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., discusses the decision of trial Court and first Appellate Court with regard to alienation of the property of a deceased by his alleged wife.

Facts of the instant case relate to the dispute in property left by Sukhdev. Both Sukhdev and his wife died issue-less.

Plaintiff claimed that he is the brother of Sukhdev and after the death of Sukhdev, he inherited the property left by Sukhdev and Shanti Bai, whereas defendant 1 alternatively claimed that she had married Sukhdev Sukhdev in Chudi form and became his wife thereafter, got her name mutated in the revenue record.

Plaintiff submitted that defendant 1 has no relationship with the family of Sukhdev and has illegally got her name mutated.

Trial Court

Trial Court decreed the suit holding that the suit property was the joint family property of Sukhdev and Anirudh Prasad Kamal Sen — plaintiff and defendant 1 is not the wife of Sukhdev and therefore the alienation made by defendant 1 — Dashmat bai in favour of defendant 1 is null void.

First Appeal | Second Appeal

On appeal being preferred before the first appellate Court by defendants 1 & 2 being dissatisfied with the judgment & decree of the Trial Court, the first appellate Court allowed the appeal and set aside the judgment & decree of the Trial Court and eventually dismissed the suit feeling aggrieved against which this second appeal has been preferred by the plaintiff under Section 100 of the CPC in which substantial questions of law.

Analysis & Decision

CUSTOM

Section 5 of the Hindu Marriage Act, 1955 lays down conditions for a Hindu marriage and Section 7 lays down ceremonies for a Hindu marriage by providing that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

Section 29 of the Act of 1955 saves the rights recognised by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnised before or after the commencement of the Act.

Section 3(a) of the Hindu Marriage Act, 1955 defines the expressions “custom” and “usage”.

Bench stated that Custom must have been observed for a long time and must be ancient.

Customs will have to be always strictly proved and in relation to matrimonial matters particularly to the existence of customs.

The Supreme Court in the matter of Yamanaji H. Jadhav v. Nirmala, (2002) 2 SCC 637 has held that custom being an exception, the general rule of divorce ought to have been specifically pleaded and established by leading cogent evidence by the person propounding such custom.

Principle of law laid down in Yamanaji H. Jadhav v. Nirmala, (2002) 2 SCC 637,  was followed with approval by the Supreme Court in the matter of Subramani v. M. Chandralekha, (2005) 9 SCC 407, by holding that as per Hindu law, divorce was not recognised as a means to put an end to marriage which was always considered to be a sacrament, only exception being where it was recognised by custom.

Now, coming back to the instant case, the dispute was with regard to the property left by Sukhdev who is the brother of the plaintiff. Whereas, defendant 1 claiming to be the wife of Sukhdev in Chudi form, alienated the suit property to defendant 2 which has been questioned in the suit.

It has also been alleged that Dashmat bai had married two other people prior to her alleged marriage with Sukhdev, though there was no evidence on record in regard to her divorce with the other two people.

Father of Dashmat bai, Jaitram (DW-1) categorically stated that he was not present at the time when Dashmat bai allegedly entered into marriage in Chudi Form with Sukhdev, which is quite unnatural that father was not present at the time of such important ceremony.

Similarly, Dashmat Bai herself could have entered into the witness-box and offered herself for cross-examination in absence of which adverse inference could be drawn against her.

As there was no iota of evidence of marriage having been taken place between Dashmat Bai and Sukhdev in view of the testimony of her father Jaitram (DW-1) and another witness DW-2, as they were not present in the said alleged marriage and in view of the fact that defendant 1 Dashmat Bai did not offer herself for cross-examination, adverse inference against her has to be drawn.

Hence, in view of the discussion, it can be said that no relationship of husband and wife existed between the defendant 1 and Sukhdev.

The question that needs to be answered is whether, by the alienation made by defendant 1, title was conveyed to defendant 2?

Supreme Court in its decision of Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259, dealt with the question of competency of a person to transfer property and transfer of property by a person without rights, wherein the following was held:

“7. Since Mangal Kumhar did not have an exclusive right, title or interest in the suit property, his widow Etwari Kumharin was not legally competent to sell the suit property to the appellants, purporting to be the sole owner of the property. Reliance is placed on Eureka Builders v. Gulabchand, (2018) 8 SCC 67 wherein this Court held: (SCC pp. 75-76, paras 35-36)

“35. It is a settled principle of law that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise. In other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the tangible property.

36. So, once it is proved that on the date of transfer of any tangible property, the seller of the property did not have any subsisting right, title or interest over it, then a buyer of such property would not get any right, title and interest in the property purchased by him for consideration or otherwise. Such transfer would be an illegal and void transfer.”

(emphasis supplied)

Court held that the alienation made by defendant 1 in favour of defendant 2 holding her to be the wife of Sukhdev as the property was originally owned by Sukhdev, is clearly void.

In view of the above discussion, decree be drawn up accordingly. [Anirudh Prasad Kamal Sen v. Dashmat Bai Suryavanshi, Second Appeal No. 93 of 2009, decided on 28-08-2020]

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary J., upheld the findings of the impugned judgment and modified the sentence to meet the ends of justice.

The facts of the case are that the complainant was a sole owner of a piece of land acquired by the complainant from its erstwhile owner namely, Sokra Gope by virtue of a registered deed of sale dated 29-03-1972 becoming the absolute owner of the land. It was further alleged that the petitioner started dumping iron ore, boulders, etc. on a portion of the said piece of land and had diminished the value of cultivable land and caused a loss of more than Rs 10,000. It was also alleged that the complainant was deprived from using the agricultural land for cultivation.  A complaint under Section 427 and 447 IPC was made and Court of Judicial Magistrate Ist class convicted the petitioner and Sessions Judge affirmed the said judgment dated 18.07.2013. Hence instant revision petition has been filed challenging the judgment dated 18.07.2013.

Counsel for the petitioner, Gouri Debi submitted that the court of the impugned judgment has failed to properly consider the sale-deed. It was further contended that the present case is a civil dispute and not a criminal dispute as it relates to the title of land.

Counsel for the respondents, Ravi Prakash submitted that the learned courts have duly considered both the sale-deeds of the complainant as well as the defense. It was also submitted that there is no scope of re-appreciation of the evidence and hence there is no illegality or perversity in the impugned judgments.

The Court observed

“The act i.e. dumping of iron ore over the complainant’s land certainly intimidate him and would cause annoyance so the basic ingredients of the criminal trespass is present in this facts and circumstances of the case so accused is also liable to be convicted for the offence committed under Section 447 IPC.”

After hearing the arguments and witnesses being cross-examined thoroughly, Court held that both the sale-deeds were in connection with the same property. It was further held that the basic ingredients of Sections 427 and 447 were satisfied and the petitioner’s actions caused wrongful loss to the complainant and the land became infertile and was not useful for cultivation. It was further held that as the basic ingredients of offence were present in the case, hence merely because there is a dispute in connection with land, it will not be a civil dispute.

In view of the above, the petition was disposed off and sentence modified.[Md. Kausar Ali v. State of Jharkhand, 2020 SCC OnLine Jhar 742, decided on 20-08-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J. dismissed a regular first appeal filed under Section 96 CrPC, against the judgment of the trial court whereby appellant’s suit was rejected as barred by res judicata.

The suit for declaration, partition, possession and permanent injunction was filed by the appellant relating to the property purported to be received by him on the partition of the property after the death of his father. The respondents filed an application under Order VII Rule 11 CPC pleading that identical issue of ownership of the suit property had been raised and decided against the appellant in an earlier suit for injunction. The trial court held that the question of ownership of the suit property was directly in issue in the said injunction suit. The instant suit was rejected by the trial court as barred by res judicata. Aggrieved thus, the appellant was in appeal.

The High Court, in order to settle the issue, referred to various decisions of the Supreme Court and observed that once in a suit for injunction, title is in issue and decided, the said finding of the title will operate as res judicata in a subsequent suit where title is an issue. The Court was of the view that since the claim of ownership of appellant in the suit property was already decided against the appellant in the earlier suit, therefore, the trial court was justified in dismissing the present suit being barred by res judicata. In view of the discussion as mentioned hereinabove, the High Court held the appeal to be sans merit. The appeal was held to be an abuse of process of law and was dismissed with costs amounting to Rs 25000. [Randhir Singh v. Satish Kumar,2018 SCC OnLine Del 9879, dated 16-07-2018]

Hot Off The PressNews

Supreme Court: In the Ram Janamabhoomi-Babri Masjid dispute, famously known as the Ayodhya matter, Senior Advocate Raju Ramchandran, appearing for Sunni Waqf Board asked the 3-judge bench of Dipak Misra, CJ and AK Bhushan and SA Nazeer, JJ to refer the matter to a Constitutional bench. He said that “the issue needs larger consideration keeping in view that it is a national issue.”

Senior Advocate Harish Salve said:

“We are beyond 1992-1993. All that remains is a title dispute over property. It should be decided just like a title suit, and not on other grounds.”

The bench has listed the matter for further hearing on 15.05.2018.

On the last hearing, the Court witnessed a high voltage drama when Senior Advocate Rajeev Dhavan and Additional Solicitors Generals Maninder Singh and Tushar Mehta engaged in war of words.

Source: ANI

Case BriefsHigh Courts

High Court of Jharkhand at Ranchi: A Single Bench Judge comprising of Chandrashekhar, J. addressed a petition on a title suit wherein the petitioner had initially filed a suit for declaration of his right, title and interest over the land in question and a decree of confirmation of his possession over that land and alternatively, if he was found dispossessed during the pendency of the suit recovery, then khas possession be given to him instead.

In the pending suit, an application for impleadment in the title suit was filed by a third party under Order I Rule 10(2) CPC, to be considered a defendant in the suit. This application was allowed by the Court against which the petitioner filed the present petition.

The counsel for the petitioner submitted that the title suit was instituted against a sole defendant i.e. the State. Allowing the third party’s impleadment would lead to a situation where there would be three persons claiming right, title and interest over the property in question and thus any decision that would be taken in the title suit concerned would affect the petitioner adversely.

The Court held that a person who has any substantial interest in the property in question and as long as his interest is not merely peripheral has to be a necessary party in the suit. The Court acknowledged that any adjudication in the title suit would affect the proceeding of the other title suit filed by the third party seeking impleadment in the main title suit. The mere fact that no relief had been sought against the third party respondent was not sufficient to non-suit him. Dismissing the petition, the Court also observed that the object for adding a party in exercise of power under Order I Rule 10(2) is to avoid multiplicity of litigation. [Lal Babu Sao v. State of Jharkhand, 2017 SCC OnLine Jhar 2336, dated 2.11.2017]