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

Calcutta High Court: Biswajit Basu, J. dismissed a revision application of the filed by a lady seeking alimony pendente lite.

The husband/respondent and the wife herein had filed a matrimonial suit seeking dissolution of their marriage by a decree of divorce, inter alia, on the grounds of cruelty. In the said suit, the wife had filed an application before the learned trial judge under Section 36 of the Special Marriage Act, 1954 praying alimony pendente lite at the rate of Rs 50,000 per month. The wife alleged that the husband is working in a reputed organization in the USA and was earning around Rs 75,00,000 per annum. Thus, she was entitled to maintenance proportionate to the income of the husband. However, after assessing her salary certificates for December 2018, January 2019 and March 2019, the learned judge opined that the present income of the wife is not less than Rs 74000 being sufficient for her support particularly when she herself assessed her requirement at Rs 50,000 in the application for alimony pendente lite.  And as Section 36 provides for temporary financial support pending any action under Chapter V or VI of the said Act “to the wife who has no independent income sufficient to maintain herself”, refused the prayer of the wife for alimony pendente lite.

The High Court dismissed the case, holding the decision of the learned trial Judge as absolutely justified.[Somdatta Chatterjee nee Raychaudhari v. Anindya Chatterjee, 2019 SCC OnLine Cal 1627, decided on 11-06-2019]

Case BriefsHigh Courts

Tripura High Court: A Division Bench of Sanjay Karol, CJ and Arindam Lodh, J. dismissed an appeal filed under Section 19(1) of the Family Courts Act, 1984 against the order of the family Judge whereby the husband was directed to pay pendente lite maintenance of Rs 8000 per month to her wife.

Arijit Bhowmik, Advocate representing the appellant-husband submitted that though the appellant was an employee of ONGC having a salary of Rs 39, 649, however, he received only Rs 19,338 after various deductions. It was prayed that the maintenance allowance may be reduced. per contra, H.K. Bhowmik, Advocate appearing for the respondent-wife submitted that Rs 8,000 per month were minimum to lead a dignified life, which is one of the essential features of Article 21 of the Constitution.

On perusing the record, the High Court found that the wife was forced to stay at her parents’ house. it was noted that there were many bald allegations levelled against her such as she was not interested in having sex with the appellant-husband and that she threatened him to commit suicide. In the Court’s opinion, the allegations were not substantiated by cogent evidence. It was said: “these are the normal wear and tear of marital life and for this, the wife should not be forced to be separated from the appellant-husband. The wife is entitled to lead a life at part the standard of the husband.”

Having considered all the aspects, the court was not inclined to interfere with the order passed by the family Judge. Resultantly, the appeal was dismissed. [Debasish Chakraborty v. Soma Bhattacharjee, 2019 SCC OnLine Tri 159, decided on 29-05-2019]

Case BriefsHigh Courts

Delhi High Court: A Bench of Jyoti Singh and G.S. Sistani, JJ. dismissed an appeal filed against the order of the family court rejecting the appellant-wife’s application for grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1951.

The parties married to each-other in June 2012 and had been living separately since September of that year. The wife was living in Gurgaon and the husband was in Singapore. The husband sought a decree of nullity of marriage under Section 12(1)(a) and (c), pending which the wife filed the application under Section 24 claiming pendente lite maintenance of Rs 2.50 lakhs per month along with litigation expenses. The same was rejected by the family court. Aggrieved thereby, the wife filed the present appeal.

The High Court noted that the wife was well educated and earning a monthly salary of around Rs 1.25 lakhs. On the other hand, the husband was also at a senior position in a reputed company in Singapore and was earning about Rs 13 lakhs per month. Noting all the facts and discussing the law on the subject, the Court was of the view that the impugned order does not need interference. Observing that the cost of living as per the standards of the country where the husband is employed is to be considered, the Court stated, “We cannot agree with the contention of the appellant that merely because the respondent is earning in ‘dollars’ she is entitled to the maintenance claimed by converting his salary in dollars into Indian rupees. We agree with the respondent that his expenditure being in dollars, the salary being in dollars is a fact which cannot be overemphasized.”

Being satisfied that wife’s earnings were sufficient to maintain herself, it was stated, “The provisions of this section (Section 24) are not meant to equalize the income of the wife with that of the husband but are only to see that when divorce or other matrimonial proceedings are filed, either of the party should not suffer because of paucity of source of income and the maintenance is then granted to tie over the litigation expenses and to provide a comfortable life to the spouse. Where, however, both the spouses are earning and have a good salary, merely because there is some salary difference cannot be a reason for seeing maintenance.”

In light of the above discussion, the wife’s appeal was dismissed as being devoid of merits.[KN v. RG, 2019 SCC OnLine Del 7704, dated 12-02-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: This appeal was preferred before a 2-Judge Bench of Rakesh Kumar and  Anupinder Singh, JJ., against the judgment and decree passed by the Additional District Judge by which petition filed under Sections 11 and 12 of the Hindu Marriage Act, 1955 by the respondent-husband for annulment of marriage with the appellant-wife was allowed.

During the pendency of this appeal, the appellant filed an application for maintenance pendente lite under Section 24 of the Act. The above application was allowed and thereby the respondent was supposed to pay Rs. 5,000 per month towards maintenance pendente lite. But since respondent failed to do so he was directed to pay entire arrears of maintenance pendente elite. The only contention made by respondent for non-payment of maintenance was that he did not have any money to give. High Court struck off respondent’s only defence leaving with the issue that if the respondent has no defence can the judgment and decree passed by the trial Court sustain or is to be set aside.

High Court struck off the defence of respondent on the ground of non-payment of maintenance, that he wanted annulment of marriage on the ground that appellant had already married twice and marriage with respondent was her third marriage with previous marriage subsisting. Thus, there remained no defence on record for annulment of marriage. Therefore, this appeal was allowed and judgment and decree passed by trial court was set aside. [Sonia v. Deepak, 2018 SCC OnLine P&H 2024, decided on 04-12-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., dismissed a writ petition filed against the order of the trial court whereby her application for impleadment as a party, under Order 1 Rule 10(2), CPC was rejected.
The main issue that arose before the Court was whether a subsequent purchaser, pendente lite, is a necessary party in the partition suit.

The Court observed that the doctrine of lis pendence embodies a public policy that it is necessary for the administration of justice that the decision of a Court in a suit must bind all who claim an interest in the property and also those who derive title pendente lite. The Court referred to the judgment of Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403 and observed that a transferee pendente lite can be impleaded as a necessary party only if his/her interest in the subject-matter of the suit is substantial and not merely peripheral.  While impleading a transferee pendente lite courts must be cautious and vigilant because impleadment of a stranger to a suit must be for a substantial cause. In this case, the petitioner did not purchase the land from one of the co-sharers of the property, rather she purchased land from her vendors who were parties to the pending suit.

The Court held that the petitioner has no right to equities and the trial judge has rightly dismissed her application for impleadment under Order 1 Rule 10 (2) CPC. The writ petition was dismissed by the Court. [Anita Soni v. Mina Devi,2018 SCC OnLine Jhar 1155, order dated 27-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Sangita Dhingra Sehgal and G.S. Sistani, JJ. dismissed an appeal filed by the husband against the award of maintenance pendente lite awarded to the wife by the family court.

The instant appeal was filed by the husband under Section 19 of the Family Courts Act, 1984 assailing  the order passed by the family court where the appellant was directed to pay Rs 4500 per month as maintenance to the respondent-wife under Section 24 of the Hindu Marriage Act (maintenance pendente lite)  from the date of filing of the application. The husband submitted that as he was a permanent resident of U.P., the Minimum Wages Act of Delhi would not be applicable to him.

The High Court perused Section 24 and noted that it empowers the Court to award maintenance pendente lite and litigation expenses to a party who has no independent source of income sufficient for his/her support during the pendency of proceedings. Reference was made to Jasbir Kaur Sehgal v. District Judge, (1997) 7 SCC 7. The Court observed that in the present case, the husband failed to produce any documentary proof with regard to his employment status and also his actual income; and by not disclosing his source of income the husband was trying to defeat the legitimate right of the wife to claim maintenance. Furthermore, the appellant could not be allowed to take benefit of non-disclosure of his income despite being bound in law to disclose it. Thus, the plea of the husband that Minimum Wages Act of U.P. is applicable to him doesn’t come to his rescue. The appeal was accordingly dismissed. [Vijay Kushwaha v. Chanchal,2018 SCC OnLine Del 10828, dated 24-07-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench comprising of M.M.S. Bedi and Anupinder Singh Grewal, JJ. allowed an application filed by the respondent-wife for maintenance pendente lite.

The appellant-husband had preferred an appeal against the dismissal of his divorce petition. The respondent-wife had filed the application under Section 24 of Hindu Marriage Act claiming maintenance pendent lite at the rate of Rs 20,000 per month. The appellant submitted that he was dismissed from the Army and was unemployed. Further, he had no source of income except what he got from the selling of milk.

The Court noted that there was no material to ascertain the income of the appellant and in such circumstances a bit of estimation was permissible. The appellant was an ex-army man and an able-bodied person. Even if he worked as an unskilled laborer, he was presumed to earn not less than Rs 15,000-20,000 per month. There was also one daughter born out of the wedlock. The Court held that the appellant cannot run away from his duty to maintain wife and daughter. In such circumstances, an amount of Rs 8,000 per month was found reasonable while awarding the maintenance pendente lite under Section 24. The application was thus allowed. [Jagdish Singh v. Sarabjit Kaur, 2018 SCC OnLine P&H 881, dated 03-07-2018]