Munusamy Udayar vs S. Lakshmi and Others

T.V. Masilamani, J.—The defendant who lost before both the courts below is the appellant in this Second Appeal.

Originally the suit was filed by the deceased first plaintiff for declaration and recovery of possession of the suit property from the appellant

herein/defendant in the suit. Since the first plaintiff died on 24.2.1990 pending suit, his legal representatives were impleaded as plaintiffs 2 to 7 who

are the respondents 1 to 6 in this Second Appeal.

The trial Court decreed the suit as prayed for granting the relief of declaration and recovery of possession in favour of the respondents 1 to 6

and therefore the appellant herein preferred the appeal in A.S.No.37 of 1992 on the file of the Subordinate Judge, Arani challenging the legality of

the judgment and decree passed by the trial court. In the first appellate court also, the judgment and decree passed by the trial court were

confirmed and the appeal was dismissed. Hence, this Second Appeal.

The averments in the plaint filed by the first plaintiff (since deceased) are briefly set out hereunder:-

(a) The suit property was purchased by one Nathamuni Udayar for and on behalf of his handicapped daughter Mottai Muniammal by a registered

sale deed dated 14.12.1958 for a sum of Rs.1,000/-. The defendant married Govindammal, sister of the said Muniammal and after the death of

Govindammal, he married the said Muniammal before the Registrar of Marriages on 29.5.1975.

(b) Subsequently he deserted Muniammal also and married one Vendammal. After being deserted by the defendant, her husband, Muniammal was

residing along with her brother Thulasi Udayar at Thennalapiranthan village. While so, she executed the registered settlement deed dated 3.2.1981

in respect of the suit property in favour of her brother Tulasi Udayar, who having accepted the gift deed was in possession and enjoyment of the

property and thereafter by means of a registered settlement deed dated 6.6.1981 Tulasi Udayar settled the suit property in favour of Kamsala

Ammal.

(c) The plaintiff purchased the suit property from the said Kamsala Ammal under the registered sale deed dated 15.12.1981. Enraged by the order

of maintenance in favour of his deserted wife Muniammal, the defendant trespassed into the suit property on 11.4.1982 and cut and carried away

the trees standing thereon. Hence, the suit.

The averments in the written statement filed by the appellant/defendant are briefly as follows:-

(a) Though the suit property was purchased in the name of Muniammal there was a family arrangement in respect of the same to the effect that

besides Muniammal, her sister should also be entitled to the property and therefore it is false to contend that the defendant deserted his wife

Muniammal.

(b) Even during the life time of Govindammal, defendant sold his separate property situate in Kesamangalam village and utilised the sale proceeds

to reclaim the suit land. The defendant as well as Govindammal and Muniammal were in separate possession and enjoyment of each 1/3rd share in

the suit property and therefore it is false to contend that Muniammal was in exclusive possession and enjoyment of the same.

(c) The plaintiff is bound to prove the settlement deed mentioned in the plaint. Since Muniammal was not in exclusive possession of the suit

property, neither his brother Tulasi Udayar nor the said Kamsala Ammal had never been in possession and enjoyment of the suit property at any

point of time. Hence, the plaintiff could not have derived any valid title or possession of the suit property by virtue of the alleged sale deed

executed by Kamsala Ammal. The said sham and nominal document was created to get herself away from the defendant. Hence the suit is liable to

be dismissed.

On the above pleadings, the following issues were framed by the trial court:-

(1) Whether the sale deed executed by Kamsala Ammal is true and valid?

(2) Whether the said sale deed is hit by the doctrine of lis pendite, as the same had been executed during the pendency of this suit?

(3) Whether the judgment and decree in O.S.No.996 of 1981 had been obtained by the plaintiff in collusion with the defendant therein?

(4) Whether the plaintiff is entitled to the relief of recovery of possession as prayed for?

(5) Whether the settlement deed executed by Tulasi Udayar in favour of Kamsala Ammal is valid in law?

(6) To what relief the plaintiff is entitled to?

On the above issues, the learned District Munsif held that the sale deed executed by Kamsala Ammal in favour of the plaintiff is valid in law; that

the settlement deed executed by Tulasi Udayar in favour of Kamsala Ammal is valid in law; that the decree obtained in O.S.No.996 of 1981 was

the result of collusion between the parties to the same; and that therefore the sale deed obtained by the plaintiff in respect of the suit property while

the said suit was pending is not hit by the doctrine of lis pendite. In view of the said decision on issue Nos.1 to 3 and 5, he held on issue Nos.4 and

6 that the plaintiff is entitled to the reliefs as prayed for and directed the appellant herein/defendant to put the respondents 1 to 6/plaintiffs 2 to 7 in

possession of the suit property.

The learned Subordinate Judge having perused the records of the case and upon hearing both sides framed the following issues for

consideration:-

(1) Whether the plaintiffs are entitled to the relief of declaration and recovery of possession as prayed for?

(2) Whether the appeal has to be allowed as prayed for?

(3) To what relief the appellants are entitled to?

The learned counsel for the appellant has submitted inter alia among other grounds in this Second Appeal that the courts below erred in law in

not considering the scope of Section 53 of the Transfer of Property Act and the doctrine of lis pendens in the light of the facts of the present case.

Similarly, both the courts have not appreciated the fact that the defendant filed a suit against the vendor and the predecessors-in-title of the plaintiff

on 28.7.1981, much earlier to the sale deed dated 15.12.1981 and that there was a bona fide dispute between the vendor of the plaintiff and the

defendant on the date of this suit. Therefore the plaintiff as a pendite lite purchaser was bound by the result of O.S.No.996 of 1981 on the file of

the District Munsif Court, Arani.

Similarly, he has submitted further that the lower appellate court erred in assuming that the settlement deeds dated 3.2.1981 and 6.6.1981

were genuine and the reasonings given by the first appellate court is contrary to law and hence unsustainable. Similarly, the first appellate court

failed to notice that the sale deed dated 15.12.1981 marked as Ex.A-4 refers to the suit instituted by the defendant against the vendor of the

plaintiff and that therefore the plaintiff was fully aware of the pendency of the suit at the time of obtaining the sale deed.

Further he has submitted that the first appellate court ought to have concluded that as a pendite lite purchaser, the plaintiff is bound by the

decree obtained by the defendant in O.S.No.996 of 1981 on the file of the District Munsif, Arani for declaration of title and other reliefs against the

vendor of the plaintiff. The fact that there had been no collusion between the parties to the said suit has not been noticed by the courts below and

therefore the evidence adduced by both the parties had not been properly appreciated by both the courts in arriving at the right conclusion.

In the above circumstances, the following substantial questions of law framed by this court on 25.5.1993 arise for consideration:-

(1) Whether on the facts and circumstances of the case, the courts below are correct in coming to the conclusion that the plaintiff who is a

pendente lite purchaser is not bound by Ex.B-5 decree obtained by the appellant against the vendor of the plaintiff (vide) Samarendra Nath Sinha

and Another Vs. Krishna Kumar Nag, ?

(2) Whether in law, the strength or weakness of the case of the defendant who had obtained a decree in an earlier suit would in any way diminish

the vigour of right of Section 52 of Transfer of Property Act from operating against the person who had purchased property pending the earlier

suit? Kedar Nath Lal and Another Vs. Ganesh Ram and Others, ;

(3) Whether the courts below are correct in their conclusion that transfer in favour of the plaintiff is not hit by doctrine of lis pendens as the decree

in the earlier suit pending which the transfer taken place was a collusive and especially when neither it is the case pleaded by the plaintiff nor is

there any proof for the same?

(4) Whether the courts below are right in relying upon Exs.A-2 and A-3 settlement deeds which have not been proved by examining the parties to

the deeds or one of the attesters as required u/s 67 of the Evidence Act?

The facts not in controversy may be set out hereunder. The suit property was originally purchased in the name of Mottai @ Muniammal under

a registered sale deed dated 14.12.1958, registration copy of which is marked as Ex.A-1. Similarly, it is not in dispute that Govindammal, younger

sister of the said Muniammal was married to the defendant and thereafter subsequent to the death of Govindammal, the defendant married the said

Muniammal.

Learned counsel for the appellant/defendant has put forth the contention that while the suit in O.S.No.996 of 1991 was filed by him against the

brother of Muniammal, namely, Tulasi Udayar and his wife Kamsala Ammal in respect of the suit property was pending, both Tulasi Udayar and

his wife Kamsala Ammal executed the registered sale deed Ex.A-4 dated 15.12.1981 in favour of the plaintiff in respect of the suit property and

that therefore the said sale is hit by the principle lis pendens. In the above circumstance, the substantial question relating to transfer of the suit

property under Ex.A-4, registered sale deed arise for consideration.

It is no doubt true that the said Muniammal executed the registered settlement deed dated 3.2.1981 marked as Ex.A-2 in favour of her brother

the said Tulasi Udayar, who in turn executed another registered settlement deed dated 6.6.1981 marked as Ex.A-3 in favour of his wife Kamsala

Ammal settling the suit property thereunder. Therefore according to the learned counsel for the respondents/plaintiffs, both Tulasi Udayar and his

wife Kamsala Ammal who derived valid title to the suit property under Exs.A-2 and A-3, executed the registered sale deed Ex.A-4 in favour of

the plaintiff for valuable consideration and therefore the suit in O.S.No.996 of 1981 filed by the defendant against both Tulasi Udayar and Kamsala

Ammal for partition and separate possession of 1/3rd share in the suit property without having any semblance of right or title to the same cannot be

said to be bona fide proceedings so as to invoke the principle lis pendens u/s 52 of the Transfer of Property Act, 1882.

In the above circumstances, it has become necessary to extract, the provision u/s 52 of the said Act hereunder:-

Transfer of property pending suit relating thereto.-- During the pendency in any court having authority within the limits of India excluding the

State of Jammu and Kashmir Government or established beyond such limits by the Central Government of any suit or proceedings which is not

collusive and in which any right to immovable property is directly and specifically in question, the property cannot 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.

Explanation: For the purposes 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 been disposed

of by a 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 limitation prescribed for the execution thereof by any law for the time being in force.

However, the learned counsel for the defendant would urge with reference to the above provision of law that in view of the family arrangement

entered into between the said Muniammal, her sister Govindammal and the defendant at the instance of the mother of the said Muniammal, he

become entitled to 1/3rd share in the suit property and therefore he has urged that the suit instituted by the defendant for partition and separate

possession of his 1/3rd share is bona fide. In the above circumstances, the learned counsel for the defendant has referred to the terminology used

in the above provision of law, namely, ""any suit or proceedings which is not collusion and in which any right to immovable property is directly and

specifically in question"" and argued that since the suit filed by the defendant for partition of his share in the suit property is neither collusive nor

having been instituted without any right over the suit property, it clearly bars the competency of any one to transfer any right or interest over the

property involved in the suit.

He has relied on the decision Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, in support of his further contention that under

Explanation to Section 52 of the Transfer of Property Act, the purchaser of the suit property, namely, the plaintiff herein is bound by the result of

the said suit. Therefore, the learned counsel for the defendant would contend that in view of the preliminary decree for partition passed in favour of

the defendant in the said suit, the sale deed Ex.A-4 in favour of the plaintiff would not clothe him with any right or title to the extent of 1/3rd share

in the suit property in favour of the plaintiff.

But, on the contrary, the learned counsel for the respondents/plaintiffs has drawn the attention of this Court to the findings rendered by both the

courts below on the factual aspect of the matter that the suit was filed by the defendant without having any pre-existing right over the suit property

and that on the basis of the recorded evidence the collusiveness among the parties to the suit had been amply proved. Therefore he has urged that

in view of the principle of law enunciated in the decision Nagubai Ammal and Others Vs. B. Shama Rao and Others, rendered by the Supreme

Court, the defendant could not have derived any right or title to any share in the suit property on the basis of such collusive proceedings.

It is therefore necessary in this context to extract the ratio laid down by the Hon''ble Supreme Court with reference to the nature of collusive

proceedings and it reads as follows:-

There is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. Collusion in judicial proceeding is a secret

arrangement between two persons that one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some

sinister purpose (Wharton''s Law Lexicon, 14th Edition page 212). In such a proceeding, the claim put forward is fictitious, the context over it is

unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of

confounding third parties.

For the same reason, this Court is of the opinion that even though the proposition of law laid down in Samarendra Nath Sinha and Another Vs.

Krishna Kumar Nag, relied on by the learned counsel for the defendant is not disputed, the said principle cannot be applied herein for the reason

that the defendant has not proved that the litigation initiated by him was bona fide in nature.

In view of the above said ratio of the decision, if the proceedings initiated by the defendant is analysed in the light of the recorded evidence of

the case, one would come to the irresistible conclusion that the suit instituted by the defendant was a collusive proceeding. As has been rightly

argued by the learned counsel for the plaintiffs, both Tulasi Udayar and Kamsala Ammal having executed the registered sale deed Ex.A-4 dated

15.12.1981 in favour of the plaintiff would fail even to prosecute the application in I.A.No.377 of 1985 in O.S.No.996 of 1981, in the suit filed by

the defendant herein to set aside the exparte decree.

Further it is seen from Ex.B-6 certified copy of the petition and order therein that the vendor under Ex.A-4 remained absent allowing the said

application to be dismissed for non-prosecution. Furthermore, the learned counsel for the plaintiff has pointed out during the course of his argument

that the vague allegation made by the defendant in the written statement regarding the family arrangement would have had no legal sanctity for the

simple reason that the same had not been engrossed in a document in accordance with law.

Moreover, the defendant being the estranged husband of Muniammal was not entitled to any share in the suit property subsequent to the

settlement deed under Ex.A-2 dated 3.2.1981 executed by the said Muniammal in favour of her brother Tulasi Udayar in respect of the suit

property. It is evident from Exs.B-5 and B-6 that the suit had been instituted on 28.7.1981 by the defendant herein long after the deed of

settlement under Ex.A-2 dated 3.2.1981 and therefore, it goes without saying that since Muniammal parted away with the title to the suit property

under the said settlement deed under Ex.A-2 and inasmuch as she was married to defendant as his second wife during the subsistence of his earlier

marriage with her sister Govindammal, she could not have derived any valid right or interest over the suit property so as to claim partition in respect

of the same by filing the said suit.

Therefore in any view of the matter, the defendant has miserably failed to establish his right to claim partition in the suit property and it

necessarily follows that the transfer inter vivos under the sale deed Ex.A-4 dated 15.12.1981 cannot be questioned by the defendant in any event.

Moreover, as has been rightly held by both the courts below, the proceedings initiated by him is held to be collusive and therefore the inescapable

conclusion would be that in view of the ratio laid down in the decision Nagubai Ammal and Others Vs. B. Shama Rao and Others, , the defendant

has not succeeded in establishing his case in this Second Appeal.

For the aforesaid reasons, the Second Appeal is dismissed with costs confirming the judgments and decrees passed by both the courts below.