Whether purchaser pendente lite can put evidence on record to prove that he was unaware of pendency of litigation?

The learned senior counsel appearing for the

petitioners was not justified in contending that even if it

was to be held that there was a presumption against

the petitioners about being aware of the litigation

initiated by respondent nos. 1 and 2 before a competent

Court, such a presumption was rebuttable and that if the

view taken by the Executing Court was accepted,

Section 19(b) of the Specific Relief Act, 1963 would be

rendered otiose. A proper reading of the judgments of

the Hon’ble Supreme Court in the case of Usha

Sinha .vs. Dina Ram (supra) and Silverline Forum

Pvt. Ltd. .vs. Rajiv Trust (supra) would show that a

presumption referred to therein is not a presumption in

the sense of it being rebuttable, but a situation where a

transferee who purchases property during the pendency

of the suit, is deemed to be aware of a litigation

pertaining to the said property pending before the

competent Court. Such a transferee , cannot claim a

right to show evidence that he was actually not aware or

put to notice about pendency of such a litigation. In

fact, Rules 98 and 100 of Order 21 as amended by the

Bombay Amendment, addressed this very mischief that

can be indulged in by transferees pendente lite.

Therefore, the petitioners cannot claim that they had a

right at least to place on record evidence to show that

they were actually not aware about the pendency of the

litigation, even if they had purchased the property

during the pendency of the suit filed by respondent nos.

1 and 2 or that there was a rebuttal presumption that

arose in the present matter. Similarly, the petitioners

are not entitled to claim that Section 19(b) of the

Specific Relief Act, 1963 would be rendered otiose,

because they cannot be said to be transferees who paid

money in good faith and without notice of the original

contract, because they were deemed to be aware of the

same as they had purchased the property during the

pendency of the suit filed by respondent nos. 1 and 2.

Therefore, there is no substance in the contentions

raised on behalf of the petitioners.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR.

Writ Petition No.4406 OF 2018

(M/s Sharma Construction Company, Nagpur vs. Praveenkumar Lilapat Bansal and others. )

CORAM : MANISH PITALE, J.

DATED : APRIL 10, 2019
Citation: 2019(5) MHLJ 499

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Whether landlord who are purchaser pendente lite can take stand contrary to one taken by his predecessor in interest?

 The decree, in so far as the other tenant and sub-tenants i.e. the appellants in C.A. No. 5358/1996 are concerned, has to be sustained. The partners of the other tenant firm i.e. M/s. India Umbrella Manufacturing Co. (appellant in C.A. No. 5357/1996) have purchased the property pendente lite and therefore they cannot be allowed to take a stand contrary to the one taken by their predecessor in interest and to the prejudice of the other plaintiff whose rights they have not purchased. Their filing an application that they were not interested in securing eviction of the other tenant is in the facts and circumstances of the case immaterial and irrelevant.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5357 and 5358 of 1996

Decided On: 05.01.2004

India Umbrella Manufacturing Co. Vs. Bhagabandei Agarwalla (Dead) 

Hon'ble Judges/Coram:

R.C. Lahoti and Ashok Bhan, JJ.

Citation: AIR 2004 SC 1321

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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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When court should reject prayer of addition of parties in suit for specific performance of contract?

In a suit for specific performance, application for impleadment must be filed within a reasonable time. Considering the question of impleadment of party in a suit for specific performance after referring to various judgments, in Vidur Impex and Traders Private Limited and Ors. v. Tosh Apartments Private Limited and Ors. MANU/SC/0663/2012 : (2012) 8 SCC 384 summarized the principles as under:

41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:

41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as Plaintiff or Defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.

41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.

41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the Plaintiff.

41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment.

In light of the above principles, considering the case in hand, in our view, the application filed for impleading Respondent No. 3 as Plaintiff No. 3 was not filed within reasonable time. No explanation is offered for such an inordinate delay of 27 years, which was not kept in view by the High Court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 16964 of 2017 (Arising out of SLP (C) No. 614 of 2015)

Decided On: 24.10.2017

 Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. and Ors.

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Whether purchaser pendente lite can be added as party in suit?

The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether/the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII Rule 10 an alienee pendente lite may be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.

11. The law is thus settled that an alienee pendente lite would always be bound by the verdict of the Court in the suit and would always be subject to the final decree that would be passed. Such an alienee could be brought on record as a defendant under Order 1 Rule 10 of the CPC if it appears that his substantial interest in the suit property would depend upon the verdict in the said suit.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 11925 of 2016

Decided On: 09.06.2017

Rama and Ors. Vs. Narayan Govinda Khakal and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2017(5) BOM CR 272

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Whether application of purchaser pendente lite for impleadment should be liberally considered?

 This Court on more than one occasion held that when a pendente lite purchaser seeks to implead himself as a party - defendant to the suit, such application should be liberally considered. This Court also held in Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and Another, AIR 1958 SC 394, that, “justice requires”, a pendente lite purchaser “should be given an opportunity to protect his rights”. It was a case, where the property in dispute had been mortgaged by one of the respondents to another respondent. The mortgagee filed a suit, obtained a decree and ‘commenced proceedings for sale of the mortgaged property’. The appellant Saila Bala, who purchased the property from the judgment-debtor subsequent to the decree sought to implead herself in the execution proceedings and resist the execution. That application was opposed on various counts. This Court opined that Saila Bala was entitled (under Section 146 of the C.P.C.) to be brought on record to defend her interest because, as a purchaser pendent elite, she would be bound by the decree against her vendor. There is some divergence of opinion regarding the question, whether a pendent elite purchaser is entitled, as a matter of right, to get impleaded in the suit, this Court in (2005) 11 SCC 403, held that :

“Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee endent elite can be added as a proper party if his interest in the subject- matter of the suit is substantial and not just peripheral. A transferee pendent elite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff.

Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendent elite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendent elite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.” [Emphasis supplied] The preponderance of opinion of this Court is that a pendente lite purchaser’s application for impleadment should normally be allowed or “considered liberally”.

Reportable

Supreme Court of India

A. Nawab John & Ors vs V. N. Subramaniyam on 3 July, 2012

Bench: P. Sathasivam, J. Chelameswar

Citation:2013(1) MHLJ 1

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Whether purchaser pendente lite is entitled to be impleaded as party to suit?

ALLAHABAD HIGH COURT
In A Nawab John and others Versus V.N. Subramaniyam,
[(2012) 7 SCC 738], the Hon'ble Supreme Court held that a
pendente lite purchaser's application for impleadment should
normally be allowed or "considered liberally". The paragraph
22 of the aforesaid judgment is reproduced as follows:-
"22. The preponderance of opinion of this Court is that a pendente lite
purchaser's application for impleadment should normally be allowed or
"considered liberally"."

Case :- WRIT - C No. - 27485 of 2014
Petitioner :- Ram Bilas
Respondent :- Raj Kumar & 12 Others

Hon'ble Suneet Kumar,J.
Citation: 2014 (106) ALR 489, 2014 125 RD660

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Whether purchaser pendente lite can resist execution of decree?

As observed in Silverline Forum, a limited inquiry in such cases is whether the transferee is claiming his right through the judgment-debtor. In our judgment, the High Court was also right in observing that if the appellant succeeds in the suit and decree is passed in her favour, she can take appropriate proceedings in accordance with law and apply for restitution. That, however, does not preclude the decree holder from executing the decree obtained by him. Since the appellant is a purchaser pendente lite and as she has no right to offer resistance or cause obstruction and as her rights have not been crystallized in a decree, Rule 102 of Order 21 of the Code comes into operation. Hence, she cannot resist execution during the pendency of the suit instituted by her.

Supreme Court of India

Usha Sinha vs Dina Ram & Ors on 14 March, 2008

Bench: C.K. Thakker, Markandey Katju

Citation: AIR2008SC1997,2008(5)MhLJ483(SC),

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