Jarnail Singh vs Devinder Kumar and ors.

A.L. Bahri, J.

Vide this judgment two Regular Second Appeals Nos. 2058 and 2059 of 1983 are being disposed of as they have arisen out of the same suit.

Suit filed by Nand Lal and others for declaration that they were owners in possession of land measuring 14 Kanals 6 Marlas situated in village Sandhra on the basis of will dated March 13, 1971 executed by Jiwan Ram with consequential relief of permanent injunction restraining the defendants Tirath Ram and others from interfering in their possession was decreed by the trial Court on November 11, 1980 with regard to the declaration that the plaintiffs were owners of the suit land. With respect to the remaining relief, the suit was dismissed. Appeal was filed before the Lower Appellate Court by Tirath Ram and other defendants. During the pendency of the aforesaid appeal, Jarnail Singh moved an application for being impleaded as defendant in the suit, as he had in the meanwhile purchased the suit land from the defendants. He was allowed to prosecute the appeal on the understanding that he will not ask for remand of the case as mentioned in the judgment of the Additional District Judge. The appeal was dismissed by the Additional District Judge on June, (sic) 1984. Hence, the two appeals aforesaid, one filed by Jarnail Singh, the added defendant and other by Tirath Ram and others, the original defendants, in the suit.

It has been argued on behalf of Jarnail Singh, appellant, that on his becoming a party in the appeal, the case should been remanded to the trial Court allowing him an opportunity to file written statement contesting the suit. This contention cannot be accepted. Although there is no specific order passed by the Lower Appellate Court while allowing his application to become a party with respect to nonfiling of written statement. Yet, in the impugned judgment, it has been specifically mentioned that he was impleaded as a party on the clear understanding that he would not claim remand of the case and that he will not file any written statement. As a matter of fact Jarnail Singh having purchased the suit property during the pendency of the suit was to be bound by the final decree to be passed therein such a transferee is not entitled to enforce his transfer which is subject to the decision of the suit in view of Section 52 of the Transfer of Property Act. This provision provides that during pendency of any suit in a Court, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the right of any other party thereto under the decree or order which may be made therein. Only exception is if such transfer is made under the authority of the Court and on such terms as may be imposed. Jarnail Singh being a transferee from the defendants during the pendency of the suit itself cannot claim as is urged to be bona fide purchaser for valuable consideration without notice of pendency of the suit. The law prohibits such transfers during pendency of the suit. The provisions of Sections 4 and 53A of Transfer of Property Act would not apply to such a case. Pritam Singh and others, AIR 1975 Punjab and Haryana 205 observed on the scope of Section 52 of the Transfer of Property Act as under :

"The rule of lis pendens contained in Section 52 is based not on the doctrine of notice, but on expediency. The effect of this rule is not to annul the transfer but only to render it subservient to the rights of the parties to the litigation. According to this rule of lis pendens, whosoever purchases a property during the pendency of a suit is held bound by the judgment that may be made against the person from whom he derived his title even though such a purchaser was not a party to the action or had no notice of the pending litigation."

I fully agree with the view expressed as above. On being impleaded as a party in the appeal, Jarnail Singh could not claim any right to contest the suit by filing a separate written statement. He could only watch his interests along with other defendants from whom he had purchased the land.

It has further been argued that application filed by Jarnail Singh under Order 41 Rule 27 of the Code of Civil Procedure in the Court below to take into consideration mutations should have been allowed. This contention again cannot be accepted. The request was rightly rejected by the lower Appellate Court. Mutations do not create any title and production of this mutation would not have taken the case any further in the matter of deciding the question of title of the plaintiffs. Further reference would be made while deciding the issue of ownership.

Issue No. 1 framed in the suit relates to the execution and validity of the Will of Jiwan Ram who died on March 18, 1971 at the age of about 80 years. He had left behind 3 sons and 2 daughters namely Dheru Ran, Tirath Ram and Nand lal (sons) and Satya Devi and Shankuntla Devi (daughters). Out of them Nand Lal is one of the plaintiff, whereas Tirath Ram and others are the defendants. Defendants No. 3 to 5 are the children of Dheru Ram. Nand Lal plaintiff has three sons. Out of them 2 are coplaintiffs with him. The Will of Jiwan Ram is Ex. P1 and is dated March 13, 1971. Jiwan Ram had property in two villages namely Sandhra and Chak Raju Singh. Mutation on the death of Jiwan Ram with respect to the property situated in village Chak Raju Singh was sanctioned in the names of all the legal heirs of Jiwan Ram in equal shares and not in accordance with the Will. It is this mutation which was sought to be produced as additional evidence, in the Lower Appellate Court. The present dispute as already stated above related to the land of village Sandhra which is being claimed by Nand Lal and other plaintiffs,on the basis of Will of Jiwan Ram. The finding of both the Court below is regarding due execution of the Will and its validity. The Will has been proved in accordance with law from the evidence of PW1 Durga Dass, the scribe, PW 2 Parveen Kumar (one of the plaintiffs) and PW 3 Dehru Ram. The two attesting witnesses of the Will were Balmukand and Inder Singh. The contention of leaned counsel for the appellants is that the Will was shrouded by suspicious circumstances as it was executed by a very old person. There was no equal distribution of the land. The names of the daughters were not mentioned in the Will. All the legal heirs were serving the deceased in his old age and there was no reason to discriminate them and that the Will was not registered. All these points have been considered by the Courts below and I fully agree with the observations made by the lower Appellate Court that the Will is not shrouded by suspicious circumstances. Merely on the ground that the executant of the Will was aged or that the same was not registered or that there was no equal distribution of the property of the executant, are not sufficient per se to discard the Will. No evidence was produced by the defendants regarding the capacity of the executant to execute the Will with respect to his unsound disposing mind. The very fact that some of the heirs were not to be accommodated being his daughters who had been married and settled is not a ground to discard the Will as a suspicious document. With respect to uneven distribution of the land, cogent reasons were recorded in the Will itself. Some of the beneficiaries had already been benefited by the executant earlier. Thus, they were given slightly lesser property, whereas others were given major partition of the property. Tirath Ram defendant was given 1/4th share only from the property left in village Chak Raju Singh. Earlier Dehru Ram had been given land by making purchase by Jiwan Ram who was fully satisfied. Some property was given to Tirath Ram defendant also as stated above and under the Will some additional land was given to him i.e. 1/4th share of the land in village Chak Raju Singh. Remaining land of village Chak Raju Singh and the entire land in village Sandhra was willed away in favour of Nand Lal who was given a restricted right to hold the property till his death and thereafter the property was to be inherited by his two sons i.e. Devinder Kumar and Parveen Kumar who are now coplaintiffs, after the death of Nand Lal. The manner in which Jiwan Ram distributed his estate under the Will shows sound disposing mind that he saw to it that the property already given and subsequently willed away was equally distributed amongst his sons. The mutation which was sought to be produced as additional evidence related to village Chak Raju Singh. The contention was that since in village Chak Raju Singh all the legal heirs of Jiwan Ram have got the property in equal shares, it be assumed that the Will has not been acted upon and now fraud is being played by the present plaintiffs to get more land in village Sandhra which is not in accordance with the normal inheritance and this is being done to deprive other defendants as well as Jarnail Singh, a vendee. There is no force in this contention. Merely by production of the mutation it cannot be said that property in village Sandhra ws equally distributed or the Will is not to be acted upon. The mutations are not pieces of evidence to prove title. If there is a dispute, the parties have to approach the civil Court to establish their title and the present is such a suit. Assuming that there was some settlement regarding the property of village Chak Raju Singh between the heirs that will not affect rights of the parties in the land of village Sandhra. Thus, the mutation sought to be produced was not necessary for just decision of the case. Finding of the Courts below on issue No. 1 is therefore, affirmed holding that the Will executed by Jiwan Ram to be valid.

Under issue No. 2 admittedly during the pendency of the suit possession was delivered to Jarnail Singh by the other defendants after the sale. Thus, plaintiffs are not in possession of the suit land and only declaratory decree could be passed in their favour. This was so held by the Courts below. Nothing has been urged in this appeal on this point. Finding of the Courts below on issue No. 2 is affirmed accordingly.

Under issue No 3, it held that the defendants had sold the land to Jarnail Singh. This fact is also not being disputed in this appeal. However, as already observed above, since Jarnail singh purchased the land during pendency of the suit, he would be bound by the decision given in the suit.

For the reasons recorded above, both the appeals are dismissed with costs.

Appeals dismissed.