Supreme Court of India
JAGAN SINGH (DEAD) THROUGH LRS.versusDHANWANTI & ANR.
- Citation
- [2012] 2 S.C.R. 303
- Decided
- 19 January 2012
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
A bhumidhar may validly bequeath a restricted interest in favour of a female Hindu under Section 169(1) of the U.P. Act, and such restriction remains enforceable under Section 14(2) of the Hindu Succession Act, while the sale made during pendency of the suit is subject to the doctrine of lis pendens under Section 52 of the Transfer of Property Act.
Summary
The appellant, representing the estate of Jagan Singh, sought a permanent injunction to prevent Dhanwanti, the widow of the testator, from selling a parcel of bhumidhari land that had been bequeathed to her with a restriction limiting her rights to her lifetime. The lower courts held that the restriction was invalid under the Hindu Succession Act and dismissed the suit. The Supreme Court examined whether Section 169(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1951 allows a bhumidhar to impose such a restriction and whether Section 14(2) of the Hindu Succession Act, 1956 preserves the restriction. It held that the bequest was permissible under Section 169(1) and that the restriction remains valid under Section 14(2). The Court also applied the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 to the sale made during the pendency of the proceedings. Consequently, the judgments of the lower courts were set aside and a declaration was made that Dhanwanti had no right to sell the disputed land.
Issues considered
- Whether Section 169 of the U.P. Zamindari Abolition and Land Reforms Act, 1951 permits a bhumidhar with transferable rights to impose a lifetime restriction on a legatee's interest.
- Whether a restricted bequest made by a bhumidhar to a female Hindu is permissible under Section 14(2) of the Hindu Succession Act, 1956.
- Whether the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 applies to the sale of the land during the pendency of the suit and appeal.
Legislation cited
Subjects
bhumidharrestricted estatelife estatebequestSection 169Section 14lis pendensTransfer of Property Actinjunctionland reform
Judgment
[2012) 2 S.C.R. 303
JAGAN SINGH (DEAD) THROUGH LRS. A
v.
DHANWANTI & ANR.
(Civil Appeal No. 2467 of 2005)
JANUARY 19, 2012
B
[P. SATHASIVAM AND H.L. GOKHALE, JJ.]
U.P. Zamindari Abolition and Land Reforms Act, 1951
- s. 169 - Bequest 'by a bhumidhar - Bhumidhar with
transferable rights imposing a restriction on the rights of a C
legatee by limiting the bequest to the life time of legatee -
Permissibility of, u/s. 169(1) - Held: Sub-section (1) of Section
169 permits a bhumidhar to bequeath his holding or any part
thereof by making a Will - Under the Will, he can create a
restricted interest in favour of legatee and the same is D
permissible u/s. 169 (1).
Hindu Succession Act, 1956 - s. 14 - Property of a
female Hindu to be her absolute property - Bhumidhar
bequeathing his land by way of Will uls. 169(1) of the 1951 E
Act in favour of female hindu and creating a restricted estate
- Permissibility of, in view of s. 14(2) - Held: Bequest made
uls. 169 (1) in favour of a female Hindu, if it is a restricted one,
shall remain a restricted one un der sub-section (2) of s. 14,
since the same would be governed by the terms of the Will - F
On facts, bhumidhar bequeathed his land by way of Will in
favour of female hindu (his wife); creating a restricted estate
- Wife planning to sell the land - Suit filed seeking permanent
injunction against the female hindu from selling the land -
Courts below held that the bequest by bhumidhar in favour
of female hindu was not a restricted one and dismissed the G
suit - Judgment passed by civil judge and as upheld by the
Additional District Judge and the High Court bad in law and
set aside - Declaration passed that the female hindu had no
right to sell the disputed parcel of land - Suit decreed to the
303 H
304 SUPREME COURT REPORTS [2012] 2 S.C.R.
1 A said extent - U. P. Zamindari Abolition and Land Reforms Act,
1951 - s. 169.
Transfer of Property Act, 1882 - s. 52 - Doctrine of '/is
pendens' - Held: Pendency of a suit or a proceeding shall
B be deemed to continue until the suit or a proceeding is
disposed of by final decree or order, and complete satisfaction
or discharge of such decree or order has been obtained or
has become unobtainable by reason of tf}e expiration of any
period of limitation prescribed for the execution thereof by any
C law for the time being in force - On facts, appellant sought
permanent injunction against respondent No. 1 from selling
the land either to respondent No. 2 or otherwise - Suit
dismissed by the civil judge, Additional District Judge as also
High Court - Execution of sale at a time when the second
o appeal had not been filed but which came to be filed
afterwards within the period of limitation - Thus, the case
would be covered uls. 52 - That sale had not taken place -
Declaration passed that respondent No. 1 had no right to sell
the disputed parcel of land - As regards the claim of the
E applicant that the said parcel of land was sold to her by the
first respondent subsequently before filing of the Second
Appeal, the appellant filed second suit seeking setting aside
of the sale in favour of the applicant and the same was
dismissed for default - Legal representatives of the appellant
F directed to apply to that court for appropriate orders -
Subsequent developments.
'US' was the owner of certain parcels of bhumidhari
lands covered under the provisions of the U.P. Zamindari
Abolition and Land Reforms Act, 1951. "US' by way of a
G registered Will, bequeathed his entire property in favour
of appellant as an exclusive owner. However, as regards
plot 'A'. he created a restricted estate in favour of his wife-
respondent No. 1. It is alleged that respondent No. 1
planned to dispose of property 'A'. The appellant filed a
H suit for permanent injunction to restrain respondent No.
JAGAN SINGH (DEAD) THROUGH LRS. v. 305
DHANWANTI & ANR.
1 from disposing of the property. The civil judge A
dismissed the suit holding that the right of respondent
No. 1 was not restricted under Section 14(2) of the Hindu
Succession Act, 1956. Both the Additional District Judge
and the High Court upheld the order passed by the civil
judge. Therefore, the appellant filed the instant appeal. B
The question which arose for consideration in this
appeal were whether Section 169 of the U.P. Zamindari
Abolition and Land Reforms Act, 1951, prohibits a
bhumidhar with transferable rights from imposing a
restriction on the rights of a legatee by limiting the C
bequest to the life time of legatee; whether such a
restricted bequest is permissible in view of Section 14(2)
of the Hindu Succession Act, 1956; and as regards to the
application of doctrine of 'tis pendens' in the facts of the
instant case. D
Disposing of the appeal and the interim applications,
the Court
HELD: 1.1. It is very clear that Sub-section (1) of
Section 169 of the U.P. Zamindari Abolition and ·Land E
Reforms Act, 1951 permits a bhumidhar to bequeath his
holding or any part thereof by making a Will. Sub-section
(3) however, requires that this has to be done in writing,
(lnd the Will has to be attested by two persons and it has
to be registered. In the instant case 'US' was owner of F
the concerned land. He made a Will, it was duly attested
by two persons, and it was registered as required by
Section 169 (3) of the U.P. Act. Under that Will he created
a restricted interest in favour of respondent No.1 in plot
'A'. This cannot be said to be impermissible under ·G
Section 169 (1) of the U.P. Act. [Paras 9 and 10.1] [315-B-
E]
1.2. Section 14 of the Hindu Succession Act, 1956
undoubtedly declares in Sub-section (1) thereof that a
property of a female Hindu is her absolute property, but H
306 SUPREME COURT REPORTS . [2012] 2 S.C.R.
A it creates an exception in Sub-section (2) which provides
that Sub-section (1) would not apply to any property
which is given away by instruments such as by way of a
gift or under a .Will. In the instant case, 'US' made a Will,
and under that he had created a restricted estate in
B favour of respondent No.1 which was permissible under
Section 14 (2). (Para 10] [315-F-G]
Navneet Lal vs. Gokul and Ors., 1976 (1) SCC 630: 1976
(2) SCR 924; Amar Singh vs. Assistant Director of
Consolidation 1988 (4) SCC 143: 1988 (2) Suppl. SCR 524;
C Ramji Dixit vs. Bhirgunath AIR 1968 SC 1058; Msf. Karmi
vs. Amru AIR 1971 SC 745 - referred to.
t.3. The purport behind sub-section (2) of Section 169
is to prohibit a bhumidhar entitled to any holding in the
right of a female Hindu from bequeathing such holding
D by a Will. The Single Judge of the High Court clearly erred
in reading this sub-section (2), and the effect of its
deletion. It was ignored that the instant case was one
falling under sub-section (1) of Section 169 and not under
sub-section (2) since in the instant matter the appellant
E was asserting his right with respect to the land which he
received by way of the Will of 'US'. Respondent No.1 was
·entitled to a share in the land on account of that Will only,
and not on the basis of her own independent right. The
Will giving her a share had restricted it to her .life time
F which 'US' was entitled to do under Section 169 (1) of the
U.P. Act, and the same would remain restricted in view
of Section 14 (2) of Hindu Succession Act, 1956. The
Single Judge had relied on Section 152 (1) of the U.P. Act,
but that Section also cannot be read to take away the right
G of a bhumidhar to bequeath his holding by a Will. [Para
13] [317-G-H; 318-A-C] .
1.4. The instant case is one of a bhumidhar
bequeathing his land by a will, and the same was clearly
permissible. The bequest made under Section 169 (1) in
H favour of a female Hindu, if it is a restricted one, shall
JAGAN SINGH (DEAD) THROUGH LRS. v. 307
DHANWANTI & ANR.
remain a restricted one under sub-section (2) of Section A
14 of Hindu Succession Act, since the same would be
governed by the terms of the Will. The Single Judge of
the High Court thus, clearly erred in holding that the
bequest in favour of respondent No. 1 was not a
restricted one. The courts below erred in dismissing the 8
suit filed by the appellant. In the circumstances and on
facts, the judgments rendered by the High Court as well
as by the Additional District Judge and by the civil judge
are clearly erroneous in law and on facts. [Para 13] [318-
E-F]
c
2.1. There are some subsequent developments. 'PR'
filed Interim Applications Nos. 3 and 4 of 2010 in the
instant civil appeal. In I.A No. 3 she has applied for being
impleaded as respondent, and in tA No. 4 she sought
exemption from filing the official translation of the o
annexures to I.A No. 3 of 2010. The facts which have
come on the record through I.A. No.3 and 4 of 2010 and
the reply thereto disclose that the respondent No. 1 had
entered into the agreement of sale of the land in dispute
with applicant 'PR' when suit filed before the civil judge E
and the appeal filed before the Additional District Judge
by the appellant had already been dismissed. However,
the sale was within the period of limitation when the
second appeal could have been filed. The appellant
however, chose first to file the second suit on 8.10.2004 F
for cancellation of the sale deed, wherein he joined 'PR'
as respondent No. 2. (In the meanwhile he obtained the
certified copy of the judgment and order in the first appeal
on 5.8.2004.) Thereafter, he filed the Second Appeal which
was filed within the period of limitation. This appeal was G
dismissed on 18.11.2004 at the admission stage, though
after hearing both the parties. The appellant then filed the
instant Special Leave Petition. Special Leave was granted
in the present matter, and an order of status quo came
to be passed on the SLP on 4.4.2005. The original
H
308 SUPREME COURT REPORTS [2012] 2 S.C.R.
A appellant however, did not disclose either in the Second
Appeal or in the SLP that he had filed the second suit for
setting aside the sale deed. Consequently, it did not come
on record at that stage that the applicant claims to have
purchased the land even before filing of the Second
B Appeal at a time when there was no order of stay in
favour of the appellant. Thereafter, the appellant had
applied on 12.5.2005 for stay of his own second suit by
pointing out about the pendency of the present
proceedings and the order of status quo having been
c passed therein. The second suit came to be dismissed
for non-prosecution on 27.1.2010. It is contended by the
legal representatives of the appellant in their reply to I.A
No. 3/2010, that they were not aware about the second
suit filed by their predecessor in title, and that is how,
according to them the suit came to be dismissed for
D default. [Paras 14 and 17] [318-H; 319-A-B; 320-G-H; 321-
A-F]
2.3. The broad principle underlying Section 52 of the
Transfer of Property Act, 1882 is to maintain the status
E quo unaffected by the act of any party to the litigation
pending its determination. Even after the dismissal of a
suit, a purchaser is subject to /is pendens, if an appeal is
afterwards filed. If such a view is not taken, it would
plainly be impossible that any action or suit could be
F brought to a successful termination if alienations
pendente lite were permitted to prevail. The explanation
to Section lays down that the pendency of a suit or a
proceeding shall be deemed to continue until the t.uit or
a proceeding is disposed of by final decree or order, and
complete satisfaction or discharge of such decree or
G 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 force. In the instant case, it was contended
on behalf of the respondent and the applicant that the
H sale has taken place in favour of the applicant at a time
JAGAN SINGH (DEAD) THROUGH LRS. v. 309
DHANWANTI & ANR.
when there was no stay operating against such sale, and A
in fact when the second appeal had not been filed. The
instant situation would be covered under the principle of
lis-pendens since the sale was executed at a time when
the second appeal had not been filed but which came to
be filed afterwards within the period of limitation. The B
doctrine of lis-pendens is founded in public policy and
equity, and if it has to be read meaningfully such a sale
as in the instant case until the period of limitation for
second appeal is over will have to be held as covered
under section 52 of the T.P. Act. [Paras 19 and 21] [322- c
C-H; 324-A-F]
Krishanaji Pandharinath vs. Anusayabai AIR (1959) Born
475 - approved.
Moti Chand Vs. British India Corporation AIR (1932)
Allahabad 21 O; Gobind Chunder Roy v. Guru Chur Kurmokar D
1888 15 Cal. 94 - referred to.
2.4. The impugned judgment and order passed by the
civil judge, Junior Division and those arising in the
appeals therefrom rendered by the Additional District E
Judge, Bijnaur and the High Court are bad in law and are
set aside. The appellant had sought a permanent
injunction against the respondent No. 1 from selling the
concerned parcel of land either to the respondent No. 2
or otherwise. That sale had not taken place. A declaration
F
is passed in favour of the appellant that the respondent
No. 1 had no right to sell the disputed parcel of land. The
suit filed by the appellant in the court of civil judge, Juni ir
Division is decreed to the said extent. [Para 23] [325-G-
H; 326-A]
G
2.5. The applicant 'PR' claimed that the said parcel
of land was sold to her by the first respondent
subsequently on 27.9.2004. The second suit filed by the
appellant in the court of civil judge, Senior Division
sought to set-aside the sale in favour of the applicant was H
310 SUPREME COURT REPORTS [2012] 2 S.C.R.
A
"
dismissed for default though the legal representatives of
the appellant contended that it was so dismissed since
they were not aware about that suit. It would be for the
legal representatives of the appellant to apply to that
court for appropriate orders, and it would be for that court
B to decide their application in accordance with law after
hearing all the parties including the applicant. [Para 22]
[325-8-E]
Case Law Reference:
c 1976 (2) SCR 924 Referred to. Para 11
1988 (2) Suppl. SCR 524 Referred to. Para 11
AIR 1968 SC 1058 Referred to. Para 12
AIR 1971 SC 745 Referred to. Para 12
D
AIR (1959) Born 475 Referred to. Para 19
AIR (1932) Allahabad 210 Referred to. Para 20
1888 15 Cal. 94 Referred to. Para 20
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2467 of 2005.
From the Judgment & Order dated 18.11.2004 of the High
Court of Judicature at Allahabad in Second Appeal No. 682 of
F 2004.
H.L. Aggarwal, J.P. Sharma, Piyush Sharma, Mithilesh
Kumar Singh, Tarun Verma and Kumud Lata Das for the
appearing parties.
G The Judgment of the Court was delivered by
H.L. GOKHALE J. 1. This appeal under Article 136 of the
Constitution of India raises the question as to whether a
bhumidhar having a right to transfer his land under U.P.
H Zaminderi Abolition and Land Reforms Act, 1951 (the U.P. Act
JAGAN SINGH (DEAD) THROUGH LRS. v. 311
DHANWANTI & ANR. [H.L. GOKHALE, J.]
for short), while bequeathing his bhumidhari right in favour of a A
beneficiary can impose a restriction on the right of the legatee
to make it a life estate, and if he does so whether the interest
of the holder of a life estate shall continue to remain so restricted,
or whether such a legatee can claim his interest to be
unrestricted to affect the bequest in favour of other B
beneficiaries. The second question is with respect to the
application of doctrine of 'lis pendens' in the facts of the present
case. These questions have arisen in the present appeal which
seeks to challenge the judgment and order dated 18.11.2004
passed by a leamed Single Judge of Allahabad High Court c
dismissing the Second Appeal No.982 of 2004 filed by the
appellant herein (original plaintiff). By dismissing this Second
Appeal, the leamed Single Judge has confirmed the judgment
and order dated 28.7.2004 passed by the Additional District
Judge, Bijnaur in Civil Appeal No.97 of 2002 whereby the
learned Additional District Judge has dismissed the said D
appeal of the appellant herein against the judgment and order
dated 13.2.2002 passed by the Civil Judge, Junior Division,
Najibabad which dismissed the Original Suit No.121 of 1994
filed by the appellant.
E
Facts leading to this present appeal are as follows:-
2. One Umrao Singh S/o Jiraj Singh, R/o village Sarkara
Khed in Tehsil Najibabad, District Bijnaur, U.P. owned certain
parcels of bhumidhari lands which are covered under the F
provisions of the above U.P. Act. He executed a will on
30.12.1985 conceming these lands. He stated in the will that
he had no issues, and had a younger brother by name Jagan
Singh (the appellant herein) who was looking after him. The will
further stated that during the testator's life the testator will remain G
owner in possession of the said property with all the rights.
However after his death, barring a plot bearing No.140-8-10-
19, Jagan Singh will ·become the exclusive owner of all his
movable and immovable properties. As far as this plot No. 140-
8-10-19 is concerned, Umrao Singh stated in his will as
follows:- H
312 SUPREME COURT REPORTS [2012] 2 S.C.R.
A "My wife Dhanwanti Rio village Sarkara Khera will be
the owner of my share of plot No. 140-8-10-19 but the
restriction would be that she would not have any right to
· transfer the said property that would pass on to her, but this
' restriction will not apply to Jagan Singh."
B
· 3. It is the case of the appellant that he has been cultivating
this plot No. 140-8-10-19, and further that he and the above
referred Dhanwanti (the first respondent herein) each took half
share of the crop therefrom. It was also his case that Dhanwanti
C was not the lawfully married wife of Umrao Singh, and after the
death of Umrao Singh she had planned to dispose of the above
plot of land in favour of one Ghasita Ram S/o Ram Chander
Singh (the respondent No.2 herein). According to the appellant,
she did not have such right, and therefore he filed the above
suit for permanent injunction to restrain her from disposing of
D this particular parcel of land either to this Ghasita Ram or
otherwise.
4. The respondent No.1 defended the suit, and contended
that she was a lawfully married wife of Umrao Singh. She
E submitted that the will was a forged one, and that the defendant
No.2 had no connection with this parcel of land. The defendant
No.2 contended in his written statement that he had been
wrongfully joined in the suit, and that the respondent No.1 herself
continued in possession of the land.
F . 5. The learned Civil Judge who tried the suit, framed the
issue as to whether the appellant was entitled to· prohiqit the
respondent No.1 from selling half share of the disputed land as
claimed by him. The learned Judge held that the will was a duly
executed one, and also noted that it had been registered. He
G however held that the respondent No.1 will have the benefit of
the provision of Section 14 (1) of the Hindu Succession Act,
1956, and in view thereof the property possessed by the
respondent No.1 will have to be held as her wholly owned
property, and that she was not a restricted owner. The learned
H Judge declined to accept the submission on behalf of the
JAGAN SINGH (DEAD) THROUGH LRS. v. 313
DHANWANTI & ANR. [H.L. GOK~ALE, J.]
appellant thatthe right of the respondent No.1 in the land was A
only on account of the will made by deceased Umrao Singh.
He declined to accept that her right was restricted under
Section 14 (2) of the Hindu Succession Act, 1956, and
dismissed the suit.
B
6. The appellant carried the matter in appeal, but the
learned Additional District Judge also dismissed the appeal.
Thereafter, when the appellant filed the Second Appeal to the
High Court, the High Court dismissed the same by holding that
no substantial question of law arose in the matter. The learned C
Judge held that under section 152 of the U.P. Act a bhumidhar
had a right to transfer his property, and such right was subject
only to the restrictions contained in the Act as provided in
section 152 (1) itself. The learned High Court Judge referred
to Section 169 (2) of the U.P. Act, and observed that the said
Sub-section which restricted the right bf a female bhumidhar D,
to bequeath her holding by will has now been deleted. The
learned Judge went on to hold that the right to transfer cannot
be restricted either by contract or by a will of a tenure holder,
and that the restriction contained in the will that the legatee
would not have a right to transfer the property was repugnant E
to the incidents of a bhumidhari tenure under the U.P. Act.
7. The present appeal raises principally two questions of
law. Firstly, whether section 169 of the U.P. Act prohibits a
bhumidhar with transferable rights from imposing a restriction F
on the rights of a legatee by limiting the bequest to the life time
of the legatee. Secondly, whether such a restricted bequest is
permissible in view of section 14 (2) of the Hindu Succession
Act, 1956. This Court while admitting this Civil Appeal on
4.4.2005 passed the following order:-
G
'
"Leave granted.
Until further orders, status quo as it exists today shall be
maintained. ·
H
314 SUPREME COURT REPORTS [2012] 2 S.C.R.
A Let the original record be requisitioned."
Consideration of the rival submission
8. The learned counsel for the appellant submitted that the
Courts below had completely misdirected themselves. He
8
pointed out that the present bequest by Umrao Singh would be
clearly covered under Sub-section (1) of Section 169 of the
U.P. Act, read with Section 14 (2) of Hindu Succession Act,
1956, and that the right of a bhumidhar to deal with his own
property had not been taken away in any way. Besides, this
C provision had already been interpreted in the judgments of this
Court. The counsel for the respondents on the other hand
submitted that all the courts below had taken a consistent view
in this matter, and this Court should not interfere therein.
o Whether the bequest in· favour of respondent No.1
created a restricted estate?
9. For deciding the issue raised in this appeal, we may
refer to Section 169 of the U.P. Act which reads as follows:-
E "169. Bequest by a bhumidhar- (1) A [bhumidhar with
transferable rights] may by will bequeath his holding or any
part thereof, except as provided in [sub-section(2-A)].
(2) [***]
F [(2-A) In relation to a [bhumidhar with transferable rights]
belonging to a Scheduled Caste or Scheduled Tribe, the
provisions of [sections 157-A and 157-8] shall apply to the
making of bequests as they apply to transfer during
lifetime.]
G
(3) Every Will made under provision of sub-section (1)
shall, notwithstanding anything contained in any law,
custom or usage, [be in writing, attested by two persons
and registered].
H
JAGAN SINGH (DEAD) THROUGH LRS. v. 315
DHANWANTI & ANR. [H.L. GOKHALE, J.]
(***deleted by U.P. Act 30 of 1975.) A
If we read this Section, if is very clear that Sub-section (1)
permits a bhumidhar to bequeath his holding or any part thereof
by making a will. Sub-section (3) however requires that this has
to be done in writing, and the will has to be attested by two
8
persons and it has to be registered. The only restrictions on
this right are those provided under Sub-section (2), which in turn
refers to sections 157-A and 157-B of the said Act. Section
157-A provides that in relation to a bhumidhar belonging to a
Scheduled Caste, such land cannot be transferred to a person
not belonging to a Scheduled Caste except with the prior C
approval of the collector. The other restriction is under section
157-B viz. that the land belonging to a Scheduled Tribe cannot
be transferred except to a person belonging to a Scheduled
Tribe.
D
10. (i) In the present case the facts are very clear. Umrao
Singh was owner of the concerned land. He made a will, it was
duly attested by two persons, and it was registered as required
by section 169 (3) of the U.P. Act. Under that will he created a
restricted interest in favour of respondent No.1 in plot No. 140- E
8-10-19. This cannot be said to be impermissible under section
169 (1) of the U.P. Act. It is nobody's case that section 169 (2)
thereof applied to the present case.
(ii) Section 14 of the Hindu Succession Act, 1956
undoubtedly declares in Sub-section (1) thereof that a property F
of a female hindu is her absolute property, but it creates an
exception in Sub-section (2) which provides that Sub-section
(1) will not apply to any property which is given away by
instruments such as by way of a gift or under a will. In the
present case Umrao Singh had made a will, and under that he G
had created a restricted estate in favour of respondent No.1
which was permissible under this section 14 (2).
Section 14 of the Hindu Succession Act, 1956 reads as
follows:- H
316 SUPREME COURT REPORTS [2012] 2 S.C.R.
A "14. Property of a female Hindu to be her absolute
property.- (1) Any property possessed by a female Hindu,
whether acquired before or after the commencement of
this Act, shall be held by her as full owner thereof and not
as a limited owner. ·
B
Explanation - In this sub-section, 'property' includes
both movable and immovable property acquired by a
female Hindu by inheritance or devise, or at a partition, or
in lieu of maintenance of arrears of maintenance, or by gift
c from any person, whether a relative or not, before,· at or
after her marriage, or by her own skill or exertion, or by
. purchase or by prescription, or in any other manner
whatsoever, and also any such property held by her as
stridhana immediately before the commencement of this
Act."
D
(2) Nothing contained in sub-section (1) shall apply
to any property acquired by way of gift or under a will or
any other instrument or under a decree or order of a civil
court or under an award where the terms of the gift, will or
E other instrument or the decree, order or award prescribe
a restricted estate in such property."
11. The issue raised in this Civil Appeal is no-longer res-
intigra. In Navneet Lal Vs Gokul and others reported in 1976
F (1) SCC 630, a bench of three judges of this court was
concerned with an almost identical situation, wherein a life
estate was created by the testator in favour of his wife. After
going through the will, this Court held that it was permissible
for the testator to create a limited estate in favour of his wife
G by making a will. Later, in Amar Singh Vs. Assistant Director
of Consolidation reported in 1988 (4) SCC 143, this Court in
terms held in paragraph 5 as follows:-
"The right of a bhumidhar with transferable rights to
bequeath his holding or any part thereof by a will is
H
JAGAN SINGH (DEAD) THROUGH LRS. v. 317
DHANWANTI & ANR. [H.L. GOKHALE, J.]
expressly recognised by Secti'on 169 (1) of the Act". A
12. In Amar Singh (supra) this Court explained an earlier
judgment Ramji Dixit Vs. Bhirgunath reported in AIR 1968 SC
1058. In that matter after the death of the owner, the land had
devolved upon his wife as a Hindu widow's estate. A dispute B
arose about the alienations effected by her, and it was held that
undoubtedly she had the right to alienate. But as can be seen,
in that matter the estate had devolved by inheritance, and not
by will. That is why in para 8 of Amar Singh (Supra) this Court
specifically observed that the facts in Ramji Dixit were quite C
distinguishable. Besides, as held by this Court in Mst. Karmi
Vs. Amru reported in AIR 1971 SC 745, a widow who succeeds
to the property of her deceased husband on the strength of his
will, cannot claim any right other than those conferred by the
will. Thus life estate·given to her under a will cannot become
an absolute estate under the provisions of Section 14 (2) of the D
Hindu Succession Act, 1956.
13. The learned Single Judge of the High Court held the
transfer by respondent No.1 was not invalid since sub-section
(2) of Section 169 of the U.P. Act had been deleted, which has E
been so done by U.P. Act No. 30 of 1975. This erstwhile sub-
section (2) read as follows:-
"(2) No bhumidhar entitled to any holding or part in
a
the right of [widow, widow of a male lineal descendant
in the male line of descent, mother, daughter, father's F
mother, son's daughter, sister or half-sister being the
daughter of the same father as the deceased], may
bequeath by will such holding or part."
As can be seen, the purport behind this sub-section is to G
prohibit a bhumidhar entitled to any holding in the right of a
female Hindu from bequeathing such holding by a will. The
learned Judge clearly erred in reading this sub-section (2), and
the effect of its deletion. He ignored that the present case was
one falling under sub-section (1) of Section 169 and not under H
318 SUPREME COURT REPORTS· [2012] 2 S.C.R.
A sub~section (2) since in the present matter the appellant was
asserting his right with respect to the land which he received
by way of the will of Umrao Singh. Respondent No.1 was
entitled to a share in the land on account of that will only, and
not on the basis of her own independent right. The will giving
B her a share had restricted it to her life time which Umrao Singh
was entitled to do under Section 169 (1) of the U.P. Act, and
the same would remain restricted in view of Section 14 (2) of
Hindu Succession Act, 1956.. The learned Judge had relied
on section 152 (1) of the U.P. Act, but that section also. cannot
c be read to take away the right of a bhumidhar to bequeath his
holding by a will bepause section 152 (1) states as follows:-
"152. Bhumidhari interest when transferable- (1)
The interest of a bhumidhar with transferable rights shall
subject to the conditions hereinafter contained, be
D transferable."
The present case is one of a bhumidhar bequeathing his
land by a will, and as held in Amar Singh (supra) the same was
clearly permissible. The bequest made under section 169 (1)
E in favour of a female Hindu, if it is a restricted one, shall remain
a restricted one under sub-section (2) of section 14 of Hindu
Succession Act, since the same will be governed by the terms
of the will. The learned Single Judge of the High Court. thus
clearly erred in holding that the bequest in favour of Respondent
F .No. 1 was not a restricted one. In view of what is stated above,
the Courts below erred in dismissing the suit filed by the
appellant. In the circumstances, the judgments rendered by the
High Court as well as by the Additional District Judge and by
the Civil Judge are clearly erroneous in law and on facts.
G The question of applicability of doctrine of 'lis pendes'
14. However, there are some subsequent developments
which we must note. On 15.02.2010, one Smt. Poonam Rajput
filed Interim Applications Nos. 3 and 4 of 201 O in this Civil
H Appeal. In I.A No. 3 she has applied for being impleaded as
JAGAN SINGH (DEAb) THROUGHLRS. v. 319
DHANWANTI &.&NR [H.L. GOKHALE, J.]
responder\( aha in L'ANo. 4 she sought exemption from filing A
the offiGial translation Gifthe annexµresto I.A No. 3 of 2010. By
its order dated 10.82010, this Court directed that both these
I.A. Nos. 3 & 4 to be listed alonglJl/ith the main appeaL We have
heard the learned senior ,cqunsel for .the applicant in support
of.the l.A.s an61 the counsel f0rthe appellant in reply thereto. In B
I.A No. 3 the applicant has claimed that the respondent No. 1
Dhanwanti has executed a registered sale deed in her favour
on 27.9.2004, and her name had been directed to be mutated
in the revenue records vide order dated 4.11.2004, and
recorded in the Khatauni on 13.5.2005. She has submitted that c
this sale had taken place at a time when the suit No. 121/1994
and the First Appeal No. 97/2002 filed by the appellant herein
had been dismissed on 28.7.2004. She claims to be a bonafide
purchaser of the land in dispute for a good price of Rs.
3,35;000/". D
15. (i) The applicant further .stated .that in view of this sale,
the appellant herein filed another suit No. 731/2004 on
8.10.2004 in the C0urt of Civil Judge (S.D.) Bijnaur, against
respondent No. 1 herein, wherein he joined the applicant as
defendant No. 2, The appellant had prayed for cancellation of E
the said sale deed dated 27.9.2004. He had sought a
permanent injunction restraining the deferndants from taking
possession of the disputed land.
(ii) ltis further stated that in .this I.A No. 3, that respondent F
No. 1 and the applicant opposed the suit; and prayed for its
dismissal by filing a joint written statement on 28.11.2004
wherein it was contended that the respondent No. 1 was the
owner of half share of the disputed land, and she had been
cultivating the same. It was also submitted that the first suit
having been dismissed, a second suit for the same subject G
matter was not ma'.ntainable.
(iii) It is pointed out that on 12.5.2005 the appellant filed
an application in this suit No. 731/2004, and placed it on record
that he had filed SLP (C) No. 6131/2005 (which is numbered.
H
320 SUPREME COURT REPORTS [2012] 2 S.C.R.
A as Civil Appeal No. 2467/2005 after the leave having been
granted i.e. the present appeal) against the judgment of the
Allahabad High Court arising out of the first suit. He placed it
on record that the Civil Appeal was admitted on 4.4.2005, and
that this court had directed maintenance of status quo in respect
B of the disputed land. The appellant had therefore prayed that
the second suit filed by himself be stayed till the decision on
the SLP by this Court, so that the multiplicity of the proceedings
can be avoided.
C (iv) It was thereafter pointed out that the respondent No. 1
and applicant had opposed that application for stay of the
second suit by their reply dated 22.8.2005. Amongst other it
was contended by them that certified copy of the order of this
Court had not been filed.
D (v) It is further stated in this I.A No. 3 of 2010 that this suit
No. 731/2004 remained pending for some time, and it came
to be dismissed for non-prosecution on 27.1.2010.
16. This I.A. No. 3 of 2010 has been opposed by the legal
E representatives of the appellant who have come on record
consequent upon his death. They have stated in their reply that
they had no knowledge about this second suit No. 731/2004
which was filed by the appellant, their predecessor in interest.
In any case they contend that the transfer made by the
F respondent No. 1 in favour of the applicant was 'pendente lite',
and therefore will have to be subject to the final decision of the
Civil Appeal. Inasmuch as a plea based on the principle of 'lis
pendens' has been raised, we may now examine the
applicability thereof to the facts of the present case.
G 17. The facts which have come on the record through I.A.
No.3 ancl 4 of 2010 and the reply thereto disclose that the
respondent No. 1 had entered into the agreement of sale of the
land in dispute with applicant Smt. Poonam Rajput on
27.9.2004 when suit No. 121/1994 and Civil Appeal No. 97/
H 2002 filed by the appellant had already been dismissed by
JAGAN SINGH (DEAD) THROUGH LRS. v. 321
DHANWANTI & ANR. [H.L. GOKHALE, J.]
orders dated 13.12.2002 and 28.7.2004 respectively. It is A
however necessary to note that this sale is within the period of
limitation when the second appeal could have been filed. The
appellant however chose first to file the second suit on
8.10.2004 for cancellation of the sale deed, wherein he joined
the aforesaid Smt. Poonam Rajput as respondent No. ·2. (In the 8
meanwhile he obtained the certified copy of the judgment and
order in the First Appeal on 5.8.2004.) Thereafter, he filed the
Second Appeal on 1.11.2004 which was filed within the period
of limitation. This appeal was dismissed on 18.11.2004 at the
admission stage, though after hearing both the parties. The C
appellant then filed the present Special Leave Petition. Special
Leave was granted in the present matter, and an order of status
quo came to be passed on the SLP on 4.4.2005. The original
appellant has however not disclosed either in the Second
Appeal or in the SLP that he had filed the second suit for setting
aside the sale deed. Consequently, it did not come on record
0
at that stage that the applicant claims to have purchased the
land even before filing of the Second Appeal at a time when
there was no order of stay in favour of the appellant. It is also
material to note that thereafter the appellant herein had applied
on 12.5.2005 for stay of his own second suit by pointing out E
about the pendency of the present proceedings and the order
of status quo having been passed therein. This second suit
came to be dismissed for non-prosecution on 27.1.2010. It is
contended by the legal representatives .of t~e appellant in their
reply to I.A No. 3/2010, that they were not aware about this F
second Suit No. 731/2004 filed by their predecessor in title, and
that is how, according to them the suit came to be dismissed
for default.
18. Section 52 ofthe Transfer of Property Act, 1882 (T.P. G
Act in short) which lays down the principle of 'lis-pendens' reads
asfollow:-
"52. Transfer of property pending suit relating thereto -
During the pendency in any Court having authority within
H
322 SUPREME COURT REPORTS [2012] 2 S.C.R.
A the limits of India excluding the State of Jammu and .
Kashmir or established beyond such limits by the Central
Government. ... Or any suit or proceeding which is not
collusive and in which any right or immovable property is
directly and specifically in question, the property cannot
B be transferred or otherwise dealt with by any partY to the
suit or proceeding so as to affect the rights of any other
party thereto under any decree or order which may be
made therein, except under the authority of the court and
on such terms as it may impose.
)
c ,, Explanation- For the purpose of this section, the
pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the plaint
or the institution of the proceeding in a Court of competent
jurisdiction, and to continue until the suit or proceeding has
D . been disposed off by a final decree or order and complete
', satisfaction or discharge or 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 force.
E
19. The broad principle underlying section 52 of the T.P.
Act is to maintain the status quo unaffected by the act of any
party to the litigation pending its determination. Even after the
dismissal of a suit, a purchaser is subject tp lis pendens, lt'an
F appeal is afterwards filed, as held in "Knshanaji Pandharinath
Vs. Anusayabai AIR ,(19'59) Born 475. In that matter the
respondent (o,riginal 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 under order IX, Rule 2, of
Code of Civil Procedure 1908, for non-payment of process fee.
G 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
charge was declared on the house. The plaintiff impleaded the
appellant to the darkhast as purchaser. The appellant resisted
H
JAGAN SINGH (DEAD) THROUGH LRS. v. 323
DHANWANT.I & ANR. [H.L. GOKHALE, J.]
the same by contending that the sale was affected when the A
suit was dismissed. Rejecting 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 XX of 1929, the B
expression "active prosecution of any suit or proceeding"
was used. That expression has now been omitted, and the
Explanation makes it abundantly clear that the 'lis'
continues so long as a final decree or order has not been
ol;>tained and complete satisfaction there of has not been C
rendered. At page 228 in Sir Dinshah Mulla's "Transfer of
Property Act", 4th Edition, after 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." D
If after the dismissal of a suit and before an 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 E
between the date of dismissal of the suit under Order IX
Rule 2, of the Civil Procedure Code· and the date of its
restoration, the 'lis' does not continue.
20. It is relevant to note that even when Section 52 of T.P.
Act was not so amended, a division bench of Allahabad High F
· Court had following to say in Moti Chand Vs. British India
Corporation AIR (1932) Allahabad 210:-
"The provision of law which has been relied upon by
the appellants is contained in S. 52, T.P. Act. The active G
prosecution in this section must be deemed to continue
so long as the suit is pending in appeal, since the
proceedings in the appellate Court are merely continuation
of those in the suit: see the case of Gobind Chunder Roy
H
324 SUPREME COURT REPORTS [2012] 2 S.C.R.
A v. Guru Chur Kurmokar 1888 15 C<tl. 94."
21. If such a view is not taken, it would plainly be
impossible that any action or suit could be brought to a
successful termination if alienations pendente lite were
permitted to prevail. The explanation to this section lays down
8
that the pendency of a suit or a proceeding shall be deemed
to ccntinue until the suit or a proceeding is disposed of by final
decree or order, and complete satisfaction or discharge of such
decree or order has been obtained or has become
unobtainable by reason of the expiration of any period of
C limitation prescribed for the execution thereof by any law for the
time being in force. In the present case, it would be canvassed
on behalf 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
D second appeal had not been filed. We would however, prefer
to follow the dicta in Krishanaji Pandharinath (supra) to cover
the present situation under the principle of lis-pendens since
the sale was executed at a time when the second appeal had
not been filed but which came to be filed afterwards within the
E period of limitation. The doctrine of lis-pendens is founded in
public policy and 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 T.P. Act.
F
22. In the circumstances, we hold as follows:-
(i) The judgment and order dated 13.2.2002 rendered by
the Civil Judge, Junior Division, Najibabad in the suit No. 121/
1994, the judgment and order dated 28.7.2004 passed by the
G Additional Dlstt. Judge, Bijnaur in Civil Appeal No. 97 of 2002,
and the one dated 18.11.2004 by a learned Single Judge of
Allahabad High Court in Second Appeal No. 982 of 2004 will
have to be held as not layin9 down the correct law and will
'therefore have to be set aside. The appellant had sought a
H permanent injunction against the respondent No. 1 from selling
JAGAN SINGH (DEAD) THROUGH LRS. v. 325
DHANWANTI & ANR. [H.L. GOKHALE, J.]
the concerned parcel of land either to the respondent No. 2 or A
otherwise. That sale had not taken place. The relief in Suit No.
121/1994 will therefore have to be moulded to grant only a
declaration that the respondent No. 1 had no right to sell the
disputed parcel of land.
B
(ii) The applicant Smt. Poonam Rajput has claimed that
the said parcel of land has been sold to her by the first
respondent subsequently on 27.9.2004. The second suit filed
by the appellant bearing Suit No. 731 of 2004 in the Court of
Civil Judge, Senior Division, Bijnaur sought to set-aside the C
sale in favour of the applicant. It has come to be dismissed for
default though the legal representatives of the appellant contend
that it was so dismissed since they were not aware about that
suit. However, although we have dealt with the applicability of
the principle of lis pendens to the present matter, the order
concerning the second sale passed in the second suit is not D
under challenge before us. It will be for the legal representatives
of the appellant to apply to that court for appropriate orders,
and it will be for that court to decide their application in
accordance with law after hearing .all the parties including the
applicant. E
(iii) Since, the learned senior counsel for the applicant has
been heard in support of the I.A. No.3 and 4 of 2010 no
separate order is necessary thereon. The same are disposed
of accordingly. F
23. Hence, we pass the following order:-
( a) The impugned judgment and order dated
13.2.2002 rendered by the Civil Judge, Junior Division,
Najibabad, U.P. in the Suit No. 121/1994, and those G
arising in the appeals therefrom rendered by the Additional
District Judge, Bijnaur and the High Court of Allahaba.d are
held to be bad in law and are hereby set aside.
H
326 SUPREME COURT REPORTS [2012] 2 S.C.R.
A (b) There shall be a declaration in favour of the
appellant that the respondent No. 1 had no right to sell the
disputed parcel of land. Suit No. 121 /1994 filed by the
appellant in the Court of Civil Judge, Junior Division,
Najibabad, U.P. shall stand decreed to that extent..
B
24. The Civil Appeal and I.A. Nos.' 3 and 4 of 2010 stand
disposed of as above. The parties will-tear their own costs.
N.J .. Matters disposed of.
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