Pat HC | Whether transferee pendente lite have a right to be added as parties to partition suit? Court explains legal position

Patna High Court: Mohit Kumar Shah, J., while addressing the instant partition suit decided on the question as to whether:

transferee pendente lite have a right to be added as parties to the partition suit?

Facts

Facts pertinent to the present case were that the plaintiffs-respondents had filed a title suit against the defendants-respondents.

Plaintiffs and main defendants belonged to the branches of two brothers. The suit property belonged to the daughter of Late Tikam Mahton namely Balkesia who was murdered in 1952 and was issueless.

Husband of Balkesia, who predeceased her, gifted the suit property to her vide registered deed of gift dated 18-12-1928.

After her death, the two brothers of Balkesia, namely Late Ramcharan Mahton and Late Beni Mahton, fought tooth and nail for the suit property with Ram Chandra Mahton, Ram Das Mahton, Tuntun Mahton, Sheonath Mahton and Ram Prasad Mahton who claimed to be reversioners of Late Balkesia.

Second Appeal

Good sense prevailed on the parties and the dispute culminated into a compromise decree passed on 22-07-1958 in the second appeal, where the branches of two brothers namely Late Ramcharan Mahton and Late Beni Mahton were given 8 annas share each of the suit property.

Subsequently wife of Late Ramcharan Mahton namely Quadri Devi fraudulently executed some sale deeds in favour of different persons (defendants/respondents) with respect to more land than what had actually fallen in the share of Late Ramcharan Mahton.

Therefore the plaintiffs/respondents were forced to file title suit.

In the above-stated title suit, plaintiffs very cleverly suppressed the subsequent agreement entered into between the Late Ramcharan Mahton and Late Beni Mahton by virtue of which the entire half share of total land, which fell in equal share of the two brothers as per the decree passed in the Second Appeal was relinquished by Late Beni Mahton in favour of his brother late Ramcharan Mahton in lieu of the cost of litigation and Rs 100 paid by Late Ramcharan Mahton.

After the death of Quadri Devi, plaintiffs/respondents chose to file a Tite Suit for half share of the suit property by suppressing the said agreement and misrepresenting facts. In fact, the son of Late Ramcharan Mahton namely Rameshwar Mahton had also died earlier leaving behind his wife and two minor children who were the vulnerable target for the plaintiffs/ respondents.

Analysis and Decision

Bench stated that there is no quarrel or dispute regarding the proposition of law that no period of limitation is prescribed under Order 22 Rule 10 of the Code of Civil Procedure, 1908 inasmuch as the right to apply under the said rule is a continuous right and application can thereafter be made at any stage till the proceedings are pending.

High Court found that the petitioner admitted that the land n question was sold by Quadri Devi, wife of late Ramcharan Mahton to different persons.

Proforma defendant/respondent 15 purchased one katha of land vide registered sale deed dated 20-10-1982 and proforma defendants/respondents 16, 17 and 18 purchased one katha of land vide sale deed dated 14-12-1982.

Petitioners stated to have purchased one katha of land each from defendants/respondents 15 and 16 to 18 who were defendants 10 and 11 to 13 respectively in the title suit, vide two registered sale deeds, both dated 28-11-2001 and thereafter, they sold the said pieces of land by two registered sale deeds both dated 13-02-2012 in favour of Sanjay Kumar Gupta and Punam Rai.

In view of the above Court referred to the Supreme Court decision in Udit Narain Singh Mahapaharia v. Additional Member Board of Revenue, Bihar, AIR  1963 SC 786.

Thrust of arguments of petitioners counsel was that the transferees in the interest of other co-owners acquiring interest during the pendency of a partition suit filed by a co-owner is a necessary and proper party in a partition suit filed by a co-owner, hence the trial court wrongly rejected the petition of the partitioners.

Court stated that in the present case, petitioners are the transferee pendente lite, however, whether they have a right to be added as parties to the partition suit, is the issue to be decided in the present proceedings.

Bench referred to the broad purpose of Section 52 of the Transfer of Property Act which states to maintain status quo unaffected by the act of any party to the litigation pending its determination since if alienations pendente lite are permitted to prevail, it would be impossible to bring an action or suit to a successful termination.

In the decision of Supreme Court, Marirudraiah v. Sarojamma, (2009) 12 SCC 710, it was observed that courts are not supposed to encourage pendente lite transactions and regularise their conduct by showing equity in their favour at the cost of co-sharers.

Doctrine of lis pendens is expressed in the well-known maxim; ‘pendente lite nihil innovature’ which means ‘during pendency of any suit regarding title of a property, any new interest in respect of that property should not be created.

Section 52 of the Transfer of Property Act incorporates the well-known principle of lis pendens, which was enunciated in Bellamy v. Sabine [(1857) 1 De G&J 566: 44 ER 842].

The above-stated doctrine is based upon expediency and it is immaterial whether the transferee pendente lite had or had not any notice of the suit.

This doctrine had or “had not notice of the suit” has been fully expounded by the Privy Council in Faiyaz Hussain Khan v. Prag Narain, (1907) 29 All 339 PC where their lordship quote with approval the observations of Lord Justice Turner is Bellamy’s case.

In the Supreme Court decision of Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403 it was held that a transferee pendente lite cannot claim his addition in the pending suit as of right, though the Court has the discretion to make him a party, he can be added as a proper party only if his interest in the subject matter of the suit is substantial and not just peripheral.

Court also observed that

“…Courts must be cautious and vigilant and impleadment of a stranger in the partition suit must be for substantial cause and a purchaser pendente lite if impleaded in a partition suit has a very limited right.”

Bench held that, a purchaser pendente lite like the petitioners herein, who have purchased the suit property / a portion thereof from another purchaser/purchaser pendente lite and not from the co-sharer, have no right to equities and thus cannot be impleaded in a partition suit, more so, since the petitioners herein have also alienated the property in question in favour of Sanjay Kumar Gupta and one Punam Rani.

Court added that though the petitioners had already alienated their interest in the suit property vide two sale deeds dated 13-02-2012, before filing the present writ petition, they had suppressed the said fact and obtained a stay, which also disentitles the petitioners to any relief under an equitable and discretionary jurisdiction of the High Court under Article 226 of the Constitution of India.

In view of the above discussion, Court found no infirmity in the impugned order passed by the lower court. [Pushpa Drolia v. Sohrai Mahton, 2020 SCC OnLine Pat 1921, decided on 14-08-2020]

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