A significant clarification has emerged from the Madhya Pradesh High Court on the rights of a pendente lite transferee who acquires property through a registered sale deed and seeks to assert title based on a proved will during execution proceedings. The judgment resolves a long-standing ambiguity regarding whether such a transferee can rely on a will not produced in the original suit to claim a larger share in the decretal property, and under what circumstances the Executing Court may go beyond the decree to adjudicate independent claims.
Background & Facts
The Dispute
The dispute centers on a residential property located at Plot No.19-A, Jawahar Colony, Kampoo, Gwalior, originally purchased by Bala Sahab Deshmukh. He constructed a house on the plot, designated as House No.50/1066. Upon his death on 30.05.1984, his widow, Smt. Triveni Deshmukh, was mutated into municipal records as the owner. Bala Sahab Deshmukh was survived by two sons: Ram Deshmukh and Lakshman Deshmukh.
Key Facts
- The property was declared a joint family property in Civil Suit No.1-A/1995, decided on 12.05.1995, with each of Smt. Triveni Deshmukh and her two sons declared to have a 1/3rd share.
- Smt. Triveni Deshmukh executed a will on 05.04.1996 bequeathing her entire interest in the house to her son, Lakshman Deshmukh.
- In Civil Suit No.10-A/2002, Ram Deshmukh sought partition of the house and claimed a 1/3rd share. During the pendency of this suit, Smt. Triveni Deshmukh died on 11.12.2002.
- Lakshman Deshmukh executed a registered sale deed dated 29.05.2004 in favor of Vikas Sharma (the appellant), transferring the entire property for a consideration of Rs.16.40 lakhs. Possession was handed over immediately.
- Lakshman Deshmukh did not appear in the partition suit and was proceeded ex-parte on 07.07.2004. A preliminary decree for partition was passed on 12.07.2004, granting Ram Deshmukh a 1/2 share, based on the assumption that Smt. Triveni’s 1/3rd share would devolve equally between the two sons.
- The will was not produced during the trial of Civil Suit No.10-A/2002.
- Ram Deshmukh filed Execution Case No.10/2007 seeking possession of his 1/2 share.
- On 30.11.2007, Vikas Sharma, the transferee, learned of the ex-parte decree and filed an application under Order IX Rule 13 CPC to set it aside, which was rejected on 29.07.2011.
- The High Court, in M.A. No.1448/2011, affirmed the rejection but granted liberty to raise objections under Order XXI Rule 97 CPC in execution proceedings.
- Vikas Sharma filed an objection under Order XXI Rule 97 CPC on 07.12.2007, asserting his title through the will and the sale deed.
- The Executing Court, in its order dated 06.09.2018, acknowledged the validity of the will but refused to give effect to it, holding that the Executing Court cannot go beyond the decree.
Procedural History
- 12.05.1995: Civil Suit No.1-A/1995 decreed - 1/3rd share each to Smt. Triveni, Ram, and Lakshman.
- 05.04.1996: Will executed by Smt. Triveni Deshmukh in favor of Lakshman Deshmukh.
- 11.12.2002: Death of Smt. Triveni Deshmukh.
- 29.05.2004: Registered sale deed executed by Lakshman Deshmukh in favor of Vikas Sharma.
- 07.07.2004: Lakshman Deshmukh proceeded ex-parte in Civil Suit No.10-A/2002.
- 12.07.2004: Preliminary decree passed in Civil Suit No.10-A/2002 granting Ram Deshmukh 1/2 share.
- 07.12.2007: Application under Order IX Rule 13 CPC filed by Vikas Sharma to set aside the ex-parte decree - rejected on 29.07.2011.
- 29.07.2016: High Court dismissed M.A. No.1448/2011 but granted liberty to raise objections under Order XXI Rule 97 CPC.
- 06.09.2018: Executing Court rejected objection under Order XXI Rule 97 CPC.
- 15.06.2026: High Court delivers judgment on First Appeal No.1981 of 2018.
The Parties' Positions
Appellant (Vikas Sharma): Claims to be a bonafide purchaser who acquired the property after due diligence, relying on the will and municipal records. Argues that the will, though not produced in the original suit, was proved in execution proceedings and must be given effect to. Asserts that the collusion between Ram and Lakshman Deshmukh rendered the ex-parte decree unreliable.
Respondent (Ram Deshmukh): Contends that the will was not produced in the original suit and therefore cannot be relied upon in execution. Argues that the Executing Court is bound by the decree and cannot re-adjudicate title. Claims Vikas Sharma was aware of the pending litigation and cannot claim protection as a bonafide purchaser.
Relief Sought
The appellant seeks modification of the Executing Court’s order dated 06.09.2018 to recognize his title to 2/3rd share of the suit property - 1/3rd as his own share through the sale deed and 1/3rd as the inherited share from Lakshman Deshmukh, who inherited his mother’s 1/3rd share via the will.
The Legal Issue
Can a pendente lite transferee, who is not a party to the original suit, successfully assert a claim to a greater share in decretal property during execution proceedings by relying on a will that was not produced in the original suit but is proved before the Executing Court?
Arguments Presented
For the Appellant
The appellant’s counsel relied on Bhanwar Lal v. Satyanarain, Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, and Renjith K.G. v. Sheeba to argue that Order XXI Rule 97 CPC permits any person, including a transferee pendente lite, to raise objections to execution if they claim independent title or interest. He emphasized that the will was duly proved by the attesting witness, Mehtab Singh, and that the Executing Court had already acknowledged its validity. He further cited Narinder Singh Rao v. AVM Mahinder Singh Rao to argue that even if the testator did not own the entire property, her share must be recognized. He contended that the collusion between the brothers and the failure of Lakshman to defend the suit rendered the ex-parte decree unreliable, and equity demands recognition of the transferee’s rights.
For the Respondent
The respondent’s counsel relied on Usha Sinha v. Dina Ram to argue that the Executing Court is confined to the decree and cannot re-examine title. He asserted that the will’s non-production in the original suit amounted to waiver, and that the transferee, being aware of the litigation, could not claim bonafide status. He maintained that the decree granting Ram Deshmukh a 1/2 share was final and binding, and that any claim based on the will must have been raised in the original suit.
The Court's Analysis
The Court undertook a comprehensive review of the evolution of jurisprudence under Order XXI Rule 97 CPC. It held that the phrase "any person" in Rule 97 is expansive and includes transferees pendente lite, even if they are not parties to the original suit. The Court emphasized that the purpose of Rule 97 is to adjudicate claims of obstruction to execution, and such claims may include title derived from a will, provided it is proved.
"The words 'any person' as contemplated by Order 21, Rule 97, sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree."
The Court noted that while the will was not produced in the original partition suit, its execution was proved in execution proceedings through the testimony of the attesting witness. The Executing Court itself had acknowledged the validity of the will in paragraphs 15, 16, and 19 of its order. The Court held that the failure of Lakshman Deshmukh to produce the will in the original suit did not extinguish its legal effect, particularly where the transferee had no opportunity to intervene in the original litigation.
The Court further relied on Narinder Singh Rao, where the Supreme Court held that a testator can only bequeath her own share. Here, Smt. Triveni Deshmukh held a 1/3rd share, which she validly bequeathed to Lakshman Deshmukh. Therefore, Lakshman’s total interest became 2/3rd (1/3rd original + 1/3rd inherited). The sale deed to Vikas Sharma, therefore, conveyed a valid title to 2/3rd of the property.
The Court rejected the argument that the Executing Court was bound by the preliminary decree, noting that the decree was based on an assumption that Smt. Triveni’s share would devolve equally - an assumption rendered incorrect by the existence of the will. The Court held that the Executing Court has the power to correct such errors when independent evidence is adduced.
The Court also found merit in the appellant’s allegation of collusion. Lakshman Deshmukh received Rs.16.40 lakhs, then deliberately remained absent from the partition suit, allowing an ex-parte decree to be passed in favor of Ram Deshmukh. This conduct, coupled with the fact that Ram Deshmukh never sought to implead the transferee despite knowing of his possession, supported the inference of fraud.
The Verdict
The appeal is partly allowed. The judgment dated 06.09.2018 of the Executing Court is modified to recognize that the sale deed dated 29.05.2004 is valid to the extent of 2/3rd share in the suit house. The appellant, Vikas Sharma, is entitled to 2/3rd share, and the decree-holder, Ram Deshmukh, is entitled to 1/3rd share. The Executing Court is directed to take immediate steps for partition of the property accordingly. The record is to be sent back forthwith.
What This Means For Similar Cases
Title Through Will Can Be Asserted in Execution
- Practitioners may now rely on a proved will in execution proceedings under Order XXI Rule 97 CPC even if it was not produced in the original suit, provided the will is duly proved before the Executing Court.
- The failure to produce the will in the original suit does not automatically invalidate it if it is later established through independent evidence.
Pendente Lite Transferees Have Standing
- A transferee who purchases property during litigation retains the right to resist execution under Order XXI Rule 97 CPC, even if they had notice of the suit.
- The doctrine of lis pendens under Section 52 of the Transfer of Property Act does not void such transfers; it only makes them subject to the outcome of the litigation.
Collusion and Non-Participation Are Critical Factors
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Courts will scrutinize the conduct of judgment debtors who sell property and then deliberately remain absent from litigation.
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If a decree-holder is aware of a transferee’s possession but fails to implead them, the court may infer collusion and grant relief to the transferee.
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Practitioners must advise clients to file applications under Order XXI Rule 97 CPC immediately upon obstruction, even if the title claim is derivative.
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When drafting sale deeds during pending litigation, ensure due diligence on title and document all inquiries made.
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Always preserve original wills and other title documents - their non-production in earlier proceedings is not fatal if proved later.
