Madras High Court
M.D.Sampathkumar vs Devaraj on 4 June, 2025
2025:MHC:1259
S.A.No.514 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 28 / 10 / 2024
JUDGMENT PRONOUNCED ON : 04 / 06 / 2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.514 OF 2021
AND
CMP NO.10389 OF 2021
M.D.Sampathkumar ... Appellant /
Appellant /
2nd Defendant
Vs.
Devaraj ... Respondent /
Respondent /
Plaintiff
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
October 1, 2019 made in A.S.No.19 of 2016 on the file of the III
Additional District & Sessions Judge, Erode at Gobichettipalayam,
confirming the Judgment and Decree dated June 17, 2016 made in
O.S.No.56 of 2008 on the file of the Sub Court, Gobichettipalayam.
For Appellant : Mr.P.Saravana Sowmiyan
For Respondent : Mr.K.Sudhakar
JUDGMENT
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This Second Appeal is directed against the Judgment and
Decree dated October 1, 2019 passed in A.S.No.19 of 2016 by the 'III
Additional District & Sessions Court, Erode at Gobichettipalayam' ['First
Appellate Court' for brevity], whereby the Judgment and Decree dated
June 17, 2016 passed in O.S.No.56 of 2008 by the 'Sub Court,
Gobichettipalayam' ['Trial Court' for brevity] was confirmed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFF'S CASE
3. On June 5, 2006, Karuppanna - husband of the first
defendant, borrowed a sum of Rs.2,00,000/- for interest at the rate of 12%
per annum from the plaintiff and executed a Promissory Note in favour of
the plaintiff. Karuppanna passed away on April 20, 2008 without repaying
any amount, leaving behind his wife - Thangammal / first defendant as
sole legal representative. The plaintiff demanded repayment of the debt
and issued a legal Notice on April 30, 2008, which the first defendant
received on May 3, 2008 and caused reply Notice dated May 6, 2008
inter alia seeking the Suit Promissory Note for perusal. The plaintiff
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issued a rejoinder dated May 21, 2008 permitting her to peruse the same
anytime during office hours at his advocate’s office. Accordingly, the first
defendant along with her advocate perused the same on June 5, 2008.
Thereafter, the plaintiff never heard from the first defendant. The first
defendant attempted to alienate the properties left behind by Karuppanna,
to a third party, to evade repayment of debt. The plaintiff, therefore, filed
the Suit seeking recovery of money along with interest from the first
defendant, out of the properties left behind by Karuppanna, along with an
Interlocutory Application No.193/2008 seeking attachment of the said
properties. From the counter filed in the Interlocutory Application, the
plaintiff learnt that Karuppanna had executed a Gift Settlement Deed
dated March 28, 2008 bequeathing his entire properties in favour of first
defendant. Hence, the first defendant, as a Universal Donee, is liable to
settle the debt from the properties gifted by Karuppanna.
3.1. During the pendency of the Suit, the first defendant
executed a Sale Deed dated June 25, 2008 in favour of one
M.D.Sampathkumar, with a view to defeat and defraud the plaintiff’s
claim. Thereafter, first defendant passed away on November 14, 2010
pending Suit. Hence, the said M.D.Sampathkumar has been impleaded as
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second defendant (vide Order dated November 10, 2011 made in
I.A.No.248 of 2010 on the file of Trial Court). The second defendant as a
Universal Donee, is liable to settle the Promissory Note debt, out of the
properties purchased from first defendant. To that effect, he prayed for a
Decree.
CASE OF FIRST DEFENDANT
4. The first defendant filed a written statement stating that the
Karuppanna never borrowed any money from the plaintiff and the Suit
Promissory Note is entirely false and fabricated. The plaintiff is none
other than Karuppanna’s brother’s son. The plaintiff and his brother's
family had long-standing disputes with the first defendant’s family over
ancestral properties in Gugalur village, leading to hostility.
4.1. On March 28, 2008, Karuppanna executed a Gift
Settlement Deed in favour of first defendant in respect of the entire
properties that belonged to him. This led to the plaintiff’s family
abducting Karuppanna and the first defendant on April 3, 2008 and April
4, 2008 respectively. In this regard, the first defendant’s sister -
Kannammal, lodged a complaint at the Gobi Police Station. After
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Karuppanna Gounder’s demise, on May 5, 2008, the plaintiff’s family
assaulted and threatened the first defendant seeking to transfer the settled
properties, prompting the first defendant to lodge another criminal case
against them.
4.2. Given this serious hostility, Karuppanna had no reason to
borrow any money from the plaintiff in 2006. The Suit Promissory Note
including the alleged Karuppanna’s signature therein are false and
fabricated. Therefore, the 1st defendant prayed for the dismissal of the
Suit.
CASE OF SECOND DEFENDANT
5. The second defendant filed a written statement denying the
execution of the Promissory Note by Karuppanna. Further averred that,
Karuppanna never borrowed money from the plaintiff and hence, first
defendant need not pay him any amount. Karuppanna during his lifetime
executed a Gift Settlement Deed dated March 28, 2008 in favour of first
defendant in respect of the entire properties that belonged to him. The
averments that the first defendant is an Universal Donee under Section
128 of the 'Transfer of Property Act, 1882' ['T.P. Act' for short] is false and
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not legally sustainable. Further averred that the second defendant
purchased the properties covered under the said Gift Settlement Deed
from the first defendant for a sum of Rs.4,00,000/- on June 25, 2008. He
is a bonafide purchaser for value without notice of any encumbrances, and
has nothing to do with the Suit claim. Therefore, he sought to dismiss the
Suit.
TRIAL COURT
6. At trial, plaintiff – Devaraj was examined as P.W.1 and one
Mohan was examined as P.W.2 and Ex-A.1 to Ex-A.8 were marked on the
side of the plaintiff. On the side of the defendants, second defendant /
M.D.Sampathkumar was examined as D.W.1 and no document was
marked.
7. After full-fledged trial, the Trial Court concluded that the
Suit Promissory Note is true, valid and executed for consideration.
Further held that the first defendant acquired the entire properties of
Karuppanna by way of Gift Settlement Deed. Hence, the first defendant as
a Universal Donee was bound to repay the Suit Promissory Note debt, out
of the properties gifted by Karuppanna. Further held that the second
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defendant purchased the entire properties gifted to first defendant by
Karuppanna during the pendency of the Suit for a lesser value vide Ex-
A.7 - Sale Deed with a view to defeat and defraud the plaintiff’s right;
that the second defendant is not a bona fide purchaser; that in these
circumstances, second defendant is liable to pay the debt that Karuppanna
owed to plaintiff out of the Karuppanna’s properties which are now in his
hands. Accordingly, it decreed the Suit as prayed for.
FIRST APPELLATE COURT
8. Feeling aggrieved, the second defendant preferred an
appeal before the First Appellate Court, which, after hearing both sides,
concurred with the findings of the Trial Court, and dismissed the appeal.
SECOND APPEAL
9. Feeling aggrieved, the second defendant has preferred the
present Second Appeal under Section 100 of the Code of Civil Procedure,
1908. The Second Appeal was admitted on July 14, 2021 on the following
substantial questions of law:
“a) Whether late Karuppana Gounder's spouse erstwhile first
defendant in the Suit and appellant's vendor would become a
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Universal Donee within the meaning of Section 128 of the
Transfer of Property Act, 1882 warranting properties, subject
matter of settlement, to suffer the decree when the debt is an
unsecured debt on the foot of a promissory note?
b) Whether doctrine of Lis Pendens vide Section 52 of the
Transfer of Property Act, 1882 would be attracted qua a money
suit?”
10. On February 16, 2024, after hearing both sides, the
substantial questions of law has been re-framed as follows:
'(a) Whether the provisions under Section 128 of the
Transfer of Property Act, 1882, would override the provisions
under Section 14(2) [sic] of the Hindu Succession Act, 1956?'
11. During arguments, learned counsel for the appellant /
second defendant raised a point that the First Appellate Court erroneously
dismissed I.A.No.913 of 2018 filed by the second defendant under Rule
76 of the Civil Rules of Practice, which point has also been mentioned in
the grounds of appeal as Point (k). He further submitted that though the
said petition was filed under Rule 76 of the Civil Rules of Practice, in
substance, it was filed under Order XLI Rule 27 of the Code of Civil
Procedure, 1908 ['CPC' for short]. Hence, the First Appellate Court ought
to have disposed of I.A.No.913 of 2018 along with the main appeal.
Instead, the First Appellate Court decided the petition before hearing the
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appeal, which procedure is erroneous. In support of this submission,
learned counsel for the appellant / second defendant relied on the
following decisions:
(i) Judgment of the Hon'ble Supreme Court in A.Andisamy
Chettiar Vs. A.Subburaj Chettiar, reported in (2015) 17 SCC
713; and
(ii) Judgment of the Hon'ble Supreme Court in Shasidhar and
Others Vs. Ashwini Uma Mathad and Another, reported in
(2015) 11 SCC 269.
12. In response the above argument, learned counsel
appearing for the respondent / plaintiff would submit that I.A.No.913 of
2018 was not filed under Order XLI Rule 27 of the CPC, on the other
hand, it was filed under Rule 76 of the Civil Rules of Practice. And, the
second defendant did not raise any objection while deciding the said
I.A.No.913 of 2018. The said application was filed on April 10, 2018 and
disposed on July 4, 2018. Thereafter, the appeal was disposed on October
1, 2019 i.e., after one year. If really the second defendant was aggrieved
with the Order passed in I.A.No.913 of 2018, the second defendant would
have preferred revision as per law or approached this Court under Article
227 of the Constitution of India. In view of his non-objection, as well as
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the fact that he did not prefer revision against the Order passed in the
Interlocutory Application, he is not entitled to reagitate the matter in this
Second Appeal.
13. This Court has perused the affidavit, petition and Order
passed in I.A.No.913 of 2018. The said petition was filed under Rule 76
of the Civil Rules of Practice praying to call for the following documents
from the offices in which they lie:
S.No. Particulars of the document Office in which it lies
1 04.04.2008 Complaint lodged by Police Station, Gobichettipalayam
Kannammal to the Police,
Gobichettipalayam
2 05.04.2008 CSR No.286/08 Police Station, Gobichettipalayam
3 21.05.2008 Complaint lodged by Office of the Superintendent of
Thangammal before Police, Erode
Superintendent of Police
4 21.05.2008 Complaint sent by post IG Office, Coimbatore
to Inspector General Office,
Coimbatore
5 06.05.2008 and 07.05.2008, the Town Police Station,
G.D. file kept by Town Police, Gobichettipalayam
Gobichettipalayam
14. The First Appellate Court, after hearing both sides,
concluded that the documents sought to be called for are all relating to the
year 2008 i.e., after the execution of the promissory note, and that the said
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petition was filed with a view to prolong the proceedings. Further held
that the petitioner / second defendant did not take steps to send for the
documents before the Trial Court. It was further held that the documents
sought to be called for are not relevant and helpful to the
petitioner/second defendant. Accordingly, the First Appellate Court
dismissed the petition.
15. The documents sought to be called for are all various
complaints given by the first defendant and by her sister against the
plaintiff’s side, relating to the year 2008 i.e., after the execution of
Promissory Note. They would not help the defendant’s case. The First
Appellate Court has rightly held so and dismissed the petition. To be
noted, the petitioner / second defendant did not raise any objection when
the petition was taken up for disposal before considering the merits by the
First Appellate Court. Further, the second defendant did not prefer a
revision over the said decision nor did he filed a petition under Article
227 of the Constitution of India before this Court. Further, the said
petition was not filed under Order XLI Rule 27 of the CPC and hence, it
need not be decided along with the appeal. Further, upon considering the
nature of the prayer sought for in the petition, this Court finds no reason
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as to why the petition ought to have been heard along with the main
appeal, as contended by the petitioner / second defendant. Moreover, Rule
76 of the Civil Rules of Practice is not applicable to a petition to call for
documents. For ease of reference, Rule 76 is extracted hereunder:
"76.Copies of public documents.- When a party to suit
or proceeding seeks to obtain a certified copy of public
document for being filed into court in that suit or proceeding,
he may apply to the court wherein the suit or proceeding is
pending for the issue of a certificate to enable him to obtain
such copy from the appropriate authority and the court shall
on being prima facie satisfied that the production of the
certified copy in the suit or proceeding is necessary issue to
the applicant a certificate to that effect."
15.1. Rule 76 deals with a request to the Court to certify that
the petitioner requires certified copies of certain public documents for the
purpose of the case, enabling the petitioner to obtain such a certified copy
from a public authority. The petitioner / second defendant ought to have
filed the petition under Rule 75 of the Civil Rules of Practice, instead of
Rule 76. However, merely citing wrong provision of law is not fatal to his
petition. At the same time, while assuming that the petition is filed under
the right provision which is Rule 75, even then the contentions of the
second defendant that the petition ought to have been considered along
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with the main appeal, does not hold up under scrutiny for the aforesaid
reasons. Nothing wrong could be identified in the procedure adopted by
the First Appellate Court. It is true that when an application is filed under
Order XLI Rule 27 of the CPC, it is to be considered at the time of
hearing the main appeal / considering the merits. No doubt with the legal
position advanced by the Judgments relied on by the learned Counsel for
the appellant / second defendant. However, the second defendant did not
file the Interlocutory Application under Order XLI Rule 27 of CPC and
hence, it need not have been heard along with the main appeal. In view of
the above, the argument of the learned Counsel for the appellant / second
defendant in this regard deserves to be rejected.
16. That apart, the learned Counsel for the appellant / second
defendant raised a contention that the First Appellate Court failed to
follow Order XLI Rule 31 of CPC and the non-compliance thereof
renders the Judgment bad in law. This Court has perused the Judgment of
the First Appellate Court. It is true that the First Appellate Court framed
only one point to the effect that whether the Judgment and Decree passed
by the Trial Court is to be set aside or not. But, First Appellate Court has
elaborately discussed various material aspects such as the execution and
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passing of consideration under Suit Promissory Note (Ex-A.1), whether
the second defendant is a bona fide purchaser or not, whether the
defendants are Universal Donees, whether the plaintiff is entitled to
recover the loan amount in and out of Karuppanna’s properties now in the
hands of second defendant, etc. Though separate points for consideration
were not framed in regard to the above aspects, the First Appellate Court
has covered all the material aspects, substantially conforming with the
Order XLI Rule 31 of CPC. Hence, the contention of the learned Counsel
for the appellant / second defendant in this regard must fail.
17. Coming to the execution of Ex-A.1 – Suit Promissory
Note, the plaintiff examined himself and one more witness, namely P.W.2
– Mohan, in this regard. P.W.2 is the witness to Suit Promissory Note and
regarding its execution, he has deposed along the lines of the plaintiff’s
case. The evidence of P.W.1 and P.W.2 prima facie prove the execution of
Suit Promissory Note by Karuppanna. Hence, in view of Section 118 of
the Negotiable Instruments Act, 1881, Suit Promissory Note attracts the
presumption that consideration passed thereunder. Now the burden is
upon the defendants to rebut the presumption, which they failed to do so.
There is no evidence available on record to rebut the presumption. The
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Trial Court as well as the First Appellate Court concurrently concluded
that Ex-A.1 – Suit Promissory Note is true, valid and executed for
consideration by Karuppanna in favour of plaintiff. This Court is on the
same page with the Trial Court and the First Appellate Court.
18. Next question is whether the first defendant is an
Universal Donee under Section 128 of the T.P. Act.
19. Learned Counsel for the appellant / second defendant
argued that the first defendant acquired the properties of Karuppanna vide
Ex-A.6–Gift Settlement Deed as early as March 28, 2008 and the donor–
Karuppanna passed away on April 20, 2008. Hence as per Section 14 (1)
of the 'Hindu Succession Act, 1956' ['H.S.Act' for short], the first
defendant is the absolute owner of the properties and the principal of
Universal Donee will not be applicable. He relied on the Judgment of
Hon'ble Supreme Court in C.Masilamani Mudaliar Vs. Idol of Sri
Swaminathaswami Swaminathaswami Thirukoil, reported in (1996) 8
SCC 525.
20. Per contra, learned Counsel for the respondent / plaintiff
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submitted that Section 14 (1) of the H.S.Act cannot override Section 128
of the Transfer of Property Act, 1882, by relying on the Judgments of this
Court in Dayanandan Vs. Venugopal Naidu, reported in AIR 1964 Mad
78, and in Shanmugam Vs. M/s. Syndicate Bank, reported in 1999 (III)
CTC 186.
21. The Suit Promissory Note was executed on June 5, 2006
by Karuppanna and he died on April 20, 2008. After exchange of Notices
between the plaintiff and the first defendant, the Suit was filed on June 11,
2008. The borrower - Karuppanna, during his lifetime, executed a Gift
Settlement Deed on March 28, 2008, in favour of his wife / first defendant
in respect of the entire properties in his hands. According to the plaintiff,
he was not aware of the execution of the Gift Settlement Deed (Ex-A.6) at
the time of filing of the Suit and hence, initially, the first defendant was
added as the sole defendant for she succeeded Karuppanna’s properties as
his legal representative. Later, the plaintiff came to know about the
execution of Ex-A.6 – Gift Settlement Deed. Via Ex-A.6, the entire
properties of Karuppanna fell onto the hands of first defendant. It is
fruitful to extract Section 128 of The Transfer of Property Act, 1882
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hereunder:
"128. Universal Donee.—Subject to the provisions of
Section 127, where a gift consists of the donor's whole
property, the donee is personally liable for all the debts due by
and liabilities of the donor at the time of the gift to the extent
of the property comprised therein."
21.1. From the bare reading of the above extracted Section
128, it could be seen that it covers "all the debts due by the donor". It
does not restrict itself to secured debts. Further, the addition of the term
"liabilities", which is of a much wider scope than debt, via an amendment
in 1929, adds support to the assertion that Section 128 is not restricted to
secured debts, but also covers unsecured debts. Lala Ram Surup Vs. Lala
Shiv Dayal, reported in AIR 1940 Lah 285 lends support to the above
view.
22. In this case, the first defendant acquired the entire
properties of the borrower / Karuppanna vide Ex-A.6 – Gift Settlement
Deed. To be noted, the Gift Settlement Deed was executed after Suit
Promissory Note and just three months before the Suit. The Suit was filed
within the stipulated period under the Limitation Act, 1963. As stated
supra, execution of Suit Promissory Note is prima facie proved. A Gift
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Settlement Deed lacks monetary consideration and hence, the one in this
case, might have been executed with a view to defeat plaintiff’s claim of
unsecured debt under the Suit Promissory Note. Assuming that there is no
Gift Settlement Deed in this case, the plaintiff is entitled to realise the
debt through the properties of Karuppanna, which the first defendant
would have succeeded as sole legal heir.
23. Learned Counsel for the appellant / second defendant
relied on Masilamani’s Case (cited supra) to contend that the
Karuppanna’s properties became absolute properties in the hands of first
defendant / Karuppanna’s wife under Section 14 (1) of the H.S.Act. As
per said Section 14 (1) as explained in Masilamani’s Case, any property
acquired by a female Hindu by inheritance, or devise, or partition, or in
lieu of maintenance, or arrears of maintenance, or by gift from any person,
or acquired by her own skill or exertion, or by purchase, or by
prescription towards any pre-existing right, shall be her absolute property,
not a limited property. If any limited right is granted in the abovesaid
manner, the limitations would not hold good and the property would be
deemed to be conferred absolutely upon the female Hindu; in other words,
the limited rights blossom into absolute rights.
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24. If Section 14 (1) of the H.S.Act is said to have an
overriding effect over Section 128 of the Transfer of Property Act, 1882,
after debt, a debtor can easily transfer his entire properties to his wife or
daughter or sister recognising their pre-existing right, and manage to
secure his properties from his debts and liabilities by claiming protection
under Section 14 (1) the H.S.Act. Such an interpretation would lead to
misuse of the beneficial provision intended to uplift the status of and
empower Hindu women, thereby defeating the statutory safeguards
available to creditors and encouraging such colourable transactions under
the guise of statutory protection against gender-based discrimination
conferred upon female Hindus. Thus, this Court concludes that Section 14
(1) of the H.S.Act cannot have an overriding effect on Section 128 of the
T.P. Act.
25. A similar view is taken by this Court in N.K.Pushpam
Achi Vs. K.Rajkumar, reported in 2009 8 MLJ 495, wherein the debtor
transferred his properties in favour of his wife and children after the debt.
The plaintiff’s petition seeking to add the wife and children as proper
parties, which the Trial Court therein dismissed. On revision, this Court
held that the plaintiff could proceed against the properties of the proposed
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parties in the event of plaintiff’s success in the Suit. This Court
accordingly allowed the revision.
26. Hence, the first defendant who acquired the Karuppanna’s
entire properties through Ex-A.6 without any monetary consideration is
liable to clear the debts and other liabilities of the donor, of course to the
extent of the properties acquired through Ex-A.6. Thus, the first defendant
is a Universal Donee under Section 128 of the Transfer of Property Act,
1882 and the findings of the Trial Court as well as the First Appellate
Court that the first defendant is an Universal Donee is correct.
27. The next question is whether the second defendant, who
purchased the Karuppanna’s properties from the hands of the Universal
Donee / first defendant pending the Suit, is a bona fide purchaser with
value and without notice of the pendency of the Suit.
28. The learned Counsel for the appellant / second defendant
argued that there was no encumbrance when the second defendant
purchased the properties from first defendant. He was genuinely unaware
of the pending Suit. Hence, he is a bona fide purchaser with value.
Further, the Suit is a Money Suit and the property purchased by the
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second defendant is not the subject matter thereof. There is no description
of property in the plaint. Accordingly, he argued that the doctrine of lis
pendens is not applicable to the facts and circumstances of this case and
the liability to pay off the Karuppanna’s debt cannot be fastened to /
bundled with the property purchased by the second defendant vide Ex-A.7
– Sale Deed from the first defendant. The concept of Universal Donee is
also not applicable to the second defendant, since he is a bona fide
purchaser with value without notice of any encumbrance. He would rest
his arguments on the Judgment of this Court in Kamatchi Vs. Fathima
Beevi, reported in 2012 (1) MWN (Civil) 305.
29. On the other hand, learned Counsel for the respondent /
plaintiff argued that Ex-A.6 – Gift Settlement Deed, the property thereof
is valued at Rs.10,00,000/-. But in Ex-A.7 – Sale Deed, it has been valued
at Rs.4,50,000/- and purchased for Rs.4,00,000/-. In fact, Ex-A.7 – Sale
Deed was impounded under Section 47-A(1) of the Indian Stamp Act,
1899 as the Sub-Registrar valued the properties at Rs.9,24,900/- and the
defendants remitted the deficit stamp duty and registration fees of
Rs.25,330/- only on January 28, 2012. In this regard, the second
defendant / D.W.1 has deposed as follows:
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' . . . vd;Dila fpua Mtzj;jpy;
j';fk;khs; tHf;F brhj;J vdf;F 28.3.2008
njjpapl;l jhdbrl;oy;bkz;l; Mtzj;jpd;go
ghj;jpag;gl;lJ vd;W Twpa[s;shh; vd;why;
rhpjhd;. ehd; tHf;F brhj;ij 4 ,yl;rk; +gha;
bfhLj;J fpuak; bgw;nwd;. tHf;F brhj;jpd;
bkhj;j tp!;jPh;zk; 2 Vf;fh; 63 brd;l; MFk;.
tHf;F brhj;jpy; xU tPL cs;sJ. xU MH;FHha;
fpzW cs;sJ. khl;L bfhl;lif xd;W cs;sJ.
j';fk;khspd; jhdbrl;oy;bkz;l; gj;jpuj;jpy;
tHf;F brhj;jpd; kjpg;g[ +.10/00/000/- nghl;L
Fwpg;gplg;gl;Ls;sJ vd;why; rhpjhd;. fpua
Mtzj;jpy; brhj;jpd; kjpg;g[ Fiwthf
fhl;lg;gl;Ls;sJ vd;W Twp fpiua Mtzk;
gjpt[ bra;ag;glhky; rhh;gjpthsuhy;
epWj;jpitf;fg;gl;ljh vd;why; me;j
fhuzj;jpw;fhf epWj;jp itf;fg;gltpy;iy. ehd;
j';fk;khSf;F brYj;jntz;oa bjhifia
brYj;jp Kog;gjw;fhf fpua Mtzj;ij gjpt[
bra;ahky; epWj;jp itf;FkhW TwpapUe;njd;. . . .'
30. He has deposed that only with the knowledge that the
properties’ value is Rs.10,00,000/-, he had purchased the same for
Rs.4,00,000/-. Further, both the defendants belong to the same district,
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were residing within 25 Kilometre radius and they belong to the same
community. Further, the properties are situated in a village, in which both
the plaintiff and the first defendant were residing at the time of Ex-A.7 –
Sale Deed and the second defendant could have easily learnt about the
pending Suit from a minimum enquiry. It could be reasonably inferred
that the second defendant was aware of the pending Suit proceedings and
that is why he was able to purchase the property at a much lower price
than the market value. Hence, he cannot be termed as a bona fide
purchaser with value and without notice of the pendency of the Suit.
31. Regarding the applicability of lis pendens to a Money
Suit, it is the general law that the doctrine of lis pens is not applicable to
Money Suit. Here, in the prayer itself it has been stated that the first
defendant derived title vide the Gift Settlement Deed dated March 28,
2008 as a legal representative and as a Universal Donee under Section
128 of T.P. Act, she is liable to pay the debt. During the pendency of the
Suit, first defendant executed Ex-A.7 - Sale Deed in favour of the second
defendant on June 25, 2008 for a lesser value. The parties to the Suit were
well aware of the fact that the plaintiff prayed to pass a Money Decree
recoverable from and out of the properties covered under Ex-A.6 and Ex-
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A.7. The original plaint prayer (before impleading the second defendant)
reads as under:
“9.Mifahy; nkjF ePjpkd;wk; fUiz g[hpe;J/
thjpf;F tHf;F bjhif +.2/36/200/- k; (+gha;
,uz;L yl;rj;J Kg;gj;jhwhapuj;J ,UE}w;W
Ik;gJ kl;Lk;) [sic] gpd; tl;oa[k; tHf;F bryt[j;
bjhifa[k; fhy";brd;w fUg;gz ft[z;lhpd;
thhprhfpa gpujpthjp trkpUf;Fk; fhy";brd;w
fUg;gz ft[z;lhpd; brhj;Jf;fs; \yk;
fpilf;Fk;gof;F Xh; jPh;g;g[k;/ jPh;g;ghiza[k;
ntz;Lkha; thjp gzpt[ld; ntz;Lfpwhh;.”
32. Upon learning about the sale transaction between the
defendants, the plaintiff modified the prayer as hereunder:
“9.Mifahy; nkjF ePjpkd;wk; fUiz g[hpe;J
thjpf;F tHf;F bjhif +.2/36/200/- (+gha; ,uz;L
yl;rj;J Kg;gj;jhwhapuj;J ,UE}w;W Ik;gJ
kl;Lk;) [sic] gpd; tl;oa[k; tHf;F bryt[j;
bjhifa[k; fhy";brd;w fUg;gz ft[z;lhpd;
brhj;Jf;fis 28.3.2008 njjpa nfhgp 2be. ,iz
rhu;gjptf gj;jpu vz;.608/2008 Mf gjpt[
bra;ag;gl;l jhdbrl;oy;bkz;l; gj;jpug;go Kjy;
gpujpthjp mile;J mr;brhj;Jf;fis Kjy;
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gpujpthjp 2 Mk; gpujpthjpf;F 25.6.2008k; njjpa
fpua Mtzk; \yk; fpuak; bra;J bfhLf;fg;gl;L
,uz;lhk; gpujpthjp trkpUf;Fk; fUg;gz
ft[z;lupd; brhj;Jf;fs; \yk; fpilf;Fk; gof;F
Xu; jPu;g;g[k; jPu;g;ghiza[k; gpwg;gpf;f ntz;Lkha;
thjp gzpt[ld; ntz;Lfpwhh;. (,.k.vz;.134/2012
,y; 8.8.2012k; njjp Vw;gl;l cj;jutpd;go
jpUj;jg;gl;lJ)”
33. The original prayer is sufficient enough to easily discern
that the Suit revolves around the properties covered under Ex-A.6 and Ex-
A.7 and that if Money Decree passed, it would be enforceable upon the
properties covered thereunder. It is clear that though description of
property is not stated in the plaint as per Order VII Rule 3 of CPC, the
provisions are substantially conformed with by the plaintiff. After
impleading the second defendant, the amended prayer has brought greater
clarity to the matter. As stated supra, the second defendant is not a bona
fide purchaser and he had purchased the property for less than half of its
market value. It leads to a strong inference that he purchased the
properties only with the knowledge of the pendency of the Suit. Hence,
this Court is of the view that the doctrine of lis pendens is applicable to
the present case. Moreover, upon being impleaded by the plaintiff, he
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entered appearance, filed written statement and took all defences available
to the first defendant, including that the Suit Promissory Note is false and
fabricated. In these circumstances, he steps into the shoes of the first
defendant and he who is deriving right and title from the second
defendant during the pendency of the Suit is also liable to pay the debt in
and out of the property derived from the first defendant, as he becomes
her legal representative. To be noted, the term legal representative is wide
enough to include even an inter-meddler and in such a scenario, in view
of the facts and circumstances of the case, this Court has no difficulty in
holding that the second defendant is a legal representative of the second
defendant. In this regard, it is worthwhile to refer to Shanmugam’s Case
(cited supra), facts whereof are captured in Paragraph No.1 of the
Judgment therein, which reads as hereunder:
"1. The first respondent filed a suit in O.S. No. 336 of
1981 on the file of the Sub-Court, Coimbatore for recovery of
money from the respondent No. 2 and one Kanni Boyan and
Nammal. The defendants 2 and 3 in the suit borrowed money
from the first respondent-bank and their mother Nallammal,
the fourth defendant in the suit executed a mortgage deed with
respect to the property in question in 1978 as security in
favour of the said bank. The said Nallammal seems to have
executed the settlement deed on 7.3.1980 in favour of the
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petitioners who are the sons of the second defendant. To
enforce the said mortgage and recover the amount, the first
respondent-bank filed the suit on 23.3.1981. Since there were
some superstructures in the property settled in favour of the
petitioners, the said Nallammal seems to have executed a
release deed on 20.1.1982 with respect to those
superstructures, and she died on 1982. Preliminary decreed
was passed on 5.2.1985 and final decree was also passed on
22.7.1986. Since the defendants 2 and 3 also died, the
Execution Petition in E.P. No. 137 of 1988 was filed by the
said bank against all other legal representatives of the
deceased defendants. In the Execution Petition, the petitioners
herein filed counter stating that they are the settlees with
respect to the property hypothecated to the said bank and they
are entitled to the equity of redemption, and the decree
obtained without impleading them cannot be enforced. The
court below rejected the objection raised by the petitioners and
directed to proceed with the execution petition. Aggrieved
against the same, the petitioners have filed the above
revision."
33.1. Dealing with the above factual matrix, referring to
Dayanandan’s Case (cited supra), this Court held in Shanmugam’s Case
as follows:
" While dealing with similar issue, Veeraswami, J., as he then
was, in the decision in Dayanandan v. Venugopal, AIR 1964
Mad. 78 has held as follows:-
“With great respect to the Judges who decided AIR
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1952 Trav.Co. 23, I can unable to concur with the
view they have expressed. They seem to think that
devolution of interest is necessarily a test of one
being a legal representatives. I am find no warrant
for such a view. In S. 2.(11) of C.P. Code the
statutory definition of ‘legal representative’ goes so
far as to say that even an inter-meddler with the
estate of a deceased will be his legal representative.
If that is so, I do not see why a universal donee who
by reason of a gift enters upon possession of the
estate of a deceased cannot be regarded as his legal
representative. It is not necessary that, in order for
that person to be his legal representative, there must
be a devolution of interest in his favour from the
deceased. If devolution is the criterion, many
persons who are unbounbtedly legal representative
will not be so, as for example, executors, trustees
and the like. Apart from a universal donee being a
legal representative, it is particularly important to
note that universal donees only take the estate of the
deceased subject to the liabilities of the deceased. In
fact Section 128 of the Transfer of Property Act
fastens a personal liability upon the universal donee
for all debts due by the donor at the time of the gift
though that liability is confined to the extent of the
properties comprised in the gift. This aspect, if I
may say so, with respect, again, does not appear to
have been kept in view in AIR 1952 Trav.Co. 23.
The liability of the universal donee to pay the decree
debt of the donor arises not only by reason of the
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donee accepting the gift and of being the legal
representative of the deceased but also by the very
terms under which he becomes a universal donee.
Though it was conceded by counsel in Andhra Bank
Ltd. v. Srinivasan, AIR 1962 SC 232, that a
universal donee would be a legal representative, the
Supreme Court was inclined to take the view that
even a person who intermeddled with only a part of
the estate of a deceased would be his legal
representative. The case of a universal donee is a
fortiori on a better footing.
Section 50(2) of the Civil Procedure Code enables a
decree holder to execute his decree against the legal
representatives of the judgment-debtor, the liability,
of course, in execution being confined to the extent
of the deceased's property in the hands of the legal
representative. That precisely is also the position
under Section 128 of the Transfer of Property Act.
On a careful consideration of the question, I am
unable to see why there should be insistence on
another suit against the legal representatives to
establish the debt of the donor. There appears to be
no conceivable reason or principle which compels
such a course. Both on the ground that the universal
donees are the legal representatives of the donor
and on the ground of their personal liability to
qualified extent under the terms of Section 128 of
the Transfer of Property Act, I hold that no separate
suit is necessary to reach the properties of the donor
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in execution of the decree against him but that the
decree-holder can levy execution straightway
against his legal representatives to the extent of the
donor's properties in their hands.”
From the abovesaid decision it is clear that the petitioners are
the legal representatives of the fourth defendant and they are
liable to discharge the liability to the extent of the deceased's
property in question and no separate suit need be filed. In view
of the above finding I am not going into the other question, viz,
whether the suit is sustainable under Order 34, Rule 1 of the
Code, without impleading the petitioners."
34. The Trial Court relied on VPS Vishwananthan Vs. Sri
Raja Yarns Traders, reported in 2010 1 MLJ 556, and held that the
second defendant is not a bona fide purchaser with value and without
notice, and hence the plaintiff is entitled to avoid the sale and realise the
debt amount including interest from the second defendant in and out of
the Karuppanna’s properties which lie in his hands. There is no illegality
or irregularity in the said finding of the Trial Court as well as the First
Appellate Court. As regards the cases relied on by learned Counsel for the
appellant / second defendant in support of the contention that lis pendens
is not applicable to money Suit, no doubt that the same is the general law,
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however in view of the unique facts and circumstances of this case, the
doctrine of lis pendens is applicable, as elaborated above.
35. The absolute ownership under Section 14(1) of the
H.S.Act cannot override the liability imposed by Section 128 of T.P. Act,
in the facts and circumstances of this case. Accordingly, the substantial
question of law is answered against the second defendant and in favour of
the plaintiff. The Judgment and Decree of the Trial Court as well as First
Appellate Court are sustained. The Second Appeal must fail.
RESULT
36. Resultantly, the Second Appeal stands dismissed. The
Judgment and Decree of the First Appellate Court is hereby confirmed.
Considering the facts and circumstances of the case, there shall be no
order as to costs. Consequently, connected Civil Miscellaneous Petition is
closed.
04 / 06 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
R. SAKTHIVEL, J.
TK
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To
1.The III Additional District
and Sessions Judge
Erode at Gobichettipalayam.
2.The Sub Judge
Sub Court
Gobichettipalayam.
3.The V.R. Section
Madras High Court,
Madras.
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.514 OF 2021
04 / 06 / 2025
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