Shri Ishwar Dass v. Shri Bir Singh Alias Hari Ram And Others S, Himachal Pradesh High Court, Judgment, Law, casemine.com

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Case Number

RSA No. 439 of 2002

Disposition

dismissed

Attorney(S)

For the respondents: Mr. Ajay Sharma, Advocate, for respondents No. 1, 2 and 4(a).
Mr. Dhananjay Sharma, Advocate, for respondents No. 3(a) to 3(c).
None for respondents No. 5(a) to 5(c) and 6 to 11.
For the appellant: Mr. Rajnish K. Lall, Advocate, vice Mr. Sanjeev Sood, Advocate.

Judges

Dharam Chand Chaudhary, J.

Acts

Sections 41 and 52 of the Transfer of Property Act (hereinafter referred
Section 8 of the H Hindu Succession Act, 1956.
Sections 41 and 52 of the Transfer of Property Act,
Section 52 of the Transfer ig of Property Act.

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Smart Summary

Factual and Procedural Background

The plaintiff filed a suit claiming ownership and possession of a one-third share in the suit land along with proforma defendants No.5 and 6, Balwant Singh and Khem Singh (deceased). The contesting defendants No.1, 2, and 4 contended that the plaintiff's share was only one-sixth. The suit land originally belonged to Saran Dass, who had two wives, Bimla Devi (defendant No.3, deceased) and Biasan Devi (defendant No.4, deceased), and two sons (defendants No.1 and 2). The plaintiff alleged that the land was gifted to Bimla Devi by Saran Dass in return for services rendered, but defendants No.1 and 2 challenged this gift as invalid since the land was ancestral property.

Previous litigation (Civil Suit No.6 of 1964) dismissed the challenge to the gift, but subsequent appeals and a Regular Second Appeal No.83 of 1967 upheld that the gift of ancestral property was invalid, entitling Bimla Devi and Biasan Devi to inherit equal shares under Section 8 of the Hindu Succession Act, 1956. The shares were determined such that the sons received equal shares and the widows were entitled to one-third share collectively. Thus, Bimla Devi's share was fixed at one-sixth, not one-third.

The trial court dismissed the plaintiff's suit, and the lower appellate court affirmed that decision. The plaintiff then filed the present second appeal challenging the judgment and decree dated 14.5.2002 passed by the Additional District Judge-I, Kangra at Dharamshala in Civil Appeal No.30-K/2000.

Legal Issues Presented

Whether, on proper interpretation of Sections 41 and 52 of the Transfer of Property Act, the plaintiff was a bona fide purchaser for consideration and entitled to a decree for declaration and protection of his joint possession to the extent of one-third share in the property purchased from Bimla Devi?
Whether, in view of the findings of the Court below that the plaintiff's share could not exceed one-twelfth in view of previous litigation, the plaintiff was entitled to a decree for declaration and injunction and entitled to remain in possession to that extent, and whether dismissal of the suit for joint possession to that extent is sustainable in law?

Arguments of the Parties

Appellant's Arguments

The plaintiff, being a bona fide purchaser on payment of consideration, is entitled to possess one-third share in the suit land.
The plaintiff and proforma defendants are not bound by the adjudication between defendants No.1 and 2 and deceased Bimla Devi.
The courts below misread and misconstrued judgment Ext.D-2 and Sections 41 and 52 of the Transfer of Property Act, which vitiated the findings.
The transfer of one-sixth share should have been held legal, and the suit should not have been dismissed entirely.

Respondents' Arguments

The suit land was purchased during the pendency of a prior suit instituted by defendants No.1 and 2, so under Section 52 of the Transfer of Property Act, the transfer is subject to the final outcome of that suit.
Since Bimla Devi's ownership was determined to be only one-sixth share, the plaintiff and proforma defendants are entitled only to that extent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Judgment and decree in Regular Second Appeal No.83 of 1967 (Ext.D-2) dated 20.3.1970 by Himachal Bench of Delhi High Court	Determination of rightful ownership shares under Hindu Succession Act, 1956; invalidity of gift of ancestral property; inheritance rights of widows and sons.	The court relied on this precedent to conclude that Bimla Devi’s share was only one-sixth and that the plaintiff could not claim more than this share.
Sections 41 and 52 of the Transfer of Property Act, 1882	Section 41: Protection of bona fide purchasers. Section 52: Transfer of property during pendency of suit is subject to final decree.	The court held that Section 52 overrides Section 41, making the plaintiff’s purchase subject to the previous suit’s outcome, denying protection under Section 41.

Court's Reasoning and Analysis

The court examined the prior litigation that conclusively determined the shares in the suit land, specifically that Bimla Devi’s share was limited to one-sixth. It held that the plaintiff’s purchase of the land during the pendency of the earlier suit was subject to the final outcome of that suit under Section 52 of the Transfer of Property Act. The court emphasized that Section 52 has an overriding effect over Section 41, which protects bona fide purchasers. Therefore, the plaintiff could not claim protection as a bona fide purchaser for a share larger than what was determined by the prior decree.

The courts below correctly applied these legal principles and found that the plaintiff and proforma defendants were entitled only to one-sixth share in the suit land. The plaintiff’s claim for one-third share was rejected as it contradicted the authoritative findings of previous litigation. Consequently, no substantial question of law arose warranting interference.

Holding and Implications

The appeal is DISMISSED, and the impugned judgment and decree affirming the plaintiff’s entitlement to only one-sixth share in the suit land are upheld.

The direct effect of this decision is that the plaintiff cannot claim a share exceeding one-sixth in the suit land, and the transfer of property made during the pendency of prior litigation remains subject to the final decree of that litigation. No new precedent has been established beyond the application of established principles under Sections 41 and 52 of the Transfer of Property Act and the Hindu Succession Act.

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Shri Ishwar Dass v. Shri Bir Singh Alias Hari Ram And Others S

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No.439 of 2002.

Date of Decision: 27^th November, 2015.

____________________________________________________ .

Shri Ishwar Dass ..Appella . nt. Versus P

Shri Bir Singh alias Hari Ram and others ..Respondents.

Coram f

Hon'ble Mr. Justice Dharam C o hand Chaudhary, J.

Whether approved for reportin t g¹? Yes. For the appellant: u Mr. rRajnish K. Lall, Advocate, vice Mr. Sanjeev Sood, Advocate.

For the responden o ts: Mr. Ajay Sharma, Advocate, for C

respondents No.1, 2 and 4(a). Mr. Dhananjay Sharma, Advocate, for respondents No.3(a) to 3(c). h

None for respondents No.5(a) to 5(c) g

and 6 to 11. i

____________________________________________________ Dharam Chand Chaudhary, J. (Oral)

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.

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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 i P n this Court has affirmed the judgment and dec . ree passed by learned trial Court f in H Civil Suit No.242/93/90, and dismissed the appeal.

2. The dispute in the p o resent lis lies in a narrow compass. While i r t is t th e case of the plaintiff that he alongwith proforma defendants No.5 and 6 Balwant Singh and uKhem Singh (since dead), is co-

owner in C posseossion of the suit land to the extent of 1/3 rd s hare each, the stand of the contesting d h efendants No.1, 2 and 4 was that the share of the

ig plaintiff in the suit land is only to the extent of 1/6^th^.H

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

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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 Sara P n Dass. As per further case of the plaintiff, decea . sed defendant No.4 and her two sons, de f fe nd H ants No.1 and 2 had neglected Saran Das o s and started living separately. It is defendant No.3 Smt. Bimla Devi, who allegedly rendered all se r rvic t es to him. In lieu of the services so rendere u d by her, said Shri Saran Dass gifted some la o nded property including the suit land in favou C r of said Smt. Bimla Devi. The present defend ants No.1 and 2 had, however, challenged th h e gift of the land so made by said Shri Saran Dass in

ig favour of deceased defendant No.3, by way of filing H

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

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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 lan P d found to be ancestral property, therefore, the . suit qua the same was dismissed. In Re f gu la H r Second Appeal No.83 of 1967, Himachal o Bench of Delhi High Court vide judgment and decree (Ext.D-2) dated 20.3.1970, confirmed t r he t f indings of the first appellate Court, ho u wever, concluded that in view of the gift of the o ancestral property held invalid to successio C n, the same opened and Bimla Devi defend ant No.3 with another widow of Saran Dass Bi h asan Devi defendant No.4 were entitled to inherit

ig the same in equal share in terms of Section 8 of the H

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

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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 wa P s purchased by the plaintiff and proforma de H fenda . nts No.5 and 6 was only to the extent of 1/6 and not 1/3. Against the judgment Ext.D-2, Letters f Pat ent Appeal

No.16 of 1970 was also filed, t ho w o ever, the same was also dismissed vide judgm r ent dated 8.10.1982 (Ext.D-8).

4. The suitu land corresponds to pre- settlemen C t Khaosra Nos.295 and 297. There is no dispute qua it. This land was ancestral property of Sa h ran Dass, therefore, as per judgment Ext.D-2 of this

ig Court in Regular Second Appeal while defendants H

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

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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. P

5. The legality and validity of the impugn . ed judgment and decree has been challenge H d on the grounds, inter alia, that the plaintiff f an d proforma defendants No.5 and 6 t w ere o joint owners in possession of the suit land r to the extent of 1/3 rd share and being bonafide purchaser of 1/3 rd share of Smt. Bimla Devi, are not buound by the adjudication of the

matter p C reviouosly inter se defendants No.1 and 2 and said Sm t. Bimla Devi. It is pointed out that when as

p h er the trial Court's judgment, the plaintiff was held

ig entitled to have 12^thshare in the suit land, at least H

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

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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 th P e findings. Since a clear case was made out that h . e is bonafide purchaser for consideration of 1 H /6^thshare the suit ought to have not been d f ism issed in its entirety. The plaintiff was not bo o und by the decree passed previously. t

6. The appe u al hras been admitted on the following substantial questions of law:

1) W C hethoer on proper interpretation of Sections 41 and 52 of the Transfer of Property Act, the h

plaintiff was bonafide purchaser for

consideration and was entitled to a decree H

for declaration and protection of his joint possession to the extent of 1/3 rd share in the property purchased from Bimla Devi?

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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 an P d injunction and entitled to remain . in possession thereof to the exten f t o f 1 H /12 share and dismissal of the suit o of the plaintiff for joint possession to that extent is not sustainable in law? t

7. Mr. Rajn u ish Kr. Lall, Advocate, learned Counsel has v o ehemently argued that the plaintiff being a C bonafide purchaser on payment of consid eration is entitled to have his share to an e h xtent of 1/3^rdin the suit land. On the other hand,

ig Mr. Ajay Sharma, Advocate, learned Counsel H

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

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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 sai P d suit upto the level of High Court, the decea . sed defendant No.3 Bimla Devi, from who f m th H e plaintiff and proforma defendants N o o.5 and 6 had purchased the suit land was found to be the owner only to the extent of r 1/6 t^th share, therefore, the plaintiff and proform u a defendants No.5 and 6 are entitled only to o 1/6 th share in the suit land. 8. C Now, if coming to the substantial questio ns of law, it is desirable to refer to the p h rovisions contained under Section 52 of the Transfer

ig of Property Act. The bare reading of the provisions H

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

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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 su P it or not is immaterial. The transfer of the prop . erty during the pendency of the suit thou f gh w H ill remain valid, however, subject to the resu o lt there of.

9. In view of express provisions contained under Section 52 of the A r ct t , th e plaintiff (transferee) is not entitled to the u protection contemplated under Section 41 of t o he Act for the reasons that Section 52 of the Act has an overriding effect on Section 41 and the pe rs C on having purchased property during the

p h endency of the suit is not entitled to the protection

ig of Section 41 of the Act. Both Courts below have H

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

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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 th P e plaintiff and proforma defendants in the H suit la . nd was only to an extent of 1/6, she could have not sold the land over and above her share in t f he suit land.

10. The plaintiff is also not o entitled to raise the plea that he being bonafid t e p urchaser is entitled to protection as contemplarted under Section 41 of the Act. Rather, the traunsfer of the suit land to an extent of 1/3 sh C are vidoe sale deed Ext. PW-2/A was subject to the final outcome of the previously instituted suit. A h s per the judgment and decree passed in that suit

ig and even affirmed by the High Court also vide H

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

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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 the P ir share to an extent of 1/6 in the suit land. As a ma . tter of fact, they have already been recorded H owners in possession of the suit land to an o exten f t o f 1/6 share,

however, being aggrieved t thereby and having claimed their share in the suit land to an extent of

1 /3, the declaration u to thris effect has been sought in the present lis, o which has rightly been declined by both Co C urts below. Therefore, there is no legal questio n, muchless to speak of substantial questions o h f law as framed in this appeal, arises for ig adjudication by this Court. Consequently, the H

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

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accordingly dismissed. Consequently, the impugned judgment and decree is affirmed. No order so as to costs. .

November 27, 2015. (Dharam Chand Chaudha . ry P ), (rc) Judge.

t o f

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h g

Shri Ishwar Dass v. Shri Bir Singh Alias Hari Ram And Others S

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Shri Ishwar Dass v. Shri Bir Singh Alias Hari Ram And Others S

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