Partition: Suit for partition – Maintainability of – Plaintiff and defendants Nos. 1 to 3 were co-sharer – Claim for partition was in respect of property of their step-mother – Defendant no.4 was brother of step mother – Allegations in the plaint was that defendant no.4 obtained her thumb impression on papers after her death – However, no specific reference was made of any agreement for sale or fabrication of particular document – Plea regarding execution of the agreement for sale by step mother and Will came up only in the written statement filed by defendant 4 – Record showed that only after such plea by defendant 4 in his written statement that the legatee under the Will and the vendee in the agreement were added as defendants 14 and 15 respectively – Plaintiff denied the execution of Will and agreement and submitted that defendants 14 and 15 did not have any right in the property and their claims were liable to be ignored, however, plaintiff did not seek any relief of declaration, whether against the Will or against the agreement – Plea about non-maintainability of suit for want for relief of declaration against the agreement for sale not sustainable – Held: A person having an agreement for sale in his favour does not get any right in the property, except the right of obtaining sale deed on that basis – The alleged agreement for sale did not invest the vendee with title to, or any interest in, the property in question; and the alleged agreement for sale did not invest the vendee with any such right that the plaintiff could not have maintained her claim for partition in respect of the properties left by her step mother without seeking declaration against the agreement – Transfer of Property Act, 1882 – s.54.
Code of Civil Procedure, 1908: Or.XXII rr.2, 4 – Applicability of – r.2 of Or.XXII of the Code ordains the procedure where one of the several plaintiffs or defendants dies and right to sue survives to the surviving plaintiff(s) alone, or against the surviving defendant(s) alone – The same procedure applies in appeal where one of the several appellants or respondents dies and right to sue survives to the surviving appellant(s) alone, or against the surviving respondent(s) alone – However, by virtue of r.4 read with r.11 of Or.XXII of the Code, in case of death of one of the several respondents, where right to sue does not survive against the surviving respondent or respondents as also in the case where the sole respondent dies and the right to sue survives, the contemplated procedure is that the legal representatives of the deceased respondent are to be substituted in his place; and if no application is made for such substitution within the time limited by law, the appeal abates as against the deceased respondent – In the instant case, it is not the case that no legal heirs were available for defendant 2 – It is also not the case where the estate of the deceased defendant 2 passed on to the remaining parties by survivorship or otherwise – Therefore, applicability of r.2 of Or.XXII is clearly ruled out – Admittedly, steps were not taken for substitution of the legal representatives of defendant 2 – Therefore, sub-rule (3) of r.4 of Or.XXII of the Code directly came into operation and the said appeal filed by defendants 16 to 18 abated against defendant 2. Deeds and documents: Intermixing of two documents – In the instant case, in the Will (Ex. B-9), apart from making bequest, allegedly the testator also directed her mother (legatee) to execute a registered sale deed in favour of defendant 15 after receiving the balance sale consideration from him as per the agreement executed in his favour and also directed to discharge the debts – The agreement mentioned in the Will was none other than Ex. B-10 – Looking to the nature, purport and contents of these documents, time gap between the two is not of much relevance when examining the questions about their validity and genuineness; and in any case, the sale agreement (Ex. B-10) did not remain an independent or stand-alone document once it was found that this document was indeed mentioned in the disputed Will and the obligations thereunder were purportedly passed on to the legatee – Moreover, the Will also required the legatee to pay the debts of the testator – The defendants also suggested the indebtedness of testator to be the reason for sale of the property in question – Putting all the things together, & ORS.
indebtedness of testator and her agreeing to sell the property to defendant 15 formed an integral part of the alleged Will – Therefore, the two documents could not have been segregated – Trial Court as also the High Court recorded concurrent findings that the document of Will (Ex. B-9) was a highly suspicious document and the propounders have failed to remove the suspicious circumstances – A submission was made before the High Court that when the Will (Ex. B-9) was found surrounded by suspicious circumstances, the agreement (Ex. B-10) must also be rejected as a necessary corollary – High Court rejected this contention with reference to the fact that the agreement (Ex. B-10) was prior in time and was an independent document which could be enforced as such – While examining preponderance of probabilities about existence of such an agreement for sale, the overall relationship of the parties, the beneficiaries of the alleged agreement and their conduct cannot be kept at bay – The alleged agreement is intertwined with the rejected Will because of the specific contents of the latter – Therefore, the repercussions of findings against genuineness of the Will are bound to impact the agreement too – The consideration of the High Court suffered from the fundamental error of approach.
Allowing the appeal, the Court
HELD: 1.1 It remains trite that partition is really a process in and by which, a joint enjoyment is transformed into an enjoyment in severalty. A partition of property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to partition. In a suit for partition, the Court is concerned with three main issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/properties should be divided by metes and bounds. Etymologically, the expression “declaration”, for the purpose of a suit for partition, essentially refers to the declaration of plaintiff’s share in the suit properties. [Para 37][762-F-H; 763-A]
1.2 In this suit for partition, separate possession and recovery of mesne profits, the plaintiff-appellant asserted that defendants 1 to 3 were the co-sharers and alleged that defendant
4 (brother of Annapurnamma) and other impleaded defendants were creating hindrance/obstructions in division of properties of Annapurnamma among the siblings. The principal allegations in the plaint were directed against defendant 4 with reference to his dealings with the properties of Annapurnamma; and his intermeddling with the affairs of plaintiff and her siblings by obtaining an agreement for mediation in favour of his own persons. In that sequence, it was also alleged that defendant 4 and his family persons obtained thumb impressions of Annapurnamma on papers, after her death. However, there had not been any reference to any agreement for sale nor there was any allegation of fabrication of any particular document. The plaintiff had not shown awareness about any agreement for sale executed by Annapurnamma or obtained from her by any person; and there was no reference to any agreement like Ex. B-10. The plea regarding execution of the agreement for sale by Annapurnamma on 05.11.1976 and Will on 15.06.1978 came up only in the written statement filed by defendant 4. Examination of the record makes it clear that only after taking of such pleas by defendant 4 in his written statement that the legatee under the Will (Ex. B-9) and the vendee in the agreement (Ex. B-10) were added as defendants
14 and 15 respectively. The plaintiff denied the execution of Will and agreement by Annapurnamma and submitted that defendants
14 and 15 were having no right in the property and their claims were liable to be ignored. The plaintiff did not seek any relief of declaration, whether against the Will or against the agreement; and she was not required to seek any such declaration. [Para 38] [763-B-F]
1.3 The pleas concerning Will and sale agreement were taken only by the defendant 4 in his written statement (and by such other defendants who adopted his written statement). Obviously, the onus of establishing such pleas was on the contesting defendants. If such pleas, or any of them, stood established, the necessary consequences would have followed and in other event, the plaintiff was to succeed. In any event, the & ORS.
documents of Will and sale agreement, as set up by the contesting defendants, were subject to proof by the persons setting them up. On her part and for the purpose of maintaining the suit for partition and other related reliefs, the plaintiff was entitled to ignore them and there was no necessity for the plaintiff to seek the relief of declaration against the agreement set up by the defendants. Apart from that, it is also fundamental, as per Section
54 of the Transfer of Property Act, 1882, that an agreement for sale of immoveable property does not, of itself, create any interest in or charge on such property. A person having an agreement for sale in his favour does not get any right in the property, except the right of obtaining sale deed on that basis. [Paras 38.1, 39] [763-G-H; 764-A-C]
1.4 It goes without saying that the alleged agreement for sale did not invest the vendee with title to, or any interest in, the property in question; and the alleged agreement for sale did not invest the vendee with any such right that the plaintiff could not have maintained her claim for partition in respect of the properties left by Annapurnamma without seeking declaration against the agreement. Therefore, this plea about non-maintainability of suit for want for relief of declaration against the said agreement for sale remains totally baseless and could only be rejected. [Para 39.1][764-G; 765-A-B]
2.1 The rules of procedure for dealing with death, marriage, and insolvency of parties in a civil litigation are essentially governed by the provisions contained in Order XXII of the Code. Though the provisions in Rule 1 to Rule 10A of Order XXII primarily refer to the proceedings in a suit but, by virtue of Rule 11, the said provisions apply to the appeals too and, for the purpose of an appeal, the expressions “plaintiff”, “defendant” and “suit” could be read as “appellant”, “respondent” and “appeal” respectively. Rule 1 of Order XXII of the Code declares that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. When read for the purpose of appeal, this provision means that the death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives. Rule 2 of Order XXII of the Code ordains the procedure where one of the several plaintiffs or defendants dies and right to sue survives to the surviving plaintiff(s) alone, or against the surviving defendant(s) alone. The same procedure applies in appeal where one of the several appellants or respondents dies and right to sue survives to the surviving appellant(s) alone, or against the surviving respondent(s) alone. The procedure is that the Court is required to cause an entry to that effect to be made on record and the appeal is to proceed at the instance of the surviving appellant(s) or against the surviving respondent(s), as the case may be. However, by virtue of Rule 4 read with Rule 11 of Order XXII of the Code, in case of death of one of the several respondents, where right to sue does not survive against the surviving respondent or respondents as also in the case where the sole respondent dies and the right to sue survives, the contemplated procedure is that the legal representatives of the deceased respondent are to be substituted in his place; and if no application is made for such substitution within the time limited by law, the appeal abates as against the deceased respondent. [Para 41][765-C-H; 766-A-B]
2.2 It is not the case that no legal heirs were available for defendant 2. It is also not the case where the estate of the deceased defendant 2 passed on to the remaining parties by survivorship or otherwise. Therefore, applicability of Rule 2 of Order XXII CPC is clearly ruled out. Admittedly, steps were not taken for substitution of the legal representatives of defendant 2, who was respondent 3 in AS No. 1887 of 1988. Therefore, subrule (3) of Rule 4 of Order XXII of the Code directly came into operation and the said appeal filed by defendants 16 to 18 abated against defendant 2 (respondent 3 therein). [Paras 42, 42.1] [767-C-E]
Sardar Amarjit Singh Kalra (dead) by LRs. and Ors. v. Pramod Gupta (Smt) (dead) by LRs. and Ors. (2003) 3 SCC 272 : [2002] 5 Suppl. SCR 350 – followed.
State of Punjab v. Nathu Ram AIR 1962 SC 89 : [1962]
2 SCR 636; Hemareddi (dead) Through Legal
Representatives v. Ramachandra Yallappa Hosmani & Ors. (2019) 6 SCC 756 : [2019] 7 SCR 262 – relied on.
& ORS.
2.3 In the present case, it remains rather indisputable that the appeal in the High Court by defendants 16 to 18 (AS No. 1887 of 1988), abated against defendant 2 (who was respondent
3 in appeal). Appeal by defendants 16 to 18, after having abated against defendant 2 could not have been proceeded against the surviving respondents i.e., the plaintiff and defendants 1 and 3. This is for the simple reason that the Trial Court had specifically returned the findings that the agreement Ex. B-10 was not valid and defendants 16 to 18 (appellants of AS 1887 of 1988) derived no rights thereunder. The Trial Court had also ordered that the defendants 13, 14 and 16 were liable for mesne profits in respect of the immoveable properties in their possession belonging to Annapurnamma till they deliver possession of those items to plaintiff and defendants 1 to 3. Such findings in relation to the invalidity of the agreement Ex. B-10 and consequential decree for partition, for delivery of possession and for recovery of mesne profits attained finality qua defendant 2; and his entitlement to one-fourth share in the suit properties (including the property covered by Ex. B-10) also became final when the appeal filed by defendants 16 to 18 abated qua him. If at all the appeal was proceeded with and the alleged agreement Ex. B-10 was upheld (which the High Court has indeed done), inconsistent decrees were bound to come in existence, and have in fact come in existence. [Para 44][77-G-H; 774-A-D]
2.4 The High Court has proceeded to hold that Ex. B-10 agreement is valid and binding on plaintiff and defendants 1 to 3. This part of decree is in stark contrast, and is irreconcilable, with the decree in favour of defendant 2 which has attained finality that the said agreement Ex. B-10 is neither valid nor binding on defendant 2. The High Court has gone a step further to say that the plaintiff and defendants 1 to 3 were under obligation to execute sale deed in favour of defendants 16 to 18. Though making of such an observation in this suit, that heirs of Annapurnamma were under obligation to execute a sale deed in favour of defendant 16 to 18, remains seriously questionable in itself but, in any event, this observation could not have been made qua the deceased defendant 2. [Para 44.1][774-E-G]
2.5 When the inconsistencies galore are writ large on the face of the record, the inescapable conclusion is that the appeal filed by defendants 16 to 18 could not have proceeded further after its abatement against defendant 2 (respondent 3). Applicability of Order XXII Rule 2 CPC is clearly ruled out in this matter relating to the suit for partition where decree had already been passed in favour of the plaintiff as also defendants 1 to 3. The appeal by defendants 16 to 18 against such co-sharers of the property could not have proceeded in the absence of representation of the estate of one of the co-sharers. [Paras 45, 46][774-G-H; 775-A-B]
2.6 So far as the present appeal is concerned, though it appears that the plaintiff-appellant, clearly under a wrong advice, made an application for substitution of the legal representatives of defendant 2 but indicated in the application that the said defendant had expired during the pendency of appeal in the High Court. The legal representatives of defendant 2 having not been brought on record in the High Court, there was no necessity for the appellant to seek such a substitution in the present appeal. The appeal of the plaintiff before this Court could definitely proceed even in the absence of the legal representatives of defendant 2 because in case of success of this appeal, there is no likelihood of any inconsistent decree vis-à-vis defendant 2 coming into existence. The decree of the Trial Court had been in favour of the plaintiff and defendants 1 to 3 and the result of success of this appeal would only be of restoration of the decree of the Trial Court, which would be of no adverse effect on the estate of the deceased defendant 2. This appeal deserves to be allowed only on this ground that the appeal of defendants 16 to 18 before the High Court (AS 1887 of 1998) was rendered incompetent after its abatement against defendant 2 (respondent 3) and was liable to be dismissed as such. [Paras 47, 48][775-F-H; 776-A-C]
3.1 In the Will (Ex. B-9), apart from making bequest, Annapurnamma also directed her mother (legatee) to execute a registered sale deed in favour of defendant 15 after receiving the balance sale consideration from him as per the agreement & ORS.
executed in his favour; and that Annapurnamma also directed her mother to discharge the debts. The agreement mentioned in the Will was none other than Ex. B-10. This unmistakable intermixing of the two documents Ex. B-9 and Ex. B-10 had been the primary reason that the Trial Court examined the matters related with them together, while indicating that to give a colour of reality to the Will and to show that Annapurnamma was highly indebted to others which compelled her to sell the property, the suggestions w ere made about sale to the husband of Annapurnamma’s sister. [Para 50][776-E-H]
3.2 The Trial Court as also the High Court have recorded concurrent findings that the document of Will (Ex. B-9) was a highly suspicious document and the propounders have failed to remove the suspicious circumstances. While examining preponderance of probabilities about existence of such an agreement for sale, the overall relationship of the parties, the beneficiaries of the alleged agreement and their conduct cannot be kept at bay. It gets perforce reiterated, that the alleged agreement is intertwined with the rejected Will because of the specific contents of the latter. Obviously, therefore, the repercussions of findings against genuineness of the Will are bound to impact the agreement too. In this view of the matter, the consideration of the High Court appears to be suffering from the fundamental error of approach. [Para 51.3][777-F-H; 778-A]
3.3 Trial Court had examined the matter in its correct perspective and had rightly come to the conclusion that this agreement for sale (Ex. B-10) was as invalid and untrustworthy as was the Will (Ex. B-9). The findings of Trial Court, based on proper analysis and sound reasoning, called for no interference. The High Court has been clearly in error in interfering with the findings of the Trial Court in relation to the agreement in question. [Para 59][781-C-D]
H. Venkatachala Iyengar v B.N. Thimmajamma AIR 1959 SC 443 : [1959] Supp. SCR 426; State of
Rajasthan v. Rao Raja Kalyan Singh (Dead by his Lrs.) (1972) 4 SCC 165; Controller of Estate Duty v. Kantilal Trikamlal (1976) 4 SCC 643 : [1977] 1 SCR 9; Shub Karan Bubna v. Sita Saran Bubna and Ors. (2009) 9 SCC 689 : [2009] 14 SCR 40; Bank of India v. Abhay D. Narottam and Ors. (2005) 11 SCC 520 – referred to
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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