Case Note & Summary
The case involves a second appeal arising from a partition suit. The original plaintiffs, Shivaji and Kamlabai, claimed a 1/3rd share in the properties of deceased Maruti, who had three daughters: Sujata (predeceased, mother of plaintiffs), Lochanabai, and Krishnabai. The suit properties included lands at Village Ranjane and Village Akole. The defendants included Lochanabai, Krishnabai, and various purchasers of parts of the suit properties, including the appellant (original defendant No.6). The trial court dismissed the suit, but the first appellate court allowed the appeal, declaring the plaintiffs' 1/3rd share and ordering partition. The appellant challenged this, raising two substantial questions of law: (1) whether the principles of lis pendens apply to the appellant who purchased the property pending the suit, and (2) whether the will deed executed by the father of respondents Nos.3 and 4 was duly proved. The High Court held that the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 applies, and the appellant, having purchased the property during the pendency of the suit, is bound by the decree. Regarding the will, the court found that it was not proved in accordance with law as the attesting witnesses were not examined, and mutation entries do not have presumptive value for proving a will. The court allowed the appeal in part, setting aside the finding on the will and remanding the matter for fresh consideration on that issue.
Headnote
A) Property Law - Lis Pendens - Section 52 Transfer of Property Act, 1882 - Purchaser during pendency of suit is bound by the decree - The court held that the appellant, who purchased the property during the pendency of the suit, is bound by the doctrine of lis pendens and cannot claim a share independent of the suit. (Paras 2, 4-6) B) Evidence Act - Proof of Will - Sections 67, 68 Indian Evidence Act, 1872 - Will must be proved by examining attesting witnesses - The court held that the will deed was not duly proved as the attesting witnesses were not examined, and mutation entry does not confer title or prove the will. (Paras 2, 7-10)
Issue of Consideration
Whether the principles of lis pendens apply to the appellants who purchased the property pending the suit, and whether the will deed executed by the father of the respondents was duly proved.
Final Decision
The High Court allowed the appeal in part. It held that the doctrine of lis pendens applies and the appellant is bound by the decree. However, regarding the will, the court set aside the finding of the first appellate court and remanded the matter for fresh consideration on the issue of proof of the will.
Law Points
- Doctrine of lis pendens
- Section 52 Transfer of Property Act
- 1882
- Proof of will
- Mutation entry not conclusive
- Partition suit
- Share of legal heir
