- (1.) THIS is the plaintiff's second appeal and arises out of a suit which was filed by the original plaintiff Lalaram under O. XXI, R. 63, C.P.C. There were three defendants in the suit, Baburam was the defendant No. 3 and he happened to be the only son of the plaintiff. The latter died during the pendency of the appeal in the lower appellate court and his widow Smt. Pista Devi was brought on record as the legal representative of the deceased plaintiff. She also subsequently died and one Smt. Chandra Kanta Devi also died and then Smt. Lakshmi Devi was brought on record as her legal representative. Smt. Lakshmi Devi and before her Smt. Chandra Kanta Devi were brought on record on the basis of the respective wills in their favour alleged to have been executed by their predecessor-in-interest.
(2.) THE original plaintiff Lalaram deceased sought a declaratory relief to the effect that the property mentioned in the plaint was not attachable and saleable in the execution of decree No. 172 of 1962, Smt. Kala Devi v. Baburam and of decree No. 194 of 1962, Ramesh Chandra v. Baburam. Smt. Kala Devi was impleaded as the defendant No. 1 and Ramesh Chandra was impleaded as the defendant No. 2. As I have already stated above Baburam, the plaintiff's son, was impleaded as the defendant No. 3. THE aforesaid decrees Nos. 172 of 1962 and l94 of 1962 were passed against the said Baburam in favour of the said decree-holders. THE suit property was attached in execution case No. 239 of 1962 wherein the decree passed in Suit No. 194 of 1962 was put into execution. THE said property had also been attached before judgment on 18th September, 1962 in Suit No. 172 of 1962. Lala Ram filed an objection against the said attachment before judgment under O. XXXVIII, R. 8, C.P.C. but the same was dismissed on 27th April, 1963. THE said Suit No. 172 of 1962 was decreed against Baburam on 15th November, 1962. Against the attachment effected in execution case No. 239 of 1962. Lalaram filed an objection under O. XXI, R. 58, C.P.C. THE said objection was pending when the instant suit under O. XXI, R. 63, C.P.C. was instituted. Apart from the aforesaid facts which were set out in the plaint, Lalaram further alleged that he had been forced to execute a Tamleeknama on 25th February, 1961 but the same was ineffective inasmuch as it had been obtained by his son under duress from him. Alternatively, it was pleaded that Baburam reconveyed the property to his father Lalaram by means of a deed of surrender dated 17th August, 1962. THErefore, the plaintiff Lalaram was the sole owner of the property and the same was not liable to be attached and sold in the execution of the aforementioned two decrees passed against his son Baburam. The defendant No. 3 filed a written statement supporting the plaintiff's case but the other two defendants who were the decree-holders resisted the plaintiff's claim. They pleaded that the Tamleeknama was a genuine document and was not obtained from the plaintiff under duress. The deed of surrender dated 17th August, 1962 was alleged to be a sham and fictitious document which was executed to defeat the claim of the creditors. It was further pleaded by the defendants-decree-holders that the property in dispute was a joint family property and, in any case, at least half of the share of the judgment-debtor Baburam was attachable and was liable to be sold. It may be stated that respondents Nos. 4 and 5 who have been impleaded in the instant second appeal are the auction-purchasers. They were not originally parties to the suit. The respondents 1, 2 and 3 in the instant appeal are defendants Nos. 1, 2 and 3 in the suit. The trial court framed necessary issues and after trial dismissed the suit. The lower appellate court affirmed the trial court's decree. The plaintiff has now come up in the instant appeal and the learned counsel for the appellant has, in the main, contended as follows:- (1) The Tamleeknama did not confer an absolute right on Baburam. He was only given management but the ownership continued to remain in Lalaram. (2) Even if the Tamleeknama conferred absolute right, still the property being joint family property, Lalaram had no right to transfer his share in the same and such a transfer was void. The plaintiff, therefore, could get a declaration at least to the extent of his share in the joint family property which had been attached and sold in the execution of the decree against Baburam. It was contended that in the execution of a decree against a coparcener, the auction purchaser could only purchase his share in the joint family property and nothing more than that. (3) The plaintiff was entitled to get a declaration in respect of his share on the basis of the defence plea itself which had alleged and which was found to be correct that the suit property was a joint family property. In this connection, learned counsel placed reliance on the following cases:- 1. Firm Sriniwas Ram Kumar v. Mahabir Prasad (AIR 1951 SC 177); 2. Bhagwati Prasad v. Chandramaul (AIR 1966 SC 735); 3. Kedar Lal Seal v. Hari Lal Seal (AIR 1952 SC 47). (4) A reference was made to Ss. 6, 8, 10 and 14 of the Hindu Succession Act and it was contended that the share of the widow of Lalaram was one-half in the property and the said share passed on to the legal representatives who were brought on record one after another and, therefore, a declaratory decree in respect of that half share could be passed in favour of the existing plaintiff on record. Reliance was placed on Rangubai v. Laxman Lalji Patil (AIR 1966 Bom 169) for the contention that the share of the widow of Lalaram was one-half after the death of the latter. (5) The property was sold and the sale was confirmed during the pendency of the instant suit under O. XXI, R. 63, C.P.C. and the doctrine of lis pendens would be applicable. Reliance was placed on Kedarnath Lal v. Sheo Narain (AIR 1970 SC 1717) where it is laid down as under (at p. 1722 of AIR): "It is true that S. 52, strictly speaking, does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations."
(3.) LEARNED counsel for the appellant placed reliance on Ramachandra Shenoy v. Mrs. Hilda Brite (AIR 1964 SC 1323) and Halsbury's Laws of England page 980, para 1483. On behalf of the respondents, it has been contended that the suit being one under O. XXI, R. 63, C.P.C. it is not open to the plaintiff-appellant to seek to travel beyond the scope and ambit of the said provision. The plaintiff is confined only to establish the right of claim which he sought to establish by way of objection under O. XXI, R. 58 and in which attempt he failed. In this view of the matter, it is not open to the plaintiff to seek relief on alternative grounds or on grounds which arise out of defence and not out of his own pleadings. Reliance was placed on Mt. Aziz Jahan Begum v. Sardar Singh (AIR 1955 All 241) (FB) which is Full Bench decision of this court. Poonam Chand v. Moti Lal (AIR 1955 Raj 179) has also been relied on. It was contended that in the facts of the instant case, the ratio laid down in the Supreme Court decisions reported in AIR 1951 SC 177, AIR 1952 SC 47 and AIR 1966 SC 735 (supra) would not be applicable as there was no such admission of the defendants as could enable the plaintiff on record to get a declaration in respect of his or her alleged share in the property. Reliance was placed on Ammalu Ammal v. Namagiri Ammal (AIR 1918 Mad 300) and Bhagwana v. Ch. Gulab Kuer (AIR 1942 All 221) (FB). It was next contended that the prohibition contained in the Tamaleeknama disabling Baburam from transferring the property without the consent of Lalaram was bad in view of S. 10 of the Transfer of Property Act. Reliance was placed on Gomti Singh v. Anari Kuar (AIR 1929 All 492).;