1999 Supreme(Del) 1063

High Court Of Delhi
BHARAT SINGH - Appellant
Versus
GOPI RAM - Respondent
REGULAR FIRST APPEAL 16 of 1971
Decided On : 12/01/1999

The principle of lis pendens applies to involuntary alienations like Court sales and that even though Section 52 of the Transfer of Property Act does not strictly apply to Court sales, the principle of lis pendens applies to such alienations.

Headnote:

AUCTION SALE - LIS PENDENS - TRANSFER OF PROPERTY ACT, 1882 - SECTION 52 - COURT SALE - TITLE OF PURCHASER - FRAUDULENT DECREE - BINDING EFFECT - AUCTION SALE PENDING SUIT - PRINCIPLE OF LIS PENDENS - APPLICABILITY - THIRD PARTY AUCTION-PURCHASER - BOUND BY PRINCIPLE OF LIS PENDENS - SALE PENDING FINAL DISPOSAL OF SUIT - PRESENCE OF THIRD PARTY AUCTION-PURCHASER NOT NECESSARY - PURCHASER GETS ONLY SUCH TITLE AS SELLER HAD - NO TITLE IN SELLER, NO TITLE IN PURCHASER - COURT SALE - INACTION OF REAL OWNER DOES NOT DEBAR HIM FROM CLAIMING TITLE TO PROPERTY - JUDGMENT-DEBTOR WITH NO SALABLE INTEREST - PURCHASER GETS NO INTEREST IN PROPERTY.

Fact of the Case:

Appellants filed objections under Order 21 Rule 58, Civil Procedure Code against the attachment of properties claiming that these properties belonged to Joint Hindu Family firm M/s. Jairam Dass Ramnarain and that Smt. Bhagirati Devi had no share in these properties. The objections were dismissed and no reasons were assigned. Appellants filed fresh objections under Section 47 read with Section 151, Civil Procedure Code. These objections were dismissed on the ground that the same were not maintainable under section 47 of the Civil Procedure Code. An appeal against this order was dismissed by the High Court on the ground that Section 47 of the Civil Procedure Code was not applicable. In the meantime, appellants had filed Suit No. 224/50 for a declaration that various properties mentioned in the plaint of that suit were Joint Hindu Family properties. A decree was passed on 31/12/1953. By this decree, it was held that the properties in question were Joint Hindu Family properties and that on the death of Maha Chand these properties had devolved upon the other co-parceners. It was further held that mutation entries in favour of Smt. Bhagirati Devi had been wrongly made and they were directed to be deleted. It was further held that Smt. Bhagirati Devi had a right of maintenance even though she had no share in the Joint Family properties. Against the decree dated 31/12/1953, Smt. Bhagirati Devi filed an appeal to Punjab High Court. Vide judgment dated 9/11/1959 the Punjab high Court set aside me decree and held that Smt. Bhagirati Devi had a share in these properties. Appellants filed an appeal to the Supreme Court. On 26/08/1965, the Supreme Court set aside the judgment of the Punjab High Court and restored the decree dated 31/12/1953. On 18/07/1951, appellants filed Suit No. 732/51 against the firm M/s. Sheo Parshad Giani Ram as well as Smt. Bhagirati Devi for a declaration that the decree in Suit No. 379/50 against M/s-Jairam Dass Ramnarain was fraudulent and collusive and not binding on the appellants. They also sought an injunction restraining the firm of M/s. Sheo Parshad Giani Ram from attaching any Joint hindu Family properties. This suit was decreed by Shri S. D. Tyagi, SJIC, on 9/04/1960. It was held that the decree was fraudulent and collusive. It was declared that the decree would not be executed against the appellants and/or the Joint family properties. An injunction was granted against M/s. Jairam Dass Ramnarain from executing the decree. It was further held mat personal liability of Smt. Bhagirati Devi for payment of decretal amount was not affected. Against mis decree, an appeal was filed by the firm of M/s. Sheo Parshad Giani Ram. This was dismissed on 10/08/1961. A second appeal to the High Court was dismissed in limine on 1/03/1962. No further appeal was filed to the Supreme Court. On 18/07/1962, the abovementioned three shops were auctioned. On 13/08/1962, appellants filed objections under Order 21 Rules 47 and 58 and Order 21 Rules 98 and 100, Civil Procedure Code for setting aside the auction sale. Shri k. D. Mohan, Sub Judge, dismissed the objections as not being maintainable. The high Court vide order dated 28/01/1964 sustained these findings and held that the objections were not maintainable. On 3/12/1962 the appellant filed Suit No. 196/63 on 3/12/1962 against the present respondents Smt. Bhagirati Devi and firm m/s. Sheo Parslad Giani Ram that the auction sale was null and void and did not confer any right on the auction-purchasers. On 3rd October, 1964, this s suit was dismissed by Shri S. R. Goel, Sub Judge Delhi on the ground that since this suit had not been filed within one year after the order dated 19/08/1950, of Shri purshotam Swaroop, Sub Judge, which dismissed the objections under Order 21 rule 58, Civil Procedure Code. Thus, this suit was dismissed only on the ground of limitation. An appeal was filed by appellants in the High Court at Delhi. The High court vide its judgment dated 24/05/1977, which has been reported in AIR (1978) delhi 122, set aside the order dismissing the suit and remanded the matter for fresh disposal. Against the judgment of the High Court, the respondents herein filed an appeal to the Supreme Court. The Supreme court also held that there was misrepresentation of fact before that Court. The judgment of the Supreme Court dated 4/10/1989 i- reported in AIR (1990) sc 753. A review petition was filed before the Supreme Court. However, that also came to be dismissed on 6/11/1990. Pursuant to the order of the High Court the suit had been remanded for fresh disposal. The suit was now numbered as Suit No. 180/77. This suit was finally disposed of by judgment dated 6. 1. 1979. By this judgment it has been held by Shri jaspal Singh, the then ADJ, that Smt. Bhagirati Devi had no share in the abovementioned three shops and that appellants were the owners of the same. It was also held that the sale of properties in favour of the respondents herein was null and void and did not confer any right on the respondents. RFA No. 345 of 1979 has been filed against this judgment. On 19/07/1965, the respondents filed this suit claiming that they had one-third share in the abovementioned three shops. They, therefore, prayed for a partition of these shops. On 16/07/1971, the suit was decreed.

Finding of the Court:

The court held that the impugned judgment could not be maintained as a purchaser would get only such title as the seller had. If the seller had no title the purchaser gets no title. This principle would apply even to Court sales. The court also held that the principle of lis pendens laid down in Section 52 of the Transfer of Property Act would apply and even though an attachment before judgment may have been allowed such an attachment would be effective against the lis pendens.

Issues: (1) Whether the plaintiffs are owners of 1 /3rd share of property in dispute. If not, what is the effect on the suit ? (2) Whether the suit has been properly valued for purposes of Court-fee and jurisdiction ? (3) Whether the suit is not maintainable in its present from ? (4) Whether the suit for accounts is competent ? If so, to what period the plaintiffs are entitled to accounts ? (5) Relief.

Ratio Decidendi: The court held that the principle of lis pendens applies to involuntary alienations like Court sales and that even though Section 52 of the Transfer of Property Act does not strictly apply to Court sales, the principle of lis pendens applies to such alienations. The court also held that the purchaser would get only such title as the seller had and that if the seller had no title the purchaser gets no title.

Final Decision: The court allowed the appeal, set aside the decree and dismissed the suit.