M.P. Mehrotra, J.
1. The is the (plaintiff's second appeal and arises out of a suit which was filed by the original plaintiff Lalaram under Order XXI, Rule 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, Plata 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 mentiened 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 Chan-dira 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 104 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 Order XXXVIII, Rule 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 Order XXI, Rule 58, C.P.C. The said objection was pending when the instant suit under Order XXI, Rule 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.
3. 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 defend ants-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.
4. 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 confer-red 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 Ms 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. Maha-bir Prasad : 2SCR277 . Bhag-wati Prasad v. Chandramaul : 2SCR286 . Kedar Lal Seal v. Hari Lal Seal : 1SCR179 . (4) A reference was made to Sections 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 Rangubal v. Laxman Lalji Patil : AIR1966Bom169 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 Order XXI, Rule 63, C.P.C. and the doctrine of lis pendens would be applicable. Reliance was placed on Kedarnath Lal v. Sheo Narain : 2SCR204 where it is laid down as under (at p. 1722 of AIR):-- 'It is true that Section 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.' ,
5. 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.
6. On behalf of the respondents, it has 'been contended that the suit being one under Order XXI, Rule 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 Order XXI, Rule 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 : AIR1955All241 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 : 2SCR277 , : 1SCR179 and : 2SCR286 (supra) would not be applicable as there was no such admission of the defendants as could enable the plaintiff on record to get a de9laration in respect of his or her alleged share in the property. Reliance was placed on Ammalu Animal 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 Section 10 of the Transfer of Property Act- Reliance was placed on Gomti Singh v. Anari Kuar : AIR1929All492 .
7. Before deciding these controversies, it will be expedient to notice that both the courts below have returned the following concurrent findings of facts which are binding on me in the second appeal:--
(1) The Tamleeknama was not executed under duress as alleged by the plaintiff. In other words, it was freely executed by his own free will by the original plaintiff Lalaram.
(2) The subsequent surrender deed executed by Baburam was a fictitious document which was sham and ineffective.
(3) There was joint family in which the plaintiff Lalariam and his son Babu Ram were members and the property in question was the property of the said joint family. No effort has been made by either side to question the said findings.
8. In my opinion, this appeal has to fail on more grounds than one. The suit purports to be one under Order XXI, Rule 63, C.P.C. There is a clear recital in para 7 of the plaint to the effect that the plaintiff's objections against attachment and sale were pending in execution case No. 239 of 1962 where the decree passed in Suit No. 194 of 1962 was sought to be executed. It is obvious that a suit under Order XXI, Rule 63, C.P.C can be filed only after the objections under Order XXI, Rule 58, C.P.C. have been decided and disposed of Order XXI, Rule 63, C.P.C. lays down as under:--
'Saving of suit to establish right t' attached property -- Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.''
9. Therefore, so far as the attachment in execution case No. 239 of 1962 is concerned the same could not be challenged in the instant suit and the relief sought regarding the same cannot be granted as the suit itself for such relief in the absence of an order under Order XXI, Rule 58, C.P.C. would be premature.
9-A. It is obvious that in the plaint, the plaintiff Lalaram set up a title of exclusive ownership of the property on the ground that the same was his separate property and hie son-Baburam had no interest in the same. But this allegation has failed in the courts below and it has been found that the property was joint family property and not the exclusive separate property of the plaintiff. The question is, can the plaintiff on the basis of such finding of fact set up a claim that a declaration should be granted in respect of the plaintiff's share holding the same not to be attached and saleable in the execution of the two decrees which were obtained against Baburam who has been held to be another coparcener in the suit property. Learned counsel for the plaintiff contended that on the basis of the ratio laid down in the aforesaid Supreme Court cases, the court could grant such a limited relief on the basis of its finding based on the admission of the defendants themselves. It seems to me that even though it has now been held that in a suit under Order XXI, Rule 63, C.P.C. the court is not merely confined to decide the question of possession and the plaintiff's right to property itself is adjudicated, still, it cannot be suggested that it is in the nature of a full title suit. I think that a restricted scope and ambit have to foe given to a suit under Order XXI, Rule 63, C.P.C. in view of the phraseology which has been used in the said provision and also taking into consideration various other relevant circumstances. It has been consistently held that a suit under Order XXI, Rule 63, C.P.C. is in the nature of a proceeding in continuation of the objections under Order XXI, Rule 58, C.P.C. Indeed the cause of action for a suit under Order XXI, Rule 63, C.P.C. is provided by the adjudication of the objection or claim under Order XXI, Rule 58, C.P.C. under the U. P. Court-Fees Act, Section 7, Clause (viii) provided as under:--
'To set aside or to restore an attachment.--In suits to set aside or to restore an attachment including suite to set aside an order passed under Order XXI, Rule 60, 61 or 62 of Code of Civil Procedure according to half of the amount for which attachment was made, or according to half of the value of the property or interest attached, whichever is less.
Explanation.-- The value of the property or interest for the purposes of this sub-section shall be the market value which in the case of immoveable property or interest in such property shall be deemed to be the value as computed in accordance with Sub-section (v), (v-A) or (v-B) as the case may be.'
10. It will thus be seen that a specially low court-fee is provided for such suits. In this view of the matter, I do not think that a suit under Order XXI, Rule 63, C.P.C. can be equated with a regular title suit and its scope, though not confined only to adjudication merely on the basis of possession, still cannot be deemed to be so wide as to allow it to be converted into a regular full-fledged title suit. In this view of the matter, I think the plaintiff in the instant suit could only canvass his contention that he is the exclusive owner of the suit property which was claimed to be his separate property. It was not open to the plaintiff to claim title in himself to a share on the basis of the property being joint family property when he had not raised the said contention in this objection under Order XXI, Rule 58, C.P.C. in : 2SCR277 (supra) the court granted the relief to the plaintiff on the ground that it was open to him to claim the relief on alternative basis and in fact the alternative basis had been put forward by the defendant in answer to the plaintiff's claim. In : 2SCR286 (supra) also the relief was granted to the plaintiff on the alternative basis namely the basis of title which was admitted by the defendant. In the plaint, relief had been sought on the basis of the landlord-tenant relationship but the same was not found to have been proved. As I have held that in the instant case, it was not open to the plaintiff to seek relief on a basis different from the one on which his objections were raised in proceedings under Order XXI, Rule 58, C.P.C. Therefore, in my view, the principle of Supreme Court case is not applicable to the instant case. Moreover, there are various other difficulties in granting the relief to the plaintiff on the basis that the property was joint family property. It will be seen that the Supreme Court cases which have been referred to above proceeded on the ground of the defendant's own admission in the said case. In : 2SCR277 (supra) the defendant had himself pleaded that he had taken the money by way of loan and not in respect of part performance of a contract, The court held that in such a situation, the decree for recovery of loan could be made in favour of the plaintiff on the basis of the defendant's own admission, Similarly, in : 2SCR286 (supra), it was emphasised that in the suit for ejectment based on the allegation of the existence of landlord-tenant relationship, the defendant admitted the plaintiff's title to the suit property. In this situation, it was held that the suit could be decreed on the basis of the plaintiff's admitted title even though the relationship of landlord-tenant did not stand proved. In the facts of the present case, the only admission of the contesting defendants was that the property in question was a joint family property. However, there was no admission that the plaintiff had a subsisting right or interest in the said property. That question did not arise in view of the pleadings in the suit and the defendant certainly made no admission that the plaintiff had any particular share in the property. A mere alternative case set out in the written statement to the effect that the attachment and sale of at least half of the property was good cannot be construed as an admission of the contesting defendants that the plaintiff had a subsisting title to the remaining half of the property. It will be seen that in paragraph 24 of the written statement the plea was not an unqualified plea but it was set up in the alternative and was also qualified by a statement that in case the Tamleeknama was, for any reason, found to be ineffective and void (though the same was denied) then only attachment and sale was claimed to be good and effective at least for half share of the property. It should be seen that in the earlier paragraphs of the written statement, the defendants were clearly repudiating the plaintiff's right and title to the property in question. Therefore, I am unable to hold that there was any admission on the part of the contesting defendants admitting the plaintiff's share in the property. Moreover, even if the joint family nature of the property is admitted, still, if the plaintiff had sought to raise the question of his share, then a number of pleas could have been raised by the contesting defendants. It is not necessary to refer what would have been those pleas but one can think of many defences and I do not think that in case the court were to go into the question of share in the present suit, it would prejudice the defendants in the defences which they could have raised to the said claim on the part of the plaintiff. The ratio laid down in the aforesaid Supreme Court cases has emphasised that a decree could be given in favour of the plaintiff on a basis not set out in the plaint only if the defendant was not to be taken by surprise and was not likely to be prejudiced by the grant of relief on a basis other than the one pleaded by the plaintiff. In my view, the said consideration would be completely defeated in the present case in case the plaintiff were granted a relief in respect of his suggested share in the joint family property. The defendants would be prejudiced and handicapped, if, in the absence of necessary pleadings and evidence, they were called upon to meet this case.
11. It should also be seen that in the present case the original plaintiff died.
When he instituted the suit, if the Tamleeknama were to be disregarded then his share in the joint family property on a partition would have been one-third inasmuch as he had a wife and a son along with himself to share the property. Of course, I am forgetting for the time being the defences which might have been raised to contest such a claim. On his death, it has been contended that the share of the widow would have been one-half and as I have noticed above, reliance was placed on : AIR1966Bom169 (supra). A question will then arise as to what would be the extent of the share of the plaintiff's widow in case a relief could be granted to the plaintiff in respect of her share in the joint family property. Then after the death of the widow Smt. Pishta Devi, the name of Smt. Chandra Kanta Devi was brought on ' record as the legal representative of Smt. Pishta Devi and the claim was based on a will. Obviously, Smt. Chandra Kanta Devi's right was dependent on the validity and genuineness of the will alleged to have been executed in her favour by Smt. Pishta Devi. If the said will were held to be fictitious or ineffective, then Smt. Chandra Kanta Devi had no right in the suit property. It will be seen that after the death of Smt. Chandra Kanta Devi, Smt. Laxmi Devi was brought on record as the legal representative of Smt. Chandra Kanta Devi. Smt. Laxmi Devi also based her claim on a will dated 7th November, 1972 alleged to have been executed by the said Smt. Chandra Kanta Devi in her favour. Unless the validity and genuineness of the said will is established, Lakshmi Devi cannot be held to have any subsisting right or title to the suit property. In a regular suit, the defendants could undoubtedly be entitled to question the validity and genuineness of these wills and to defeat the claim of Smt. Chandra Kanta Devi and Smt. Lakshmi Devi based on the alleged wills in their favour. Obviously, in the instant suit, the parties have not gone to trial in respect of these controversies. It is true that ordinarily under Order XXII, Rule 4 (2), the legal representative may make any defence appropriate to his character as legal representative of the deceased defendant. But it is open to the court to take into consideration the subsequent events and on a question of share, it may be expedient to enquire as to what is the share of the person brought on record. I am emphasising these aspects of the matter with a view to show that the ratio of the Supreme Court laid down in the aforesaid cases should toe confined to the special circumstances and situations alluded to in the said cases. The ratio should not be construed in such a manner that the entire nature and scope of a suit is allowed to be completely transformed. The Supreme Court ratio should not be so interpreted as to allow absolutely new controversies to be raised and adjudicated upon.
12. So far as the validity of the Tam-leeknama is concerned, in my opinion, again, it was not open to Lalaram to question the same. It is true that in the Banaras School of Hindu Law, it is not open to a coparcener to transfer his undivided share in the coparcenary. In para 258 of the Mulla's Hindu Law (14th Ed., 1974) it has been laid down that no coparcener can dispose of his undivided interest in the coparcenary property by gift without the consent of other coparceners. In Bombay and Madras, a coparcener may alienate for value his undivided interest in coparcenary property without the consent of the other coparceners. But in other parts of the country which are governed by the Banaras School of Hindu Law, without the consent of the other coparceners, no coparcener can alienate even any portion of his undivided interest, However, one thing is very clear and it is that if other coparceners are consenting parties, then there is no difficulty. In the facts of the instant case, Lalaram had executed the Tamleeknama in favour of his only son Baburam. It can well be presumed that in this situation, the consent of the only other coparcener was there. Obviously, Baburam's children must also be held to be consenting party to the Tamleeknama inasmuch as the document was in favour of their father. Moreover, Lalaram cannot be allowed to approbate and reprobate at the same time. He executed the document alleging that he was the sole owner of the property and that he was entitled to execute the said document, It should not be open to him to resile from the said document and to seek to condemn the document on the basis that he was not entitled to execute the same.
13. It is not necessary to consider the contention which has been raised on be-half of the respondents that in view of Section 10 of the Transfer of Property Act, condition No, 2 of the Tamleeknama is bad. The said condition prescribed that Baburam would be entitled to the Income from the property and to spend the same for the benefit of himself and his family but that he would not be entitled to sell or mortgage the property without the written consent of Lalaram, Section 10 lays down as under:--
'Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of hie interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a woman (not being a Hindu. Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest there-in.'
14. As I stated above, reliance has been placed on : AIR1929All492 (supra), In the instant case, however, the property was not sought to be sold or mortgaged by Baburam. It was a case where the property was brought to sale in court auction and it was not a case of voluntary transfer by Baburam, In this view of the matter, condition No. 2 of the Tamleeknama is not attracted to the facts of the present ease. In condition No. 3 of the Tamleeknama, it has been laid down that on the death of Baburam, the property was to revert to his father Lalaram or to the heirs of the latter. But in the instant case, Lalaram predeceased Baburam and, therefore, we are not concerned with the contingency provided for in the said condition.
15. I, therefore, find no merits in this appeal and it is accordingly dismissed with costs.