered, cannot produce any effect on the rights in immovable property by way of creation, declaration, assignment, limiting or extinguishment. Thus, observing that Section 49(1) prevents an unregistered document being used ‘as’ evidence of the transaction, which affects immovable property, the Bench stated,

“If the Khararunama by itself, does not ‘affect’ immovable property, being a record of the alleged past transaction, though relating to immovable property, there would be no breach of Section 49(1)(c), as it is not being used as evidence of a transaction effecting such property.”

The Bench held that being let in evidence is different from being used as evidence of the transaction; thus, the transaction or the past transactions could not be proved by using the Khararunama as evidence of the transaction. In other words, the Bench held, “merely admitting the Khararunama containing record of the alleged past transaction, is not to be, understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the Khararunama and the receipt would produce any legal effect on the immovable properties in question.”

In Muruga Mudallar v. Subba Reddiar, 1950 SCC OnLine Mad 136, the Madras High Court had held that, “the consequence of non-registration is to prohibit the document from being received not “in” evidence, but “as” evidence of any transaction affecting such property.”

As far as stamp duty was concerned, the Bench was of the view that since the Khararunama was a mere record of past transaction it did not require to be stamped.

Verdict

Lastly, the Bench held, when there had been a partition, there may be no scope for invoking the concept of antecedent right as such, therefore since the appellants and the respondents had partitioned their joint family properties, the properties mentioned in the Khararunama would be separate properties of the respondent.

Resultantly, the Appeal was allowed. The impugned Judgment was set aside and the Khararunama was held to be admissible in evidence but not as evidence.

[Korukonda Chalapathi v. Korukonda Annapurna Sampath Kumar, 2021 SCC OnLine SC 847, decided on 01-10-2021]

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Kamini Sharma, Editorial Assistant has put this report together
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Appearance by:

For the Appellants: Advocate M. Vijay Bhaskar

For the Respondent: Advocate Venkateshwar Rao

*Judgment by: Justice K.M Joseph

Know Thy Judge| Justice K.M. Joseph

Case BriefsSupreme Court

Supreme Court: The bench of Mohan M. Shantanagoudar* and Vineet Saran, JJ., addressed the instant appeal against the order of High Court of Karnataka whereby the Court had refused to engage with the matter and had ordered that the appellant may seek a remedy in accordance with law. The Bench stated,

“It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present controversy, to settle finally the question of abatement of the proceedings and prevent the inefficient proliferation of further litigation between the parties.”

Factual Background

In the instant case five properties originally belonged to the joint family of two sisters. After their death, their ten children benefited through a registered partition deed dated 09-01-1984. Through the said partition deed, Leela Sapalyathi, one of the ten children, allegedly came to hold a share of 1983 sq. mts. of land, including land to the extent of 30 cents falling under Survey No. 53/3A.

On 17-02-1976, the Urban Land (Ceiling and Regulation) Act, 1976 came into force in Karnataka. Padmanabha, one of the ten children, filed a statement under S. 6(1) of the Act on 15-06-1984 declaring that the property had been partitioned and individual share of each of the children subsequent to partition was within the ceiling limit prescribed under the Act. On 16-10-1996, the Competent Authority directed that an extent of 5,210.10 sq. mts. of land held by the declarant be treated as excess vacant land to be surrendered.

The Appellant’s case was that he had executed a sale deed on 26-03-1994 with Leela Sapalyathi whereby he purchased a portion of Survey No. 53/3A measuring 14 cents comprising an old house. He had also produced copies of the Record of Rights, Tenancy and Crops (‘RTC’) for the years 1993-1994 and 1994-1995.The Appellant stated that he was unaware of the Authority’s order and upon enquiry he came to know that the RTC was registered in the name of government. It had been contended by the appellant that the Competent Authority had not issued notice to the appellant regarding taking of possession of the suit property. That, in any case, the Competent Authority had not taken physical possession of the suit property as on the date of commencement of the Repeal Act. Hence, the proceedings would abate and the Competent Authority could not take further action under the Act.

Analysis and Findings

The Bench observed that regardless of whether the declarant Padmanabha and his family members had affected partition after the Act had commenced, the concerned land would still be subject to the proceedings initiated under the Act. Section 6 of the said Act had prescribed that, “every person holding vacant land in excess of the ceiling limit at the commencement of the Act…” Thus, the determination of ‘excess land’ was to be made considering the status of the land at the time of commencement of the Act, and not at the time of filing of the declaration.

Noticing that the partition was affected after Commencement of the Act, the Division Bench’s decision was held to be corrected in holding that the partition deed dated 09-01-1984 would not affect the validity of the Competent Authority’s determination of excess land. The Bench further observed,

“Section 8 and Section 9 of the Act make it incumbent on the Competent Authority to issue notice to or provide an opportunity to be heard only to the ‘person concerned’, i.e., the person who has filed the statement under Section 6 of the Principal Act.”

Claims of all other persons interested in the vacant land was to be considered through issuing a Gazetted notification as per Section 10(1) of the Act, which had been duly issued by the Competent Authority on 27-10-1995. The Repeal Act, which came into effect from 08-07-1999 had provided under S. 4 as follows:

“Section 4: All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:”

Section 3(2) of the Repeal Act, i.e., savings clause, had laid down that vacant land vested in the State Government by the Act, the possession for which had not been taken over, should be restored only once any compensation paid to the landholder had been returned. Hence, any proceeding for any excess land under the old Act was liable to abate, as per Section 3 and Section 4 of the Repeal Act, and the Appellant would be entitled to ownership and possession over the suit property.

However, neither the partition deed dated 09-01-1984, nor the sale deed dated 26-03-1994 that purportedly passed on the title to the Appellant, had been produced before the Court. Thus, there was nothing on record to establish Appellant’s purchase of, possession of, or interest in the suit property. Also, there was nothing to conclusively establish possession of the suit property either by the Competent Authority or the Appellant.

Hence, observing that the contention depend on question of fact, the Bench directed  the matter to be remitted to the Division Bench of the Karnataka High Court and further ordered to consider the case afresh while disposing of the present appeal.

[U.A. Basheer v. State of Karnataka,  2021 SCC OnLine SC 98, decided on 17-02-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Mohan M. Shantanagoudar

Op EdsOP. ED.

            On 11-8-2020, the Supreme Court of India passed a landmark judgment in Vineeta Sharma v. Rakesh Sharma[1], stating that the Hindu Succession (Amendment) Act, 2005[2] will have a retrospective effect. The 2005 Amendment amended Section 6 of the Act in order to align with the constitutional belief of gender equality. Under the amendment, the daughter of the coparcener shall by birth become a coparcener in her own right in the same manner as the son. Vineeta Sharma case[3] settled the matter in the question – whether the 2005 Amendment had deemed the daughter to have the same right as of a son in the coparcenary property irrespective of the father being alive before the Amendment.

            The judgment was decided by a three-Judge Bench comprising of Arun Mishra, M. R. Shah and S. Abdul Nazeer, JJ. and was authored by Arun Mishra, J. It stated that as the right of being a coparcener is by birth for a son and so is it for a daughter post the 2005 Amendment, and even if the father was not alive on 9-9-2005, it does not obstruct a daughter’s right from claiming her share in the coparcenary property. This judgment resulted in overruling the Supreme Court’s earlier judgments in Prakash v. Phulavati[4] and Mangammal v. T.B. Raju[5] which had held otherwise. Hereby, Vineeta Sharma[6] judgment re-affirmed equality in the treatment of sons and daughters by the law for the purposes of succession.

            One of the reasons listed by the Supreme Court in the recent judgment to put the daughter at par with the son is that coparcenary rights are formed since birth and “it is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive.”[7] The Supreme Court held that notional partition, the proviso to Section 6 of the 2005 Amendment Act[8] mentions, is merely a fiction of partition that is created in order to ascertain the share of the surviving Class I female heirs[9] or male relatives of the female heirs of the deceased coparcener. However, the purpose behind the statutory fiction is “not to bring about the real partition”.[10]

            The concept of notional partition is created to give effect to the Explanation to Section 6 of the Hindu Succession (Amendment) Act, 2005[11]. It is a legally formed fiction where partition is assumed to happen between the deceased and his coparceners, immediately before the death of the deceased. Notional partition can be interpreted in the following two ways: (1) narrow interpretation; and (2) broad interpretation.

            In the narrow interpretation, notional partition is a partial partition. According to the unamended Section 6, intestate succession happened by notional partition only if any member from Class I heirs mentioned in the Schedule, was alive at the time of the death of the deceased. This indicates that the property divided is like a legal fiction created only to determine the share of the deceased. Whereas the other remaining part of the property continues to be a coparcenary property until an actual partition is effected. In this way, the coparceners have fluctuating undivided joint interest in the coparcenary property. Therefore, the narrow concept of notional partition does not result in the disruption of the joint Hindu Undivided Family. Accordingly, female members who inherit in joint family property under unamended Section 6 (wife, mother and grandmother), will be entitled only to the share which is notionally devolved upon her as per Explanation 1 to Section 6[12] if the actual partition does not take place.

            On the other hand, the broader interpretation of notional partition assumes that the actual partition has occurred immediately before the death of the deceased. This interpretation is followed by the Supreme Court in Gurupad Khandappa v. Hirabai Khandappa Magdum[13]. In Uttam v. Saubhag Singh[14], which was decided post 2005 Amendment, the Supreme Court placed reliance on Khandappa case.[15] Going by this interpretation, the fictional assumption should be brought to a logical end. It should be treated and accepted as a concrete reality. Once the fictional assumption is made, it is not irrevocable as the “… assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it.”[16]

            As a result of following the broader interpretation of notional partition, the joint Hindu Undivided Family no longer exists, by converting the coparcenary property into separate property of the deceased’s heirs. Accordingly, female members who inherit in joint female property under amended Section 6 will be entitled to both the interest which she has inherited and the share which is notionally devolved upon her as per Explanation 1 to Section 6.[17] However, it must be noted that broader interpretation of the fiction can be used only to ascertain the shares of the deceased and cannot be carried beyond that to say that the female heirs cease to be members of the joint family.[18] Therefore, broader interpretation of the concept of notional partition is used to enlarge the scope of the shares which women are entitled to so as to be in tandem with the Statement of Objects and Reasons of the said 2005 Amendment Act.

            In Vineeta Sharma[19], the Court relied on the narrow interpretation of notional partition by holding that “The entire partition of the coparcenary is not provided by deemed fiction; otherwise, coparcenary could not have continued which is by birth, and the death of one coparcener would have brought an end to it.”[20] This results in keeping the spirit of joint Hindu family intact.[21] This rationale is given to justify that coparcenary rights are available since birth and hence, daughters will get share in the coparcenary property irrespective of the father being alive or not.

            However, due to this reasoning, the female member (who cannot ask for partition since they are not coparceners) who inherits the joint family property will have to bear the brunt if she dies before any actual partition is initiated by the coparceners. This is because, while they will be entitled to the share devolved upon notionally as per amended Section 6, they will not receive any right in the joint family property. If the Supreme Court would have followed the broad interpretation instead, it could have yielded a similar result of vesting the daughter with the same right as of the son in the coparcenary property irrespective of father being alive. Moreover, it would have granted the daughter-in-law her share of the property without her having to depend on any coparcener to demand for an actual partition in future.

            The Supreme Court in Vineeta Sharma[22] judgment traces its way back to the past by following narrow interpretation and ensures that the joint Hindu Undivided Family stays intact.  Whereas, the 174th Report of the Law Commission of India[23] and the Consultation Paper on Reform of Family Law, 2018[24] both recommended the abolition of coparcenary and to put an end to the joint Hindu family system. The abolition of coparcenary is the only plausible solution to rectify the inherent biases of the Hindu Succession (Amendment) Act, 2005.

            While the decision in Vineeta Sharma[25] is a progressive step forward, however, it raises a lot of issues which are yet to be addressed. The judgment quoted that “Once a daughter, always a daughter … son is a son till he is married.”[26] Many have celebrated this statement, yet it has deep hues of romantic paternalism behind it. By stating so, the Court implied that a daughter can never form her own coparcenary as she will always need to hide behind the shadow of her father, grandfather, brother, husband, or son. This has led to an anomalous situation as sons can start their own coparcenary once they get married and have children.

            To say the least, the judgment does not just raise one issue, it raises a couple of them.  The issues related to gender inequality still persists. By pushing a narrative shrouded in romantic paternalism, the Court has failed to see that the married women are now double beneficiaries of these laws (same women inherit from the lineage as well as from her marriage). While at the same time it has turned a blind eye towards the men who only inherit property because of a single lineage. This further re-enforces the patriarchal structure of the society in which men are also victims at certain times.

            While this judgment surely is a welcoming step, however, it opens floodgates of various questions which are yet to be answered. It will be interesting to know how things unfold with respect to ascertaining the shares of dependent women under the abovementioned circumstances. Moreover, it pushes to shift the discourse regarding gender equality and traditional laws, as the country waits holding its breath anticipating what is to come.

* Third-year law students, Jindal Global Law School, Sonipat.

[1] Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1

[2] Hindu Succession (Amendment) Act, 2005

[3] Supra Note 1.

[4] (2016) 2 SCC 36

[5] (2018) 15 SCC 662

[6] Supra Note 1.

[7] Supra Note 1 at p. 73, para 75.

[8]Read as “Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before  20th day of December, 2004.”

[9] The list is mentioned in the Schedule to the Act of 1956.

[10] Supra Note 1 at p. 101, para 101.

[11]Read as “Explanation.—For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.”

[12] Ibid.

[13] (1978) 3 SCC 383

[14] (2016) 4 SCC 68

[15] Supra Note 13.

[16] Supra Note 13, para 13.

[17] Supra Note 11 .

[18]State of Maharashtra v.  Narayan Rao, (1985) 2 SCC 321,  para 9

[19] Supra Note 1.

[20]Ibid, at p. 101, para 101.

[21]As coparcenary rights are not derived from any person or event apart from being birth of the coparcener, it satisfies the concept of unobstructed heritage explained by Mulla, cited by the Supreme Court. Therefore, there is no need to take support of the narrow interpretation in order to justify the equal treatment of son and daughter. By following narrow interpretation, the Court wants to keep the concept of Hindu tradition of social togetherness unimpaired. The ulterior motive is to serve the people who are dependent on earning family members and give tax benefits incurring through it.

[22] Supra note 1.

[23] Law Commission Report, Property Rights of Women: Proposed Reforms under the Hindu Law, (Report No. 174, 2000) p. 26, para 5.7.

[24] Law Commission of India, Consultation Paper on Reform of Family Law (2018) p. 126, para 5.12.

[25] Supra Note 1.

[26] Supra Note 1,  p. 56, para 50.

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

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

Chhattisgarh High Court: Sanjay K. Agrawal, J., allowed a second appeal against the order of the trial court as well as the First Appellate Court whereby the suit brought by the plaintiffs (respondents herein) for declaration of title, permanent injunction, partition and possession of the suit property was decreed.

It is pertinent to note that during the pendency of the said suit, affidavit-evidence under Order 18 Rule 4 CPC (recording of evidence) was filed by the plaintiffs. On two subsequent dates when the matter was posted, the plaintiff — Kunti Bai — was partly cross-examined. However, after that, she could not appear before the trial court though the matter was fixed for evidence from time to time. Ultimately, her opportunity to lead evidence was closed and thereafter, the suit was decreed in favour of the plaintiffs.

The question for consideration of the High Court was whether the affidavit-evidence of the Kunti Bai, which was not subjected to cross-examination, could be said to be “evidence” within the meaning of Section 3 (interpretation clause) of the Evidence Act.

The Court was of the opinion that a careful perusal of Section 3 would show that the affidavit is not included in the definition of “evidence”, and can be used only if the Court permits it for sufficient reasons. An affidavit can be termed to be an “evidence” within the ambit of Section 3 only in those cases where the same is filed at the instance or under the direction of the Court or law specifically permits for proof of anything by affidavit. Thus, the filing of an affidavit or one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court.

Reliance was placed on Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, wherein the Supreme Court had held that affidavit can be relied upon when the deponent is available for cross-examination in terms of Order 18 Rule 4 CPC. The High Court held that: “Thus, it is now well settled that affidavit is not evidence within the meaning of Section 3 of the Evidence Act unless an opportunity to effectively cross-examine to the person(s) examined is given to another side as provided in Order 18 Rule 4(2) of the CPC.”

In the instant case, since the defendants did not get a proper opportunity to cross-examine Kunti Bai, the court held that the affidavit filed by her under Order 18 Rule 4 remained an affidavit and did not turn into evidence. In such view of the matter, the impugned order was set aside and the matter was remanded back to the trial court to give an opportunity to the defendants to cross-examine Kunti Bai and other prosecution witnesses. [Premlal v. Kunti Bai, 2019 SCC OnLine Chh 107, decided on 11-09-2019]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: Mahinda Samayawardhena, J. dismissed the petition application by the petitioner.

In the present case, the petitioner filed an application seeking restoration of her rights to Lot 2 in the Preliminary Plan by way of amending the Judgment and the Interlocutory Decree entered thereon and to permit her to file a statement of claim and proceed with the case. In the original case, the plaintiff had filed a partition application before the District Court to partition a land between plaintiff and defendants. At the preliminary survey, Pinhamy, the mother of the petitioner had claimed before the surveyor that she was unaware regarding the partition, regarding which the petitioner had filed a petition contending that her mother, Pinhamy, was unaware of the partition action. However, the learned District Judge in his own handwriting had written that Pinhamy was present in Court and journal entry to that effect had disclaimed any right to the corpus is erroneous.

It was noted that a  party could not appeal in dispute what the Judge had written in his own handwriting in a case record unless he had first taken up that matter before the lower Court. Here, the petitioner was not even a party to the case and  Pinhamy did not even make such an allegation against the Judge. Relevance was placed on Chaminda v. Republic of Sri Lanka, [2009] 1 Sri LR 144, in which it was held that litigant could not make a convenient statement in court and contradict a judicial record. After trial, the Judgment had been entered and the appeal filed against the said Judgment had been dismissed by the Court in 2001. Thereafter a commission had been issued to prepare the final scheme of partition. The petitioner said that, when the surveyor came to the land for final survey, Pinhamy along with two others obstructed the surveyor to execute the commission as a part of a different land claimed by them was being surveyed, and until the surveyor showed her the Preliminary Plan and informed her of the purpose of his visit, she was unaware of the partition case; which meant that in 2003 after surveyors came she became aware of the partition case. However, the petitioner went before the Court of Appeal, 7 years after her mother became aware of the partition action. The Court noted that a person who sought restitutio integrum must act promptly.

As the petitioner did not act with the utmost promptness and was not right indirectly appealing to the Court of Appeal, the application of the petitioner was dismissed.[Bandaranayaka Liyanaarachchilage Pemawathi v. Coranelis Wickremasinghe Arachchi, 2019 SCC OnLine SL CA 4, decided on 02-05-2019]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: An appeal was filed before a Single Judge Bench comprising of M.M.A. Gaffoor, J., against a judgment of district judge where the original plaintiff instituted an action seeking partition of a land.

Claim of plaintiff regarding the land was to receive undivided 1/2 share against the share of defendants whereas the two defendants were entitled to receive undivided 1/4 share according to his amended petition. The other defendants averted that they were exclusively entitled to the plantations and improvements in the land sought to be partitioned in this action. District court favoured the other defendants. Subsequently, the original plaintiff died and his son was substituted in his place as plaintiff-appellant who filed this appeal for setting aside of the above order of District Court.

Supreme Court observed after perusal of the plaint that the substituted plaintiff had amended the original plaint claiming that he was entitled to an undivided 1/2 share against two others entitled to an undivided 1/4 share while in the original plaint it was to be divided between four defendants. It was observed that substituted plaintiff was not completely aware of the facts of the case due to his admission of the fact that his father, the original plaintiff, was well aware of the facts of the case compared to himself and due to the same he had to amend the plaint. Appellant failed to show the existence of facts which could show his legal right or liability, thereby he failed to prove his case. Therefore, the appeal was dismissed. [Ahamed Abdulla Marikkar Mesthiriyar  Mohamed Ismail v. Sammon Hadjiar,2018 SCC OnLine SL CA 85, decided on 01-10-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. allowed an appeal filed against the order of District Judge whereby appellant’s application for condonation of delay in filing first appeal was dismissed.

There was a partition between the appellant and his two sisters. Originally, in 2004, after the partition, two-third of the property fell into the share of appellant; whereas, the sisters got one-sixth each. However, in view of the amendment in Hindu Succession Act in 2005, on an application filed by the sisters, the earlier decree was modified and now all the three parties got one-third share each. Aggrieved by the modification, the appellant had filed a review petition in 2012 which was dismissed in 2014. Within two months thereafter, the first appeal was filed along with the application for condonation of delay of 4 years and 30 days. The District Judge, however, dismissed the application holding that delay had not been satisfactorily explained. Aggrieved thus, the present appeal was filed.

The High Court was of the view that after modification of the preliminary decree, the appellant must have acted on advice of his advocate, who instead of filing an appeal, preferred the review petition. The law on the law on the point was not clear; modification in shares in a partition having been introduced first time. Since the review petition was held not maintainable, the appellant had a right to file the first appeal. It was observed as well settled law that if a party is litigating its cause before a wrong forum under a bona fide belief as per legal advice gives by his advocate, the delay occurred in such proceedings has to be considered for deciding an application for condonation of delay. This is recognized in Section 14 of the Limitation Act. Therefore, the High Court set aside the order impugned and directed the parties to appear before the first Appellate Court. The appeal was, thus, allowed. [Patherao Narsu Patil v. Gangubai A. Lad,  2018 SCC OnLine Bom 2892, dated 03-10-2018]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir: A Single Judge bench comprising of Sanjay Kumar Gupta, J. dismissed a civil writ petition seeking quashing of trial court’s order directing filing of affidavits of witnesses.

Brief factual matrix is that the petitioner is one of the defendants in a suit for partition pending in the lower court wherein she has filed a list of witnesses. Principal District Judge, in the said suit, took cognizance of the said list of witnesses and directed her to file evidence by way of affidavit of the witnesses. This order was challenged by the petitioner contending that the said order is vitiated on account of not following the proper course of law because as a normal course, enforcement of appearance of the witnesses is through summons by the court unless the party citing witnesses can produce them on their own.

The High Court noted that despite a clear direction for conclusion of proceedings within a period of six months, the trial could not be completed because the defendants had failed to tender evidence and disregarded multiple orders passed to that effect by the trial court. It was also noted that the petitioner did not place the contention raised herein before the trial court on all such occasions when the interim orders were passed and as such the present writ petition was a mere dilatory tactic adopted to delay the course of trial.

Relying on the judgment in Rasiklal Manickchand Dhariwal v. M.S.S. Food Products, 2012 (2) SCC 196 it was held that the as per Order XVIII Rule 4 and 5 CPC, the examination-in-chief of a witness has to be tendered by way of affidavit in every case – whether appealable or non-appealable; and on that holding the writ petition was dismissed. [Manorma Sharma v Sahib Saran Khajuria, 2018 SCC OnLine J&K 640, Order dated 14-09-2018]