1 SA445/89 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 445 OF 1989 Rubabbi w/o Harun Shah Barphiwale (died) Through L.Rs. Appellants 1-A Harun Abudakar Shah, Aged 70 years, Occupation Agriculture 1-B Aslam s/o Harun Shah, Aged 45 years, Occupation Agriculture 1-C Altaf s/o Harun Shah, Aged 42 years, Occupation Agriculture 1-D Hasim s/o Harun Shah, Aged 40 years, Occupation Agriculture 1-E Aakil s/o Harun Shah, Aged 38 years, Occupation Agriculture 1-F Saida d/o Harun Shah, Aged 35 years, Occupation Housewife All resident of Mangalwar Peth, Near Municipal Corporation, Paranda, Taluka and District Osmanabad V E R S U S 1 Sarjerao Bhagwan Shelke Respondents 2 Bhagwan Bhiva Shelke, died, his legal representatives (1-A) Limbabai w/o Rangnath Shinde; (1-B) Sheshanbai w/o Digamber Sangade; (1-C) Pushpabai w/o Madhukar Kadam; 3 Ankush Bhagwan Shelke (died) L.Rs. 3(a) Lahu Ankush Shelke (died) L.Rs. 3(a-1) Chaya w/o Lahu Shelke, Aged 35 years, Occupation Agriculture, Resident of Katrabad, Taluka Paranda, District Osmanabad 3(b) Sanjay s/o Ankush Shelke, Aged 25 years, Occupation Agriculture 2 SA445/89 3(c) Surekha d/o Ankush Shelke @ Surekha Sampati Narde, Aged 21 years, Occupation Household, Resident of Bodkha, Taluka Paranda, District Osmanabad 3(d) Mandabai w/o Ankush Shelke, Aged 45 years, Occupation Household All resident of Katrabad, Muje, Taluka Paranda, District Osmanabad Mr. V.C. Solshe, Advocate for the appellants Mr. S.M. Kulkarni, Advocate for respondent No.1,2AB CORAM : A.V. NIRGUDE, J. DATED : 15th June, 2011 ORAL JUDGMENT : The facts leading to this litigation, in short, can be stated as under : 1. Respondent No.1 / original plaintiff filed a suit for following cause of action. He said that his father Bhagwan and his brother Ankush formed a joint Hindu family. This family owned several pieces of lands. He said that his father Bhagwan got old and stopped managing the joint family property as Karta. He said that he and his brother Ankush then took over the management of the family property and then partitioned the property into two parts. He further said that he, his father and brother divided the ancestral property and the suit property viz land survey No.20-B and 15-C of village Katrabad, Taluka Paranda, District Osmanabad fell to his share. He further alleged that his father is habituated to drinking and was intending to sell the above mentioned lands to one Harun Shah. On this cause of action, he brought the Regular Civil Suit No. 83 of 1974 initially against his father and his brother (who supported his case). Despite of filing of such suit, his father alienated both the lands, mentioned above, to one Rubabbi w/o Harun Shahabarphiwale and Dagdu Shelke. So, the original respondent No. 1 3 SA445/89 amended the plaint and made Rubabbi a party to the suit and sought declaration that the alienation in her favour was null and not binding on him. Respondent No. 1 / original plaintiff, however, did not challenge the alienation in favour of Dagdu. Respondent No.1’s father Bhagwan opposed the suit on merits, so also the original appellant. They contended that there occurred no partition of the land as asserted by respondent No. 1 and that the alienation was made for a legal necessity. 2. The learned Judge of the first appeal Court ultimately held on the basis of the evidence on record that Bhagwan was karta of the family and was managing not only the suit lands but also other lands as joint family property. He held further that respondent No. 1 did not prove his case of partition and that he was exclusive owner of the suit lands. In other words, the learned Judge of the first appeal Court held that the suit lands were property of joint Hindu family of respondent No.1, his brother and his father. However, the learned Judge held that Bhagwan, the father of respondent No.1 and the original appellant could not prove that the transaction was for legal necessity. So, in view of this finding, the learned Judge allowed the first appeal and held that the transaction was null and not binding on respondent No. 1. It is pertinent to note that the original appellant did not take alternative stand that in case the transaction could not be held to be for legal necessity, she is entitled to partition of the lands belonging to the joint family with a plea that the suit lands should be allotted to the share of her vendor. The learned Judge of the first appeal Court also held that the transaction that took place during pendency of the suit was hit by Section 52 of the Transfer of Property Act. 3. Following substantial question of law arose for my consideration in this appeal : 4 SA445/89 Whether the finding recorded by the learned Judge of the first appeal Court in respect of nature of the transaction was perverse ? The learned Advocate appearing for the appellant contended that the learned Judge of the first appeal Court ignored evidence on record and so his finding on the nature of the transaction is perverse. On perusal of the Judgment, this argument is not found incorrect. The learned Judge rightly noted that the appellant and her vendor did not enter witness box to prove that the transaction was for legal necessity. The learned Judge of the first appeal Court rightly held that stray admission given by respondent No.1’s witness could not be used to hold that one of the sons of Bhagwan was suffering from Tuberculosis and that for his treatment Bhagwan was in need of money and that Bhagwan had legal necessary for sale of the suit lands. I am, therefore, not inclined to disturb the finding recorded by the learned Judge of the first appeal Court on the nature of the transaction. I agree with him when he held that the transaction was not for legal necessity and so would not bind defendant No.1 or for that matter his brother / original respondent No. 3 Ankush. 4. The second question is, whether this transaction which admittedly took place during pendency of the suit would hit by Section 52 of the Transfer of Property Act ? In order to appreciate the rival arguments, one must read the relevant provision. Section 52 of Transfer of Property Act reads as under : 52. 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 5 SA445/89 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. 5. The learned Advocate appearing for the appellant contended that the suit was not maintainable because respondent No. 1 had no right to file a 6 SA445/89 suit for preventing his father, the manager of joint Hindu family from exercising his right as karta and from alienating the joint family property. He placed reliance on the Judgment of Supreme Court in the case of Subodhkumar and others v. Bhagwant Namdeorao Mehetre and others (AIR 2007 SC 1324). The Supreme Court while discussing the unique position of ‘karta’ of joint Hindu family referred to its another Judgment in the case of Sunil Kumar and another v. Ram Parkash and others (AIR 1988 SC 576) in which it was held as under : “...Apart from that, a father-karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled 7 SA445/89 for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property.” He asserted that the suit originally filed by respondent No. 1 was for injunction simplicitor to prevent his father, karta of joint Hindu family from alienating the joint family property. He said that such a suit would not fall within the frame work of Section 52 of the Transfer of Property Act. He said that in such a suit, defendant No.1’s right to immovable property was not directly and specifically in question. He said, therefore, the transaction that took place between original appellant and father of respondent No. 1 could not hit by Section 52 of the Act. He said that in such a suit defendant No. 1’s right to immovable property was not directly and specifically in question. He said, therefore, the transaction that took place between the original appellant and father of respondent No.1 would not hit by Section 52. The learned Judge of the First Appeal Court in para No. 18 recorded his reasons as to why he held that the suit transaction was bad and hit by Section 52. I found them quite correct. He further submitted that assuming that the transfer took place during the pendency of the suit and that Section 52 would apply to such situation, he said that said transaction would be bad only to the extent of respondent No. 1’s share. In support he placed reliance on the judgment of Calcutta High Court in the case of Indu Bhushan Mitra v. Sudhakar Choudhury and others (AIR 1957 Cal. 106). In this judgment it was held : " The doctrine of lis pendens as embodied in S. 52, Transfer of Property Act, does not mean that a transfer pendente lite is either illegal or void. What it does mean is that it is only voidable to the 8 SA445/89 extent that it affects the rights of the party who obtains the decree or an order in the pending litigation and that at the instance of that party only and not of any other party. It is good otherwise and cannot be questioned by a third party or even by the successful party in the pending litigation if his right in the property in question is left unaffected by the transfer.” Thus the provisions of Section 52 would at the most affect the sale-deed, as far as defendant No.1’s share in the suit property. In other words, if the suit piece of land was held to be a joint family property and if respondent No.1 had undivided share in it, the transaction would be bad only to the extent of defendant No. 1’s share. I am afraid, this submission has some factual error. At the time of transaction the joint family consisting of two sons and the father. Respondent No.1’s brother Ankush was alive. Then he too had undivided share in the joint family property. So, it can almost be said that the transaction would remain effective only to the extent of share of father i. e. original defendant No.1. Unfortunately, the appellant has not so far filed any suit for partition. So, in view of the ratio of above mentioned judgment, the appellant may have glimmer hope to protect his interest in the suit property to the extent of share of his vendor. In view of this, the appeal would fail. The Second Appeal stands dismissed. 6. During the pendency of this appeal Civil Application No. 8369 of 2010 is filed by respondent No.1. He contended there that due to certain events that took place between the parties, the appeal would fail. The appellant, however, denied assertions of respondent No.1 and therefore there is no reason for examining into the disputed question between the parties that has arisen during the pendency of this appeal. Therefore, Civil Application No. 9 SA445/89 8369 of 2010 stands dismissed. This, however, does not mean that this Court has recorded any finding on questions of fact that might have arisen between the parties during the pendency of the second appeal. ( A.V. NIRGUDE, J. ) SRM/sa/445/89/15/6/11/ok