Allowed

Rajmata Sumidha Raj Laxmi Devi v. Haribansh Kr Singh Az Harbansh Singh

Jharkhand HC6 Dec 2022SA/114/1994

Case brief

AI extract

What is this about?

This appeal challenged a lower court order applying the part performance doctrine to bar a title suit. The Supreme Court held that an agreement of sale without a registered deed and a specific performance suit fails after the limitation period, especially where the transferor's title was already defined by a prior decree.

What did the court decide?

The appeal was allowed; the judgment and decree of courts below were set aside; the suit for declaration of title and recovery of possession was decreed.

Rajmata Sumidha Raj Laxmi Devi Vs… — Contract and Commercial Disputes | Jharkhand HC (2022)

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶2

Second Appeal No. 114 of 1994 (R)

¶3

Rajmata Sumidha Raj Laxmi Devi Singh

¶4

Sri Maghendra Narayan Singh

¶5

Smt. Basudha Jagdev Roy

¶6

Yagyaswori Raje

¶7

Lavanya Raje .... …. Appellants

¶8

Versus

¶9

1(a). Haribansh Kr. Singh @ Harbansh Singh

¶10

1(b). Smt. Maroma Singh

¶11

3(c). Smt. Meera Singh 3(d). Smt. Madhuri Singh

¶12

.... .... Respondents

¶13

------

¶14

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

¶15

-----For the Appellants : Mr. Anand Kr. Sinha, Advocate For the Respondents : M/s R.N. Sahay, Sr. Advocate Yashwardhan and V.P. Pathak, Advocates

¶16

C.A.V. ON 27 .09.2022 PRONOUNCED ON 06 /12/ 2022

¶17

Appellants are the plaintiffs. Appeal is preferred against the judgment of affirmance passed by the fifth Additional District Judge in T.A No.70 of 1986.

¶18

The parties shall be referred to their original placement in the suit and will include the legal representatives substituted from time to time.

¶19

What will be the legal fall out, of an agreement of sale which does not fructify into conveyance of title by a registered sale deed, on the title of a proposed transferor? Whether such an agreement of sale will extend the protective umbrella in perpetuity to the proposed transferee under Section 53A of the Transfer of Property Act (hereinafter referred to as the T.P. Act)? These are the central questions which need to be answered in the present case.

¶20

PLAINTIFF’S CASE

¶21

The original plaintiff filed the suit for declaration of plaintiffs’ title to Schedule A properties and recovery of Khas possession thereof after evicting the defendants no.1 and his wife Defendant no.2 from the 27 decimals of land fully detailed in the schedule of the plaint.

¶22

¶23

Raja Nilkanth Narain Singh was the common ancestor of the plaintiffs and Defendant no.3 (proforma). He was the proprietor of the estate commonly known as Nawagarh Raj Estate. After coming into force of the Bihar Land Reforms Act, 1950 he became the occupancy raiyat under the State. He died in the 12.11.1965 and on his death all the properties held by him devolved upon the Mitakshara Coparcenary comprising of Kamakhaya Naryan Singh and the plaintiffs.

¶24

It is averred that Sri, Kamakhya Narayan Singh being the Karta and manager of the joint family began to recklessly sell the joint family property without any legal necessity and squander away the money on wine and meat. Consequently Plaintiff no.1 instituted T.S No.93 of 1966 for restraining him from squandering away the property. The court while passing the order in injunction matter held that proper remedy was a partition suit. Consequently, the plaintiff no.1 filed a title partition suit no.35/66 in the court of 2^nd Sub judge Dhanbad against his father Kamakhay Narayan Sinha and others, which was contested, but subsequently he stopped appearing in the suit and the suit was decreed ex parte on 31.5.68. The first appeal against the ex parte decree was dismissed for non-prosecution.

¶25

The Schedule A property was an old house built by the late Raja Nilkantha Narayan Singh for residence of the manager of the estate and for occasional stay of the guests. The plaintiffs and defendant no.3 mostly lived in Delhi in connection with studies and after completing the studies in India started living in USA and none was there to look after the properties.

¶26

In the meanwhile defendant no.1 namely Biseswar Prasad Sinha who was residing in the vicinity of the suit property developed intimacy with Raja Kamakhaya Narayan Singh who allowed him to live in the Kabutar Bungalow sometimes in the month of December 1970 as a mere licensee. Plaintiff no.1 came back from USA in 1976 and requested the defendants to vacate the Schedule A premises and the plaintiffs were compelled to live in another house.

¶27

It was only when a proceeding under section 144 Cr. P.C. was initiated that the plaintiffs came to know about the claim of an agreement of sale dated 14.12.71 from Late Kamakhya Narayan Singh. It is averred

¶28

¶29

that this document was never executed by the Late Kamakhya Narayan Singh nor he had a right to do so, in favour of defendant nos.1 and 2 and it was a forged document.

¶30

DEFENDANT’S CASE

¶31

Defendants no.1 & 2 have filed joint written statement and contested the suit mainly on the ground that the suit was barred by the doctrine of part performance as provided in section 53A of The Transfer of Property Act. After the vesting of the rights of intermediaries in the state of Bihar in 1951 Raja Nilkantha Narain Singh, Late Kamakhya Narayan Singh and plaintiff no.2 had no independent source of income save and except the compensation released by the state of Bihar. The family expenses were made by selling the landed properties and even the household articles. Kamakhya Narayan Singh was having the power of attorney of his father during his lifetime. Title Suit No.93 of 1966 and Title Partition Suit No.35 of 1966 and first appeals against the ex parte decree in partition suit where collusive, brought by the parties of those suits to blackmail the bonafide purchasers. These defendants were not aware about these cases. Plaintiff no.1 did not apply for the final decree in Title (Partition) Suit No. 35 of 1966 on the basis of the ex-parte decree nor the Pleader Commissioner was appointed for allotment of separate Takhtas to the share of the Plaintiff no.1 in the said family property nor the separate possession in the family properties to the extent of share of plaintiff no.1 has been allotted by the Court so far in execution proceedings.

¶32

Defendant no.1 purchased around 9 acres of land from Kamakhya Narayan Singh for consideration and since after the purchase the coming in possession of the same and are paying rent to the government of Bihar. Kamakhya Narayan Singh also allowed defendant no.1 and 2 to remain in the dilapidated house over plot nos.769 and 771 sometime in the year 1965 on the condition that he would sell the land and structures to them. In pursuance of the said understanding Kamakhya Narayan Singh executed deed of agreement for sale on 14.12.71 in favour of defendant no.2 for transferring schedule A land along with the structures for Rs. 8,999/-. The entire consideration amount was paid by defendantno.2 to Kamakhya Narayan Singh and in token thereof he

¶33

¶34

granted separate money receipt and in part performance of the contract put defendant no.1 and 2 in actual physical possession of the same. The sale deed could not be executed because of the death of Kamakhya Narayan Singh in 1973.

¶35

The plaintiffs and defendant no.3 were always creating obstruction and hindrance to the defendants. The plaintiffs and proforma defendant no.3 sold the entire Nawagarh Palace and Harna Garden to BCCL and after the death of Kamakhya Narayan Singh they were also selling lands to different persons. M.P Case No.53 of 1980 was initiated by the SDM, Chas on 8.2.1980 on the basis of police report which was decided in favour of Defendant no.2 and against the plaintiff no.2. It is contended that the plaintiffs were fully aware about the agreement of sale in favour of the defendants.

¶36

On the basis of the pleadings of the parties the following issues were framed:

¶37

i. Is the suit maintainable?

¶38

ii. Is the suit barred by limitation?

¶39

iii. Is the suit barred under the provisions of Transfer of Property Act?

¶40

iv. Is the suit undervalued?

¶41

v. Are the plaintiffs entitled to a decree, as prayed for?

¶42

vi. To what relief or reliefs, if any, are the plaintiffs entitled?

¶43

The learned trial court dismissed the suit by returning a finding that plaintiff no.1 from the days of his school education was away from his home and it was Kamakhya Narayan Singh who being the karta of family was meeting the expense of his mother. It was in these circumstances that he had no means, except to sell the properties for necessity which was permissible under article 256 of the Hindu law for alienating coparcenary property for the benefit of the family. Article 242 of the Hindu law provides that the manager of a joint family can alienate for value joint family property, so as to bind the interests of both adult and minor coparceners in the property, provided that the alienation was for legal necessity or for the benefit of estate. Maintenance of coparceners has been held to be family necessity within the meaning of Article 143 (b) of the Hindu law.

¶44

¶45

Even otherwise, long before the execution of the deed of agreement, a partition suit was filed by plaintiff no.1 against his father and in that circumstance that shares became defined and the lands and structures contracted to be sold will be deemed to have been the share of Kamakhya Narayan Singh.

¶46

It also recorded a finding of fact of possession in favour of the defendants in pursuance of the agreement of sale (Ext.G) and in these facts and circumstance section 53A of the T.P. Act was applicable.

¶47

The learned first appellate court concurred with the findings of fact of the trial court and dismissed the suit.

¶48

This appeal has been admitted to be heard on the following substantial question of law: –

¶49

“Whether both the Courts below committed error of law in applying the principle of section 53A of the Transfer of Property Act in its proper perspective”.

¶50

It is argued by the learned counsel on behalf of the appellant that Kamakhya Narayan Singh had no right to enter into an agreement for transfer of property in view of the pendency of title appeal no.551 of 1968. Protection of Section 53 A of the TP Act is not available to a proposed transferee if within the period of limitation, the proposed transferee does not take any step for specific performance of contract.

¶51

Learned Counsel on behalf of the respondent/defendants has argued that there is concurrent findings of the both the Courts below, and the finding of fact has attained finality. Defendants had purchased different plots from Sri Kamkhya Narayan Singh and under the agreement of sale, the possession of the land had been given to the Defendants. In this view of matter he was in settled possession of the land.

¶52

Plaintiff filed Title (P) suit No.35 of 1966 against his father, Sri Kamakhya Narayan Singh which was decreed ex-parte and attained finality. Admittedly, Sri Kamakhya Narayan Singh died on 8.8.1973, leaving behind his widow (plaintiff no.2) and son (plaintiff no.1).

¶53

Definite case of the defendants is that Sri Kamakhya Narayan Singh had sold several plots of land to them by executing registered sale deeds on 15.7.69 and 2.12.69 and with respect to the Schedule A land had executed agreement of sale on 14.12.71 in favour of Defendant no.2

¶54

¶55

by receiving full consideration money, and they were continuing in possession over this plot since 1965 along with plot no.768.

¶56

Plaintiff has not raised any dispute with respect to the lands transferred by registered sale deeds by Sri Kamakhya Narayan Singh to the Defendants.

¶57

Dispute in this case is about 31 decimals of land over plot no.769 and 28 decimals over plot 771 with the structures thereon of mouza Dumra (No.99) Pargana Nawagarh P.S Baghmara District Dhanbad which is claimed by the defendants on the basis of agreement of sale .

¶58

Defendants claims to be in possession over this land since 1965 and agreement of sale to have been executed on 14.12.1971, after payment of full consideration amount. The agreement of sale and the money receipt have been brought on record, and marked as Exts. G and H on behalf of the defence. One no-objection for electrical connection issued under the signature of Sri Kamakhya Narayan Singh has also been proved and marked as Ext I.

¶59

It however remains unexplained that if the full consideration amount was paid at the time of agreement of sale in 1971, and proposed transferor Sri Kamakhya Narayan Singh died on 8.8.1973, what prevented the registered sale deed to be executed during this period? Even after the death of Kamkhya Narayan Singh the suit for specific performance of Contract could have been filed within the period of limitation of three years from the execution of the agreement of sale against the heirs and descendants proposed transferor. But no such case of specific performance of Contract was filed. Mere agreement of sale does not convey any title and it remains with the original owner. The very claim of agreement of sale to be executed by the father of the plaintiff, is an acknowledgment of the title of the plaintiff no.1, after his father’s death. It has been held in Fatehji & Co. v. L.M. Nagpal , (2015) 8 SCC 390 :

¶60

“6. The fact that the plaintiffs were put in possession of the property agreed to be sold on the date of agreement itself would not make any difference with regard to the limitation of filing the suit for specific performance. In fact both the courts below have rightly held that Article 54 of the Limitation Act does not make any difference between a case

¶61

¶62

where possession of the property has been delivered in part-performance of the agreement or otherwise”.

¶63

Further, Title suit no.35 of 1966 (Ext-5) was decreed ex-parte on 31^st May 1968 in favour of Sri Satyandra Narain Singh (present plaintiff no.1) and against Sri Kamakhya Narayan Singh for the suit land comprising of different plots including plot no.769 and 771. The preliminary decree determined the title of the plaintiff over the property. A person can transfer only those rights, which he has in the property, thus when Sri Kamakhya Narayan Singh had no title he had no right to enter into an agreement of sale. Even if it is assumed that he had a title over the land the same did not get transferred to the Defendants by mere execution of agreement of sale. Defense of Section 53 A would have been available, if within the limitation period the suit for specific performance had been filed.

¶64

As stated earlier, by agreement of sale, there is no transfer of title. It is worthwhile to note that even in case of registered deed of sale, a transferee pendente lite is bound by the decree just as much as he was a party to the suit. It is immaterial whether the transferee had notice of the pending suit between the parties. It has been held in Rajender Singh v. Santa Singh , (1973) 2 SCC 705 at page 711:

¶65

“ 15. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject-matter of litigation from the ambit of the Court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject-matter of litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated”.

¶66

An appeal or execution proceeding is a continuation of the suit, and lis pendens continues during the appeal or execution. The explanation

¶67

¶68

to Section 52 of the T.P. Act indicates that the pendency of a suit would encompass the stage after the final decree till complete satisfaction or discharge of such decree or order.

¶69

A partition suit operates as a lis pendens with the result that the purchaser of an undivided share pending the suit takes only that property which is allotted on partition to his vendor. The fact that final decree was not prepared will not save the agreement of sale in favour of the defendants, as there is no limitation for preparing a final decree. In any case Sri Kamakhya Narayan Singh had no right to enter into an agreement of sale with respect to property beyond his share as allocated in the primary decree.

¶70

Section 53-A imports into India, equity of part performance as developed in England in Maddison Vs Alderson (1883) 8 App Case 467. It is a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell to the transferee, if it satisfies the other conditions of S.53 A. It has nothing to do with the ownership of the proposed transferor who retains the title, till it is transferred by a registered deed of sale in favour of the transferee. Title Suit No.35 of 1966 (Ext-5) was decreed ex-parte on 31^st May, 1968 in favour of the plaintiff and had attained finality. The agreement of sale was executed thereafter in 1971. An agreement of sale executed thereafter from a party having no valid right will be of no consequence.

¶71

In a suit for title, the court is to consider which party had superior title over the suit land. Since the agreement of sale does not transfer title, therefore the validity or genuineness of it is beyond the scope of consideration. In a suit for specific performance of agreement, where the proposed transferee claims to be in possession of the suit property, in that circumstance the validity of the agreement of sale will be a relevant issue. As discussed earlier, since no suit for specific performance of agreement was ever filed, therefore validity or invalidity of the agreement of sale was not germane to the determination of title in the present suit.

¶72

The learned courts below appear to have been completely swayed by irrelevant considerations, like if the plaintiff no.1 and his mother (plaintiff no.2) lived with his father Sri Kamakhya Narayan Singh

¶73

¶74

or not and if the agreement of sale was validly executed or not or if it was for legal necessity or not. This is not a suit brought by the proposed transferee for specific performance of contract, but by the heirs of proposed transferor, for title. At the end of the day, even if the agreement of sale is accepted to be genuine, it cannot confer title in the absence of a registered sale deed. Such an agreement can not provide the protective umbrella for perpetuity, to a party, against the real owner. Both the courts below appear to have treated, the agreement of sale like a registered sale deed.

¶75

Under the aforesaid facts and circumstance, this Court is of the view that learned Courts below failed to appreciate the principle of part performance as provided under Section 53A. Mere agreement of sale did not confer any title to the Defendants and Section 53 A had no application after the period of limitation for filing a suit for specific performance of contract.

¶76

Plaintiff admittedly being the son of the proposed transferor was the owner of the property. No suit for specific performance of agreement was ever filed by the defendants. Therefore, in the absence of execution of the registered sale deed, title did not get transferred to the Defendants and remained with the plaintiffs.

¶77

Possession follows title. Plaintiffs are entitled to a decree for declaration of title and recovery of possession.

¶78

The substantial question of law is accordingly answered in favour of the plaintiffs/appellants.

¶79

Under the aforesaid facts and circumstances, the judgment and decree passed by both the learned courts below is set aside and the suit of the plaintiff is decreed as prayed for.

¶80

Appeal is allowed.

¶81

Interlocutory application, if any, stands disposed of.

¶82

(Gautam Kumar Choudhary, J . )

¶83

Jharkhand High Court, Ranchi Dated the 6^th December, 2022 AFR / AKT

Rajmata Sumidha Raj Laxmi Devi v. Haribansh Kr Singh Az Harbansh Singh

Case brief

What is this about?

What did the court decide?

Rajmata Sumidha Raj Laxmi Devi v. Haribansh Kr Singh Az Harbansh Singh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Arun Kumar Pilania Vs Deoki Yadav

Ayachak Ashrama and Swarupananda Philanthropic Trust Reprr by Shri Ananda Kamal Brahmacharya Vs the State of Jharkhand through the Deputy Commissioner

Madhup Kumar Vs Anil Kumar Gupta

Dasreth Mahto Vs Rohit Mahto

Nandkishore Dudhani Vs Kaluram Dudhani

Amrendra Singh Vs the State of Jharkhand