KIRPAL KAURversusJITENDER PAL SINGH & ORS.

                      [2015] 8 S.!;,R. 51


                        KIRPAL~,U.R                                 A
                               V.
                                    '<)•
               JITENDER PAL SINGH & ORS.
               (Civil Appeal No. 2820 of 2015)
                                                                    B
                         July 14, 2015
      [V. GOPALA GOWDA AND C. NAGAPPAN, JJ.]
        Partition - Decree of partition - Claim of, by plaintiff-
daughter-in-/aw against defendant-father-in-law, of the joint       c
family properties seeking her late husband's share -
Dismissed by trial court as also first appellate court - On
appeal, held: Courts below erred in not granting share to the
plaintiff in the schedule 'B' property despite the positive and
substantive evidence of the defendant that the property was         D
a joint family property and the plaintiff's husband had
contributed towards the construction of the property- Further,
as regards gift deed allegedly executed by first defendant in
favour of the second defendant-second son in respect of the
schedule 'B 'property during the pendency of the proceedings        E
and before the expiry of the period of/imitation for filing SLP,
said gift deed is hit bys. 52- Second defendant who claimed
to be the beneficiary of the said property did not seek leave
of the court as donee - In absence thereof, it would not affect
the relief sought by plaintiff, during the pendency of the          F
proceedings before this Court - Also gift deed is invalid - It
could not have been acted upon by defendants as plaintiff
was in possession of the second floor of the said property in
herhusband'sindependentright-Thus, s. BoftheAct, 1956,              G
would come into operation in respect of the said property-
Upon the death of first defendant, his property would devolve
upon the husband of the plaintiff along with second defendant
and other daughters of the deceased - Plaintiff and each
one of the defendants assigned 114'h share equally in the           H
                              51
52         SUPREME COURT REPORTS               [2015] 8 S.C.R.


A    said property- Transfer of Property Act, 1882- s. 52- Code
     of Civil Procedure, 1908 - Or. 22 r. 10 - Hindu Succession
     Act, 1956 - s. 8.

           Allowing the appeal, the Court
B
          HELD: 1.1 The concurrent finding of fact recorded
  by both the trial court as well as the first appellate court
  on the contentious issue No.4 are not only erroneous in
  law but also suffer from error in law for the reason that
c there is a positive and substantiv~ evidence elicited by
  the deceased-first defendant during the course of his
  cross examination before the trial court, wherein l>e had
  in unequivocal terms admitted in his evidence that he,
  his sons and daughters have an ancestral property in
D his village and the same has not been divided between
  them and that he used to get the income from the said
  agricultural land and the same was utilized by him for
  the construction of the building-schedule 'B' property;
  and that he had received money for the construction of
E the said building from the plaintiff's husband while he
  was in Kuwait. Therefore, it amounts to putting the said
  property in the hotchpot of joint family property. Both
  the trial court and the first appellate court erred in their
  decisions in not granting a share to the plaintiff in the
F schedule 'B' property by recording·an erroneous finding
  even though she is legally entitled for the same. [Para
  14, 17] [65-G-H; 66-A-C; 67-E-F]

        1.2 Having regard to the fact that immediately
G within two weeks from the date of disposal of the first
  appeal by the High Court and before the expiry of the
  period of limitation for filing special leave petition before
  this Court challenging the impugned judgment, the gift
  deed was allegedly executed by the deceased-first
H defendant in favour of the second defendant-second son
      KIRPAL KAUR v. JITENDER PAL SINGH & ORS.                  53


 which was made available for perusal only after this           A
 Court directed the second defendant's counsel to do so.
 The execution of the alleged gift deed is hit by Section
  52 of the Transfer of Property Act, 1882, as the said deed
 was executed during the pendency of the proceedings
 and before the expiry of the period of limitation for filing   B
 SLP. Further, during the pendency of these proceedings,
 the second defendant, who claimed to be the alleged
 beneficiary of the suit schedule 'B' property on the basis
 of alleged gift deed should have sought leave of this
 Court as the donee and brought the said fact of                C
 execution of the alleged gift deed· in respect of '8'
 schedule property by the deceased first defendant,
 which property devolved in his favour, to the notice of
 this Court as provided u/Or. 22 r. 10 C.P.C. and defended
                                                                0
 his right as required under the law. Leave can be
 obtained only by that person upon whom interest has
 devolved during the pendency of the suit, otherwise,
 there may be preposterous results, as such a party might
 be unaware of the pending litigation and the same would        E
 not be consequently feasible. If a duty is cast upon him
 then in such an eventuality he is bound by the decree
 even in case of failure to apply for leave. Therefore, as a
 rule of prudence, the initial duty lies upon the person on
 whom such an interest has devolved upon any such               F
 property to apply for leave of the court in case the factum
 of devolution was within his knowiedge or with due
 diligence could have been known by him. [Para 17-19]
 [67-F-G; 68-C-E; 69-G-H; 70-A-B]
                                                                G
        1.3 The factum of the said alleged gift deed was
  not made known to this Court by the second defendant
  who is the beneficiary of the said gift deed till the last
· stage of conclusion of submission by tile counsel. The
  absence of any leave sought by the second defendant H
54         SUPREME COURT REPORTS                  (2015] 8 S.C.R.


A on the ground that his interest has devolved upon the
  schedule 'B' property of the deceased-first defendant,
  would not affect the relief sought by the plaintiff during
  the pendency of the proceedings before this Court when
  no application was submitted either by the plaintiff or by
B the second defendant in this regard. [Para 20] [70-C; 72-
  E]

             1.4 The gift deed is invalid as it is evident from the
     factual and legal aspect of the case that the gift deed of
C    the schedule 'B' property was executed by the deceased
     first defendant in favour of the second defendant during
     the pendency of the proceedings and the same could
     not have been acted upon by the defendants as the
     plaintiff was in possession of the second floor of the said
D    property in her husband's independent right. The same
     is also not acted upon by the parties for the rea!lon that
     the plaintiff was in physical possession of the second
     floor of the 'B' suit schedule property and therefore, in
     fact, she could not have delivered the possession to the
E    second defendant and acted upon the same, hence,
     Section 8 of the Hindu Succession Act, 1956, would
     come into operation in respect of the said property. The
     said property of the deceased-first defendant would
F    devolve upon the deceased husband of the plaintiff
     along with the second defendant and the other
     daughters of the deceased-first defendant as they are
     the joint owners of the said property by virtue of being
     Class I legal heirs of the deceased-first defendant as per
G    the schedule to 1956 Act, upon the death of the first
     defendant. [Para 25] [76-H; 77-A-D]

          1.5 The concurrent finding recorded by both the
  trial court and the first appellate court on issue no.4 is
  set aside. The courts below failed to exercise their
H
  jurisdiction and power properly, thereby causing a grave
     KIRPAL KAUR v. JITENDER PAL SINGH & ORS.                    55


miscarriage of justice to the rights of the plaintiff upon A
the 'B' schedule property. The judgments and decree
passed by the trial court and the first appellate court are
set aside, as regards 'B'schedule property. The plaintiff
and each one of the defendants are assigned 1/41" share
equally in the suit schedule "B" property. [Para 23, 26) B
[76-D; 77-F-G]

  Dhurandhar Prasad Singh v. Jai Prakash University &
  Ors. 2001 (3) SCR 1129:(2001) 6 SCC 534; Rikhu Dev
  Che/a Bawa Harjug Dass v. Som Das (deceased)                   c
  Through Che/a Shiama Dass 1976 (1) SCR 487:(1976)
  1 SCC 103; Jagan Singh v. Dhanwanti 2012 (2)
  SCR 303:(2012) 2 SCC 628 - referred to.
                   Case Law Referenc-e
                                                                 D
2001 (3) SCR 1129           Referred to.          Para 18
1976 (1) SCR 487            Referred to.          Para 18
2012 (2) SCR 303            Referred to.          Para 21
     CIVILAPPELLATE JURISDICTION: Civil Appeal No.               E
2820of2015.

       From the Judgment and Order dated 31.10.2012 in
RFA (OS) No. 41 of 2011 of the High Court of Delhi, at New
Delhi.                                                           F

        J. P. Gama, Ravi Bhushan, Mayan Prasad, Gopal Singh
for the Appellant.

        Rakhi Ray, S. S. Ray, Vaibhav Gulia, Rishi Raj Jaiswal
for the Respondents.                                             G

       The Judgment of the Court was delivered by

       V. GOPALA GOWDA, J. 1. This appeal is directed
againstthe impugned judgment and order dated 31.10.2012          H
56          SUPREME COURT REPORTS                   [2015) 8 S.C.R.


A passed by the High Court of judicatur~ of Delhi at New Delhi
  (the First Appellate Court) in Regular First Appeal (OS) No.41
  of 2011, whereby the First Appellate Court has confirmed the
  judgment and decree dated 21.1.2011 passed by the learned
  single Judge of the High Court (hereinafter called as "the trial
B court") in CS(OS)No. 2172 of 2003 and dismissed the suit
  filed by the appellant. In this appeal, the appellant has
  questioned the correctness of the impugned judgment and
  order urging various facts and legal contentions and prayed
  for granting of the decree of partition of her share in the 'B' suit
C schedule property.                                           •

             2. In this judgment, for the sake of convenience, we will
     advert to the rank of the parties as assigned to them before
     the trial court in C.S. No. 2172 of 2003. The brief facts of the
D    case are stated hereunder for the consideration of the case
     with reference to the rival legal contentions urged on behalf of
     the parties.

         3. The plaintiff (the appellant herein) filed civil suit
E No.2172 of 2003 before the trial court against the defendants
  (the respondents herein) for the partition of the following
  properties in favour of her late husband's share, contending
  thereby that all the properties are jointly owned by the family:-

F      A   Agricultural land at village Jahgirpur and at village
            Patial

       B     Property bearing No.45, Sant Nagar,.. East of
             Kailash, New Delhi
G      c    Property situated at Kathi No.-56, Giani Zail Singh
            Nagar, Ropar

          The said civil suit was contested by the defendants
   wherein they have pleaded in their written statement that the
H .suit schedule properties mentioned in the schedules 'A' & 'C'
      KIRPAL KAUR v. JITENDER PAL SINGH & ORS.                          57
                [V. GOPALAGOWDA, J.]

have already been partitioned amongst themselves, therefore,            A
the plaintiff is not entitled for any further share in the suit
properties. In so far as the 'B' schedule property, bearing No.
45, Sant Nagar, East of Kailash, New Delhi, is concerned, it is
stated by them that the same cannot be a subject matter of
partition as it is the self acquired property of the deceased-          B
first defendant (who is the father-in-law of the plaintiff) as he
had acquired the same out of his self earned savings from his
•.',mployment and he has constructed the building on the said
property out of his own funds. Therefore, it is pleaded that the
plaintiff is not entitled for the reliefs as prayed by her in respect   C
of the suit schedule 'B' property. It is further contended by them
that the deceased-first defendant was working in the defence
department While he was in employ~ent, he had purchased
the said property in the year 1954 vide sale deed dated                 D
22.3.1954 for a sum of Rs.400/-. In the year 1954, he was
getting the salary of Rs.201/- per mon~h i.e. Rs.120/- + (9
                 =
increments X 9 81 ). At that time, admittedly, the husband of
the plaintiff (since deceased) was only seven years old.

        4. When the first phase of construction of the ground           E
floor on the said property was made in the year 1957, the
 husband of the plaintiff was only ten years old. The second
phase of construction of the said building was done between
October 1980 and December 1981. The case of the
deceased-first defendant before the trial court was that he             ·F
retired from his employment in September, 1980. He has
reconstructed the aforesaid property using his retirement
benefits such as gratuity and provident fund and he had also
borrowed some amount as loan from various friends and                   G
relatives and he also used the old building materials for the
construction of the building. He also produced receipts at
Ex.DW1/5 to OW 1/18 as evidence to substantiate his case
that he had borrowed some loan amount from M/s Sahara
Deposits and Investments (India) Ltd. which amount was repaid           H
 58         SUPREME COURT REPORTS                      [2015] 8 S.C.R.


 A    by him to it, in instalments. It was specifically mentioned by the
      deceased-first defendant that the husband of the plaintiff did
      not contribute any amount either towards the purchase of the
      said suit schedule property or for the construction of the building
      upon the said property.
 8
           5. When the construction of the said building was in
   progress between October 1980 and December 1981, the
   plaintiffs husband was in the process of settling himself at
   Kuwait and he did not have sufficient money to send to the
 C deceased-first defendant for the purpose of construction of
   the building. The total amount spent on the construction of the
   building was Rs.1.42.451.60. It has been contended by the
   defendants that no proof of contribution of money made by the
   deceased husband of the plaintiff towards the construction of
 D the said building is produced by the plaintiff before the trial
   court to justify her claim. The second defendant was also
   examined in the case as DW-2 in support of the case of the
   deceased-first defendant with regard.to the suit schedule 'B'
   property. The trial court on the basis of the pleadings made
 E before it, has framed certain issues for its determination and
   the same are answered against the plaintiff by it on the basis
   of the evidence produced by the parties on record.

            6. The case of the plaintiff is that the dispute arose
  F between the plaintiffs husband and the defendants when her
    husband returned from Kuwait to Delhi. With the intervention
    of relatives and well-wishers of the parties, it was decided
    between them that the basement, ground floor and second floor
    of the Sant Nagar property will devol·;e upon him and the rent
· G earned from the same will also be paid to him. The deceased-
    first defendant had purchased a plot of land in Saini Farnis in
    the name of the late husband of the plaintiff. The said plot was
    sold by the deceased-first defendant who gave an amount of
  H only Rs.1,82,000/- to the husband of the plaintiff while the
     KIRPAL KAUR v. JITENDER PAL SINGH & ORS.                      59
              . [V. GOPALAGOWDA, J.]

balance amount from Rs.6,00,000/- was distributed amongst          A
defendant Nos.1 to 4 and the wife of defendant No.2.

         7. In so far as the ancestral property of the agricultural
land at Ropar District is concerned, it is stated in the written
statement of the deceased-first defenda.nt that the aforesaid B
ancestral property was divided between him, his two brothers
and one sister and d,uring the division of that property, a piece
of land measuring about 8 kanals and 18 marlas situated in
village Patial, District Ropar came to the share of the
deceased-first defendant in the year 1972. The said land was C
given on Batai for cultivation and the deceased-first defendant
used to get 50 sears of Wheat in May and 30 sears of Maize
in October every year out of the said agricultural produce from
the said agriculture land which was used for consumption by
the family. No cash amount was received by the deceased- D
first defendant in respect of the said agricultural property.

        8. On the basis of the pleadings of the parties and the
evidence on record, the trial court had framed five issues for
its determination. Issue No.4 is most relevant for the purpose     E
of examining the rival legal submissions made on behalf of
the parties with a view to find out the correctness of the
concurrent findings of fact recorded by the FirstAppellate Court
on the above contentious issue. The issue no. 4 reads thus:
                                                                   F
  "(iv)Whether the property bearing No.45, Sant Nagar,
  East of Kailash, New Delhi, has been constructed out of
  joint family funds or out of funds received by the first
  defendant from late Shri RD. Singh, the husband of the
  plaintiff?"                                                      G

      The trial court has answered the said contentious issue
no.4 against the plaintiff and in favour of the deceased-first
defendant in so far as the claim of share by the plaintiff in the
schedule 'B' property bearing No. 45, Sant Nagar, East of H
60         SUPREME COURT REPORTS                      [2015) 8 S.C.R.


A    Kailash, New Delhi is concerned. The suit of the plaintiff was
     dismissed by it by holding that the said property is the self
     acquired property of the deceased-first defendant.

          9. In so far as the suit schedule 'A' property is
B concerned, the trial court has further partially decreed the same
  in favour of the plaintiff by granting 1/5111 share in the agricultural
  land in the village Patial. A preliminary decree for partition was
  passed by the trial court on 21.1.2011 holding thatthe plaintiff
  has got the 1/5111 share in the agricultural land, measuring about
C 8 kanals and 18 marlas. However, she was not granted any
  share in the suit schedule 'B' property, holding that it is the self
  acquired property of the deceased first defendant.

          10. Aggrieved by the same, the plaintiff filed Regular
D  FirstAppeal(OS) No.41 of 2011 before the Division Bench of
  the High Court under Section 96 of the Civil Procedure Code.
   1908 ("C.P.C.") read with Section 10 of the Delhi High Court
  Act, 1966, against the judgment and decree dated 21.1.2011
  passed by the trial court in so far as the dismissal of the suit in
E respect of the suit schedule 'B' property is concerned, urging
  various legal grounds in justification .of her claim. The First
  Appellate Court, after adverting to the various rival legal
  submissions urged on behalf of the parties and on re-
  appreciation of the evidence on record, examined the
F correctness of the findings recorded on issue No.4 by the trial
  court in its judgment dismissing the suit of the plaintiff and not
  granting any share in the suit schedule 'B' property to her, has
  held that the said property is the self acquired property of the
  deceased-first defendant and declined to interfere with the
G judgment of the trial court in respect of the said property.

          11. We have taken into consideration the relevant facts
  pleaded by the plaintiff that her husband had sent money from
  Kuwait to the deceased-first defendant for construction of the
H building situated at No.45, Sant Nagar, East of Kailash, New
     KIRPAL KAUR v. JITENDER P.AL SINGH & ORS.                        61
               [V. GOPALAGOWDA, J.]

Delhi during the period of October, 1980 and December, 1981.          A
Further, as per the document produced at Ext.P-5, an amount
of Rs.1 lakh was sent by the husband of the plaintiff to his father
by way of bank draft and cash. Out of that an amount of
Rs.17,350/-was given to the plaintiff and the remaining amount
of Rs.82,650/-was left with the deceased-first defendant which        B
amount was utilised by him for construction of the building.
The FirstAppellate Court with reference t<? the above said plea
and on the basis of the evidence placed on record by the
plaintiff has held that no cogent evidence was produced by
the plaintiff to prove the fact that the said amount sent by her      C
deceased husband to the deceased-first defendant was utilised
by him for carrying out the second phase of construction of the
building at No.45, Sant Nagar, New Delhi between the period
October, 1980 to December, 1981 and therefore, the same               D
would not entitle the deceased husband of the plaintiff to a
share in the said property, as the plot mentioned iri schedule
'B' property was purchased by the deceased-first defendant
out of his own earnings in the year 1954. Undisputedly, the
sale deed was in the name of the deceased-first defendant             E
who had purchased the same for Rs.400/-, out of his own funds.
Further, the FirstAppellate Court has held that there is no title
document either in favour of the husband of the plaintiff or in
her name as the deceased-first defendant had purchased the
property in his name exclusively, from his own funds and mere         F
use of the money sent by eitherthe deceased husband of the
plaintiff or the funds provided by other family members for the
purpose of raising the second phase of construction of the
said building would not give them the right for the share in that
property. Thus, the First Appellate Court has held that the           G
deceased husband of the plaintiff could not have become the_
co-owner of the said property. Therefore,_ the First Appellate
Court has concurred with the finding of fact recorded on the
contentious issue No.4 by the trial court and accordingly, it has
answered the other issues by recording.its reasons in the             H
62         SUPREME COURT REPORTS                     (2015] 8 S.C.R.


A    impugned judgment in favour of the defendants. Further, it has
     been held by the First Appellate Court that at best, the plaintiff
     would be entitled for refund of the amount which was sent by
     her deceased husband to the deceased-first defendant for the
     construction of the building upon the schedule 'B' property with
B    interest or compensation. The First Appellate Court in its
     penultimate paragraph of the impugned judgment has
     observed that to bring the curtains down and to obviate any
     further litigation before the Supreme Court, the second
     defendant has made an offer to pay Rs.15 lakhs to the plaintiff,
C    provided that she undertakes not to litigate the case any further
     and vacat~ and hand over the possession of the second floor
     of the schedule 'B' property to the deceased-first defendant or
     his nominee which offer was rejected by the plaintiff.

D           12. We have examined the correctness of the findings
     recorded by the First Appellate Court on the contentious issue
     no.4 with reference to the evidence on record. During the cross-
     examination of the deceased-first defendant by the plaintiff's
     counsel before the trial court, he has categorically admitted
E    certain facts and elicited the following relevant positive
     evidence on record which supports the plaintiffs case. The
     English translation of certain admitted portions of the evidence
     of the deceased-first defendant furnished by the plaintiff's
F    counsel is recorded and extracted hereunder for our
     consideration and examination of the findings of fact recorded
     on the contentious issue No.4:-

       "Evidence of PW-1 Shri Ram Singh, the father-in-law of
       the plaintiff:
G
          2 ......... The house at Sant Nagar was built from his
          retirement benefits of Rs.1 lakh and loans from
          friends.

          3. Admits that he had received Rs. 82, 000/- from the
H
KIRPAL KAUR v. JITENDER PAL SINGH & ORS.                  63
          [V. GOPALAGOWDA, J.]

Plaintiffs husband but say it was not used for building   A
his house.

4. Admits the existence of the agricultural land and
agricultural income received out of it. The land was
the ancestral property. He also admits that this income   B
was used for construction of the said house.
Immediately thereafter, he claims that it was used for
his illness.

     xxx      xxx     xxx                                 c
6. He retired in September, 1980 and started
reconstruction of the house in October 1980.

7. Relations with appellant's husband became
strained when he misappropriated Rs. 6 lakhs forthe       D
sale of the plot at Saini Enclave.

8. That the plot at Saini Enclave was sold for Rs.6
lakhs.
                                                          E
9. Admits that according to document at Exh. P-7
(which is in his own handwriting) Rs. 6 lakhs were
distributed amongst various personnel including RD.
Singh.
                                                          F
10. Denies that Rs.6 lakhs were distributed to the
various persons mentioned in Exh.P/7.

11. Admits receiving money from R.D. Singh from
Kuwait as per Exh.P.2 to P.3 but denies the quantum
suggested.                                                G

   xxx      xxx      xxx
15. Admits that the Plaintiff was staying with him from
                                                          H
64        SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A        the date of marriage. Further, that on his return from
         Kuwait, R.D. Singh had been separated from the
         deceased father and started staying on the 2°d floor.

              xxx xxx xxx
B
         17. He admits in his statement before the learned ADJ
         to the effect that he had received Rs. 82,000/- in the
         shape of bank draft and cash from the Plaintiff's
         husband. He further admits that the statement made
c        before the learned ADJ was correct. Immediately
         thereafter he denies it.

         18. That the ancestral land consisted of 8 kanal and
         18marla.

D        19. He further admits that the plaintiffs husband (R.D.
         Singh) had a share in his 1/41h share in the ancestral
         land.

                xxx xxx xxx
E
         21. He further admits that he has no documentary proof
         that the appellant's husband had received Rs. 6 lakhs
         from the sale of plot at Saini Enclave.

         22. He states that he spent approximately Rs.1,42,000/
F
         - on the construction of the house in Sant Nagar i.e.
         basement, ground, first and second floor together one
         common store on the 3rd floor. '

         23 ....... That the loan from Sahara investment was to
G        the tune of Rs. 30,000/-.Afurther loan of Rs. 30,000/-
         was obtained from one Mr. Harydaya .... "

        13. In the light of the above admissions made by the
  deceased-first ·defendant in his statement of evidence
H deposed before the trial court, the most important fact that has
     KIRPAL KAUR v. JITENDER PAL SINGH & ORS.                    65
              [V. GOPALAGOWDA._J.]

come to light in his admission is that he had received money A
from the plaintiff's husband while he was in Kuwait. He has
also admitted that the plaintiff's husband had a share in the
ancestral property that consists of 8 kanals and 18 marlas.
Further, the deceased-first defendant has admitted in his
statement of evidence before the Additional District Judge on B
 11.12.2003 in another proceeding between the parties that
 he had received an amount of Rs.1 lakh by way of bank draft.
 and cash from the deceased husband of the plaintiff, while he
was working in Kuwait which amount was utilised by the
 deceased-first defendant for the reconstruction of the building C
 in the 'B' suit schedule property. In view ofthe above evidence
.elicited from the deceased-first defendant, the First Appellate
 Court was not right in making an observation in the impugned
judgment that the plaintiff is only entitled for the refund of the
                                                                   0
said amount from the deceased first defendant even though
there is substantive and positive evidence on record to the
effect that the amount sent by the deceased husband of the
 plaintiff was utilised by the deceased first defendant for the
 purpose of construction of the building upon the suit schedule E
 'B' property.

         14. Both the trial court as well as the Fi~st Appellate
 Court have misread and mis-directed themselves with regard
to the positive and substantive evidence placed on record in F
justification of the claim of the plaintiff and they have not
apprecia.ted and re-appreciated the same in favour of the
plaintiff in the proper perspective .to record the finding of fact
on her claim for the division of the share in-her favour in respect
of the schedule 'B' property. Therefore, the concurrent finding G
of fact recorded by both the trial court as well as the First
Appellate Court on the contentious issue No.4 are not only
erroneous in law but also suffer from error in law for the reason
that there is a positive and substantive evidence elicited by
the deceased-first defendant during the course of his cross H
66          SUPREME COURT REPORTS                    (2015] 8 S.C.R.


A examination before the trial court, the relevant portion of which
  is extracted above, wherein he had in unequivocal terms
  admitted in his evidence that he, his sons and daughters have
  an ancestral property in his village and the same has not been
  divided between them and that he used to get the income from
B the said agricultural land and the same was utilized by him for
  the construction of the building at Sant Nagar, i.e. schedule 'B'
  property. Therefore, it amounts to putting the said property in
  the hotchpot of joint family property. The non-consideration of
  the above positive and substantive evidence by the trial court
C as well as the First Appellate Court in justification of the claim
  of the plaintiff in respect of the schedule 'B' property has
  rendered the concurrent finding recorded by it as erroneous in
  law and therefore, the same are liable to be set aside.

D             15. We have heard both the lea·rned senior counsel Mr.
     J.P. Cam a on behalf of the plaintiff and the learned counsel
     Ms. Rakhi Ray on behalf of the defendants. On 11.3.2015, when
     the arguments were concluded on merits, we directed the
     parties to file a compilation of the pleadings. The fact
E    regarding the will/gift deed was brought to our notice by the
     learned senior counsel on behalf of the plaintiff only at the time
     of concluding his submissions in this appeal, at the stage of
     final disposal of the SLP. The said fact has not been disclosed
F    by the second defendant before this Court and he has also not
     requested for a leave before this Court by filing an application
     as required under Order 22 Rule 10 CPC to defend his claim
     that the schedule 'B' property was devolved upon him on the
     basis of the said gift deed. Therefore, the defendants' counsel
G    was directed by us to produce the copy of the will/gift deed,
     alleged to have been executed after the passing of the
     impugned judg'ment by the First Appellate Court, in favour of
     the second defendant by the deceased first defendant in
     respect of the schedule 'B' property and before the filing of
H    special leave petition by the p1aintiff. The same was produced
       KIRPAL KAUR v. JITENDER PAL SINGH & ORS.                     67
                 [V. GOPALAGOWDA, J.]

 by the defendants' oounsel by way of compilation of the             A
 documents including the ·copy of the alleged 'Will' dated
 1.10:2004alongwiththegiftdeed dated 8.02.2011, purported
 to have been executed by the deceased-first defendant in
 favour of the second defendant-J.P. Singh in respect of the
 suit schedule '8' property. The learned counsel for the             B
 defendants has also furnished copies of the judgments upon
 which she has placed reliance in support of the case of the
 defendants.
                                  ~""',                    t.

           16. This Court on 16.8.2013 issued notice on the prayer C
   of the plaintiff for condonation of delay on the special leave
   petition as the same was barred by limitation. The learned
   counsel for the defendants, Ms. Rakhi Ray accepted the notice
   who entered a caveat on behalf of defendant Nos.2 to 4 and
   sought six weeks time to file the reply affidavit. On 16.9.2013, D
   the application for condonation of delay was allowed and
   deletion of the name of deceased"first defendant from the array
   of parties from the cause title of the SLP was also allowed at
   her request.
                                                                      E
            17. After the perusal of pleadings of the parties and
   the material evidence on record, we find that both the trial court
 . and the First Appellate Court have gravely erred in their
, decisions in not granting a share to the plaintiff in the schedule
   'B' property by recording an erroneous finding even though - F
   she is legally entitled for the same. Having regard to the fact
   that immediately within two weeks from the date of disposal of
   the first appeal by the High Court and before the expiry of the
   period of limitation for filing special leave petition before this
   Gou.rt challenging the impugned judgment, the gift deed was G
  ·allegedly executed by the deceased-first defendant in favour
   of the second defendant (the second son) which was made
   available for our perusal only after this Court directed the
   second defendant's counsel to do so. The said gift deed was H
   executed by the deceased-fiflit defendant in favour of the
68            SUPREME COURT REPORTS                   [2015) 8 S.C.R.


A second defendant reciting certain factually incorrect facts
  regarding the physical delivery of possession of the suit
  schedule 'B' property to him, as it is ~n undisputed fact that
  the plaintiff has been in peaceful possession of the second
  floor of the said building ever since she and her husband had
B started living separately from the defendants.

               17. The execution of the alleged gift deed by the
     deceased-first defendant in favour of the second defendant is
     also hit by Section 52 of the Transfer of Property Act, 1882, as
C    the said deed was executed during the pendency of the
     proceedings and before the expiry of the period of limitation
     for filing SLP. Further, during the pendency of these
     proceedings, the second defendant, who has claimed to be
     the alleged beneficiary of the suit schedule 'B' property on the
D    basis of alleged gift deed should have sought leave of this
     Court as the donee and brought the aforesaid fact of execution
     of the alleged gift deed in respect of 'B' schedule property by
     the deceased first defendant, which property has been
     devolved in his favour, to the notice of this Court as provided
E    under Order 22 Rule 1Oof the C.P.C. and defended his right
     as required under the law as laid down by this Court in a catena
     of cases. In the case of Dhurandhar Prasad Singh v. Jai
     Prakash University & Ors. 1, this Court has interpreted Order
F    22Rule10 of the C.P.C. after adverting to its earlier decision
     in the case of Rikhu Dev Che/a Bawa Harjug Dass v. Som
     Das (deceased) Through Che/a Shiama Dass 2 in support
     of the proposition of law that the trial of a suit cannot be brought
     to an end merely because the interest of a party in the subject-
G    matter of the suit has devolved upon another during. the
     pendency of the suit but that suit may be continued against the
     person acquiring the interest with the leave of the court. The
     relevant paragraph from the said decision of Dhurandhar
     Prasad Singh case (supra) reads thus:
H    , (20011 s sec 534
     2
         (1s1s11 sec 103
     KIRPAL KAUR v. JITENDER PAL SINGH & ORS.                      69
               [V. GOPALAGOWDA, J.]

   "9. In the case of Rikhu Dev, Che/a Bawa Harjug Dass            A
   v. Som Dass while considering the effect of devolution
   of interest within the meaning of Order 22 Rule 10 of the
   Code. on the trial of a suit during its pendency, this Court
   has laid down the law which runs thus:
                                                                   B
   "8. This rule is based on the principle that trial of a suit
    cannot be brought to an end merely because the interest
    of a party in the subject-matter of the suit has devolved
    upon another during the pendency of the suit but that suit
    may be continued against the person acquiring the              C
    interest with the leave of the court. When a suit is brought
    by or against a person in a representative capacity and
  . there is a devolution of the interest of the representative.
    the rule that has to be applied is Order 22 Rule 10 and
    not Rule 3 or4. whether the devolution takes place as a        D
   consequence of death or for any other reason. Order 22
   Rule 10 is not confined to devolution of interest of a party
   by death; it also applies if the head of the mutt or
   manager of the temple resigns his office or is removed
   from office. In such a case the successor to the head of        E
   the mutt or to the manager of the temple may be
   substituted as a party under this rule."

                               (emphasis laid by this Court)
                                                                   F
      19. Likewise, where the interest of the second defendant
has devolved upon the suit schedule 'B' property on the basis
of the alleged gift deed referred to supra, the suit may be
continued against such second defendant and for the sake of
continuance of the suit against the persons upon whom such G
interest has devolved during the pend ency of the suit, leave of
the court has to be obtained. Leave can be obtained only by
that person upon whom interest has devolved during the
pendency of the suit, otherwise, there may be preposterous
results, as such a party might be unaware of the pending H"
70          SUPREME COURT REPORTS                     (2015] 8 S.C.R.


A    litigation and the same would not be consequently feasible. If
     a duty is cast upon him then in such an eventuality he is bound
     by the decree even in case of failure to apply for leave.
     Therefore, as a rule of prudence, the initial duty lies upon the
     person on whom such an interest has devolved upon any such
B    property to apply for leave of the court in case the factum of
     devolution was within his knowledge or with due diligence could
     have been known by him.

            20. The factum of the said alleged gift deed was not
C    made known to this Court by the second defendant who is the
     beneficiary of the said gift deed till the last stage of conclusion
     of submission by the learned counsel. Reliance has been
     placed upon the decision of this Court in the case of
     Dhurandhar Prasad Singh (supra) at paras 6, 7 and 8 with
D    regard to the above said proposition of law, the relevant paras
     from the above judgment are extracted hereunder:

       "6. In order to appreciate the points involved, it would be
       necessary to refer to the provisions of Order 22 of the
E      Code, Rules 3 and 4 whereof prescribe procedure in
       case of devolution of interest on the death of a party to a
       suit. Under these Rules. if a party dies and right to sue
       survives. the court on an application made in that behalf
       is required to substitute legal representatives of the
F      deceased party for proceeding with a suit but if such an
       application is not filed within the time prescribed by law.
       the suit shall abate so far as the deceased party is
       concerned. Rule 7 deals with the case of creation of an
       interest in a husband on marriage and Rule 8 deals with
G      the case of assignment on the insolvency of a plaintiff.
       Rule 10 provides for cases of assignment. creation and
       devolution of interest during the pendency of a suit other
       than those referred to in the foregoing Rules and is based
       on the principle that the trial of a suit cannot be brought
H
  KIRPAL KAUR v. JITENDER PAL SINGH & ORS.                      71
            [V. GOPALAGOWDA, J.]

to an end merely because the interest of a party in the         A
subject-matter of the suit has devolved upon another
during its pendency but such a suit may be continued
with the leave of the court by or against the person upon
whom such interest has devolved. But. if no such step is
taken. the suit may be continued with the original party        B
and the person upon whom the interest has devolved will
be bound by and can have the benefit of the decree ....... .

7. Under Rule 10 Order 22 of the Code, when there has
been a devolution of interest during the pend ency of a         c
suit, the suit may, by leave of the court, be continued by
or against persons upon whom such interest has devolved
and this entitles the person who has acquired an interest
in the subject-matter of the litigation by an assignment or
creation or devolution of interest pendente lite or suitor      D
or any other person interested, to apply to the court for
leave to continue the suit. But it does not follow that it is
obligatory upon them to do so. If a party does not ask for
 leave, he takes the obvious risk that the suit may not be
properly conducted by the plaintiff on record, .and yet, as     E
 pointed out by Their Lordships of the Judicial Committee
 in Moti Lal v. Karrabufdin he will be bound by the result
of the litigation even though he is not represented at the
hearing unless it is shown that the litigation was not
                                                                F
properly conducted by the original party or he colluded
with the adversary. It is also plain that if the person who
has acquired an interest by devolution, obtains leave to
carry on the suit, the suit in his hands is not a new suit,
for, as ~ord Kingsdown of the Judicial Committee said           G
in Prannath Roy Chowdryv. Rookea Begum, a cause
of action is not prolonged by mere transfer of the title. It
is the old suit carried on at his instance and he is bound
by all proceedings up to the stage when he obtains leave
to carry on the proceedings.                                    H
72        SUPREME COURT REPORTS                  (2015) 8 S.C.R.


A     8. The effect of failure to seek leave or bring on record
      the person upon whom the interest has devolved during
      the pendency of the suit was the subject-matter of
      consideration before this Court in various decisions. In
      the case of Sai/a Bala Dassi v. Nirmala Sundari Dassi
B     T.L. VenkataramaAiyar. J., speaking for himself and on
      behalf of S.R. Das. C.J. and AK. Sarkar and Vivian Bose.
      JJ. laid down the law that if a suit is pending when the
      transfer in favour of a party was made. that would not
      affect the result when no application had been made to
c     be brought on the record in the original court during the
      pendency of the suit."
                                 (emphasis laid by this Court)
     The legal principles laid down in the aforesaid paragraphs
D from the judgment referred to supra would clearly go to show
  that this Court has laid down the legal principle to the effect
  that the absence of any leave sought by the second defendant
  on the ground that his interest has devolved upon the schedule
  'B' property of the deceased-first defendant, would not affect
E the relief sought by the plaintiff during the pendency of the
  proceedings before this Court when no application has been
  submitted either by the plaintiff or by the second defendant in
  this regard.
F           21. The legality of the alleged gift deed executed in
  favour of the second defendant by the deceased-first defendant
  in respect of the schedule 'B' property has been further
  examined by us and the same is hit by Section 52 of the of the
  Transfer of Property Act, 1882, in the light of the decision of
G this Court in the case of Jagan Singh v. DhanwantP, wherein
  this Court has laid down the legal principle that under Section
  52 of the Transfer of Property Act, 1882, the '/is' continues so
  long as a final decree or order has not been obtained from the
H Court and a complete satisfaction thereof has not been
   • (2012i 2 sec s2a
     KlRPAL KAUR v. JITENDER PAL SINGH & ORS.                      73
              [V. GOPALAGOWDA, J.)

rendered to the aggrieved party contesting the civil suit. It has A
been further held by this Court that it would be plainly
impossible that any action or suit could be brought to a
successful termination if alienations pendente lite were
permitted to prevail. The relevant paras of the aforesaid
decision read thus:                                               B

  "32. The broad principle underlying Section 52 of the TP
  Act is to maintain the status quo unaffected by the act of
  any party to the litigation pendir:g its determination. Even
  afterthe dismissal of a suit, a purchaser is subject to lis      c
  pendens, if an appeal is afterwards. filed, as held in
  Krishanaji Pandharinath v. Anusayabai. In that matter
  the respondent (original plaintiff) had filed a suit for
  maintenance against her husband and claimed a charge
  on his house. The suit was dismissed on 15-7-1952                D
  under Order 9 Rule 2, of the Code of Civil Procedure,
  1908 for non-payment of process fee. The husband sold
  the house immediately on 17-7-1952.. The respondent
  applied for restoration on 29-7-1952, and the suit was
  restored leading to a decree for maintenance and a               E
  charge was declared on the house. The plaintiff
  impleaded the appellant to the darkhast as purchaser.
  The appellant resisted the same by contending that the
  sale was affected when the suit was dismissed. Rejecting
                                                                   F
  the contention the High Court held in para 4 as follows:
     " ... In Section 52 of the Transfer of Property Act, as it
     stood before it was amended by Act 20 of 1929, the
     expression 'active prosecution of any suit or
     proceeding' was used. That expression has now been            G
     omitted, and the Explanation makes it abundantly clear
     that the 'lis' continues so long as a final decree or order
     has not been obtained and complete satisfaction
     thereof has not been rendered. At p. 228 in Sir Dinshah
     Mulla's 'Transfer,of Property Acf, 4th Edn., after            H
74       SUPREME COURT REPORTS                     [2015] 8 S.C.R.


A       referring to several authorities, the law is stated thus:
        'Even after the dismissal of a suit a purchaser is
        subject to "lis pendens". if an appeal is afterwards
        filed.'lf after the dismissal of a suit and before an
B       appeal is presented. the 'lis' continues so as to prevent
        the defendant from transferring the property to the
        prejudice of the plaintiff, I fail to see any reason for
        holding that between the date of dismissal of the suit
        under Order 9 Rule 2 of the Civil Procedure Code and
C       the date of its restoration. the 'lis' does not continue.'

     33. It is relevant to note that even when Section 52 of the
     TP Act was not so amended, a Division Bench of the
     Allahabad High Court had following to say in Moti Chand
D    v. British India Corpn. Ltd.:
        " ... The provision of law which has been relied upon
        by the appellants is contained in Section 52, TP Act.
        The active prosecution in this section must be deemed
        to continue so long as the suit is pending in appeal,
E
        since the proceedings in the appellate court are merely
        continuation of those in the suit."

     34. If such a view is not taken. it would plainly be
     impossible that any action or suit could be brought to a
F    successful termination if alienations pendente lite were
     permitted to prevail. The Explanation to this section lays
     down that the pendency Gf a suit or a proceeding shall
     be deemed to continue until the suit or a proceeding is
     disposed of by a final decree or order. and complete
G
     satisfaction or discharge of such decree or order has
     been obtained or has become unobtainable by reason
     of the expiration of any period of limitation prescribed
     for the execution thereof by any law for the time being in
H    force.                            r
     KIRPAL KAUR v. JITENDER PAL SINGH & ORS.                      75
              [V. GOPALAGOWDA, J.]

  . 35. In the present case, it would be canvassed on behalf       A
    of the respondent and the applicant that the sale has
    taken place in favour of the applicant at.a time when there
    was no stay operating against such sale, and in fact when
    the second appeal had not been filed. We would however,
    prefer to follow the dicta in Krishanaji Pandharinath to       B
    cover the present situation under the principle of lis
    pend ens since the sale was executed at a time when the
    second appeal had not been •· 1ed but which came to be
    filed afterwards within the period of limitation. The
    doctrine of lis pendens is founded in public policy and        c
    equity, and if it has to be read meaningfully such a sale
    as in the present case until the period of limitation for
    second appeal is over will have to be held as covered
    under Section 52 of the TP Act."
                                                                   D
                               (emphasis laid by this Court)
     22. Notwithstanding the above legal principle, we have
examined the legality and validity of the alleged gift deed. The
recital of the gift deed, particularly, the recital clause 2 is
extracted hereunder:                                             E

  "2. That since the physical possession of the said property
  is already with the Donee hence the proprietary
  possession of the same is being handed over by the
  Donor unto the Donee who shall enjoy the same                    F
  peacefully without any interference or disturbance of the
  Owner/Donor or anybody claiming through him. On this
  the Donee shall become the absolute Owner of the said
  Property and shall be at liberty to deal with same in the
  manner he likes."                                                G

A careful reading of the above recital would clearly go to show
that the physical possession of the entire suit schedule 'B'
property could not have been given to the second defendant
in the light of the undisputed fact that the physical possession   H
76          SUPREME COURT REPORTS                     [2015] 8 S.C.R.


A    of the second floor of the schedule 'B' property is with the
     plaintiff. Further, the plaintiff is in the possession of the second
     floor in her independent right of her husband's share after they
     separated from the family. Therefore, the alleged gift deed
     executed by the deceased-first defendant in favour of the
B    second defendant during the pendency of the proceedings with
     respect to the suit schedule 'B' property is not legally correct
     as it is the joint family property and even otherwise the same
     cannot be acted upon by the parties.

C          23. On the basis of the legal submissions made by the
  senior counsel on behalf of the plaintiff, we have examined the
  case on merit in these proceedings based on proper
  appreciation of evidence on record and we have to reverse
  the concurrent finding on the contentious issue no.4 for the
D reasons recorded by us in the preceding paragraphs of this
  judgment. Accordingly, we set aside·the concurrent finding
  recorded by both the trial court and the FirstAppellate Court
  on issue no.4. We conclude that the courts below have failed
  to exercise their jurisdiction and power properly, thereby
E causing a grave miscarriage of justice to the rights of the
  plaintiff upon the 'B' schedule property.

            24. The plaintiff must succeed for one more alternate
     reason viz. that the deceased-first defendant died during the
F    pendency of the proceedings and therefore, Section 8 of the
     Hindu Succession Act, 1956, will come into operation in
     respect of the suit schedule 'B' property even if it is considered
     that the said property is a self acquired property of the
     deceased-first defendant.
G
        25. Therefore, we have to record the finding of fact with
  respect to the gift deed and hold that the same is invalid as it
  is evident from the factual and legal aspect of the case that the
  gift deed of the schedule 'B' property was executed by the
H deceased first defendant in favour of the second defendant
       KIRPAL KAUR v. JITENDER PAL SINGH & ORS.                       77
                [V. GOPALAGOWDA, J.)

 during the pendency of the proceedings and the.same could            A
 not have been acted upon by the defendants as the plaintiff
 has been in possession of the second floor of the said property
 in her husband's independent right. The same is also not acted
 upon by the parties.for the reason that the plaintiff has been in
 physical possession of the second floor of the 'B' suit schedule     B
 property and therefore, in fact, she could not have delivered
 the possession to the second defendant and acted upon the
 same, hence, Section 8 of the Hindu Succession Act, 1956,
 would come into operation in respect of the above said
 property. The said property of the deceased-first defendant          C
 would devolve upon the deceased husband of the plaintiff along
 with the second defendant and the other daughters of the
 deceased-first defendant as they are the joint owners of the
 said property by virtue of being Class I legal heirs of the
                                                                      0
 deceased-first defendant as per the schedule to the Hindu
 Succession Act, 1956, upon the death of the first defendant.
 For this reason also, the plaintiff is entitled for 1/41h share in
 the suit schedule "B" property.

          26. For the reasons stated above, we allow this civil E
  appeal and assign equally 1/41h share to the plaintiff and each
  one of the defendants in the suit schedule "B" property. The
  impugned judgments and decree passed by the trial court and
  the First Appellate Court are hereby set aside, in so far as 'B' F
  schedule property is concerned. We further allow the plaintiff
· to retain the second floor of the property pearing No. 45, Sant
  Nagar, East of Kailash, New Delhi, till the 1/4'h share of the
  schedule 'B' property is divided by metes and bqunds by
  following the procedure as provided under law and put her in G
  absolute possession of the same. The trial court is directed to
  draw up a decree in terms of this judgment along with costs.

 Nidhi Jain                                         Appeal allowed.

                                                                      H