KIRPAL KAUR versus JITENDER PAL SINGH & ORS.
[2015] 8 S.C.R. 51, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
[2015] 8 S.!;,R. 51 
KIRPAL~,U.R 
V. 
'<)• 
JITENDER PAL SINGH & ORS. 
(Civil Appeal No. 2820 of 2015) 
July 14, 2015 
[V. GOPALA GOWDA AND C. NAGAPPAN, JJ.] 
A 
B 
Partition - Decree of partition - Claim of, by plaintiff-
daughter-in-/aw against defendant-father-in-law, of the joint c 
family properties seeking her late husband's share -
Dismissed by trial court as also first appellate court - On 
appeal, held: Courts below erred in not granting share to the 
plaintiff in the schedule 'B' property despite the positive and 
substantive evidence of the defendant that the property was D 
a joint family property and the plaintiff's husband had 
contributed towards the construction of the property- Further, 
as regards gift deed allegedly executed by first defendant in 
favour of the second defendant-second son in respect of the 
schedule 'B 'property during the pendency of the proceedings E 
and before the expiry of the period of/imitation for filing SLP, 
said gift deed is hit bys. 52- Second defendant who claimed 
to be the beneficiary of the said property did not seek leave 
of the court as donee - In absence thereof, it would not affect 
the relief sought by plaintiff, during the pendency of the 
F 
proceedings before this Court - Also gift deed is invalid - It 
could not have been acted upon by defendants as plaintiff 
was in possession of the second floor of the said property in 
herhusband'sindependentright-Thus, s. BoftheAct, 1956, 
G 
would come into operation in
respect of the said property-
Upon the death of first defendant, his property would devolve 
upon the husband of the plaintiff along with second defendant 
and other daughters of the deceased - Plaintiff and each 
one of the defendants assigned 114'h share equally in the H 
51
52 
SUPREME COURT REPORTS 
[2015] 8 S.C.R. 
A said property- Transfer of Property Act, 1882- s. 52- Code 
of Civil Procedure, 1908 - Or. 22 r. 10 - Hindu Succession 
Act, 1956 - s. 8. 
B 
Allowing the appeal, the Court 
HELD: 1.1 The concurrent finding of fact recorded 
by both the trial court as well as the first appellate court 
on the contentious issue No.4 are not only erroneous in 
law but also suffer from error in law for the reason that 
c there is a positive and substantiv~ evidence elicited by 
the deceased-first defendant during the course of his 
cross examination before the trial court, wherein l>e had 
in unequivocal terms admitted in his evidence that he, 
his sons and daughters have an ancestral property in 
D his village and the same has not been divided between 
them and that he used to get the income from the said 
agricultural land and the same was utilized by him for 
the construction of the building-schedule 'B' property; 
and that he had received money for the construction of 
E the said building from the plaintiff's husband while he 
was in Kuwait. Therefore, it amounts to putting the said 
property in the hotchpot of joint family property. Both 
the trial court and the first appellate court erred in their 
decisions in not granting a share to the plaintiff in the 
F schedule 'B' property by recording·an erroneous finding 
even though she is legally entitled for the same. [Para 
14, 17] [65-G-H; 66-A-C; 67-E-F] 
1.2 Having regard to the fact that
immediately 
G within two weeks from the date of disposal of the first 
appeal by the High Court and before the expiry of the 
period of limitation for filing special leave petition before 
this Court challenging the impugned judgment, the gift 
deed was allegedly executed by the deceased-first 
H defendant in favour of the second defendant-second son
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
53 
which was made available for perusal only after this A 
Court directed the second defendant's counsel to do so. 
The execution of the alleged gift deed is hit by Section 
52 of the Transfer of Property Act, 1882, as the said deed 
was executed during the pendency of the proceedings 
and before the expiry of the period of limitation for filing B 
SLP. Further, during the pendency of these proceedings, 
the second defendant, who claimed to be the alleged 
beneficiary of the suit schedule 'B' property on the basis 
of alleged gift deed should have sought leave of this 
Court as the donee and brought the said fact of C 
execution of the alleged gift deed· in respect of '8' 
schedule property by the deceased first defendant, 
which property devolved in his favour, to the notice of 
this Court as provided u/Or. 22 r. 10 C.P.C. and defended 0 
his right as required under the law. Leave can be 
obtained only by that person upon whom interest has 
devolved during the pendency of the suit, otherwise, 
there may be preposterous results, as such a party might 
be unaware of the pending litigation and the same would E 
not be consequently feasible. If a duty is cast upon him 
then in such an eventuality he is bound by the decree 
even in case of failure to apply for leave. Therefore, as a 
rule of prudence, the initial duty lies upon the person on 
whom such an interest has devolved upon any such F 
property to apply for leave of the court in
case the factum 
of devolution was within his knowiedge or with due 
diligence could have been known by him. [Para 17-19] 
[67-F-G; 68-C-E; 69-G-H; 70-A-B] 
1.3 The factum of the said alleged gift deed was 
not made known to this Court by the second defendant 
who is the beneficiary of the said gift deed till the last 
G 
· stage of conclusion of submission by tile counsel. The 
absence of any leave sought by the second defendant H
54 
SUPREME COURT REPORTS 
(2015] 8 S.C.R. 
A on the ground that his interest has devolved upon the 
schedule 'B' property of the deceased-first defendant, 
would not affect the relief sought by the plaintiff during 
the pendency of the proceedings before this Court when 
no application was submitted either by the plaintiff or by 
B the second defendant in this regard. [Para 20] [70-C; 72-
E] 
1.4 The gift deed is invalid as it is evident from the 
factual and legal aspect of the case that the gift deed of 
C the schedule 'B' property was executed by the deceased 
first defendant in favour of the second defendant during 
the pendency of the proceedings and the same could 
not have been acted upon by the defendants as the 
plaintiff was in possession of the second floor of the said 
D property in her husband's independent right. The same 
is also not acted upon by the parties for the rea!lon that 
the plaintiff was in physical possession of the second 
floor of the 'B' suit schedule property and therefore, in 
fact, she could not have delivered the possession to the 
E second defendant and acted upon the same, hence, 
Section 8 of the Hindu Succession Act, 1956, would 
come into operation in respect of the said property. The 
said property of the deceased-first defendant would 
F devolve upon the deceased husband of the plaintiff 
along with the second defendant and the other 
daughters of the deceased-first defendant as they are 
the joint owners of the said property by
virtue of being 
Class I legal heirs of the deceased-first defendant as per 
G the schedule to 1956 Act, upon the death of the first 
defendant. [Para 25] [76-H; 77-A-D] 
1.5 The concurrent finding recorded by both the 
trial court and the first appellate court on issue no.4 is 
set aside. The courts below failed to exercise their 
H jurisdiction and power properly, thereby causing a grave
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
55 
miscarriage of justice to the rights of the plaintiff upon A 
the 'B' schedule property. The judgments and decree 
passed by the trial court and the first appellate court are 
set aside, as regards 'B'schedule property. The plaintiff 
and each one of the defendants are assigned 1/41" share 
equally in the suit schedule "B" property. [Para 23, 26) B 
[76-D; 77-F-G] 
Dhurandhar Prasad Singh v. Jai Prakash University & 
Ors. 2001 (3) SCR 1129:(2001) 6 SCC 534; Rikhu Dev 
Che/a Bawa Harjug Dass v. Som Das (deceased) 
Through Che/a Shiama Dass 1976 (1) SCR 487:(1976) 
1 SCC 103; Jagan Singh v. Dhanwanti 2012 (2) 
SCR 303:(2012) 2 SCC 628 - referred to. 
Case Law Referenc-e 
2001 (3) SCR 1129 
1976 (1) SCR 487 
2012 (2) SCR 303 
Referred to. 
Referred to. 
Referred to. 
Para 18 
Para 18 
Para 21 
c 
D 
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 
E 
2820of2015. 
From the Judgment and Order dated 31.10.2012 in 
RFA (OS) No. 41 of 2011 of the High Court of Delhi, at New 
Delhi. 
F 
J. P. Gama, Ravi Bhushan, Mayan Prasad, Gopal Singh 
for the Appellant. 
Rakhi Ray, S. S. Ray, Vaibhav Gulia, Rishi Raj Jaiswal 
for the Respondents. 
G 
The Judgment of the Court was delivered by 
V. GOPALA GOWDA, J. 1. This appeal is directed 
againstthe impugned judgment and order dated 31.10.2012 H
56 
SUPREME COURT REPORTS 
[2015) 8 S.C.R. 
A 
passed by the High Court of judicatur~ of Delhi at New Delhi 
(the First Appellate Court) in Regular First Appeal (OS) No.41 
of 2011, whereby the First Appellate Court has confirmed the 
judgment and decree dated 21.1.2011 passed by the learned 
single Judge of the High Court (hereinafter called as "the trial 
B court") in CS(OS)No. 2172 of 2003 and dismissed the suit 
filed by the appellant. In this appeal, the appellant has 
questioned the correctness of the impugned judgment and 
order urging various facts and legal contentions and prayed 
for granting of the decree of partition of her share in the 'B' suit 
C schedule property. 
• 
2. In this judgment, for the sake of convenience, we will 
advert to the rank of the parties as assigned to them before 
the trial court in C.S. No. 2172 of 2003. The brief facts of the 
D case are stated hereunder for the consideration of the case 
with reference to the rival legal contentions urged on behalf of 
the parties. 
3. The plaintiff (the appellant herein) filed civil suit 
E No.2172 of 2003 before the trial court against the defendants 
(the respondents herein) for the partition of the following 
properties in favour of her late husband's share, contending 
thereby that all the properties are jointly owned by the family:-
F 
A Agricultural land at village Jahgirpur and at village 
Patial 
B 
Property bearing No.45, Sant Nagar,.. East of 
Kailash, New Delhi 
G 
c 
Property situated at
Kathi No.-56, Giani Zail Singh 
Nagar, Ropar 
The said civil suit was contested by the defendants 
wherein they have pleaded in their written statement that the 
H . suit schedule properties mentioned in the schedules 'A' & 'C'
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
57 
[V. GOPALAGOWDA, J.] 
have already been partitioned amongst themselves, therefore, A 
the plaintiff is not entitled for any further share in the suit 
properties. In so far as the 'B' schedule property, bearing No. 
45, Sant Nagar, East of Kailash, New Delhi, is concerned, it is 
stated by them that the same cannot be a subject matter of 
partition as it is the self acquired property of the deceased-
B 
first defendant (who is the father-in-law of the plaintiff) as he 
had acquired the same out of his self earned savings from his 
•.',mployment and he has constructed the building on the said 
property out of his own funds. Therefore, it is pleaded that the 
plaintiff is not entitled for the reliefs as prayed by her in respect C 
of the suit schedule 'B' property. It is further contended by them 
that the deceased-first defendant was working in the defence 
department While he was in employ~ent, he had purchased 
the said property in the year 1954 vide sale deed dated D 
22.3.1954 for a sum of Rs.400/-. In the year 1954, he was 
getting the salary of Rs.201/- per mon~h i.e. Rs.120/- + (9 
increments X 9 = 81 ). At that time, admittedly, the husband of 
the plaintiff (since deceased) was only seven years old. 
4. When the first phase of construction of the ground E 
floor on the said property was made in the year 1957, the 
husband of the plaintiff was only ten years old. The second 
phase of construction of the said building was
done between 
October 1980 and December 1981. The case of the 
deceased-first defendant before the trial court was that he · F 
retired from his employment in September, 1980. He has 
reconstructed the aforesaid property using his retirement 
benefits such as gratuity and provident fund and he had also 
borrowed some amount as loan from various friends and G 
relatives and he also used the old building materials for the 
construction of the building. He also produced receipts at 
Ex.DW1/5 to OW 1/18 as evidence to substantiate his case 
that he had borrowed some loan amount from M/s Sahara 
Deposits and Investments (India) Ltd. which amount was repaid 
H
58 
SUPREME COURT REPORTS 
[2015] 8 S.C.R. 
A 
by him to it, in instalments. It was specifically mentioned by the 
deceased-first defendant that the husband of the plaintiff did 
not contribute any amount either towards the purchase of the 
said suit schedule property or for the construction of the building 
8 
upon the said property. 
5. When the construction of the said building was in 
progress between October 1980 and December 1981, the 
plaintiffs husband was in the process of settling himself at 
Kuwait and he did not have sufficient money to send to the 
C deceased-first defendant for the purpose of construction of 
the building. The total amount spent on the construction of the 
building was Rs.1.42.451.60. It has been contended by the 
defendants that no proof of contribution of money made by the 
deceased husband of the plaintiff towards the construction of 
D the said building is produced by the plaintiff before the trial 
court to justify her claim. The second defendant was also 
examined in the case as DW-2 in support of the case of the 
deceased-first defendant with regard.to the suit schedule 'B' 
property. The trial court on the basis of the pleadings made 
E before it, has framed certain issues for its determination and 
the same are answered against the plaintiff by it on the basis 
of the evidence produced by the parties on record. 
6. The case of the plaintiff is that the dispute arose 
F between the plaintiffs husband and the defendants when her 
husband
returned from Kuwait to Delhi. With the intervention 
of relatives and well-wishers of the parties, it was decided 
between them that the basement, ground floor and second floor 
of the Sant Nagar property will devol·;e upon him and the rent 
· G earned from the same will also be paid to him. The deceased-
first defendant had purchased a plot of land in Saini Farnis in 
the name of the late husband of the plaintiff. The said plot was 
sold by the deceased-first defendant who gave an amount of 
H only Rs.1,82,000/- to the husband of the plaintiff while the
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
59 
. [V. GOPALAGOWDA, J.] 
balance amount from Rs.6,00,000/- was distributed amongst A 
defendant Nos.1 to 4 and the wife of defendant No.2. 
7. In so far as the ancestral property of the agricultural 
land at Ropar District is concerned, it is stated in the written 
statement of the deceased-first defenda.nt that the aforesaid B 
ancestral property was divided between him, his two brothers 
and one sister and d,uring the division of that property, a piece 
of land measuring about 8 kanals and 18 marlas situated in 
village Patial, District Ropar came to the share of the 
deceased-first defendant in the year 1972. The said land was C 
given on Batai for cultivation and the deceased-first defendant 
used to get 50 sears of Wheat in May and 30 sears of Maize 
in October every year out of the said agricultural produce from 
the said agriculture land which was used for consumption by 
the family. No cash amount was received by the deceased-
D 
first defendant in respect of the said agricultural property. 
8. On the basis of the pleadings of the parties and the 
evidence on record, the trial court had framed five issues for 
its determination. Issue No.4 is most relevant for the purpose 
E 
of examining the rival legal submissions made on behalf of 
the parties with a view to find out the correctness of the 
concurrent findings of fact recorded by the FirstAppellate Court 
on the above contentious issue. The issue no. 4 reads thus:
"(iv)Whether the property bearing No.45, Sant Nagar, 
East of Kailash, New Delhi, has been constructed out of 
joint family funds or out of funds received by the first 
defendant from late Shri RD. Singh, the husband of the 
F 
plaintiff?" 
G 
The trial court has answered the said contentious issue 
no.4 against the plaintiff and in favour of the deceased-first 
defendant in so far as the claim of share by the plaintiff in the 
schedule 'B' property bearing No. 45, Sant Nagar, East of H
60 
SUPREME COURT REPORTS 
[2015) 8 S.C.R. 
A 
Kailash, New Delhi is concerned. The suit of the plaintiff was 
dismissed by it by holding that the said property is the self 
acquired property of the deceased-first defendant. 
9. In so far as the suit schedule 'A' property is 
B concerned, the trial court has further partially decreed the same 
in favour of the plaintiff by granting 1 /5111 share in the agricultural 
land in the village Patial. A preliminary decree for partition was 
passed by the trial court on 21.1.2011 holding thatthe plaintiff 
has got the 1 /5111 share in the agricultural land, measuring about 
C 8 kanals and 18 marlas. However, she was not granted any 
share in the suit schedule 'B' property, holding that it is the self 
acquired property of the deceased first defendant. 
10. Aggrieved by the same, the plaintiff filed Regular 
D FirstAppeal(OS) No.41 of 2011 before the Division Bench of 
the High Court under Section 96 of the Civil Procedure Code. 
1908 ("C.P.C.") read with Section 10 of the Delhi High Court 
Act, 1966, against the judgment and decree dated 21.1.2011 
passed by the trial court in so far as the dismissal of the suit in 
E respect of the suit schedule 'B' property is concerned, urging 
various legal grounds in justification .of her claim. The First 
Appellate Court, after adverting to the various rival legal 
submissions urged on behalf of the parties and on re-
appreciation of the evidence on record, examined the 
F correctness of the
findings recorded on issue No.4 by the trial 
court in its judgment dismissing the suit of the plaintiff and not 
granting any share in the suit schedule 'B' property to her, has 
held that the said property is the self acquired property of the 
deceased-first defendant and declined to interfere with the 
G judgment of the trial court in respect of the said property. 
11. We have taken into consideration the relevant facts 
pleaded by the plaintiff that her husband had sent money from 
Kuwait to the deceased-first defendant for construction of the 
H building situated at No.45, Sant Nagar, East of Kailash, New
KIRPAL KAUR v. JITENDER P.AL SINGH & ORS. 
61 
[V. GOPALAGOWDA, J.] 
Delhi during the period of October, 1980 and December, 1981. A 
Further, as per the document produced at Ext.P-5, an amount 
of Rs.1 lakh was sent by the husband of the plaintiff to his father 
by way of bank draft and cash. Out of that an amount of 
Rs.17,350/-was given to the plaintiff and the remaining amount 
of Rs.82,650/-was left with the deceased-first defendant which 
B 
amount was utilised by him for construction of the building. 
The FirstAppellate Court with reference t<? the above said plea 
and on the basis of the evidence placed on record by the 
plaintiff has held that no cogent evidence was produced by 
the plaintiff to prove the fact that the said amount sent by her C 
deceased husband to the deceased-first defendant was utilised 
by him for carrying out the second phase of construction of the 
building at No.45, Sant Nagar, New Delhi between the period 
October, 1980 to December, 1981 and therefore, the same D 
would not entitle the deceased husband of the plaintiff to a 
share in the said property, as the plot mentioned iri schedule 
'B' property was purchased by the deceased-first defendant 
out of his own earnings in the year 1954. Undisputedly, the 
sale deed was in the name of the deceased-first defendant E 
who had purchased the same for Rs.400/-, out of his own funds. 
Further, the FirstAppellate Court has held that there is no title 
document either in favour of the husband of the
plaintiff or in 
her name as the deceased-first defendant had purchased the 
property in his name exclusively, from his own funds and mere 
F 
use of the money sent by eitherthe deceased husband of the 
plaintiff or the funds provided by other family members for the 
purpose of raising the second phase of construction of the 
said building would not give them the right for the share in that 
property. Thus, the First Appellate Court has held that the G 
deceased husband of the plaintiff could not have become the_ 
co-owner of the said property. Therefore,_ the First Appellate 
Court has concurred with the finding of fact recorded on the 
contentious issue No.4 by the trial court and accordingly, it has 
answered the other issues by recording.its reasons in the H
62 
SUPREME COURT REPORTS 
(2015] 8 S.C.R. 
A 
impugned judgment in favour of the defendants. Further, it has 
been held by the First Appellate Court that at best, the plaintiff 
would be entitled for refund of the amount which was sent by 
her deceased husband to the deceased-first defendant for the 
construction of the building upon the schedule 'B' property with 
B interest or compensation. The First Appellate Court in its 
penultimate paragraph of the impugned judgment has 
observed that to bring the curtains down and to obviate any 
further litigation 
before the Supreme Court, the second 
defendant has made an offer to pay Rs.15 lakhs to the plaintiff, 
C provided that she undertakes not to litigate the case any further 
and vacat~ and hand over the possession of the second floor 
of the schedule 'B' property to the deceased-first defendant or 
his nominee which offer was rejected by the plaintiff. 
D 
12. We have examined the correctness of the findings 
recorded by the First Appellate Court on the contentious issue 
no.4 with reference to the evidence on record. During the cross-
examination of the deceased-first defendant by the plaintiff's 
counsel before the trial court, he has categorically admitted 
E certain facts and elicited the following relevant positive 
evidence on record which supports the plaintiffs case. The 
English translation of certain admitted portions of the evidence 
of the deceased-first defendant furnished by the plaintiff's 
F counsel is
recorded and extracted hereunder for our 
consideration and examination of the findings of fact recorded 
on the contentious issue No.4:-
G 
H 
"Evidence of PW-1 Shri Ram Singh, the father-in-law of 
the plaintiff: 
2 ......... The house at Sant Nagar was built from his 
retirement benefits of Rs.1 lakh and loans from 
friends. 
3. Admits that he had received Rs. 82, 000/- from the
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
63 
[V. GOPALAGOWDA, J.] 
Plaintiffs husband but say it was not used for building 
A 
his house. 
4. Admits the existence of the agricultural land and 
agricultural income received out of it. The land was 
the ancestral property. He also admits that this income 
B 
was used for construction of the said house. 
Immediately thereafter, he claims that it was used for 
his illness. 
xxx 
xxx 
xxx 
6. He retired in September, 1980 and started 
reconstruction of the house in October 1980. 
7. Relations with appellant's husband became 
c 
strained when he misappropriated Rs. 6 lakhs forthe 
D 
sale of the plot at Saini Enclave. 
8. That the plot at Saini Enclave was sold for Rs.6 
lakhs. 
9. Admits that according to document at Exh. P-7 
(which is in his own handwriting) Rs. 6 lakhs were 
distributed amongst various personnel including RD. 
Singh. 
10. Denies that Rs.6 lakhs were distributed to the 
various persons mentioned in Exh.P/7. 
11. Admits receiving money from R.D. Singh from 
Kuwait as per Exh.P.2 to P.3 but denies the quantum 
suggested. 
xxx 
xxx 
xxx 
15. Admits that the Plaintiff was staying with him from 
E 
F 
G 
H
64 
SUPREME COURT REPORTS 
[2015] 8 S.C.R. 
A 
the date of marriage. Further, that on his return from 
Kuwait, R.D. Singh had been separated from the 
deceased father and started staying on the 2°d floor. 
B 
c 
xxx 
xxx 
xxx 
17. He admits in his statement before the learned ADJ 
to the effect that he had received Rs. 82,000/- in the 
shape of bank draft and cash from the Plaintiff's 
husband. He further admits that the statement made 
before the learned ADJ was correct. Immediately 
thereafter he denies it. 
18. That the ancestral land consisted of 8 kanal and 
18marla. 
D 
19. He further admits that the plaintiffs husband (R.D. 
E 
F 
G 
Singh) had a share in his 1/41h share in the ancestral 
land. 
xxx 
xxx 
xxx 
21. He further admits that he has no documentary proof 
that the appellant's husband had received Rs. 6 lakhs 
from the sale of plot at Saini Enclave. 
22. He states that he spent approximately Rs.1,42,000/ 
- on the construction of the house in Sant Nagar i.e. 
basement, ground, first and second floor together one 
common store on the 3rd floor. 
' 
23 ....... That the loan from Sahara investment was to 
the tune of Rs. 30,000/-.Afurther loan of Rs. 30,000/-
was obtained from one Mr. Harydaya .... " 
13. In the light of the above admissions made by the 
deceased-first ·defendant in his statement of evidence 
H deposed before the trial court, the most important fact that has
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
65 
[V. GOPALAGOWDA._J.] 
come to light in his admission is that he had received money A 
from the plaintiff's husband while he was in Kuwait. He has 
also admitted that the plaintiff's husband had a share in the 
ancestral property that consists of 8 kanals and 18 marlas. 
Further, the deceased-first defendant has admitted in his 
statement of evidence before the Additional District Judge on 
B 
11.12.2003 in another proceeding between the parties that 
he had received an amount of Rs.1 lakh by way of bank draft. 
and cash from the deceased husband of the plaintiff, while he 
was working in Kuwait which amount was utilised by the 
deceased-first defendant for the reconstruction of the building C 
in the 'B' suit schedule property. In view ofthe above evidence 
.elicited from the deceased-first defendant, the First Appellate 
Court was not right in making an observation in the impugned 
judgment that the plaintiff is only entitled for the refund of the 0 
said amount from the deceased first defendant even though 
there is substantive and positive evidence on record to the 
effect that the amount sent by the deceased husband of the 
plaintiff was utilised by the deceased first defendant for the 
purpose of construction of the building upon the suit schedule E 
'B' property. 
14. Both the trial court as well as the Fi~st Appellate 
Court have misread and mis-directed themselves with regard 
to the positive and substantive evidence
placed on record in 
F 
justification of the claim of the plaintiff and they have not 
apprecia.ted and re-appreciated the same in favour of the 
plaintiff in the proper perspective .to record the finding of fact 
on her claim for the division of the share in-her favour in respect 
of the schedule 'B' property. Therefore, the concurrent finding G 
of fact recorded by both the trial court as well as the First 
Appellate Court on the contentious issue No.4 are not only 
erroneous in law but also suffer from error in law for the reason 
that there is a positive and substantive evidence elicited by 
the deceased-first defendant during the course of his cross H
66 
SUPREME COURT REPORTS 
(2015] 8 S.C.R. 
A 
examination before the trial court, the relevant portion of which 
is extracted above, wherein he had in unequivocal terms 
admitted in his evidence that he, his sons and daughters have 
an ancestral property in his village and the same has not been 
divided between them and that he used to get the income from 
B the said agricultural land and the same was utilized by him for 
the construction of the building at Sant Nagar, i.e. schedule 'B' 
property. Therefore, it amounts to putting the said property in 
the hotchpot of joint family property. The non-consideration of 
the above positive and substantive evidence by the trial court 
C as well as the First Appellate Court in justification of the claim 
of the plaintiff in respect of the schedule 'B' property has 
rendered the concurrent finding recorded by it as erroneous in 
law and therefore, the same are liable to be set aside. 
D 
15. We have heard both the lea·rned senior counsel Mr. 
J.P. Cam a on behalf of the plaintiff and the learned counsel 
Ms. Rakhi Ray on behalf of the defendants. On 11.3.2015, when 
the arguments were concluded on merits, we directed the 
parties to file a compilation of the pleadings. The fact 
E regarding the will/gift deed was brought to our notice by the 
learned senior counsel on behalf of the plaintiff only at the time 
of concluding his submissions in this appeal, at the stage of 
final disposal of the SLP. The said fact has not been
disclosed 
F by the second defendant before this Court and he has also not 
requested for a leave before this Court by filing an application 
as required under Order 22 Rule 10 CPC to defend his claim 
that the schedule 'B' property was devolved upon him on the 
basis of the said gift deed. Therefore, the defendants' counsel 
G was directed by us to produce the copy of the will/gift deed, 
alleged to have been executed after the passing of the 
impugned judg'ment by the First Appellate Court, in favour of 
the second defendant by the deceased first defendant in 
respect of the schedule 'B' property and before the filing of 
H special leave petition by the p1aintiff. The same was produced
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
67 
[V. GOPALAGOWDA, J.] 
by the defendants' oounsel by way of compilation of the A 
documents including the ·copy of the alleged 'Will' dated 
1.10:2004alongwiththegiftdeed dated 8.02.2011, purported 
to have been executed by the deceased-first defendant in 
favour of the second defendant-J.P. Singh in respect of the 
suit schedule '8' property. The learned counsel for the B 
defendants has also furnished copies of the judgments upon 
which she has placed reliance in support of the case of the 
defendants. 
~""', 
t. 
16. This Court on 16.8.2013 issued notice on the prayer C 
of the plaintiff for condonation of delay on the special leave 
petition as the same was barred by limitation. The learned 
counsel for the defendants, Ms. Rakhi Ray accepted the notice 
who entered a caveat on behalf of defendant Nos.2 to 4 and 
sought six weeks time to file the reply affidavit. On 16.9.2013, D 
the application for condonation of delay was allowed and 
deletion of the name of deceased"first defendant from the array 
of parties from the cause title of the SLP was also allowed at 
her request. 
17. After the perusal of pleadings of the parties and 
the material evidence on record, we find that both the trial court 
. and the First Appellate Court have gravely erred in their 
, decisions in not granting a share to the plaintiff in the schedule 
E 
'B' property by recording an erroneous finding even though - F 
she is legally entitled for the
same. Having regard to the fact 
that immediately within two weeks from the date of disposal of 
the first appeal by the High Court and before the expiry of the 
period of limitation for filing special leave petition before this 
Gou.rt challenging the impugned judgment, the gift deed was G 
·allegedly executed by the deceased-first defendant in favour 
of the second defendant (the second son) which was made 
available for our perusal only after this Court directed the 
second defendant's counsel to do so. The said gift deed was H 
executed by the deceased-fiflit defendant in favour of the
68 
SUPREME COURT REPORTS 
[2015) 8 S.C.R. 
A second defendant reciting certain factually incorrect facts 
regarding the physical delivery of possession of the suit 
schedule 'B' property to him, as it is ~n undisputed fact that 
the plaintiff has been in peaceful possession of the second 
floor of the said building ever since she and her husband had 
B started living separately from the defendants. 
17. The execution of the alleged gift deed by the 
deceased-first defendant in favour of the second defendant is 
also hit by Section 52 of the Transfer of Property Act, 1882, as 
C the said deed was executed during the pendency of the 
proceedings and before the expiry of the period of limitation 
for filing SLP. Further, during the pendency of these 
proceedings, the second defendant, who has claimed to be 
the alleged beneficiary of the suit schedule 'B' property on the 
D basis of alleged gift deed should have sought leave of this 
Court as the donee and brought the aforesaid fact of execution 
of the alleged gift deed in respect of 'B' schedule property by 
the deceased first defendant, which property has been 
devolved in his favour, to the notice of this Court as provided 
E under Order 22 Rule 1 O of the C.P.C. and defended his right 
as required under the law as laid down by this Court in a catena 
of cases. In the case of Dhurandhar Prasad Singh v. Jai 
Prakash University & Ors. 1, this Court has interpreted Order 
F 22Rule10 of the C.P.C. after adverting to its
earlier decision 
in the case of Rikhu Dev Che/a Bawa Harjug Dass v. Som 
Das (deceased) Through Che/a Shiama Dass2 in support 
of the proposition of law that the trial of a suit cannot be brought 
to an end merely because the interest of a party in the subject-
G matter of the suit has devolved upon another during. the 
pendency of the suit but that suit may be continued against the 
person acquiring the interest with the leave of the court. The 
relevant paragraph from the said decision of Dhurandhar 
Prasad Singh case (supra) reads thus: 
H 
, (20011 s sec 534 
2 (1s1s11 sec 103
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
69 
[V. GOPALAGOWDA, J.] 
"9. In the case of Rikhu Dev, Che/a Bawa Harjug Dass 
A 
v. Som Dass while considering the effect of devolution 
of interest within the meaning of Order 22 Rule 10 of the 
Code. on the trial of a suit during its pendency, this Court 
has laid down the law which runs thus: 
"8. This rule is based on the principle that trial of a suit 
cannot be brought to an end merely because the interest 
of a party in the subject-matter of the suit has devolved 
upon another during the pendency of the suit but that suit 
B 
may be continued against the person acquiring the 
C 
interest with the leave of the court. When a suit is brought 
by or against a person in a representative capacity and 
. there is a devolution of the interest of the representative. 
the rule that has to be applied is Order 22 Rule 10 and 
not Rule 3 or4. whether the devolution takes place as a 
consequence of death or for any other reason. Order 22 
Rule 10 is not confined to devolution of interest of a party 
by death; it also applies if the head of the mutt or 
manager of the temple resigns his office or is removed 
from office. In such a case the successor to the head of 
the mutt or to the manager of the temple may be 
substituted as a party under this rule." 
(emphasis laid by this Court) 
19. Likewise, where the interest of the second defendant 
has devolved upon the suit schedule 'B' property on the basis 
D 
E 
F 
of the alleged gift deed
referred to supra, the suit may be 
continued against such second defendant and for the sake of 
continuance of the suit against the persons upon whom such G 
interest has devolved during the pend ency of the suit, leave of 
the court has to be obtained. Leave can be obtained only by 
that person upon whom interest has devolved during the 
pendency of the suit, otherwise, there may be preposterous 
results, as such a party might be unaware of the pending 
H"
70 
SUPREME COURT REPORTS 
(2015] 8 S.C.R. 
A 
litigation and the same would not be consequently feasible. If 
a duty is cast upon him then in such an eventuality he is bound 
by the decree even in case of failure to apply for leave. 
Therefore, as a rule of prudence, the initial duty lies upon the 
person on whom such an interest has devolved upon any such 
B property to apply for leave of the court in case the factum of 
devolution was within his knowledge or with due diligence could 
have been known by him. 
20. The factum of the said alleged gift deed was not 
C made known to this Court by the second defendant who is the 
beneficiary of the said gift deed till the last stage of conclusion 
of submission by the learned counsel. Reliance has been 
placed upon the decision of this Court in the case of 
Dhurandhar Prasad Singh (supra) at paras 6, 7 and 8 with 
D regard to the above said proposition of law, the relevant paras 
E 
F 
G 
H 
from the above judgment are extracted hereunder: 
"6. In order to appreciate the points involved, it would be 
necessary to refer to the provisions of Order 22 of the 
Code, Rules 3 and 4 whereof prescribe procedure in 
case of devolution of interest on the death of a party to a 
suit. Under these Rules. if a party dies and right to sue 
survives. the court on an application made in that behalf 
is required to substitute legal representatives of the 
deceased party for proceeding with a suit but if such an 
application is not filed within
the time prescribed by law. 
the suit shall abate so far as the deceased party is 
concerned. Rule 7 deals with the case of creation of an 
interest in a husband on marriage and Rule 8 deals with 
the case of assignment on the insolvency of a plaintiff. 
Rule 10 provides for cases of assignment. creation and 
devolution of interest during the pendency of a suit other 
than those referred to in the foregoing Rules and is based 
on the principle that the trial of a suit cannot be brought
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
71 
[V. GOPALAGOWDA, J.] 
to an end merely because the interest of a party in the 
A 
subject-matter of the suit has devolved upon another 
during its pendency but such a suit may be continued 
with the leave of the court by or against the person upon 
whom such interest has devolved. But. if no such step is 
taken. the suit may be continued with the original party 
and the person upon whom the interest has devolved will 
be bound by and can have the benefit of the decree ....... . 
7. Under Rule 10 Order 22 of the Code, when there has 
been a devolution of interest during the pend ency of a 
suit, the suit may, by leave of the court, be continued by 
or against persons upon whom such interest has devolved 
and this entitles the person who has acquired an interest 
in the subject-matter of the litigation by an assignment or 
creation or devolution of interest pendente lite or suitor 
or any other person interested, to apply to the court for 
leave to continue the suit. But it does not follow that it is 
obligatory upon them to do so. If a party does not ask for 
leave, he takes the obvious risk that the suit may not be 
properly conducted by the plaintiff on record, .and yet, as 
pointed out by Their Lordships of the Judicial Committee 
in Moti Lal v. Karrabufdin he will be bound by the result 
of the litigation even though he is not represented at the 
hearing unless it is shown that the litigation was not 
properly conducted by the
original party or he colluded 
with the adversary. It is also plain that if the person who 
has acquired an interest by devolution, obtains leave to 
carry on the suit, the suit in his hands is not a new suit, 
for, as ~ord Kingsdown of the Judicial Committee said 
in Prannath Roy Chowdryv. Rookea Begum, a cause 
of action is not prolonged by mere transfer of the title. It 
is the old suit carried on at his instance and he is bound 
by all proceedings up to the stage when he obtains leave 
to carry on the proceedings. 
B 
c 
D 
E 
F 
G 
H
72 
A 
B 
c 
SUPREME COURT REPORTS 
(2015) 8 S.C.R. 
8. The effect of failure to seek leave or bring on record 
the person upon whom the interest has devolved during 
the pendency of the suit was the subject-matter of 
consideration before this Court in various decisions. In 
the case of Sai/a Bala Dassi v. Nirmala Sundari Dassi 
T.L. VenkataramaAiyar. J., speaking for himself and on 
behalf of S.R. Das. C.J. and AK. Sarkar and Vivian Bose. 
JJ. laid down the law that if a suit is pending when the 
transfer in favour of a party was made. that would not 
affect the result when no application had been made to 
be brought on the record in the original court during the 
pendency of the suit." 
(emphasis laid by this Court) 
The legal principles laid down in the aforesaid paragraphs 
D from the judgment referred to supra would clearly go to show 
that this Court has laid down the legal principle to the effect 
that the absence of any leave sought by the second defendant 
on the ground that his interest has devolved upon the schedule 
'B' property of the deceased-first defendant, would not affect 
E the relief sought by the plaintiff during the pendency of the 
proceedings before this Court when no application has been 
submitted either by the plaintiff or by the second defendant in 
this regard. 
F 
21. The legality of the alleged gift deed executed in 
favour of the second defendant by the deceased-first defendant 
in respect of the schedule 'B' property has been further
examined by us and the same is hit by Section 52 of the of the 
Transfer of Property Act, 1882, in the light of the decision of 
G this Court in the case of Jagan Singh v. DhanwantP, wherein 
this Court has laid down the legal principle that under Section 
52 of the Transfer of Property Act, 1882, the '/is' continues so 
long as a final decree or order has not been obtained from the 
H Court and a complete satisfaction thereof has not been 
• (2012i 2 sec s2a
KlRPAL KAUR v. JITENDER PAL SINGH & ORS. 
73 
[V. GOPALAGOWDA, J.) 
rendered to the aggrieved party contesting the civil suit. It has A 
been further held by this Court that it would be plainly 
impossible that any action or suit could be brought to a 
successful termination if alienations pendente lite were 
permitted to prevail. The relevant paras of the aforesaid 
decision read thus: 
B 
"32. The broad principle underlying Section 52 of the TP 
Act is to maintain the status quo unaffected by the act of 
any party to the litigation pendir:g its determination. Even 
afterthe dismissal of a suit, a purchaser is subject to lis 
pendens, if an appeal is afterwards. filed, as held in 
Krishanaji Pandharinath v. Anusayabai. In that matter 
the respondent (original 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 9 Rule 2, of the Code of Civil Procedure, 
1908 for non-payment of process fee. 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 the same by contending that the 
sale was affected when the 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 20 of 1929, the 
expression 'active prosecution of any suit or 
c 
D 
E 
F 
proceeding' was used. That expression has now been 
G 
omitted, and the Explanation makes it abundantly clear 
that the 'lis' continues so long as a final decree or order 
has not been obtained and complete satisfaction 
thereof has not been rendered. At p. 228 in Sir Dinshah 
Mulla's 'Transfer,of Property Acf, 4th Edn., after 
H
74 
SUPREME COURT REPORTS 
[2015] 8 S.C.R. 
A 
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.'lf after the dismissal of a suit and before an 
B 
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 between the date of dismissal of the suit 
under Order 9 Rule 2 of the Civil Procedure Code and 
C 
the date of its restoration. the 'lis' does not continue.' 
D 
E 
F 
G 
H 
33. It is relevant to note that even when Section 52 of the 
TP Act was not so amended, a Division Bench of the 
Allahabad High Court had following to say in Moti Chand 
v. British India Corpn. Ltd.: 
" ... The provision of law which has been relied upon 
by the appellants is contained in Section 52, TP Act. 
The active 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." 
34. 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 that the pendency Gf a suit or a proceeding shall 
be deemed to continue until the suit or a proceeding is 
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. 
r
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
[V. GOPALAGOWDA, J.] 
. 35. 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 second appeal had not been filed. We would however, 
prefer to follow the dicta in Krishanaji Pandharinath to 
cover the present situation under the principle of lis 
pend ens since the sale was executed at a time when the 
second appeal had not been •·1ed but which came to be 
filed afterwards within the 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 TP Act." 
(emphasis laid by this Court) 
75 
A 
B 
c 
D 
22. Notwithstanding the above legal principle, we have 
examined the legality and validity of the alleged gift deed. The 
recital of the gift deed, particularly, the recital clause 2 is 
extracted hereunder: 
E 
"2. That since the physical possession of the said property 
is already with the Donee hence the proprietary 
possession of the same is being handed over by the 
Donor unto the Donee who shall enjoy the same 
peacefully without any interference or disturbance of the 
Owner/Donor or anybody claiming through him. On this 
the Donee shall
become the absolute Owner of the said 
Property and shall be at liberty to deal with same in the 
manner he likes." 
A careful reading of the above recital would clearly go to show 
that the physical possession of the entire suit schedule 'B' 
property could not have been given to the second defendant 
F 
G 
in the light of the undisputed fact that the physical possession 
H
76 
SUPREME COURT REPORTS 
[2015] 8 S.C.R. 
A of the second floor of the schedule 'B' property is with the 
plaintiff. Further, the plaintiff is in the possession of the second 
floor in her independent right of her husband's share after they 
separated from the family. Therefore, the alleged gift deed 
executed by the deceased-first defendant in favour of the 
B second defendant during the pendency of the proceedings with 
respect to the suit schedule 'B' property is not legally correct 
as it is the joint family property and even otherwise the same 
cannot be acted upon by the parties. 
C 
23. On the basis of the legal submissions made by the 
senior counsel on behalf of the plaintiff, we have examined the 
case on merit in these proceedings based on proper 
appreciation of evidence on record and we have to reverse 
the concurrent finding on the contentious issue no.4 for the 
D reasons recorded by us in the preceding paragraphs of this 
judgment. Accordingly, we set aside·the concurrent finding 
recorded by both the trial court and the FirstAppellate Court 
on issue no.4. We conclude that the courts below have failed 
to exercise their jurisdiction and power properly, thereby 
E causing a grave miscarriage of justice to the rights of the 
plaintiff upon the 'B' schedule property. 
24. The plaintiff must succeed for one more alternate 
reason viz. that the deceased-first defendant died during the 
F pendency of the proceedings and therefore, Section 8 of the 
Hindu
Succession Act, 1956, will come into operation in 
respect of the suit schedule 'B' property even if it is considered 
that the said property is a self acquired property of the 
deceased-first defendant. 
G 
25. Therefore, we have to record the finding of fact with 
respect to the gift deed and hold that the same is invalid as it 
is evident from the factual and legal aspect of the case that the 
gift deed of the schedule 'B' property was executed by the 
H deceased first defendant in favour of the second defendant
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
77 
[V. GOPALAGOWDA, J.) 
during the pendency of the proceedings and the.same could A 
not have been acted upon by the defendants as the plaintiff 
has been in possession of the second floor of the said property 
in her husband's independent right. The same is also not acted 
upon by the parties.for the reason that the plaintiff has been in 
physical possession of the second floor of the 'B' suit schedule 
B 
property and therefore, in fact, she could not have delivered 
the possession to the second defendant and acted upon the 
same, hence, Section 8 of the Hindu Succession Act, 1956, 
would come into operation in respect of the above said 
property. The said property of the deceased-first defendant C 
would devolve upon the deceased husband of the plaintiff along 
with the second defendant and the other daughters of the 
deceased-first defendant as they are the joint owners of the 
said property by virtue of being Class I legal heirs of the 0 
deceased-first defendant as per the schedule to the Hindu 
Succession Act, 1956, upon the death of the first defendant. 
For this reason also, the plaintiff is entitled for 1/41h share in 
the suit schedule "B" property. 
26. For the reasons stated above, we allow this civil 
E 
appeal and assign equally 1 /41h share to the plaintiff and each 
one of the defendants in the suit schedule "B" property. The 
impugned judgments and decree passed by the trial court and 
the First Appellate Court
are hereby set aside, in so far as 'B' 
F 
schedule property is concerned. We further allow the plaintiff 
· to retain the second floor of the property pearing No. 45, Sant 
Nagar, East of Kailash, New Delhi, till the 1 /4'h share of the 
schedule 'B' property is divided by metes and bqunds by 
following the procedure as provided under law and put her in G 
absolute possession of the same. The trial court is directed to 
draw up a decree in terms of this judgment along with costs. 
Nidhi Jain 
Appeal allowed. 
H