Supreme Court: The merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the trial court

The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. It is trite that when an Appellate Court passes a decree, the decree of the trial court merges with the decree of the Appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the trial court.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3616/2024

Decided On: 19.03.2025

Raju Naidu Vs. Chenmouga Sundra and Ors.

Hon'ble Judges/Coram:

Sudhanshu Dhulia and P.B. Varale, JJ.

Author: P.B. Varale, J.

Citation: 2025 INSC 368,MANU/SC/0366/2025.

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Supreme Court Summarises Principles regarding rights of Transferee Pendente Lite To Get Impleaded In Suit As A Matter Of Right

 58. From a conspectus of all the aforesaid judgments, touching upon the present aspect, broadly, the following would emerge:

i. First, for the purpose of impleading a transferee pendente lite, the facts and circumstances should be gone into and basing on the necessary facts, the Court can permit such a party to come on record, either Under Order I Rule 10 Code of Civil Procedure or Under Order XXII Rule 10 Code of Civil Procedure, as a general principle;

ii. Secondly, a transferee pendente lite is not entitled to come on record as a matter of right;

iii. Thirdly, there is no absolute Rule that such a transferee pendente lite, with the leave of the Court should, in all cases, be allowed to come on record as a party;

iv. Fourthly, the impleadment of a transferee pendente lite would depend upon the nature of the suit and appreciation of the material available on record;

v. Fifthly, where a transferee pendente lite does not ask for leave to come on record, that would obviously be at his peril, and the suit may be improperly conducted by the Plaintiff on record;

vi. Sixthly, merely because such transferee pendente lite does not come on record, the concept of him (transferee pendente lite) not being bound by the judgment does not arise and consequently he would be bound by the result of the litigation, though he remains unrepresented;

vii. Seventhly, the sale transaction pendente lite is hit by the provisions of Section 52 of the Transfer of Property Act; and,

viii. Eighthly, a transferee pendente lite, being an assignee of interest in the property, as envisaged Under Order XXII Rule 10 Code of Civil Procedure, can seek leave of the Court to come record on his own or at the instance of either party to the suit.

61. If the Respondent Nos. 1 & 2 feel that they have been duped or cheated by the Respondent No. 7/Defendant No. 3, then it shall be open for them to avail appropriate legal remedy before the appropriate forum in accordance with law for the purpose of recovery of the amount towards sale consideration paid at the time of execution of the sale deed.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1180-1181 of 2025.

Decided On: 29.01.2025

H. Anjanappa and Ors. Vs. A. Prabhakar and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0118/2025.

Read full Judgment here: Click here.

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Supreme Court Lays Down Principles : When Can Stranger To Suit Seek Leave To Appeal Against Decree?

43. The principles governing the grant of leave to appeal may be summarised as under:

i. Sections 96 and 100 of the Code of Civil Procedure respectively provide for preferring an appeal from an original decree or decree in appeal respectively;

ii. The said provisions do not enumerate the categories of persons who can file an appeal;

iii. However, it a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the court that he falls within the category of an aggrieved person;

iv. It is only where a judgment and decree prejudicially affects a person who is not a party to the proceedings, he can prefer an appeal with the leave of the court;

v. A person aggrieved, to file an appeal, must be one whose right is affected by reason of the judgment and decree sought to be impugned;

vi. The expression "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury;

vii. It would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment; and

viii. Ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1180-1181 of 2025.

Decided On: 29.01.2025

H. Anjanappa and Ors. Vs. A. Prabhakar and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0118/2025.

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Supreme Court Explains 'Henderson Doctrine' : Re-Litigation of Issues That Could Have Been Raised Earlier Is Barred

b. The 'Henderson' Principle as a corollary of Constructive Res- Judicata.

135. The 'Henderson Principle' is a foundational doctrine in common law that addresses the issue of multiplicity in litigation. It embodies the broader concept of procedural fairness, abuse of process and judicial efficiency by mandating that all claims and issues that could and ought to have been raised in a previous litigation should not be relitigated in subsequent proceedings. The extended form of res-judicata more popularly known as 'Constructive Res Judicata' contained in Section 11, Explanation VII of the Code of Civil Procedure originates from this principle.

136. In Henderson v. Henderson reported in MANU/ENRP/1168/1843 : [1843] 3 Hare 999, the English Court of Chancery speaking through Sir James Wigram, V.C. held that where a given matter becomes the subject of litigation and the adjudication of a court of competent jurisdiction, the parties so litigating are required to bring forward their whole case. Once the litigation has been adjudicated by a court of competent jurisdiction, the same parties will not be permitted to reopen the lis in respect of issues which might have been brought forward as part of the subject in contest but were not, irrespective of whether the same was due to any form of negligence, inadvertence, accident or omission. It was further held, that principle of res judicata applies not only to points upon which the Court was called upon by the parties to adjudicate and pronounce a judgement but to every possible or probable point or issue that properly belonged to the subject of litigation and the parties ought to have brought forward at the time. The relevant observations read as under: -

In trying this question I believe I state the Rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. [...]

140. The fundamental policy of the law is that there must be finality to litigation. Multiplicity of litigation benefits not the litigants whose rights have been determined, but those who seek to delay the enforcement of those rights and prevent them from reaching the rightful beneficiaries of the adjudication. The Henderson Principle, in the same manner as the principles underlying res judicata, is intended to ensure that grounds of attack or defence in litigation must be taken in one of the same proceeding. A party which avoids doing so does it at its own peril. In deciding as to whether a matter might have been urged in the earlier proceedings, the court must ask itself as to whether it could have been urged. In deciding whether the matter ought to have been urged in the earlier proceedings, the court will have due regard to the ambit of the earlier proceedings and the nexus which the matter bears to the nature of the controversy. In holding that a matter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure to raise it in that proceeding would debar the party from agitating it in the future. The doctrine itself is based on public policy flowing from the age-old legal maxim interest reipublicae ut sit finis litium which means that in the interest of the State there should be an end to litigation and no party ought to be vexed twice in a litigation for one and the same cause.

141. The Henderson Principle was approvingly referred to and applied by this Court in State of U.P. v. Nawab Hussain reported in MANU/SC/0032/1977 : (1997) 2 SCC 806 as the underlying principle for res-judicata and constructive res-judicata for assuring finality to litigation. The relevant observations read as under: -

3. The principle of estoppel per rem judicatam is a Rule of evidence. As has been stated in Marginson v. Blackburn Borough Council [(1939) 2 KB 426 at p. 437], it may be said to be "the broader Rule of evidence which prohibits the reassertion of a cause of action". This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata.

4. But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process and Somervell, L.J., has answered it as follows in Greenhalgh v. Mallard [(1947) All ER 255 at p. 257]: "I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other Rule has some times been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle.

IN THE SUPREME COURT OF INDIA

Contempt Petition (C) Nos. 158-159 of 2024.

Decided On: 13.12.2024

Celir LLP Vs. Sumati Prasad Bafna and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and Manoj Misra, JJ.

Author: J.B. Pardiwala, J.

Citation: 2024 INSC 978,MANU/SC/1343/2024.

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Whether Section 52 of Transfer of Property Act operates as bar to grant of temporary injunction under Order 39 Rules 1 and 2 of CPC?

In view of the submissions advanced, the following points arise for consideration and determination;

i) Whether Section 52 of the Transfer of Property Act operates as a bar to the grant of temporary injunction under Order 39 Rules 1 and 2 CPC? {Para 14}

24. From the aforesaid, we are of the considered view that Section 52 of T.P. Act although provides protection to the parties from transfers pendent lite, in as much as it makes such transfers subservient to the decree that may be passed in the suit, but it does not come in the way of passing an order of temporary injunction restraining alienation of the suit property during the pendency of the suit on the applicant satisfying all the three ingredients of prima facie, balance of convenience and causing irreparable loss or injury in his favour.

25. The distinction between Section 52 of T.P. Act and Order 39 Rules 1 and 2 CPC, is that an order of temporary injunction is of preemptive nature restraining the act of alienation by party to the suit where there is such a danger, whereas Section 52 of T.P. Act comes into play after the alienation takes place during pendency of the suit. Section 52 of T.P. Act provides for the consequences of a transfer taking place pending litigation, i.e., that the pendent lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor(s) that may be finally determined by the court. Section 52 of T.P. Act does not come in the way of applicability of Order 39 Rules 1 and 2 CPC. In other words, notwithstanding Section 52 of T.P. Act making the transfers during pendency of the suit subject to the ultimate decree that may be passed in the suit, the court may, pass an order of temporary injunction, if all the requisite pre-conditions for such grant are satisfied. If an order is passed and transfer is restrained, the question of applicability of Section 52 of T.P. Act will not arise as then there will be no transfer pending litigation. On the other hand, if the party does not apply for temporary injunction or if the application is rejected and the suit property is transferred pending litigation, Section 52 of T.P. Act shall come into play and those transfers would abide by the ultimate result of the suit.

28. For the aforesaid reasons, we are not inclined to accept the contention of the learned counsel for the appellant that in view of Section 52 of T.P. Act providing for the effect of transfers during pendency of the suit, the order of temporary injunction under Order 39 Rules 1 and 2 could not be passed. If such an argument is accepted, then the court cannot pass an order of temporary injunction to restrain alienation in spite of specific provision under Order 39 Rule 1(a) CPC, in any case, as in every case any alienation made pending litigation would abide by the doctrine of lis pendens embodied under Section 52 of T.P. Act. This will render the provisions of Order 39 Rules 1 and 2 CPC ineffective.

 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Civil Miscellaneous Appeal Nos. 43 and 45 of 2021

Decided On: 25.01.2022

K. Ravi Prasad Reddy and Ors.  Vs.  G. Giridhar and Ors.

Hon'ble Judges/Coram:

C. Praveen Kumar and Ravi Nath Tilhari, JJ.

Author: Ravi Nath Tilhari, J.

Citation: MANU/AP/0075/2022,

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Is the sale deed executed by the deceased defendant's son invalid by the doctrine of lis pendens even if he was not added as a party to suit within limitation?

LIS PENDENS

92. The Doctrine of Lis Pendens is based on the maxim “pendente lite nihil innovetur”. This means that pending litigation, nothing new should be introduced. Section 52 of the Transfer of Property Act, 1882 (for short, ‘the TP Act’), which incorporates the Doctrine of Lis Pendens, is based on equity and public policy. It pours complete efficacy to the adjudicatory mechanism. This is done by finding that any disposition of property, as described in the Section by a party to the litigation will, in not any way, detract from the finality of the decision rendered by the court. It is clear that it is not based on the ground of Notice as laid down by Lord Craanworth in Bennamy v. Sabine, which has been followed by the Privy Council in the decision in 34 Indian Appeals 102. We may notice the following discussion in this regard in “The Transfer of Property, by Mulla, 12th Edition:
“The rule is, therefore, based not on the doctrine of notice, but on expediency, ie, the necessity for fine adjudication. It is immaterial whether the alienee pendente lite had, or had not, notice of the pending proceeding. This is, of course, no longer the case in England, or in Gujarat and Maharashtra, where the doctrine only affects transactions pendente lite if the lis has been duly registered.”

93. It is further important to notice that when a transaction is done, lis pendens or pending a case, the transaction is, as such, not annulled. The transaction is, in other words, not invalidated. In fact, as between the transferor and the transferee, it does not lie in the mouth of the transferor to set up the plea of lis pendens to defeat the disposition of property. Equally, the Principle of Lis Pendens is, not to be confounded with the aspect of good faith or bonafides. In other words, the transferee or the beneficiary of the property, which is disposed of by a party, cannot set up the case that he acted bonafide or in good faith. This enables the court and the parties in a Suit or a proceeding, which otherwise is in conformity with requirements of Section 52, to proceed in the matter on the basis that the adjudication by the court, will not, in any way, be subverted or delayed, when the day of final reckoning arrives.

94. In fact, the Special Bench of the Madras High Court in Manjeshwara Krishnaya v. Vasudeva Mallya and Four Others, AIR 1918 Madras 578, puts the Doctrine of Lis Pendens as an extension of the Doctrine of Res Judicata. Thus, the sine qua non for the Doctrine of Lis Pendens to apply is that the transfer is made or the property is otherwise disposed of by a person, who is a party to the litigation. The Doctrine of Lis Pendens, only subject, however, the transfer or other disposition of property to the final decision that is rendered. The person/party, who finally succeeds in the litigation, can ask the court to ignore any transfer or other disposition of property by any party to the proceeding. This is subject to the condition that transfer or other disposition is made during the pendency of the lis. 95. The first defendant died pending the Suit on 06.08.1994. Her death was reported before the Court on 16.01.1995. The plaintiff brought on record, the husband of the first defendant by Order dated 25.08.1995, as defendant No. 1(a). Defendant No. 1(b), who is the son of the second defendant, sold the property on 19.09.1996, in favour of the appellant. It is thereafter that on 09.04.1997, the predecessor in interest of the appellant, viz., the son of the first defendant, and the second defendant were impleaded on 09.04.1997. The transfer made in favour of the second defendant was, therefore, made at a time, when the son of the first defendant was not a party to the Suit. Therefore, it is that the contention was taken before the Trial Court successfully by appellants that the transfer in favour of the appellant was not hit by Doctrine of Lis Pendens.

96. The High Court in the impugned Judgment reversed this finding. The High Court, in doing so, employs, inter alia, the following reasoning:
“78. The position of law with regard to the rights and obligation of a dead person can be succinctly stated thus: The rights which a dead man thus leaves behind him vests in his representative. They pass to some person whom the dead man, or the law on his behalf, has appointed to represent him in the world of the living. This representative bears the person of the deceased, and therefore, has vested in him all the inheritable rights, and has imposed upon him all the inheritable liabilities of the deceased. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents. The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. To this extent, and in this fashion, it may be said that the legal personality of a man survives his natural personality, until, his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for. Just as many of a man's rights survive him, so also do many of his liabilities; and these inheritable obligations pass to his representative, and must be satisfied by him. As far as the estate of a dead man is concerned, there are two class of persons who are entitled to it, namely, creditors and beneficiaries. A beneficiary possesses a dual capacity, while he may benefit by inheriting the dead man's estate is also liable to the dead man's obligations. He survives even after his death, especially the obligations concerning immovable property. The beneficiaries who are entitled to the residue after satisfaction of the creditors, are of two classes: (1) those nominated by the last will of the deceased and (2) those appointed by the law in default of any such nomination. They succeed respectively by testamentary succession (ex testamento) or intestate succession (ab intestate) (source: Salmond on Jurisprudence Twelfth Edition, P.J. Fitzgerald). Section 2(11) of the Code of Civil Procedure, 1908 (CPC) defines legal representative to mean a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of • the party so suing or sued. The aforesaid definition is both exhaustive as well as an inclusive definition. It is exhaustive in the sense that a legal representative means a person who in law represents the estate of immovable property. The beneficiaries who are entitled to the residue after satisfaction of the creditors, are of two classes: (1) those nominated by the last will of the deceased and (2) those appointed by the law in default of any such nomination. They succeed respectively by testamentary succession (ex testamento) or intestate succession (ab intestate) (source: Salmond on Jurisprudence Twelfth Edition, P.J. Fitzgerald).”

97. Thereafter, the High Court proceeded to consider the distinction between a legal representative as defined in Section 2(11) of the Code of Civil Procedure, 1908 and legal heirs. Still further, the Court also considered the scheme of Order XXII of the CPC and finally proceeds to find as follows:
“79. … Even though defendant No. 1(b) was not arrayed along with his father as a legal heir of the deceased defendant No.1, the fact remains that the estate of defendant No.1, which also includes the suit schedule property was represented through defendant No. 1(a), the husband of defendant No.1. Therefore, the contention that the sale that was made by defendant No. 1(b) in favour of defendant No.2 when defendant No. 1(b) was not a party to the suit is not subject to any direction that may be issued in the suit, and that Sec. 52 of the Act would not apply in the instant case is not a correct understanding of the position of law. Further, in the instant case, defendant No.1(a) also did not inform the trial court that his son was also a legal representative of deceased defendant No.1 and therefore, he also ought to be brought on record as the heir of the deceased defendant No.1 when the application was filed by the plaintiff to bring only him on record as legal heir of deceased defendant No.1. Therefore, it is held that in ' the instant case, the estate of the defendant No.1 was represented through defendant No.1(a) in the suit and that the alienation made by defendant No.1(b) to defendant No.2, even in the absence of defendant No.1(b) being made a party to the suit has no significance.

The High Court has relied on the decision of the Madras High Court in Nallakumara Goundan v. Pappayi Ammal and Another, AIR 1945 Mad 219. In the said case, after the death of the party, a legal representative disposed of the plaint schedule property within the period provided for substituting the dead person with the legal representative. It was in the said context held by the Madras High Court as under:
“…The same principle should, I think, apply to a case where as here the original defendant died and the alienation was made after his death and before the filing of the application to bring his legal representative on record. The suit must be deemed to be pending against the legal persona of the deceased i.e., against his legal representative and must be deemed to continue until at least the expiration of the time limited by any law of limitation to bring him on record. Whether if an application is made long after the expiration of the time fixed for bringing the legal representative on record and an alienation is made by the legal representative and later on the plaintiff in the action seeks to set aside the abatement and to bring the legal representative on record, and that is ordered, the doctrine of lis pendens applies or not does not arise and need not be considered. There may be difficulties in such a case, but where the alienation is made within the time prescribed for bringing the legal representative on record, it is a clear case and there can be no doubt whatever that the rule does apply…”

98. Thereafter, the Court concluded that in the circumstances, Section 52 of the TP Act squarely applied.

99. It would appear that the High Court has, in arriving at the finding that the transfer in favour of the appellant is hit by lis pendens, taken into consideration the Doctrine of Notice/Constructive Notice. We have already observed that the Doctrine of Notice and Constructive Notice would be inapposite and inapplicable. Neither the fact that the transferee had no notice nor the fact that the transferee acted bonafide, in entering into the transaction, are relevant for applying Section 52 to a transaction. This is unlike the requirement of Section 19(1)(b) of the Specific Relief Act whereunder these requirements are relevant.

100. The decision of the Madras High Court in Nallakumara Goundan (supra) turned on in its own facts as indicated by the said court itself. In other words, that was a case where even within the period of limitation for substitution of the legal representative of a deceased party in a suit, the legal representative purported to deal with the property. It was in the said context that the court proceeded to hold that lis pendens would apply. In this case the transfer in favour of the second defendant took place on 16.09.1996. The vendor and the vendee namely defendant 1(b) and the second defendant were not parties on the date of the transaction. They were impleaded only almost one year thereafter. No doubt we are not oblivious to the role played by defendant 1(a) namely the husband of the first defendant who gave his ‘no objection’ to the assignment of the entire rights in favour of his son namely defendant 1(b) without which BDA could not have assigned the right in favour of defendant 1(b). Though not urged by the plaintiff, could it be said that as defendant 1(a) was already a party and this must be treated as a case were defendant 1(a) as ‘otherwise dealt’ with the property within the meaning of Section 52 without which the title would not vest in defendant 1(b). A transfer which is made lis pendens it is settled law, is not a void document. It does create rights as between the parties to the sale. The right of the party to the suit who conveys his right by a sale is extinguished. All that Section 52 of the Transfer Property Act provides is that the transfer which is made during the pendency of the proceeding is subjected to the final result of the litigation. Even assuming for a moment that the conduct of defendant 1(a) the father of defendant 1(b), in giving a no objection and thereby enabling defendant 1(b) to derive the title exclusively to the property and which title stood conveyed to the second defendant attracted, the principle of lis pendens, it would still not invalidate the sale. At best, the plaintiff can contend that, should he be entitled for a decree of performance the sale in favour of the second defendant should be subjected to such decree. As far as the transfer is made by defendant 1(b) to the second defendant in his own right and in so far as defendant 1(b) was not a party and by the time the sale was effected the period of limitation for impleading defendant 1(b) had already clearly expired even the principle laid down in the decision of the Madras High Court would not apply and the High Court was not correct in finding that the sale by defendant 1(b) in favour of second defendant was hit by lis pendens. 

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

G. T. GIRISH Vs. Y. SUBBA RAJU (D) BY LRs. & ANR.

CIVIL APPEAL NO. 380 OF 2022

18th January 2022

Author: K. M. JOSEPH, J.

Citation: 2022 ALL SCR (ONLINE) 53

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Important Notes on Transfer of property Act

1) NOTES ON LEASES OF IMMOVABLE PROPERTY

https://www.lawweb.in/2018/06/notes-on-leases-of-immovable-property.html

2) NOTES ON PART PERFORMANCE(S 53A OF TRANSFER OF PROPERTY ACT)

https://www.lawweb.in/2018/06/notes-on-part-performances-53a-of.html

3) Good article on subrogation( Transfer of property Act)

https://www.lawweb.in/2018/05/good-article-on-subrogation.html

4) Good legal article on Lis pendens( S 52 of Transfer of Property Act)

https://www.lawweb.in/2018/05/good-legal-article-on-lis-pendens.html

5)NOTES ON GIFT ( S 122-129 of Transfer of property Act)

https://www.lawweb.in/2018/06/notes-on-gift.html

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Whether eviction order secured by original tenant against landlord is binding against subsequent tenant?

 On 16.03.2012 Fehmida secured an order for repossession. But by then, Gagan was put in possession of the property. In other words, Fehmida's order for restoration of possession was against the landlord. And the landlord, before he suffered the order, put Gangan in possession of the property. Can we say Gangan's possession is independent of the eviction proceedings the landlord had initiated? 

26. True, as Gangan contends, a judgment debtor can be, as Section 2(10) defines, any person against whom a decree or an order capable of execution is passed. According to him, in Fehmida's Misc. Application, the Small Cause Court passed an order capable of execution against the landlord. And Gangan claims his right through the landlord, so he must be treated as a judgment debtor under Order XXI, Rule 97 of CPC. But that must be only from the date Fehmida filed the application. In other words, from that date onwards, the lis pendens principle can be imported. 

35. First, registration of a plaint is not a sine qua non for the institution of a suit, but the presentation is. Second, presentation connotes proper presentation. Third, improper presentation is curable, and once the defect is cured, the representation relates back, as Vidyawati Gupta has held, to the date of the original presentation. Pithily put, even before Gangan could enter into a lease agreement, the landlord had a deemed service of notice because on 18.01.2010 he refused to take notice from the Court's Bailiff.

So it is time I answered the questions I set out above.

The Answers:

(a) Does the order the original tenant has secured against the landlord bind the subsequent tenant who is entirely unaware of the previous court proceedings?

A: Yes, it does. The subsequent tenant, a victim he may have been, must yield to the previous tenant, whose rights remain unaffected by the landlord's sharp tactics.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 11022 of 2012

Decided On: 28.06.2019

 Fehmida Usman Gani Shaikh  Vs.  Maqbool Munaf Gagan

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: 2020(1) MHLJ 733

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Bombay HC: Sale of immovable property of minor child by de facto guardian is void

In the present case, there is no evidence to show that the father of the respondents was not taking any interest in their affairs or that they were in keeping and care of the mother to the exclusion of the father. In fact, his attestation of the sale deed shows that he was very much existent and in the picture. If he was, then the sale by the mother, notwithstanding the fact that the father attested it, cannot be held to be a sale by the father and natural guardian satisfying the requirements of section 8.

17. The present case is squarely covered by the above judgment in the facts of the present case.

18. In Vishwambhar and others v. Laxminarayana MANU/SC/0374/2001 : AIR 2001 SC 2607, there was alienation of minors property by mother as guardian and the suit was filed by minor for recovery of possession from the purchaser. It was held that, the sales made by guardian were ab initio void and liable to be ignored. It was held that, the suit should have been for setting aside the sales. There was no such prayer initially and the plaint was amended but the amendment was barred by limitation of three years from the date of sale deed. In this case also, the father Dattatraya died and the minors were in care and custody of their widowed mother. She was managing the properties left by Dattatraya as guardians of the minors. She executed sale deeds in 1967. The declaration for setting aside the sale deed would be necessary if the sale deed is executed by natural guardian which would be voidable u/s 8. Such prayer will not be necessary if the sale is effected by de facto guardian. It is governed by Section 11 which declares the sale as void.

19. In this regard, I rely on Madhegowda v. Ankegowda MANU/SC/0739/2001 : AIR 2002 SC 215. In this case, the original owner Ninjegowda died leaving behind two daughters Sakamma and Madamma. While Sakamma was minor, Madamma acting as guardian sold her share by registered sale deed to Madhegowda on 24.04.1961. It was sold for collecting funds for marriage of Sakamma. The appellant was also put in possession of the property. Sakamma after attaining majority sold her share of the property to Ankegowda, predecessor of respondent nos. 1 to 9 therein, by a registered Sale Deed dated 1.7.1967. In the light of these facts, relying on Section 11 prohibiting de facto guardian from alienating the property of minor, it was held that,

"Section 11 had done away with the authority of any person to deal with or dispose of any property of a Hindu minor on the ground of his being the de facto guardian of such minor. Any alienation by a de facto guardian will be governed by the provisions in Section 11 of the Act. The alienation, being against the statutory prohibition, would be void ab initio and the alienee would not acquire any title to the property.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 650 of 2003

Decided On: 21.01.2019

Rameshwar Vs.   Shivaji and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(5) MHLJ 945

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Whether it is necessary to seek cancellation of sale deed if it was executed during pendency of suit?

 In our opinion, when the sale deed had been executed during the pendency of suit the purchaser pendente lite is bound by the outcome of the suit. The provisions of Section 52 prevent multiplicity of the proceedings. It was not at all necessary to file a suit for cancellation of the sale deed as the vendor had no authority to sell land of other co-sharers. He had right to alienate his own share only which he had in the property to the extent of 14/104th. As such the right, title and interest of Bala Mallaiah were subject to the pending suit for partition in which a preliminary decree was passed in the year 1970 which had attained finality in which the vendor of Bala Mallaiah, Defendant 1 was found to be having share only to the extent of 14/104th.  { Para 48}

 Therefore, it is settled legal position that the effect of Section 52 is not to render transfer effect during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit and the pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court. Therefore, in the present suit defendant No. 2 is bound by the decree which may be passed against defendant No. 1. Admittedly, by virtue of compromise decree in R.A. No. 272/2004 defendant No. 1 is aware that the suit property was allotted to the share of plaintiffs and he had no right title and interest so as to transfer the same in favour of defendant No. 2 by executing registered sale deed dated 02.05.1997 as per Ex. D1. In spite of knowing consequences of the same, defendant No. 1 executed the sale deed during the pendency of suit bearing O.S. No. 45/1994. Therefore, the said sale deed is hit by Section 52 of Transfer Property Act. Though, it cannot be held as void ab initio, as held by the Hon'ble Supreme Court in the judgment referred supra, Pendente lite purchaser defendant No. 2 herein is bound by the decree passed in the suit against his vendor.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

RSA No. 1346/2007

Decided On: 24.04.2019

 Gurushantappa  Vs. Shankar and Ors.

Hon'ble Judges/Coram:

P.G.M. Patil, J.

Citation: AIR 2019 Karnat 113

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Leading Supreme Court judgments on Injunction

1)Supreme Court: Caretaker, watchman or servant can not claim possession of property against its owner https://www.lawweb.in/2018/01/whether-caretaker-watchman-or-servant.html

2) Leading caselaw of SC relating to injunction,declaration and possession https://www.lawweb.in/2014/09/leading-caselaw-of-sc-relating-to.html

3)  Leading judgment on grant of Temporary Mandatory Injunction 

https://www.lawweb.in/2017/03/leading-judgment-on-grant-of-temporary.html

4) Whether trespasser can claim injunction against true owner of property? https://www.lawweb.in/2018/01/whether-trespasser-can-claim-injunction.html

5) Whether transfer of property made in violation of injunction order is valid? https://www.lawweb.in/2013/08/transfer-of-property-made-in-violation.html

6)  Supreme Court judgment on grant of injunction to restrain party to change nature of property during pendency of suit https://www.lawweb.in/2017/03/whether-party-can-be-permitted-to.html

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Whether Mother Can Alienate Minor Son's Property When She's Not His Natural Guardian?

 In the light of these facts, it is crystal clear that when the
property inherited and owned by the plaintiff which is not a Hindu
Joint Family property or interest in the joint Hindu Family and when
father was not shown to be not taking care of the minor, mother is
not natural guardian. She as a de facto guardian has no right to
alienate the property of her minor son.
21. When the transaction is voidable, it is voidable at the
option of the minor. Minor's father or natural guardian cannot
exercise the option which a minor alone can exercise. Obviously, the
minor can exercise it after attaining the majority. Therefore, when
the sale is voidable, the ruling in Narayan Gilankar's (supra) would
be applicable but when the sale is void and there was threat of
dispossession or there was actual dispossession, it was not necessary
for minor to wait for attaining majority. His natural guardian could
have filed suit to protect his interest and his civil rights in the
property. Thus, the suit filed by the plaintiff during his minority
through his father a natural guardian as next friend is certainly
maintainable. The period of limitation in such matters will be 12
years and not 3 years as there is no necessity of claiming any
declaration. The question of legal necessity as held in Vishwambhar's
case (supra) is irrelevant. The sale is void and the transfer can be

repudiated on attaining majority. I therefore find that the learned
first appellate Court committed error in not properly appreciating the
above facts and did not follow the settled principles of law as laid
down in the above rulings. The sale could have been voidable only if
father was neglecting the child and was in care, custody and
maintenance of the mother. In this regard, reliance can be placed on
the judgment of the Apex Court in Githa Hariharan (Ms) Vs.
Reserve Bank of India reported in (1999) 2 SCC 228.
46. In our opinion, the word 'after” shall have to be
given a meaning which would subserve the need of the
situation, viz., the welfare of the minor and having due
regard to the factum that law courts endeavour to retain the
legislation rather than declare it to be void, we do feel it
expedient to record that the word “after” does not necessarily
mean after the death of the father, on the contrary, it depicts
an intent so as to ascribe the meaning thereto as “in the
absence of” be
it temporary or otherwise or total apathy of
the father towards the child or even inability of the father by
reason of ailment or otherwise and it is only in the event of
such a meaning being ascribed to the word “after” as used in
Section 6 then and in that event, the same would be in
accordance with the intent of the legislation, viz., the welfare
of the child.
47. In that view of the matter, the question of ascribing
the literal meaning to the word “after” in the context does not
and cannot arise having due regard to the object of the
statute, read with the constitutional guarantee of gender
equality and to give a full play to the legislative intent, since
any other interpretation would render the statute void and
which situation, in our view, ought to be avoided.

22. There are neither pleadings nor evidence to make out these
situations which could have made the mother as natural guardian.
Hence, the sale effected by mother is void and the suit filed for
challenging the same and for claiming perpetual injunction and later
on for possession was perfectly maintainable.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
SECOND APPEAL NO. 650 OF 2003

Rameshwar Babasaheb Paul, Vs  Shivaji  Eknathrao Paul,

CORAM : A. M. DHAVALE, J.

DATED : 21.01.2019.
Citation: AIR 2019 Bom 77

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Whether it is mandatory to record lis pendens in revenue record?

We do not find that there is any error in the said decision and rather the said decision taken by the State Government, as contained in the impugned circular, is in conformity with the provision of the Maharashtra Land Revenue Code, since section 148 of the Code sets out the particulars which should be included in the record of rights and it do not stipulate any other particulars to be included, except in accordance with the decision by the State Government, which it can prescribe by the rules. It is the State Government which has made it clear that the pendency of any proceedings or suit before any court or any other quasi judicial authority, does not amount to any kind of right in praesenti and a right of litigant comes into existence only on final adjudication by the concerned Court where the lis is pending. Since the Maharashtra Land Revenue Code itself do not provide for inclusion of a lis pendens in the record of right and the State Government had rather reflected its decision not to include the same in the record of right in the backdrop of the fact that the revenue records are mere reflections of the rights claimed by a person in respect of any immovable property and being reported to the revenue authority and such entries are subject to adjudication of title rights by Court of competent jurisdiction, the said decision of the State Government cannot be said to be arbitrary or capricious specifically when section 52 of the Transfer of Property Act protects the properties which are involved in any lis and the principle recognized in the said section put restrictions on the rights of the parties to a suit or proceeding to transfer the property, which is the subject matter of the said litigation. In any case, the object of Section 52 is not to make such transfers made in violation of the said provision to be void ab initio, but are only voidable at the instance of the party who has been prejudiced. The State amendment to section 52 further protects the interest of the land holders in the State and whenever the notices of pending suits or proceedings referred to in section 52 of the Transfer of Property Act, 1882 is given under section 18 of the Registration Act, the Land Revenue Code makes it imperative for the Officer recording such a registration to forward an intimation to the talathi of the village. The avowed purpose of such an intimation is to keep the Talathi of a village or tahsildar of a taluka updated about the dealings in respect of a piece of land, in respect of which he is duty bound to maintain the revenue record. In such circumstances, the decision of the State Government not to effect entries of lis pendens in the record of rights is perfectly in tune and spirit with the Maharashtra Land Revenue Code and we do not find that the said decision calls for an interference by exercising our writ jurisdiction. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7040 of 2013 and Writ Petition No. 8042 of 2014

Decided On: 17.07.2018

Pramod Moreshwar Tattu Vs. Sub-Divisional Officer, Baramati and Ors.

Hon'ble Judges/Coram:

S.C. Dharmadhikari and Bharati H. Dangre, JJ.

Citation: 2018(6) MHLJ 785

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Whether doctrine of lis pendens will apply if sale deed is executed when suit for creation of charge of maintenance on suit property is pending?

Sri K.S. Krishnaswami Ayyangar, learned Counsel for the Appellants, did not press before us the contention urged by them in the courts below that when a plaint is presented in forma pauperis the lis commences only after it is admitted and registered as a suit, which was in this case on 17-6-1920, subsequent to the sale under Exhibit VI-a contention directly opposed to the plain language of the Explanation to Section 52. And he also conceded and quite rightly, that when a suit is filed for maintenance and there is a prayer that it be charged on specified properties, it is a suit in which right to immovable property is directly in question, and the lis commences on the date of the plaint and not on the date of the decree, which creates the charge.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5007 of 2018 (Arising out of S.L.P. (C) No. 7468 of 2015)

Decided On: 11.05.2018

 Siddagangaiah  Vs. N.K. Giriraja Shetty (D) thr. L.Rs.

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Whether admission with respect to the interest which has been parted away is admissible in evidence?

 Reliance has also been placed on Section 18 of the Evidence Act. In the instant case, there is no admission after parting with the interest made in the execution proceedings inter se husband and wife. The auction was held by the court in accordance with law. It was not the case set up that the decree passed in the maintenance suit was based upon fraud or a collusive one. Nor was such a case so set up with respect to the auction of the properties in the execution of the decree. On the contrary, the husband had preferred an appeal against the judgment and decree passed in the maintenance case, which was dismissed on merits. Section 18 of the Evidence Act states:

18. Admission by party to proceeding or his agent.-Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions. by suitor in representative character.-Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

Statements made by-

(1) party interested in subject-matter..-persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or

(2) person from whom interest derived..-persons from whom the parties to the suit have derived their interest in the subject-matter of the suit,

are admissions, if they are made during the continuance of the interest of the persons making the statements.

Thus, after parting with the interest, no admission with respect to the interest which has been parted away is admissible

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5007 of 2018 (Arising out of S.L.P. (C) No. 7468 of 2015)

Decided On: 11.05.2018

 Siddagangaiah  Vs. N.K. Giriraja Shetty (D) thr. L.Rs.

Hon'ble Judges/Coram:

Arun Mishra and U.U. Lalit, JJ.

Citation:(2018) 7 SCC 278,2019(2) MHLJ 577

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Landmark judgments of Supreme Court

1)Whether transfer of property made in violation of injunction order is valid?

 Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent Court may issue in the suit against the vendor.

Supreme Court of India

Thomson Press (India) Ltd. vs Nanak Builders & Investrs.P.Ltd & ... on 21 February, 2013

Citation;(2013) 5 SCC397

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Good legal article on Lis pendens( S 52 of Transfer of Property Act)

Lis pendens means that nothing new should be introduced in pending litigation.

      Where a suit or proceeding is pending between two persons with respect to immovable property and one of the parties thereto sells,or otherwise transfers subject matter of litigation, then transferee will be bound by result of suit or proceeding,whether or not, he had notice of suit or proceeding .This rule is known as the rule of lis pendens. This rule affects the purchaser not because the pending suit or proceeding amounts to notice but because the law does not allow litigants to give to others pending the litigation any right to property in dispute so as to prejudice the other party.

Thus the rule of lis pendens is based on the necessity for final adjudication: It aims at prevention of multiplicity of suits or proceedings. A transaction entered in to during pendency of a suit can not prejudice the interests of a party to suit who is not party to transaction. The object of the rule is to protect one of the parties to a litigation against act of the other.

     The doctrine of lis pendens can not be availed of by the transferor and it is really intended for the protection of the other party, that is the party in the suit other than the transferor.

Suits decreed exparte also falls within the scope of doctrine of lis pendens ,provided they are not collusive.

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