LALJI SINGH v. RAMESHWAR MISRA — 1983 DIGILAW 97 (ALL)

JUDGMENT B. D. Agarwal, J. - This is plaintiff's appeal. 2. Lalji Singh, the plaintiff, and one Ram Sukal, husband of Smt. Sugga were collaterals. Smt. Sugga died prior to the vesting under the U.P. Zamin dari Abolition and Land Reforms Act, 1950, leaving her daughter Smt. Jasoda, defendant No. 6, as her heir. Dispute arose between Smt. Jasoda on one hand and Lalji Singh on the other Smt. Jasoda was mutated in the revenue papers after contest put in by Lalji Singh. She then filed Original Suit No. 2534 of 1958 in the civil Court for partition of the holding. The suit was contested by Lalji Singh, but decreed by the trial Court on September 4, 1961. Lalji Singh filed an appeal in the district Court against the decree which was dismissed on November 19, 1962. During the pendency of this appeal, Smt. Jasoda executed four deeds of sale between May 28, 1962 to July 4, 1962 in favour of defendants 1 to 5 and 7 with respect to land specified at the foot of the plaint. Second Appeal No. 831 of 1963 was filed by Lalji Singh against the judgment and decree of the lower appellate Court dated 19.11.1962. An application to record a compromise under Order 23, Rule 3, C.P.C. was made in this Court on March 26, 1963 by Lalji Singh. This was opposed by Smt. Jasoda, but the objection was rejected. The compromise was verified by the trial Court on March 25, 1964 under the order of this Court. A sum of Rs. 5,000/- was paid by Lalji Singh to Smt. Jasoda who made surrender of her rights in the land in favour of Lalji Singh. The second appeal was decided in terms of this compromise on May 21, 1969. Lalji Singh filed the suit giving rise to this appeal in the meantime on June 3, 1965, claiming the relief of cancellation of the four deeds of sale mentioned above on the ground that they were vitiated on the principle of I is pendens. In defence, it was asserted by defendants 1 to 4 and 7 that Smt. Jasoda was competent to execute the sale which she did and that lis pendens is not attracted to the facts of this case. 3. In defence, it was asserted by defendants 1 to 4 and 7 that Smt. Jasoda was competent to execute the sale which she did and that lis pendens is not attracted to the facts of this case. 3. The trial Court decreed the suit on October 31, 1969 being of the view that the transactions of sale were vitiated under Section 52 of the Transfer of Property Act and that there was no collusion between Smt. Jasoda on the one hand and Lalji Singh on the other. Sale deeds were cancelled as a result except with respect to certain plots specified in the decree which were not the subject matter of Original Suit No. 2534 of 1958. The judgment and decree of the trial Court were reversed by the lower appellate Court on February 5, 1974 which recorded the finding that Section 52 of the Transfer of Property Act is not attracted. Aggrieved against the dismissal of the suit, the plaintiff preferred this appeal. 4. Learned counsel for the appellant contended that the impugned deeds of sale executed during the period of May 23, 1962 to July 4, 1962 are to be considered void in terms of Section 52 of the Transfer of Property Act and that they cannot prevail as against the right, title and interest of the plaintiff as recognised in the compromise decree passed in Second Appeal No. 831 of 1963 on May 21, 1969. Section 52 of the Transfer of Property Act in so far as material provides that during the pendency in any Court of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose. Upon analysis it would appear that the essential ingredients for the application of Section 52 are : (i) the right to immovable property be directly and specifically in question in any suit or proceeding ; (ii) there be transfer made of such immovable property or the same be otherwise dealt with without the authority of the Court ; (iii) the transfer impugned be made during the pendency of any such suit or proceeding ; (iv) the suit or proceeding concerned be not collusive, 5. The broad purpose of Section 52 as pointed out in Gauri Dutt Maharaj v. Sakur Mohammad and others AIR 1948 P.C. 147 , is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or strength or weakness of the case on one side or the other in bona fide proceedings. In that case a mortgage was effected during the pendency of a suit. The plea raised was that the appellant's claim was not maintainable by reason of Section 52. The right to immovable property was directly and specifically in question in the said suit. The expression "decree or order" used in Section 52 includes, it was held, a decree or order made pursuant to agreed terms of compromise. To apply the test of strength or weakness of the case on one side or the other in bona fide proceedings is "to misconceive the object of the enactment." 6. In Bharat Ramanuj Dass Mahanta and another v. Srinath Chandra Sahu and another AIR 1922 Calcutta 358, it was explained, following Faiyaz Hussain v. Narayan 4 A.L.J. 344 : (1907) 29 Alld. 339, that in order to determine whether a suit is contentious within the meaning of Section 52, we have to consider whether it is contentious in its origin and nature. In a collusive proceeding, a person is mis-employed in listening to a fictitious cause proposed to him, there is no party litigation, there is no party defendant; no real interest brought into question. If a suit is not collusive, it was further contended, it cannot be maintained that though originally contentious it ceases to be contentious, because it is compromised by the act of the parties. A Full Bench in Annamali v. Malayandi (1906) 29 Mad. If a suit is not collusive, it was further contended, it cannot be maintained that though originally contentious it ceases to be contentious, because it is compromised by the act of the parties. A Full Bench in Annamali v. Malayandi (1906) 29 Mad. 426, held that lis pendens in Section 52 applies to transfers effected during the pendency of a contentious suit or proceeding even when such suit or proceeding is subsequently compromised. If a decree is passed in pursuance of such compromise not tainted by fraud or collusion, Section 52 is not excluded. A judgment entered into by consent of parties, in a cause in which the Court has jurisdiction of the subject matter and of the parties, is no less efficacious than if entered after a trial of the suit by contest. 7. In Mst. Ramdulari Kuer and others v. Upendra Nath Basu AIR 1925 Patna 462, also the same principle was affirmed by a Division Bench holding that lis pendens applies as well to a purchase during the pendency of a suit which terminates in a consent decree. The fact that payment was made by the respondent to the other party in order to obtain the consent decree, was held not to affect the doctrine of lis pendens. Collusion in a judicial proceeding is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain a decision of the judicial tribunal for some sinister purpose. In such a proceeding the claim put forward is fictitious, the contest over it is unreal and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties, vide Naguhai Ammal and others v. B. Shama Rao and others AIR 1956 S.C. 593 . The effect of Section 52 is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit. As between the parties to the transaction, however, it is perfectly valid and operates to vest the title of the transferor in the transferee. The effect of Section 52 is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit. As between the parties to the transaction, however, it is perfectly valid and operates to vest the title of the transferor in the transferee. If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition, see Kedarnath v. Sheo Narain AIR 1970 S.C. 1717 , The doctrine of lis pendens applies, as stated by their Lordships of the Supreme Court also, irrespective of the strength or weakness of the case on one side or the other. 8. Viewed in the light of the above, it will be noticed that the essential ingredients of Section 52 are satisfied in the instant case : 1. Original Suit No. 2534 of 1958 instituted by Smt. Jasoda against Lalji Singh was for the relief of partition in respect of the plots concerned. The title to those plots was directly and specifically in issue i-i that suit. Smt. Jasoda asserted that she had acquired the land by inheritance from her mother, while Lalji Singh was interested in contending that Smt. Sugga had no interest since she was a member of the Joint Hindu family and he got the entire land by survivorship. The decree passed by the trial Court in the instant case, it will be recalled, is confined to the plots which were the subject matter of dispute in Original Suit No. 2534 of 1958. 2. Smt. Jasoda had admittedly executed transfer by sale during May 23, 1962 to July 4, 1962 in respect of the concerned plots and that was without any authority of the Court. 3. The transfer made by Smt. Jasoda was during the pendency of the suit above mentioned. The first appeal filed by Lalji Singh in the district Court was pending when these transfers took place. There is no dispute raised on the point that the appeal has to be considered as being in continuation of the suit and indeed there is no room for any such controversy in view of the Explanation appended to Section 52. 4. The first appeal filed by Lalji Singh in the district Court was pending when these transfers took place. There is no dispute raised on the point that the appeal has to be considered as being in continuation of the suit and indeed there is no room for any such controversy in view of the Explanation appended to Section 52. 4. Learned counsel for the defendant-respondents urged vehemently that Section 62 be not held to be attracted because according to his contention the compromise verified on March 25, 1964 was collusive. It was argued that the lower appellate Court has recorded a finding to that effect and the same is binding. I have carefully scrutinised the finding recorded by the lower appellate Court, but I am unable to agree with the contention of the respondents' learned counsel. The lower appellate Court observed, it will be noticed : "The proceedings did not appear to be collusive when initially begun. There was a serious contest, This suit, after full trial was decreed on 4.9.1961, as is clear from the copy of judgment Ext. A4 and copy of decree Ext. A5. It was held that after the death of Mst. Sugga Mst. Jasoda, inherited as daughter one half share in the property in dispute. Lalji went in appeal Copy of the judgment is on the file but copy of order 28/C of appellate Court filed shows that the appeal was disposed of on 19.11.1962. Copy of application Ext. A1 of Lalji suggests that the appellate Court had also decreed the plaintiffs' suit, As such, the decision of both the trial and the first appellate Courts was in favour of Mst. Jasoda and her rights in the disputed property to the extent of one-half as Bhumidhar were fully recognised by competent Courts inspite of attempts of Lalji and others to challenge her rights. Upto the time of these proceedings, there appeared to be no collusion between the parties and the proceedings could not be said to be collusive. Lalji and others filed Second Appeal No. 831 of 1963. Before its hearing U/Order 41 Rule 11. Lalji filed compromise petition Ext. Upto the time of these proceedings, there appeared to be no collusion between the parties and the proceedings could not be said to be collusive. Lalji and others filed Second Appeal No. 831 of 1963. Before its hearing U/Order 41 Rule 11. Lalji filed compromise petition Ext. A1 dated 26.3.1963 was to be put up along with the appeal at the time of its hearing U/Order 41 Rule 11 C.P.C. It has been asserted from the side of the appellants that collusion really was from the stage when second appeal was filed and the attempt was to obtain by collusion a decree in favour." 9. Undoubtedly, the lower appellate Court has made use of the epitah "collusion," but that was neither analysed nor appreciated in the light of the facts relevant to the controversy. The Court below itself found that this was a contentious suit initiated and carried on as such and it does not record that the compromise was entered into with the object to defeat the rights of a third party. If in the opinion of the lower appellate Court Smt. Jasoda could not have been a party to the compromise of her free will, that would not have the effect of converting this into a collusive suit. It will be recalled that upon the death of Smt. Sugga, there was serious contest between her daughter on the one hand and Lalji Singh on the other. The former applied for mutation which was resisted and the matter was taken upto appellate authority. The suit for partition instituted by Smt. Jasoda was contested also. This was decreed, the appeal against the decree failed but Lalji Singh took the matter to second appeal. The application made under Order 23, Rule 3 C.P.C. was opposed by Smt. Jasoda, but without success. A sum of Rs. 5,000/- was paid to her by Lalji Singh before the Court at the time of the verification of the compromise on March 26, 1964 and this led to the final decree in the Second Appeal on May 21, 1969. I fail to understand as to how, in face of such a contest to the suit taken as a whole, may it be maintained justifiably that the proceedings impugned were effected during the pendency of a collusive suit. I fail to understand as to how, in face of such a contest to the suit taken as a whole, may it be maintained justifiably that the proceedings impugned were effected during the pendency of a collusive suit. The mere fact that the suit terminated ultimately in a consent decree or that consideration was paid in terms of money to Smt. Jasoda for the compromise being arrived at does not change the real nature or character of the proceeding leading to the same. 10. The respondents' learned counsel argued then that the decree or order contemplated under Section 52 does not cover a compromise recognising entirely different right, than that claimed by the parties in the suit. Reliance by him was placed for this proposition on the decision in Marath Veettil Raghavan Nair v. Nediyadath Bhagyalakshmi Amma and others AIR 1972 Kerala 125. In Gouri Dutt Maharaj v. Sukur Mohammad and others ( supra ) also it was observed that it may well be that Section 52 does not contemplate a decree or order which is entirely alien to the issue between the parties. But, it was added at the same time that it applies to a compromise decree and such a decree cannot, by reason of its very nature, be expected invariably to reflect the precise relief claimed. There is no dispute about the proposition advanced by the respondents' learned counsel. The fact remains nonetheless that the compromise decree passed in t|he present case was entirely with respect to the subject-matter of dispute in the suit giving rise to the same. There was a claim of title raised on either side to the plots in dispute, the relief sought by Smt. Jasoda was that of partition and it was with respect to this right in dispute that the compromise was entered into. In case the transferees themselves were aggrieved by the decree passed on May 21, 1969, there was no bar against their filing a suit for the same being set aside on ground of collusion or the like. The application made by them under Order 22. Rule 10, C.P.C. for impleadment before this Court had been rejected and this certainly did not prevent them from establishing any separate suit that the compromise was collusive or fraudulent, see Nanjammal and others v. Eswaramurthi Goundar AIR 1954 Mad. 592 . The application made by them under Order 22. Rule 10, C.P.C. for impleadment before this Court had been rejected and this certainly did not prevent them from establishing any separate suit that the compromise was collusive or fraudulent, see Nanjammal and others v. Eswaramurthi Goundar AIR 1954 Mad. 592 . True the contest on this score could be raised even in opposition to the application made under Order 23, Rule 3, C.P.C. but since the transferees themselves were not arrayed as parties and the position put in by Smt. Jasoda was not sustained, the transferees themselves cannot be said to have been precluded from suing for the decree being set aside on the ground of alleged fraud or collusion. 11. It was lastly submitted for the respondents that the suit giving rise to this appeal had been instituted on June 3, 1965, whereas the decree in the second appeal was passed later on May 21, 1969, and hence the plaintiff appellant may not avail of the principle of lis pendens. The contention is devoid of substance in my view. The appeal filed by Lalji Singh was dismissed by the first appellate Court in that case on 19.11.1962. The second appeal against the same was pending when the suit giving rise to the present appeal was instituted. The Court is not precluded from taking notice of the subsequent development whereby the proceeding in original Suit No. 2534 of 1958 culminated finally into the consent decree passed in the second appeal on May 21, 1969. At the time when the controversy in the proceeding has come to be decided, the proceeding in the earlier suit stands determined finally. 12. For the reasons given above, the appeal succeeds in my opinion. The deeds of sale are affected by lis pendens as laid in Section 52 of the Civil Procedure Code except with respect to the plots for which the suit was dismissed by the trial Court, since those plots were not the subject matter of Original Suit No, 2534 of 1958. 13. The appeal is, therefore, allowed with costs. The judgment and decree of the lower appellate Court are set aside. The decree passed by the trial Court is restored.