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Tabeya Bibi Vs. Wali Bandi Bibi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1919)ILR61All534
AppellantTabeya Bibi
RespondentWali Bandi Bibi
Excerpt:
lis pondens - suit to set aside gift of immovable property--amendment of plaint--change of description of property--amendment not necessarily relating back to date of suit--mahammadan law--gift--circumstances in which a gift becomes irrevocable. - - .....items of property consisting of kothris and houses in favour of the widow of her son, musammat shafia bibi. on the 22nd of february, 1912, musammat pir bandi instituted a suit against her daughter-in-law, musammat shafia bibi, for the revocation of the gift of the 3rd of november, 1908. in the plaint of that suit it was alleged that items nos. 1, 6 and 7 had been the subject-matter of suit in a former litigation between an heir of the husband of pir bandi and the donee and that the gift in respect of these three items of property had been cancelled by a decree in favour of the heir of her husband. she, therefore, sued for the cancellation of the gift in respect of the remaining items of property including 2 and 5. summons to the defendant, musammat shafia bibi, was served on the 16th.....
Judgment:
1. It appears that one Musammat Pir Bandi owned some house property in the town of Gorakhpur. She executed a deed of gift on the 3rd of November, 1908, of seven items of property consisting of kothris and houses in favour of the widow of her son, Musammat Shafia Bibi. On the 22nd of February, 1912, Musammat Pir Bandi instituted a suit against her daughter-in-law, Musammat Shafia Bibi, for the revocation of the gift of the 3rd of November, 1908. In the plaint of that suit it was alleged that items Nos. 1, 6 and 7 had been the subject-matter of suit in a former litigation between an heir of the husband of Pir Bandi and the donee and that the gift in respect of these three items of property had been cancelled by a decree in favour of the heir of her husband. She, therefore, sued for the cancellation of the gift in respect of the remaining items of property including 2 and 5. Summons to the defendant, Musammat Shafia Bibi, was served on the 16th of March, 1912. On the 16th May, 1912, item No. 6 was sold to Musammat Tabeya Bibi by Shafia Bibi in consideration of Rs. 1,000. On the 21st of May, 1912, Musammat Pir Bandi filed an application for the amendment of her plaint in the suit that she had instituted on the 22nd of February, 1912. She said that by a clerical error and oversight she had mentioned item No. 6 as having been in litigation between her husband's heir and Musammat Shafia Bibi, and had herself sued for the cancellation of items 2 and 5, while as a matter of fact it was item No. 5 which was in suit in the case of her husband's heir and she intended to sue and was suing in respect of items Nos. 2 and 6. She therefore prayed that wherever in her plaint No. 5 was mentioned it should be changed to No. 6. Her application was allowed on the same day, that is, the 21st of May, 1912, and the plaint was amended. Subsequent to the amendment Musammat Shafia Bibi added a plea to her defence that property, item No. 6, had been sold by her for consideration on the 16th of May, 1912, to Musammat Tabeya Bibi. In spite of this plea of Shafia Bibi, the vendee Musammat Tabeya Bibi was not brought on the record. The case proceeded to trial and the claim of Pir Bandi was decreed. The decree in that case, however, does not in any way bind Musammat Tabeya Bibi. On the 15th of May, 1915, the suit out of which this appeal has arisen was brought by Musammat Tabeya Bibi for possession of the house No. 6 on the basis of the sale deed of the 16th of May, 1912. The claim was brought against Musammat Wali Bandi, a niece of Pir Bandi, to whom the house in suit had been transferred by Pir Bandi on the 7th of April, 1914, under a deed of gift. The principal plea in defence was that the claim of the plaintiff was barred under the rule of lis pendens. The court of first instance declined to accede to this plea and decreed the claim. On appeal the decree of the first court was confirmed. In Second Appeal to this Court various points have been urged against the decree of the courts below. The first and chief point is that the sale to Musammat Tabeya Bibi by the plaintiff respondent was made during the pendency of the suit of Pir Bandi and therefore the sale is invalid. The contention is that under the law the amendment of a plaint relates back to the date of the institution of the suit and that for the purpose of lis pendens the suit becomes contentious from the date of its institution. In the present case, though there was a mistake in the description of a portion of the property in suit, yet by the amendment of the 21st of May, 1912, the defect was cured and the suit should be taken to have been a contentious suit qua item No. 6, from the 22nd of February, 1912, the date on which it was instituted. Some cases have been referred to us in support of the contention that the amendment relates back to the date of the institution of the suit. The contention may be correct with regard to certain pleas such as that of limitation, but we are not prepared to hold that the contention is true in every possible case. One of the matters that is essential for the application of the rule of lis pendens is that the property should have been directly and specifically in question in the suit. Bennet in this work on lis pendens says: "It may be said in general that a lis pendens will be created whether the property involved in suit is described, either by such definite and technically legal description that its identity can be made out by the description alone, or where there is such a general description of its character or status, and by such reference that upon inquiry the identity of the property Involved in litigation can be ascertained." In the present case at the time of the sale of house No. 6 to Musammat Tabeya Bibi, the plaint of Pir Bandi had no such description as to put the vendee on her guard or to give her notice that the property that she was purchasing was sub judice. In fact the allegation in the plaint was that No. 6 had already been dealt with in a former litigation and therefore Pir Bandi was seeking no relief in respect of it. The property may be said for the first time to have come directly and specifically into question on the 21st of May, 1912, when the amendment was allowed. The amendment of the plaint by a change in the description of a portion of the property in suit cannot for the purpose of the rule of lis pendens relate back to the date of the institution of the suit. We think that the lower courts were right in holding that the plaintiff respondent could not be defeated on the rule of lis pendens. Another point that has been urged on behalf of the defendant appellant is that Musammat Tabeya Bibi being a vendee from Musammat Shafia Bibi who was a donee from Musammat Pir Bandi, cannot claim to have a better title than that of Shafia Bibi. The gift in favour of the latter was revoked by a decree of court and the sale to Tabeya Bibi, therefore, falls to the ground. In the sale deed itself Musammat Shafia Bibi described her title to the property she was selling as that of a donee, and Musammat Tabeya Bibi knew and ought to have known that under the Muhammadan law the gift was revocable. All that Musammat Tabeya Bibi took by her sale was the title of Shafia Bibi whatever that title was. This point was not urged either in the written statement or in the court of first instance or in appeal before the lower appellate court. It is taken for the first time before us. We do not think that the appellant should be allowed to set up a new case before us. But we do not propose to decide the question on a technical ground. It appears that under the Muhammadan law the right to revocation of a gift is barred for, among other reasons, a transfer made by the donee or by any additions made by the donee or her transferee to the gifted property by which its value has been increased, vide Wilson's Muhammadan Law, paragraph 316, page 354. In the present case, Musammat Shafia Bibi had sold the property to the plaintiff respondent and therefore the gift in respect of house No. 6 could not be revoked. The argument that as a matter of fact a decree for revocation has been passed in favour of Pir Bandi is of no force considering that the plaintiff respondent was no party to that decree. She is not debarred from questioning the right of Musammat Pir Bandi to revoke the gift in the present case. Moreover, as we understand the judgment of the lower appellate court, the property has beer dealt with by the transferee in such a way as to increase its value. Therefore on both the grounds the gift was not revocable at he instance of Musammat Pir Bandi. The appeal, therefore, fails and is dismissed with costs.

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