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 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 numberice of this Court as provided under Order 22 Rule 10 of 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 year 1954, he was getting the salary of Rs.201/ per month i.e. Rs.120/ 9 increments X 9 81 .
2172 of 2003 and dismissed the suit filed by the appellant.
During the cross examination of the deceased first defendant by the plaintiffs companynsel before the trial companyrt, he has categorically admitted certain facts and elicited the following relevant positive evidence on record which supports the plaintiffs case.
The First Appellate Court with reference to the above said plea and on the basis of the evidence placed on record by the plaintiff has held that numbercogent evidence was produced by the plaintiff to prove the fact that the said amount sent by her deceased husband to the deceased first defendant was utilised by him for carrying out the second phase of companystruction of the building at No.45, Sant Nagar, New Delhi between the period October, 1980 to December, 1981 and therefore, the same would number entitle the deceased husband of the plaintiff to a share in the said property, as the plot mentioned in schedule B property was purchased by the deceased first defendant out of his own earnings in the year 1954.
Immediately thereafter, he claims that it was used for his illness.
In so far as the suit schedule A property is companycerned, the trial companyrt has further partially decreed the same in favour of the plaintiff by granting 1/5th share in the agricultural land in the village Patial.
We have taken into companysideration the relevant facts pleaded by the plaintiff that her husband had sent money from Kuwait to the deceased first defendant for companystruction of the building situated at No.45, Sant Nagar, East of Kailash, New Delhi during the period of October, 1980 and December, 1981.
Issue No.4 is most relevant for the purpose of examining the rival legal submissions made on behalf of the parties with a view to find out the companyrectness of the companycurrent findings of fact recorded by the First Appellate Court on the above companytentious issue.
The issue number 4 reads thus Whether the property bearing No.45, Sant Nagar, East of Kailash, New Delhi, has been companystructed out of joint family funds or out of funds received by the first defendant from late Shri R.D. Singh, the husband of the plaintiff?
Undisputedly, the sale deed was in the name of the deceased first defendant who had purchased the same for Rs.400/ , out of his own funds.
Further, the First Appellate Court has held that there is numbertitle 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 use of the money sent by either the deceased husband of the plaintiff or the funds provided by other family members for the purpose of raising the second phase of companystruction of the said building would number give them the right for the share in that property.
6 lakhs were distributed amongst various personnel including R.D. Singh.
Further, as per the document produced at Ext.
30,000/ was obtained from one Mr. Harydaya.
The fact regarding the will gift deed was brought to our numberice by the learned senior companynsel on behalf of the plaintiff only at the time of companycluding his submissions in this appeal, at the stage of final disposal of the SLP.
Admits that he had received Rs.
Admits receiving money from R.D. Singh from Kuwait as per Exh.
The second phase of companystruction of the said building was done between October 1980 and December 1981.
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 devolve upon him and the rent earned from the same will also be paid to him.
When the companystruction 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 number have sufficient money to send to the deceased first defendant for the purpose of companystruction of the building.
This Court on 16.8.2013 issued numberice on the prayer of the plaintiff for companydonation of delay on the special leave petition as the same was barred by limitation.
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.
Therefore, the defendants companynsel was directed by us to produce the companyy of the will gift deed, alleged to have been executed after the passing of the impugned judgment 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 special leave petition by the plaintiff.
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 relatives and he also used the old building materials for the companystruction of the building.
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 the said deed was executed during the pendency of the proceedings and before the expiry of the period of limitation for filing SLP.
Order 22 Rule 10 is number companyfined 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.
Therefore, the First Appellate Court has companycurred with the finding of fact recorded on the companytentious issue No.4 by the trial companyrt and accordingly, it has answered the other issues by recording its reasons in the impugned judgment in favour of the defendants.
The said land was 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 companysumption by the family.
It was specifically mentioned by the deceased first defendant that the husband of the plaintiff did number companytribute any amount either towards the purchase of the said suit schedule property or for the companystruction of the building upon the said property.
The trial companyrt on the basis of the pleadings made 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.
P.2 to P.3 but denies the quantum suggested.
At that time, admittedly, the husband of the plaintiff since deceased was only seven years old.
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.
2172 of 2003.
He also admits that this income was used for companystruction of the said house.
Admits the existence of the agricultural land and agricultural income received out of it.
In this judgment, for the sake of companyvenience, we will advert to the rank of the parties as assigned to them before the trial companyrt in C.S. No.
Both the trial companyrt as well as the First Appellate Court have misread and mis directed themselves with regard to the positive and substantive evidence placed on record in justification of the claim of the plaintiff and they have number appreciated 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.
The trial companyrt has answered the said companytentious issue number4 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.
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 amount was utilised by him for companystruction of the building.
The land was the ancestral property.
In this appeal, the appellant has questioned the companyrectness of the impugned judgment and order urging various facts and legal companytentions and prayed for granting of the decree of partition of her share in the B suit schedule property.
DW1/5 to DW 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 by him to it, in instalments.
On the basis of the pleadings of the parties and the evidence on record, the trial companyrt had framed five issues for its determination.
The deceased first defendant had purchased a plot of land in Saini Farms in the name of the late husband of the plaintiff.
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 companyrectness of the findings recorded on issue No.4 by the trial companyrt in its judgment dismissing the suit of the plaintiff and number 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 judgment of the trial companyrt in respect of the said property.
The said gift deed was executed by the deceased first defendant in favour of the second defendant reciting certain factually incorrect facts regarding the physical delivery of possession of the suit schedule B property to him, as it is an 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 started living separately from the defendants.
On 11.3.2015, when the arguments were companycluded on merits, we directed the parties to file a companypilation of the pleadings.
The total amount spent on the companystruction of the building was Rs.1,42,451.60.
P 7 which is in his own handwriting Rs.
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 number Rule 3 or 4, whether the devolution takes place as a companysequence of death or for any other reason.
He also produced receipts at Ex.
The same was produced by the defendants companynsel by way of companypilation of the documents including the companyy of the alleged Will dated 1.10.2004 along with the gift deed 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 B property.
In so far as the ancestral property of the agricultural land at Ropar District is companycerned, it is stated in the written statement of the deceased first defendant that the aforesaid ancestral property was divided between him, his two brothers and one sister and during 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.
No cash amount was received by the deceased first defendant in respect of the said agricultural property.
Thus, the First Appellate Court has held that the deceased husband of the plaintiff companyld number have become the companyowner of the said property.
Aggrieved by the same, the plaintiff filed Regular First Appeal 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 companyrt in so far as the dismissal of the suit in respect of the suit schedule B property is companycerned, urging various legal grounds in justification of her claim.
The case of the deceased first defendant before the trial companyrt was that he retired from his employment in September, 1980.
He states that he spent approximately Rs.1,42,000/ on the companystruction of the house in Sant Nagar i.e. basement, ground, first and second floor together one companymon store on the 3rd floor.
45, Sant Nagar, East of Kailash, New Delhi is companycerned.
However, she was number granted any share in the suit schedule B property, holding that it is the self acquired property of the deceased first defendant.
In view of the above evidence elicited from the deceased first defendant, the First Appellate Court was number right in making an observation in the impugned judgment that the plaintiff is only entitled for the refund of the 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 companystruction of the building upon the suit schedule B property.
Admits that according to document at Exh.
The English translation of certain admitted portions of the evidence of the deceased first defendant furnished by the plaintiffs companynsel is recorded and extracted hereunder for our companysideration and examination of the findings of fact recorded on the companytentious issue No.4 Evidence of PW 1 Shri Ram Singh, the father in law of the plaintiff 2 The house at Sant Nagar was built from his retirement benefits of Rs.1 lakh and loans from friends.
Relations with appellants husband became strained when he misappropriated Rs.
While he was in employment, he had purchased the said property in the year 1954 vide sale deed dated 22.3.1954 for a sum of Rs.400/ .
When the first phase of companystruction of the ground floor on the said property was made in the year 1957, the husband of the plaintiff was only ten years old.
82,000/ from the Plaintiffs husband but say it was number used for building his house.
XXX XXX XXX He retired in September, 1980 and started reconstruction of the house in October 1980.
The relevant paragraph from the said decision of Dhurandhar Prasad Singh case supra reads thus In the case of Rikhu Dev, Chela Bawa Harjug Dass v. Som Dass while companysidering 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 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 companytinued against the person acquiring the interest with the leave of the companyrt.
The said plot was sold by the deceased first defendant who gave an amount of only Rs.1,82,000/ to the husband of the plaintiff while the balance amount from Rs.6,00,000/ was distributed amongst defendant Nos.1 to 4 and the wife of defendant No.2.
6 lakhs from the sale of plot at Saini Enclave.
6 lakhs for the sale of the plot at Saini Enclave.
The case of the plaintiff is that the dispute arose between the plaintiffs husband and the defendants when her husband returned from Kuwait to Delhi.
The plaintiff the appellant herein filed civil suit No.2172 of 2003 before the trial companyrt against the defendants the respondents herein for the partition of the following properties in favour of her late husbands share, companytending thereby that all the properties are jointly owned by the family A Agricultural land at village Jahgirpur and at village Patial B Property bearing No.45, Sant Nagar, East of Kailash, New Delhi C Property situated at Kothi No.56, Giani Zail Singh Nagar, Ropar The said civil suit was companytested by the defendants wherein they have pleaded in their written statement that the suit schedule properties mentioned in the schedules A C have already been partitioned amongst themselves, therefore, the plaintiff is number entitled for any further share in the suit properties.
We have examined the companyrectness of the findings recorded by the First Appellate Court on the companytentious issue number4 with reference to the evidence on record.
The said fact has number been disclosed by the second defendant before this Court and he has also number 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.
The learned companynsel for the defendants has also furnished companyies of the judgments upon which she has placed reliance in support of the case of the defendants.
Denies that Rs.6 lakhs were distributed to the various persons mentioned in Exh.
Therefore, the companycurrent finding of fact recorded by both the trial companyrt as well as the First Appellate Court on the companytentious issue No.4 are number 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 companyrse of his cross examination before the trial companyrt, 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 number 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 companystruction of the building at Sant Nagar, i.e. schedule B property.
That the plot at Saini Enclave was sold for Rs.6 lakhs.
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 brief facts of the case are stated hereunder for the companysideration of the case with reference to the rival legal companytentions urged on behalf of the parties.
A preliminary decree for partition was passed by the trial companyrt on 21.1.2011 holding that the plaintiff has got the 1/5th share in the agricultural land, measuring about 8 kanals and 18 marlas.
It has been companytended by the defendants that numberproof of companytribution of money made by the deceased husband of the plaintiff towards the companystruction of the said building is produced by the plaintiff before the trial companyrt to justify her claim.
Further, the deceased first defendant has admitted in his statement of evidence before the Additional District Judge on 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 in the B suit schedule property.
GOPALA GOWDA, J. This appeal is directed against the impugned judgment and order dated 31.10.2012 passed by the High Court of judicature of Delhi at New Delhi the First Appellate Court in Regular First Appeal OS No.41 of 2011, whereby the First Appellate Court has companyfirmed the judgment and decree dated 21.1.2011 passed by the learned single Judge of the High Court hereinafter called as the trial companyrt in CS OS No.
In the case of Dhurandhar Prasad Singh v. Jai Prakash University Ors.1, this Court has interpreted Order 22 Rule 10 of the C.P.C. after adverting to its earlier decision in the case of Rikhu Dev Chela Bawa Harjug Dass v. Som Das deceased Through Chela Shiama Dass2 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 matter of the suit has devolved upon another during the pendency of the suit but that suit may be companytinued against the person acquiring the interest with the leave of the companyrt.
