Kalawati v. Board of Revenue, U. P. at Allahabad — 1988 DIGILAW 791 (ALL)

ORDER Ravi S. Dhavan, J. - It is unfortunate that this writ petition has remained pending consideration for almost seventeen years when whatever' has been argued at the Bar today could have been argued much earlier as no circumstance has changed between then and now. 2. Kalawati, the petitioner, has died She died on 28 April, 1972. She left no heir. 3. The order which has been impugned is the decision of the Board of Revenue dated 11-8-1971. This order aggrieved Kalwati. The Board of Revenue decided that the parties to the suit were co-bhumidars, in equal shares; there was a direction to revenue authorities to record the status accordingly. The matter arose out of a suit when the petitioner sought a declaration under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act 1950 seeking exclusive rights. The Board of Revenue was virtually confirming the order of the Additional Commissioner, Varanasi Division, Varanasi. Thus, in effect, the writ petition was filed as Kalawati felt aggrieved that there should be a direction affirmed by the Board of Revenue that her status should be that of a co-bhumidhar under the Act, aforesaid. 4. While the decision of the Board of Revenue was pending consideration Kaiwati died. As she left no heirs no application came, nor could, from an heir. The writ petition remained pending for almost sixteen years. 5. During the pendency' of the writ petition on 20 July, 1972 an application was moved by the Messrs Harbans Narain Misra and Yadunand Misra under Order 22, Rule 3 of the Code of Civil Procedure, hereinafter referred to as the Code. This is the first time that it was placed on record of the writ petition that Kalawati had died on 28-4-1972. The two persons, aforesaid, in the affidavit supporting application seeking impleadment as petitioners, simultaneously contended that they were heirs and legal representatives of the deceased and also that the deceased had not left any heir or legal representative. The two statements were negating each other. As impleadment was being sought during the pendency of the writ petition it was necessary to have determined their status as soon as they were seeking impleadment. Unfortunately, this had not been done. What had to be considered was the locus standi of the two persons, aforesaid, to prosecute the petition in lieu of Kalawati, deceased. As impleadment was being sought during the pendency of the writ petition it was necessary to have determined their status as soon as they were seeking impleadment. Unfortunately, this had not been done. What had to be considered was the locus standi of the two persons, aforesaid, to prosecute the petition in lieu of Kalawati, deceased. It would be best to see the locus standi of the persons as they have presented before this Court. 6. It has been contended by the aforesaid two persons that they came upon the scene by virtue of a gift deed, a copy of which was enclosed along with their affidavit. The affidavit does not mention when the gift deed had been executed and registered so as to have probative value before a Court of law. The gift deed brings on record certain facts. It was alleged to be executed on 28-3-1972. It was registered on 16-5-1972. In between these two dates Kalawati died. A serious argument has been presented on behalf of the contesting respondent that as all these events have taken place while the writ petition has been pending and no affidavits have been presented by no other person than the pennons who are seeking impleadment, the gift deed (a) is questionable (b) suspicious and (c) confers no right upon the two persons aforesaid to interfere with the proceedings before this Court, notwithstanding, that there may have been any arrangement between Kalawati and two persons, aforesaid. It is contended that the said person are certainly not heirs and the worth of their legal representation is questionable. The objection of the learned counsel for the respondents will be noticed subsequently. 7. Upon the presentation of the writ petition the Court called upon the learned counsel for the petitioner to comment upon the status of the persons who were seeking impleadment as petitioners say that they have a right to argue and continue the petition presented by Kalawati, deceased. It was indicated by the Court to learned counsel that Section 52 of the Transfer of Property Act, 1882 may be an impediment, in their so called transferee status. Section 52 of the Transfer of Property Act, contains no other principle except commonly known as 'lis-pendens'. This principle places an embargo to transfer any moveable property during the pendency of a suit or proceedings. Section 52 of the Transfer of Property Act, contains no other principle except commonly known as 'lis-pendens'. This principle places an embargo to transfer any moveable property during the pendency of a suit or proceedings. It is the discretion of the Court (a) to permit a transfer and (b) to continue status quo in the litigation without permitting the transfer. The Section clearly reads that during the pendency of a suit or proceeding an immoveable property cannot be transferred. The exception that it may be done under the authority of the Court. This in itself indicates that the law is that should there be a transfer during the pendency of a suit or a proceeding, it would be better prudence to indicate the Court where the suit or proceeding is pending and seek permission before indulging in a transfer. 8. Learned counsel for those seeking impleadment accepted that the immoveable property which was the subject matter of decision of the Board of Revenue, has been transferred during the pendency of the writ petition and this Court had not been intimated prior to affecting the alleged transfer nor was it's permission sought. The attempt of the learned counsel was to seek the aid of the clause which permits an exception. On affidavit it is accepted that permission or authority of the court to transfer the property had not been obtained. Three decisions were cited by learned counsel. These were None of the decisions apply b aid the persons seeking impleadment to clerk them with a locus standi to be impleaded id lieu of Kalawati, deceased The decision ' : Lalji Singh v. Rameshwar Misra, 1983 9 All LR 269: AIR 1983 NOC 172., is more against the proposition of learned counsel for parties seeking impleadment than in favour. After having noticed the law under which Section 52, aforesaid, the Court on the facts and circumstances of the case laid-down that deed of sale were affected by lis-pendens. This decision, in effect, lays-down that the very purpose of Section 52 is to maintain status quo between the parties to a litigation, which is pending determination. 9. After having noticed the law under which Section 52, aforesaid, the Court on the facts and circumstances of the case laid-down that deed of sale were affected by lis-pendens. This decision, in effect, lays-down that the very purpose of Section 52 is to maintain status quo between the parties to a litigation, which is pending determination. 9. In the decision reported in 1979 All LJ 1273, in re : Thakur Prasad v. Board of Revenue, the only matter which was decided was that the transfer made during the pendency of a suit was not a bad transfer but subject to the result of the proceedings, that is the suit. But, this case does not notice the decision of the Supreme Court, in re Nagubhai v. B. Shama Rao, AIR 1956 SC 593 ., the latter being cited by counsel at the close of his arguments. The Supreme Court held, in effect, that the purpose of Section 52 was . not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit. In the facts and circumstances of the case before it the Supreme Court clarified that the sale after the presentation of the plaint "would prima facie fall within the mischief of Section 52, Transfer of Property Act". 10. It is for this purpose that learned counsel for the impleaders contends that the transfer under the gift-deed cloaks them with a right to sue and they be permitted to maintain the writ petition in lieu of Kalawati, deceased. 11. The arguments on behalf of the respondents, in effect, were that the so-called' gift deed was subject to scrutiny oft his Court as the alleged transfer had taken place during the pendency of the writ petition under Article 226 of the Constitution of India. Learned counsel for the respondents contended that the gift deed upon a plain reading cannot cloak the applicant seeking impleadment with any status or right to pursue the writ petition as it had abated on the date Kalawati died I t was contended by the learned counsel for the respondents that notwithstanding that the gift deed may have been registered, its registration was ultra-vires the law. Learned counsel for the respondents submitted that the persons, aforesaid, could not come within the meaning of legal heirs under Order 22, Rule 3 of the Code, as assignees to a property could not be legal representatives. 12. The last submission was in any case in reference to the very enactment under which Kalawati during her life-time was seeking declaration under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act 1950. It contended that upon her death her interest had already passed by survivorship and the two persons, aforesaid, seeking impleadment were strangers and otherwise had no locus-standi to interfere when survivorship has been stipulated under the Act, aforesaid. 13. As Kalawati herself had sought a writ of certiorari and died during the pendency of the writ petition, Messrs Harbans Narain and Yadubans Narain were attempting to confer upon themselves a status that the right to sue has survived and they can pursue the writ petition. 14. The chance of their claim rests on the gift deed, that is, their locus standi is based upon a right which emanates from the gift deed. The Court has perused the contents of the gift deed. What is on record can be commented upon as it has been presented by the persons who seek impleadment. While the petition was pending the immoveable property, which is the subject matter of a decision before the High Court, was being conveyed to a third party. 15. The date of the gift deed is28-3-1972. One month later the petitioner Kalawati died and after about a fortnight the gift deed as produced before this Court suggests that it was registered on 16-5-1972. Could it be registered ? The answer to this lies under the Registration Act 1908. Under Section 34 of the Registration Act, aforesaid, no document shall be registered unless the person executing the document appears before the registering authority. A dispensation is given to the person executing the document that he or she may appoint an agent or a representative and an assignee for carrying out the purpose of registration. No agent had been appointed on behalf of Kalawati. She never appeared before the registering officer. There can be no issue on this as registration was after her death The gift deed then becomes suspicious. No agent had been appointed on behalf of Kalawati. She never appeared before the registering officer. There can be no issue on this as registration was after her death The gift deed then becomes suspicious. Section 35 implies that if the person who executed the document is dead, the registering officer shall refuse to register the document. In the present case the person who executed the document, Kalawati, died. 16. The gift deed records that it bears a thumb impression, the recital so states, of Kalawati. It is the submission of the persons seeking impleadment that the gift deed was registered by the registering officer. In so far as the last contention was concerned, it is a matter of record that the gift deed was registered after the death of Kalawati. Thus, the so-called gift deed has antecedents which are not bona fide. 17. Under Order 22 Rule 3 of the Code the right to sue surviver to. legal representatives. The claim to be legal representatives, is based on the gift deed, which was registered on 16-5-1972. Thus, it is implied from the pleadings of the persons seeking impleadment that the right which they claim was conferred upon them after the death of Kalawati. The status was conferred upon the registration of the deed as its probate value is from the date when it was registered. So under the law, the applicants cannot take advantage to present an application under O. 22, R. 3 of the Code, so as to claim that the right to sue has survived. The term legal representative, has been defined under S. 2(11) of the Code. No right to sue has survived to the applicants during the lifetime of Kalawati. Rule 10 of O. 20 of the Code also cannot be made applicable as it is in reference to the assignees or devolution of any interest, but, during the lifetime of the person whose interest is sought to be received. In the present writ petition the right is claimed, when the gift deed could not and was not registered during Kalawati's lifetime. The registration after Kalawati's death does not confer a status of legal representatives upon the persons seeking impleadment. In reference to the proposition the Court relies on a decision of this Court in re Krishna Sharma v. Shital Prasad, AIR 1979 All 345 . 18. The registration after Kalawati's death does not confer a status of legal representatives upon the persons seeking impleadment. In reference to the proposition the Court relies on a decision of this Court in re Krishna Sharma v. Shital Prasad, AIR 1979 All 345 . 18. Regard being had to the circumstance, whether under the Registration Act or under the Code, the right to sue has not survived to the applicants, their locus standi could be seen under Zamindari Abolition and Land Reforms Act also. After the Board of Revenue had delivered its decision on 11-8-1971 and upon the death of Kalawati, this enactment stipulates that interest passes by survivorship. S. 175, in effect, enjoins that upon the death of a co tenure holder leaving no heir to succeed, the interest in a holding shall pass by survivorship. 5.175 is reproduced below : "175. Passing of interest by survivorship - In the case of a co-widow, of a co-tenure- holder, who dies leaving no heir entitled to succeed under the provisions of this Act, the interest in such holding shall pass by survivorship." 19. Regard being had to these circumstances, the record as now remains before the Court is that the gift deed having been registered after the death of Kalawati, who as an executant in any case had not appeared before the registering officer, (a) the document was not bona fide and could not be registered, (b) the right to sue has not survived and (c) the stipulation under the Zamindari Abolition and Land Reforms Act under S. 175, in reference to S. 171, the right to survivorship could not be defeated. 20. The decision of the Board of Revenue in appeal had become final between the parties to the suit. This writ petition is not a continuity to the suit. At best, it seeks a certiorari to see whether the decision of the Board of Revenue suffers from any illegality or manifest error apparent on the face of the record. This court does not discern any such error or illegality. 21. A mis-guided lawyering had permitted the creation of a gift deed and occasioned the pendency of the petition. Regard being had to the circumstances which have been brought on record this Court is not inclined to exercise its discretion in permitting the applicants to pursue the petition in place of Kalawati. 21. A mis-guided lawyering had permitted the creation of a gift deed and occasioned the pendency of the petition. Regard being had to the circumstances which have been brought on record this Court is not inclined to exercise its discretion in permitting the applicants to pursue the petition in place of Kalawati. The application seeking impleadment is, thus, rejected 22. The petition had abated upon Kalawat is death. The respondents will be entitled to costs from the two applicants, as but for them the proceedings have remained pending in this Cour, or an inordinate period.