Case Note & Summary
The dispute concerned agricultural land in Gat No.73, village Ardhanari, Mohol Taluka, District Solapur, originally purchased by one Baburao Kapase in 1957. Baburao had five sons (respondents). In 1973, the sons filed a suit (R.C.S. No.32/1973) for partition, claiming the land as ancestral property. While that suit was pending, Baburao, in 1976-77, entered into agreements for sale and eventually executed a sale deed dated 1/12/1977 in favour of the plaintiffs (appellants herein), transferring the entire land. The appellants included Raghunath Gangadhar Kakade and Pandurang Ramchandra Kakade; the father of Pandurang had been a witness in the earlier suit. The partition suit was decreed on 17/12/1977, awarding the sons a 5/6th share. After Baburao's death in 1979, the appellants filed R.C.S. No.187/1980 in the court of Civil Judge, Jr. Division, Mohol, seeking a declaration that they were absolute owners of the land and that the earlier decree was collusive and not binding on them, along with permanent injunction. The trial court, by judgment dated 24/1/1985, held that the appellants were owners only to the extent of Baburao’s 1/6th share, finding that they had knowledge of the pending suit and the transaction was hit by lis pendens; the earlier decree was not collusive. The appellate court (4th Additional District Judge, Solapur) dismissed the appeal on 19/4/1990, affirming the findings. In the second appeal before the High Court, the appellants raised substantial questions: (1) whether they were bonafide purchasers without notice, given the earlier decree was unregistered; (2) whether the sale was for the benefit of the family. The High Court observed that the lower courts had concurrently found that the father of plaintiff no.2 had testified in the earlier suit and the sale deed followed shortly, establishing knowledge; the earlier suit was contested by Baburao, not collusive. The Court held that the transaction was squarely hit by Section 52 of the Transfer of Property Act, 1882, the appellants were not bonafide purchasers, and no legal necessity was proved. Consequently, no substantial question of law arose, and the second appeal was dismissed with costs.
Headnote
A) Transfer of Property - Lis Pendens - Sale during pendency of suit - Transfer of Property Act, 1882, Section 52 - The suit land was the subject matter of a partition suit filed by respondents against their father Baburao. The appellants purchased the land from Baburao during the pendency of that suit with knowledge thereof. The transaction was thus hit by the doctrine of lis pendens and not binding on the respondents. (Paras 6, 9, 10) B) Evidence - Bonafide Purchaser - Notice of pending suit - Transfer of Property Act, 1882, Section 52 - The father of plaintiff no.2 testified as a witness in the earlier suit, and the sale deed was executed shortly thereafter. The plaintiffs resided together and were found to have knowledge of the suit. Hence, they could not claim to be bonafide purchasers for value without notice. (Paras 5, 6, 9) C) Civil Procedure - Collusive Decree - Validity of earlier decree - Code of Civil Procedure, 1908, Order 20 Rule 18 - The appellants challenged the decree in R.C.S. No.32/1973 as collusive. However, the trial and appellate courts found that the suit was contested by Baburao, who filed a written statement and led evidence; the decree was after contest and not collusive. (Paras 4, 7) D) Hindu Law - Joint Family Property - Legal Necessity - Hindu Law - The appellants argued that the sale consideration was used to pay family debts, making it for the benefit of the family. The lower courts found that the property was ancestral, purchased from sale proceeds of ancestral land, and Baburao could not sell the whole property without legal necessity, which was not proved. (Paras 1(b), 6, 7) E) Civil Procedure - Second Appeal - Substantial Questions of Law - Code of Civil Procedure, 1908, Section 100 - The High Court considered the substantial questions of law framed in the appeal memo regarding bonafide purchase and family benefit. It held that the concurrent findings of fact by the lower courts on knowledge and lack of collusion were not perverse, and answered the questions against the appellants. (Paras 1, 10)
Issue of Consideration
Whether the sale transaction dated 1/12/1977 between plaintiffs and deceased Baburao was binding when a partition suit (R.C.S. No.32/1973) was pending, and whether plaintiffs were bonafide purchasers without notice; whether the decree in R.C.S. No.32/1973 was collusive.
Final Decision
Second appeal dismissed with costs. The decree of the lower appellate court affirmed, holding that the plaintiffs are entitled only to 1/6th share (Baburao's share) and the sale transaction is hit by lis pendens and the decree in R.C.S. No.32/1973 is binding on them.
Law Points
- Principle of lis pendens under Section 52 of Transfer of Property Act
- 1882
- Bonafide purchaser for value without notice
- Family benefit and sale for legal necessity
- Substantial questions of law under Section 100 CPC
- Requirement of registration of decree under Section 18 of Indian Registration Act
- Collusive decree
- Self-acquired property vs ancestral property
