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2015 DIGILAW 1734 (HP)

Ishwar Dass v. Bir Singh alias Hari Ram

2015-11-27

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Plaintiff is in second appeal before this Court. He is aggrieved by the judgment and decree Whether reporters of the Local papers are allowed to see the judgment? Yes. dated 14.5.2002, passed by learned Additional District Judge-I, Kangra at Dharamshala, in Civil Appeal No.30-K/2000. Learned lower appellate Court vide judgment and decree under challenge in this Court has affirmed the judgment and decree passed by learned trial Court in Civil Suit No.242/93/90, and dismissed the appeal. 2. The dispute in the present lis lies in a narrow compass. While it is the case of the plaintiff that he alongwith proforma defendants No.5 and 6 Balwant Singh and Khem Singh (since dead), is coowner in possession of the suit land to the extent of 1/3rd share each, the stand of the contesting defendants No.1, 2 and 4 was that the share of the plaintiff in the suit land is only to the extent of 1/6th. 3. Admittedly, one Saran Dass was owner of the suit land corresponding to pre-settlement Khasra Nos.295 and 297. He had two wives, Bimla Devi defendant No.3 (since dead) and Biasan Devi defendant No.4 (since dead). Defendants No.1 and 2 Bir Singh alias Hari Ram and Sardev Singh alias Rikhi Ram were born to Smt. Biasan Devi deceased defendant No.4 from the loins of aforesaid Saran Dass. As per further case of the plaintiff, deceased defendant No.4 and her two sons, defendants No.1 and 2 had neglected Saran Dass and started living separately. It is defendant No.3 Smt. Bimla Devi, who allegedly rendered all services to him. In lieu of the services so rendered by her, said Shri Saran Dass gifted some landed property including the suit land in favour of said Smt. Bimla Devi. The present defendants No.1 and 2 had, however, challenged the gift of the land so made by said Shri Saran Dass in favour of deceased defendant No.3, by way of filing Civil Suit No.6 of 1964 on the grounds that the land so gifted away being ancestral property could have not been gifted to defendant No.3. The said suit, however, was dismissed by the trial Court vide judgment and decree dated 30.3.1965. The said suit, however, was dismissed by the trial Court vide judgment and decree dated 30.3.1965. In appeal, learned Additional District Judge confirmed the findings recorded by the trial Court qua part of the gifted property, however, some part of the suit land found to be ancestral property, therefore, the suit qua the same was dismissed. In Regular Second Appeal No.83 of 1967, Himachal Bench of Delhi High Court vide judgment and decree (Ext.D-2) dated 20.3.1970, confirmed the findings of the first appellate Court, however, concluded that in view of the gift of the ancestral property held invalid to succession, the same opened and Bimla Devi defendant No.3 with another widow of Saran Dass Biasan Devi defendant No.4 were entitled to inherit the same in equal share in terms of Section 8 of the Hindu Succession Act, 1956. Since Saran Dass had two sons (defendants No.1 and 2) and two widows (defendants No.3 and 4), since dead, therefore, it was held that while the sons will get equal share in the ancestral property left behind by said Shri Saran Dass, both the widows were also entitled to 1/3 share in the ancestral property. Therefore, the share of defendant No.3 Bimla Devi, from whom the land was purchased by the plaintiff and proforma defendants No.5 and 6 was only to the extent of 1/6 and not 1/3. Against the judgment Ext.D-2, Letters Patent Appeal No.16 of 1970 was also filed, however, the same was also dismissed vide judgment dated 8.10.1982 (Ext.D- 8). 4. The suit land corresponds to presettlement Khasra Nos.295 and 297. There is no dispute qua it. This land was ancestral property of Saran Dass, therefore, as per judgment Ext.D-2 of this Court in Regular Second Appeal while defendants No.1 and 2 were held entitled to 1/3 share each, deceased defendants No.3 Bimla Devi and No.4 Biasan Devi 1/6 share each. It is after taking note of such facts and circumstances and also the evidence available on record, the suit was dismissed by learned trial Court. Learned lower appellate Court has also affirmed the judgment and decree passed by the trial Court. 5. It is after taking note of such facts and circumstances and also the evidence available on record, the suit was dismissed by learned trial Court. Learned lower appellate Court has also affirmed the judgment and decree passed by the trial Court. 5. The legality and validity of the impugned judgment and decree has been challenged on the grounds, inter alia, that the plaintiff and proforma defendants No.5 and 6 were joint owners in possession of the suit land to the extent of 1/3rd share and being bonafide purchaser of 1/3rd share of Smt. Bimla Devi, are not bound by the adjudication of the matter previously inter se defendants No.1 and 2 and said Smt. Bimla Devi. It is pointed out that when as per the trial Court’s judgment, the plaintiff was held entitled to have 12th share in the suit land, at least the transfer of this much suit land in his favour should have been held legal, however, the Courts below have denied the relief as sought in the suit in its entirety. The Courts below have misread and misconstrued the judgment Ext.D-2 and also the provisions contained under Sections 41 and 52 of the Transfer of Property Act (hereinafter referred to as the ‘Act’ in short), which allegedly has vitiated the findings. Since a clear case was made out that he is bonafide purchaser for consideration of 1/6th share the suit ought to have not been dismissed in its entirety. The plaintiff was not bound by the decree passed previously. 6. The appeal has been admitted on the following substantial questions of law:- 1) Whether on proper interpretation of Sections 41 and 52 of the Transfer of Property Act, the plaintiff was bonafide purchaser for consideration and was entitled to a decree for declaration and protection of his joint possession to the extent of 1/3rd share in the property purchased from Bimla Devi? 2) Whether in view of the findings of the Court below that plaintiff’s share could not exceed 1/12 in view of the previous litigation was entitled to a decree for declaration and injunction and entitled to remain in possession thereof to the extent of 1/12 share and dismissal of the suit of the plaintiff for joint possession to that extent is not sustainable in law? 7. Mr. 7. Mr. Rajnish K. Lall, Advocate, learned Counsel has vehemently argued that the plaintiff being a bonafide purchaser on payment of consideration is entitled to have his share to an extent of 1/3rd in the suit land. On the other hand, Mr. Ajay Sharma, Advocate, learned Counsel representing the respondents has urged that since the suit land was purchased by the plaintiff and proforma defendants No.5 and 6 (since dead) during the pendency of the suit instituted by defendants No.1 and 2 previously, therefore, in terms of Section 52 of the Act, the transfer of the suit land in his favour was to be governed by the final outcome of the said suit. Also that, since in the said suit upto the level of High Court, the deceased defendant No.3 Bimla Devi, from whom the plaintiff and proforma defendants No.5 and 6 had purchased the suit land was found to be the owner only to the extent of 1/6th share, therefore, the plaintiff and proforma defendants No.5 and 6 are entitled only to 1/6th share in the suit land. 8. Now, if coming to the substantial questions of law, it is desirable to refer to the provisions contained under Section 52 of the Transfer of Property Act. The bare reading of the provisions contained thereunder makes it crystal clear that any transfer of property by the parties to a suit would render it subservient to the rights of the parties thereto under the decree or order which ultimately is passed in that suit. The object of the provisions contained under Section 52 is only to make the decree passed in the suit binding on the transferee, if he happens to be third party. He is a party in the suit or not is immaterial. The transfer of the property during the pendency of the suit though will remain valid, however, subject to the result thereof. 9. In view of express provisions contained under Section 52 of the Act, the plaintiff (transferee) is not entitled to the protection contemplated under Section 41 of the Act for the reasons that Section 52 of the Act has an overriding effect on Section 41 and the person having purchased property during the pendency of the suit is not entitled to the protection of Section 41 of the Act. Both Courts below have rightly concluded while appreciating the provisions contained under Sections 52 and 41 of the Act and also the law applicable in its right perspective that the share of plaintiff and defendants No.5 and 6 in the suit land is only to an extent of 1/6. Therefore, when in the previously instituted litigation it has been authoritatively held that the share of deceased defendant Bimla Devi, predecessor-in-interest of the plaintiff and proforma defendants in the suit land was only to an extent of 1/6, she could have not sold the land over and above her share in the suit land. 10. The plaintiff is also not entitled to raise the plea that he being bonafide purchaser is entitled to protection as contemplated under Section 41 of the Act. Rather, the transfer of the suit land to an extent of 1/3 share vide sale deed Ext. PW-2/A was subject to the final outcome of the previously instituted suit. As per the judgment and decree passed in that suit and even affirmed by the High Court also vide judgment and decree Ext. D-2, her share has been determined only to the extent of 1/6. The transfer of the land in favour of the plaintiff and proforma defendants, therefore, is to be governed by the judgment and decree so passed in the previous suit. 11. There is no quarrel qua entitlement of the plaintiff and proforma defendants to have their share to an extent of 1/6 in the suit land. As a matter of fact, they have already been recorded owners in possession of the suit land to an extent of 1/6 share, however, being aggrieved thereby and having claimed their share in the suit land to an extent of 1/3, the declaration to this effect has been sought in the present lis, which has rightly been declined by both Courts below. Therefore, there is no legal question, muchless to speak of substantial questions of law as framed in this appeal, arises for adjudication by this Court. Consequently, the judgment and decree under challenge being legally and factually sustainable, calls for no interference. 12. In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed. Consequently, the impugned judgment and decree is affirmed. No order so as to costs.