Whether transferee pendente lite can seek partition in final decree proceeding?

Countering the said document, learned Counsel for Defendants 9 and 10, relied on the Judgment of the Apex Court in the case of 'Khemchand Shankar Choudhary and Another v. Vishnu Hari Patil and Others' reported in MANU/SC/0168/1982 : 1983 [1] SCC 18, where dealing with the purchaser pendente lite, locus standi to claim equitable partition before the Collector in Final Decree Proceedings under section 54 of the Civil Procedure Code, it was held as under:

"Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under section 54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the shares of a deceased party in favour of his legatees. In the case of insolvency of a party, the official receiver may be allotted the share of the insolvent. In the case of transferees pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of section 54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the Legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out 'in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares."

68. Therefore, a transferee pendente lite steps into the shoes of the transferor who is a party to the suit. He acquires all the rights of the transferor. The pendency of the suit would not come in the way of his acquiring such right, if the transferor has any such right. If the transferor has no right, he acquires none. This is a matter which is finally adjudicated in the suit. The judgment and decree passed in the suit is equally binding on him, as his transferee, whether he is impleaded as a party to the suit or not. Transferee from a party of property which is subject matter of partition can exercise all the rights of the transferor. Such transferee is representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. When a party to a decree dies, leaving some heirs, in the final decree proceedings, shares may be allotted to such heirs. Similarly, in the case of transferee pendente lite, if there is no dispute, final decree Court can proceed to make allotment of the properties in an equitable manner  instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also seek for an equitable partition, even if the transfer is during the pendency of the suit. Such a construction of section 54 of the Code of Civil Procedure advances the cause of justice.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R.F.A. No. 960/2003

Decided On: 31.01.2015

 Syed Basheer Malik and Ors.
Vs.
 Jameela Begum and Ors.

Hon'ble Judges/Coram:N. Kumar and B. Veerappa, JJ.

Citation:AIR 2016(NOC)395 KAR

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Minors might be transferees but not transferors.

Under Section 6 of the Transfer of Property Act, property may be transferred to a minor as he is not " a person legally disqualified to be transferee" within the meaning of Sub-section (h) of that section. It is quite clear that a transfer of full ownership or of a mortgage interest in immoveable property may be made by way of gift in favour of a minor just as a minor may inherit specific immoveable property or an interest in it by way of mortgage. The question then is whether it makes any difference that the transfer in favour of the minor by way of sale or mortgage is made in consideration of a price paid or a loan advanced by the minor. No doubt according to their Lordships' decision in such a case the minor could not bind himself by contract to pay the price or advance the mortgage money ; but when he has done so and the vendor or mortgagor has executed a registered conveyance in his favour, is there any reason why the transfer in his favour should not take effect? The provision of law which renders minors incompetent to bind themselves by contract was enacted in their favour and for their protection and it would be a strange consequence of this legislation if they are to take nothing under transfers in consideration of which they have parted with their money. This precise question cannot arise in England where a purchase by a minor of immoveable property is voidable by him on attaining majority but not void ah initio, as it is only the contracts specified in the Infants' Relief Act which are void. However even in the case of a contract which was void under the Infants' Relief Act, Lord Coleridge, C.J. and Bowen, L.J. held that a reasonable construction must be put upon the statute and that when an infant had paid for something under a void contract and had used or consumed it, it would be contrary to natural justice that he should recover back the money which he had paid on the ground that the contract was void. Valentini v. Canali (1896) I.L.R. 20 M. 147. I do not think this decision is inconsistent with Thurstan v. Nottingham Permanent Benefit Building Society (1909) I.L.R. 33 M. 312, which decided, as I understand it, that the mortgage given by the minor as security for a void contract entered into by him was also void. Applying the same reasoning to the present case it would be even more opposed to natural justice to allow the transferor to a minor by way of sale or mortgage to question the transfer for which full consideration has been paid to him. In that case it was the minor who sought to take advantage in an unconscionable manner of the Act which had been passed for the benefit of minors. There is even less reason for allowing a vendor to a minor to take advantage of the minor's statutory inability to contract which was imposed for his protection in order to avoid a transfer into which he entered with his eyes open.

Property - Validity of mortgage - Whether mortgage executed in favour of minor who had advanced whole of mortgage money was enforceable by him or by any other person on his behalf - Held, it was clear that before passing of these connected Acts, Contract Act and Transfer of Property Act, transfers by way of sale and mortgage in favour of minors were not void if it had been intended to make them absolutely void and of no effect this would have been done by clear and unambiguous words - On contrary, general scheme of Transfer of Property Act as appeared from definition was that minors might be transferees but not transferors.

Madras High Court

A.T. Raghava Chariar vs O.A. Srinivasa Raghava Chariar on 5 April, 1916

Equivalent citations: 36 Ind Cas 921, (1916) 31 MLJ 575,AIR 1917 Mad 561

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