Delhi High Court
Puran Mal vs Smt. Lajwanti Aggarwal & Ors. on 10 December, 1997
Author: K Ramamoorthy
Bench: K Ramamoorthy
JUDGMENT
K. Ramamoorthy, J.
1. The plaintiff has filed the suit for declaration. The plaintiff and
late Shri Amar Nath Aggarwal now represented by defendant No.4 were partners. Shri Puran Mal has filed the suit No.635/65 on the file of Shri
Shamsher Singh Kanwar P.C.S. Sub Judge, 1st Class, Delhi, for dissolution
of partnership and rendition of accounts. The subject matter of this suit
was in dispute as to whether it was partnership property or not. Late Shri
Amar Nath Aggarwal took the plea that Puran Mal was a not partner. The suit
No. 635/65 was decreed and the preliminary decree was passed on 19.09.1969.
2. Late Shri Amar Nath Aggarwal filed an appeal No. R.C.A. no. 119 of
1973. The Additional District Judge, by judgment dated 16.01.1974 dismissed
the appeal confirming the decree passed by the trial court on 19.09.1969.
There was a second appeal No. R.S.A. No. 154 of 1974. The defendants 5 and
6 claimed to be the purchasers of the property from late Shri Amar Nath
Aggarwal during the pendency of the proceedings in Suit No. 635 of 1965.
3. In view of the sale effected by late Shri Amar Nath Aggarwal in favour
of defendants 5 and 6 it became necessary for the plaintiff to institute
the suit for a mere declaration.
4. On 01.08.1986, the following issues were framed for trial by this
Court:
1. Whether the suit for a mere declaration as sought for there-
in is maintainable?
2. Whether the Delhi High Court got the jurisdiction to try the
suit?
3. Whether defendants No.5 and 6 have got the locus- standi to
contend that the suit property was not the partnership property
of M/s Bharat Engineering Company (Objected to)
4. If issue No.3 is affirmed, whether the suit property was the
partnership property of the firm M/s Bharat Engineering Company?
5. Whether the Directorate of Industries, Haryana State Govt.
is a necessary party to the suit and the suit cannot proceed
without joining them as a party to the suit?
6. Whether the plaint does not disclose a cause of action
against defendants No.5 and 6?
7. Whether defendants No. 5 and 6 are bona fide purchasers of
the suit property for valuable consideration and without notice
of the pendency of the R.S.A no. 154/74 pending in this Court
(Onus objection to the is held as correctly placed).
8. Whether the sale of the property in favour of the defendants
No.5 and 6 is hit by the doctrine of lispendenthes?
9. Whether the impugned transfer of property in favour of
defendants 5 and 6 is sham fictitious, fraudulent and collusive
and is not binding on the plaintiff?
10. Relief.
5. It is not necessary to set out the pleadings in details except the
pleadings of defendants 5 and 6 who filed their written statements stating
that they are bona fide purchasers.
6. RSA No. 154/74 was dismissed by this court on 13.10.1988. According to
defendants 5 and 6 that they were the partners carrying on business under
the name and style of M/s Sham Textiles Industries. The suit property was
purchased under two different sale deeds in the name of Manohar Lal on
22.12.1981 and 14.07.1982 and Manohar Lal was entitled to 1/4th portion and
the 6th defendant was entitled to 3/4th portion. Whatever the dates it is
common ground that the sale deeds were made during the pendency of the
proceedings.
7. Shri Puran Mal filed an application No. 578/83 in RSA No. 154/74
under Order 1 Rule 10 CPC to implead Manohar Lal the 5th defendant as a
party. Manohar Lal filed reply dated 22.08.1983 stated that he was a bona
fide purchaser for valuable consideration and that he was only an owner of
1/4 share and 3/4 share had fallen to Shri Narendra Pal (6th defendant) son
of Shri Ramji Das. He further stated that the transfer would not hit by
doctrine of lis pendens. This court passed the following order in CM No.
578/83:
This is an application under Order 1 Rule 10 CPC for impleading Manohar Lal
the transferee of the property from the appellant. Even if the applicant
succeeds in the appeal, no relief can be granted against Manohar Lal and
this fact is not being disputed. The litigation, in no way, concerns the
said Manohar Lal. In the circumstances, he cannot be held to be a necessary
or even a proper party. The application is dismissed.
8. Therefore, the plaintiff had necessarily to file the suit for declaration.
9. Under Section 52 of the Transfer of Properties Act, 1882 any transactions made by the parties with reference to the property would not effect the rights of the parties to the suit. Section 52 of the Transfer of Properties Act, 1882 reads as under:
During the pendency in any Court having authority within the
limits of India excluding the State of Jammu and Kashmir or
established beyond such limits by the Central government of any
suit or proceeding 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 the 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 purpose 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 proceed-
ing 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.
10. The same principle is embodied in Order 21 Rule 102 of Civil Procedure
Code, "that any transfer made by judgment debtor after the institution of
the suit, could not cloth the transferee with any right." The parties have
not chosen to lead any evidence. As a matter of fact, no evidence is necessary.
11. Defendants 5 and 6 have been taking adjournments. In the light of the
admitted facts that the transfers in favour of defendants 5 and 6 were made
during the pendency of the second appeal i.e. RSA No. 154/74. The sale
deeds dated22.12.1981 and 14.07.1982 are void and do not affect the rights
of the plaintiff Puran Mal.
12. All other issues need not be considered.
13. In view of the admitted facts, there shall be a decree:
i) declaring that the sale deeds dated 14.07.1981 and 22.12.1981
of property bearing No.O/5, Industrial Area, Panipat, Haryana
together with plant and machines in favour of Shri Manohar Lal
and Shri Narendra Pal defendants 5 and 6 and the said property is
the partnership asset of the plaintiff and the defendants 1 to 4
liable to be distributed and or dealt with in accordance with the
provisions of the partnership Act, 1932 in terms of the prelimi-
nary decree already passed by the court in S. No. 635/65 as if
the properties in possession of defendants 1 to 4;
ii) granting permanent injunction restraining defendants 5 and 6
from participating in the final decree proceedings and causing
any obstruction to the plaintiff in Suit No. 635/65 getting a
final decree passed in accordance with law;
iii) directing defendants 5 and 6 to pay the plaintiff the costs
of the suit.
IA No.2714/84
This is an application for injunction. In view of the disposal of the
suit, no orders are necessary in this IA. Accordingly, IA stands dismissed.
