Calcutta High Court (Appellete Side)
Abul Hossain vs Netai Nandi @ Netish Nandi & Ors on 23 May, 2025
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Smita Das De
FA 113 of 2009
Gayatri Pal since deceased represented by
Abul Hossain
Vs.
Netai Nandi @ Netish Nandi & Ors.
For the Appellant : Mr. Rabindra Narayan Dutta, Adv.,
Mr. Sibasish Ghosh, Adv.,
Mr. Hare Krishna Halder, Adv.,
Mr. Partha Pratim Roy, Adv.,
Mr. Soham Banerjee, Adv.
For the Respondents : Mr. Sukanta Chakraborty, Adv.,
Mr. Subrata Mukherjee, Adv.
Hearing concluded on : 8th May, 2025
Judgment on : 23rd May, 2025
Soumen Sen, J :
1. The appeal is arising out of a judgment and decree dated
11th December, 2008 passed by the learned Civil Judge, Senior Division
at Kandi in a partition suit filed by Netai Nandi & Ors. against Smt.
Gayatri Pal & Ors. The learned Trial Court decreed the suit in
preliminary form whereby it was declared that the plaintiffs and the
defendant No.2 jointly had 2/3rd shares in the scheduled described
property and the defendant No.1 has 1/3rd shares. The order provided
2
that in the event no amicable arrangement is arrived at between the
parties within the three months from the date of the decree the court
will proceed further for final decree and if so required, a survey passed
pleader/commissioner should be appointed through court.
2. The defendant No.1 is Smt. Gayatri Pal. She was aggrieved
by the said preliminary decree. During the pendency of the appeal,
Gayatri died and one Abul Hossain filed an application for substitution
on the ground of devolution of interest. The said application was
allowed on 3rd May, 2023 with a rider that the objection with regard to
the continuation of the proceeding by the present appellant shall be
considered at the time of hearing of the appeal.
3. Mr. Sukanta Chakraborty, the learned Counsel for the
respondents has raised a preliminary objection with regard to the
continuation of the appeal at the instance of Abul Hossain on the
ground that Gayatri Pal had transferred her interest in the dwelling
house in favour of the present substituted appellant during the
subsistence of an order of status quo and any instrument of
conveyance or documents executed in violation of the order of the
status quo would be non-est.
4. However, we decided to hear all points, although in
hindsight it appears that the appellant is pushed to an insurmountable
difficulty in dislodging the preliminary objection raised by the
respondent.
3
5. Mr. Rabindra Narayan Dutta, learned Counsel appearing
on behalf of the appellant has submitted that Gayatri during her
lifetime executed a deed of conveyance in respect of her share in the
suit property in favour of the present appellant. That Gayatri had an
interest in the suit property is not in dispute. The learned Trial Court
has decreed the suit by declaring shares in respect of the scheduled
property in excess of the share claimed in the plaint and without there
being any amendment carried out during the pendency of the partition
suit or immediately thereafter before the preliminary decree was drawn
up. The decree itself is contrary to the pleadings. It is submitted that
even if it is assumed that the present appellant may not have acquired
any interest the fact remains that Gayatri was allowed to continue with
the appeal by a coordinate bench presided over by the Hon’ble Justice
Jyotirmoy Bhattacharya, a former Chief Justice of this court on 17th
March, 2015 and any declaration of share in favour of Gayatri
according to her original claim would only inure to the benefit of the
present substituted appellant as in the deed itself Smt. Gayatri had
referred to the pending litigation.
6. The plaint was placed extensively to show the devolution of
interest, nature of the claims of the plaintiffs and the basis of the
claims for the share in the schedule property. It is submitted that the
property originally belonged to Gadadhar Pal who died intestate was
the original owner of the suit plot along with other immovable
4
properties and left behind his three sons Mahadeb Pal, Kantideb Pal
and Gnandra Chandra Pal who inherited the shares in equal proportion
after his demise.
7. Gnandra was survived by Sunanda Dey (daughter) and
Ananda Pal (son). Binapani Pal widow of Late Gnandra Pal pre-
deceased her husband and died before the enactment of Hindu
Succession Act, 1956 and thus the daughter and son of Gnandra being
Sunanda and Ananda inherited the shares of their father Gnandra in
respect of 1/3rd of 0.05 decimal. The parties are claiming through
Kantideb Pal. Kantideb died leaving behind Pushpita Ranjan Pal (Son),
Sreemati Pal (widow) and Chapalata Nandi (married daughter).
Pushpita Ranjan predeceased Kantideb in 1992 as also Chapalata.
8. It is claimed that Chapalata died before the coming into
force of The Hindu Succession Act, 1956. It is submitted that by reason
of the fact that Chapalata died prior to the Hindu Succession Act, 1956
she did not acquire any interest in the property of her father Kantideb
which the learned Trial Court has failed to appreciate. It is submitted
that the plaint would show that the plaintiffs and the defendant No.2
are the legal heirs of late Chapalata Nandi.
9. The plaint also narrates that on 17th July, 1950, the suit
property is measuring about 0.02/half decimal out of 0.05 decimal
which according to mathematical calculation will come to 0.02467
Chitaks or 11 square feet more or less out of 0.0467 Chitaks or 21
5
sq.ft. more or less. It is further stated in the plaint that Ananda became
the absolute owner of 0.002 ½ decimal along with other immovable
properties. After the demise of Sreemati the widow of Kantideb the
plaintiffs and the defendant no.2 got the entire 1/3rd share of Sreemati
since deceased and thus the plaintiff and defendant no.2 acquired
interest in the suit property having 1/3rd share from the deceased
Sreemati. Gayatri Pal acquired only 1/3 rd share. Attention was drawn
to the fact that the plaintiffs have stated that apart from 0.02 /half
decimal of land of the suit property, there are other several properties
as would be evident from the paragraph 4 of the plaint.
10. The learned Counsel has referred to the written statement
filed by the original defendant in which it has been specifically stated
that the suit is barred under Section 23 of the Hindu Succession Act. It
is averred that apart from the suit plot no.2680/3726 there are other
several plots owned by the original owner Gadadhar and after his death
his two sons Mahadeb and Kantideb along with Ananda the son of their
deceased brother Gnandra equally got 1/3rd share of the aforesaid suit
plot. It is submitted that after death of Kantideb the sons and
daughters of Late Chapalata the predeceased daughter of Kantideb did
not acquire any interest or share in respect of the immovable properties
left behind by Kantideb as Chapalata died long before the coming into
force of the Hindu Succession Act, 1956.
6
11. It is submitted that in the written statement it is stated that
Sreemati Pal widow of Kantideb Pal during her life time on the basis of
the oral arrangement got the entire two storied building at Mouza
Ruppur P.S Kandi and Gayatri the original defendant no.1, became the
owner in respect of the suit plot and building thereon including shop
room on the ground floor and by such arrangement the defendant no.1
enjoyed the house property at Mouza Sadpur and Sreemati Pal used to
enjoy other house property at Mouza Ruppur and the plaintiffs or the
defendants did not acquire any right, title and interest in respect of the
suit plot or any portion thereon.
12. It is submitted that there is a variance between the
pleading and the proof. While the plaint proceeds on the basis that the
plaintiffs are entitled to 0.02 ½ decimal out of 0.05 decimal, in
paragraphs 2 and 3 of the affidavit-in-chief of PW 1 admitted the said
fact and hence the decree could not have been passed for 0.05 decimal.
Moreover, the plaintiff has admitted that apart from the suit plot there
are other immovable properties left by the original recorded owner
Gadadhar Pal and after his demise his three sons became the absolute
owners.
13. In view of the existence of other immovable properties and
having regard to the fact that those properties were not included in the
suit for partition, the learned Trial Court should have dismissed the
suit on the ground that no partial partition in law is permissible.
7
14. It is submitted that the pleadings would show that the
claim of the plaintiffs are in respect of 0.02 ½ decimal whereby the
decree was passed in 2 ½ decimal which is a clear perversity as the
pleading is the foundation for a Court to pass any order or judgment
and the Court cannot traverse beyond the pleadings. The plaintiffs have
to prove their own case and they cannot depend on the evidence of the
appellants/defendants. For such argument, reliance was placed upon
the decision of the Hon’ble Supreme Court in Srinivas Raghavendra
Rao Desai (dead) by LRs v V. Kumar Vamanrao alias Alok & Ors.1,
paragraph 15 and Union of India v Vasavi Vo-Op Housing Society
Ltd. & Ors.2 paragraph 15. Such an argument to our mind is one of
desperation as the appellant has admitted the share of the plaintiffs in
the suit property in its evidence.
15. The learned counsel has submitted that it is a settled
principle of law that a suit for partial partition is not maintainable
when the parties admit the existence of other immovable properties.
This argument is based on the decision of the Hon’ble Supreme Court
in Kenchgowda (since deceased) by Legal Representatives v
Siddiegowda alias Motegowda,3 paragraph 16 and the decision of
1
2024 (2) ICC (SC) 641: AIR 2024 SC 1310: 2024 SCC OnLine SC 2567
2
2014 (1) ICC (SC) 571
3
1994 (4) SCC 294
8
this Court in Bhajahari & Ors. v Abdul Karim Shaikh & Ors.,4
paragraphs 5 and 6.
16. Reliance is put on the case of Nasib Kumar & Ors. v
Colonel Surat Singh (deceased) through L.R.s and Ors.5 to submit
that there is no legal bar to transfer of joint property by any co-sharer.
17. In order to demonstrate that the transfer during the
pendency of the partition suit in favour of the present appellant does
not create a legal bar and the doctrine of lis pendens would not
completely vitiate such transaction reliance is placed on the following
decisions:
i. Amit Kumar Shaw & Anrs v Farida Khatoon & Anr.6
paragraphs 7, 11 and 17;
ii. Chandra Bai (dead) through Legal Representatives v
Khandalwal Vipra Vidyalaya Samiti & Ors.7 paragraphs 8
and 9;
iii. Raj Kumar v Sardari Lal & Ors.8 paragraphs 5,8,9,13.
iv. Chafoor Ahmad Khan v Bashir Ahmad Khan (dead) by
L.R.9
4
AIR 1988 Calcutta (D.B) 421
5
(2013) 5 SCC 218: AIR 2014 SC (Supp) 1135
6
2005 (3) ICC (SC) 65: AIR 2005 SC 2209
7
2016 (12) SCC 534: AIR
8
2004 (2) ICC (SC) 1: 2004 (2) SCC 601
9
1982 (3) SCC 486
9v. Chander Bhan (D) through LR Sher Singh v. Mukhtiar
Singh & Ors.,10 paragraphs 15, 17, 21, 22 and 24.
18. It is submitted that the aforesaid decisions would also lend
credence to the submission that subsequent transferee would acquire
valid title to the property and such transfer is not illegal or
unenforceable.
19. In view of the aforesaid the decree is required to be set
aside.
20. Mr. Sukanta Chakraborty, learned counsel for the decree
holders/co-sharers/respondents has submitted that Gayatri had sold
her share in the dwelling house inherited and jointly possessed by the
members of the family without prior notice and that too in the teeth of
an order of injunction passed on 25th March 2003 and confirmed on 5th
December 2023. The sale deed was executed on 11th July 2007 and
accordingly the said deed is non-est in the eye of law and cannot give
any effective title to the present appellant. In this regard the learned
counsel had relied upon the decision in Surjit Singh & Ors. v
Harbans Singh & Ors.11 paragraphs 3 and 4. It is submitted that in
the said decision it has been categorically held that any such transfer
would be considered to be non-est.
10
2024 (3) ICC 70 (SC): AIR 2024 SC 2267
11
(1995) 6 SCC 50
10
21. The original appellant during her lifetime did not disclose
that she had already sold her share in the dwelling house to a complete
stranger and the said fact was only disclosed by Gayatri during the
admission of the appeal and full details have been stated with
disclosure of the sale deed by the present appellant after her demise in
his application for substitution. The learned counsel has referred to the
order passed by the Division Bench on 17th March 2015 to show that
the Hon’ble Division Bench was pleased to hold that the said sale was
in violation of the order of injunction. In refuting the submission that
the suit is bad due to a partial partition it is submitted that the subject
matter of the present appeal is confined to a dwelling house as no other
property of Gayatri had devolved upon the present substituted
appellant nor had he claimed to have purchased any other joint
properties. The substituted appellant cannot agitate all the issues
raised by the original defendant no. 1 in her written statement save
and except those which relate to the dwelling house since the rest of
the properties had already devolved upon the present respondents by
operation of law after the death of the original appellant.
22. The learned counsel has referred to Section 44 of the
Transfer of Property Act which restrains a third party from joint
possession or other common or part enjoyment of the dwelling house
and has submitted that there is a statutory prohibition of a transferee
of a share of a dwelling house to claim joint possession. He can at best
11
file a suit for partition. The learned counsel has also referred to the
much celebrated judgment of the Hon’ble Supreme Court in Dorab
Cawasji Warden v Coomi Sorab Warden & Ors.12 paragraphs 26,
27, 29, 30 and 31 to argue that an interim mandatory injunction order
can be passed against a stranger purchaser for status quo ante in the
event such stranger has forcefully obtained joint possession as it would
be in violation of Section 44 of the Transfer of Property Act.
23. Insofar as the discrepancy in the plaint and the judgement
with regard to the share of the plaintiffs in the suit property it is argued
that the share mentioned in the Schedule of the plaint is a
typographical mistake and the learned Trial Court rightly corrected the
same at the time of passing of the judgment and order. That the shares
have been accurately declared would also be evident from the
admission in the written statement of the defendant no. 1 in various
paragraphs, namely, paragraphs 6 and 8 of the written statement
where Gayatri had admitted the correct position of the different co-
shares in the schedule property.
24. In answering the issue with regard to existence of other
immovable properties it is submitted that Gayatri during her cross-
examination admitted to have sold her share in some of the joint
properties inherited from Kantideb Pal since deceased and she had
further admitted that the suit property had never been partitioned.
12
(1990) 2 SCC 117
12
25. The learned Counsel has referred to the cross-examination
of Gayatri to show that she had admitted the suit property was a
dwelling house. Kantideb Pal seems to have died in or about 1997-98
in view of her deposition that “Kanti babu died about 10/11 years ago”
and this fact was deposed on 12th November, 2008 which makes the
legal heirs to succeed to the estate of Kantideb in and around such
time.
26. The learned Counsel in the alternative has submitted that
even if it is contended and held that such transfer in favour of the
substituted appellant is valid, it would be difficult for the present
appellant to get over the rigors of Section 4 of the Partition Act, 1893
which gives right of pre-emption to the co-sharers. The learned Counsel
in this regard has extensively placed Section 4 of the Partition Act and
the decision of the Hon’ble Supreme Court in Ghantesher Ghosh v.
Madan Mohan Ghosh & Ors.,13 paragraphs 4, 10, 17.
27. It is submitted that in the event a finding is arrived at in
favour of the appellant insofar as the sale deed is concerned the
respondents/decree holders is entitled to exercise their right of pre-
emption by way of purchasing share allegedly transferred by Gayatri
during her lifetime in view of the decision of our court in Birendra
Nath Mukherjee v. Smt. Snehalata Devi & Anr.14 paragraph 11.
13
1996 (11) SCC 446
14
AIR 1968 Cal 380
13
Observations & Findings:
28. Mr. Rabindra Narayan Dutta, learned Counsel appearing
on behalf of the appellants has strenuously argued that the suit is bad
for partial partition based on the decision of the Hon’ble Supreme
Court in Kenchegowda (Since deceased) by Legal representatives v.
Siddegowda @ Motegowda15 and Bhajahari & Ors. v. Abdul Karim
Shaikh & Ors.16 In Kenchegowda (supra) it appears that the decree
for partition was passed on a mere application for amendment. The
causes of action for declaration injunction have been distinguished in
the said judgment and thereafter it was held in paragraph 16:
“16. Even otherwise, a suit for partial partition in the
absence of the inclusion of other joint family properties and
the impleadment of the other co-sharers was not warranted
in law. Thus, we find no difficulty in allowing these appeals
which are accordingly allowed. The judgment and decree of 9
the trial court as affirmed by the first appellate court are
restored. However, there shall be no order as to costs.”
29. In Bhajahari & Ors. (supra) the Hon’ble Division Bench
noted the judgement in Tarini Chakerbutty v. Debendralal De,17 and
was of the view that the exception to the rule in favour of partial
partition was not made out and allowed the second appeal. In the
aforesaid case it was proved beyond doubt that the plaintiffs have
interest in all the properties left behind by their father and as such
15
1994 (4) SCC 294
16
AIR 1988 Cal 421
17
1935 (39) Cal WN 1044
14
they cannot claim partition in respect of some of those properties only.
In other words if the present suit was filed by the defendants as
purchasers of some of the properties left behind by the predecessor-in-
interest of their vendors it might have been said that their interest
being limited to the properties which they had purchased, they could
maintain the suit for partial partition, but for equitable distribution
amongst all co-sharers all the properties are essentially required to be
brought into the hotchpot. However, in so far as the present appeal is
concerned it is restricted to a share in the dwelling house insofar as the
transferee is concerned. The transferee cannot have any claim in
respect of any other properties of Gayatri and hence the argument at
the instance of the present substituted appellant that the suit is bad
for partial partition cannot be accepted. Although it may be academic
however, we would like to briefly discuss instances where partial
partition may be allowed.
30. In this regard we may refer to the Division Bench judgment
of our court in Harey Harey Sinha Choudhury & Ors vs. Hari
Chaitanya Sinha Chowdhury & Ors.18 where these circumstances
under which a suit shall not be bad for partial partition has been
stated in the following words:
“An exception to the rule that all joint property must be
brought into the hotch-pot is that where properties are held
jointly by all the co-sharers with strangers who cannot18
40 CWN 1237
15conveniently be added as parties to the suit for partition
between members of the joint family such properties should
be excluded from the partition.
……. There are properties which were possessed by Gobinda
Sundar in Common with strangers who are not parties to the
present suit; and although the general rule is that a suit for
partition must embrace all the joint properties, there are
certain recognized exceptions to the said rule. One of them is
that where properties are held jointly by all the co-sharers
with strangers who cannot conveniently be added as parties
to the suit for partition between members of the joint family,
such joint properties should be excluded from partition as
forming an exception to the general rule. This is one of the
recognized exceptions. The same this is pointed out in the
case of Rajendra Kumar Bose v. Brojendra Kumar Bose; 37
C.L.J. 191 (1992) where this exception is recognized and the
question has been elaborately discussed and we need simply
to refer to it.”
31. In Tarini Charan Chakerbutty & Anr. v. Debendralal Dey
& Ors.19 Justice Nasim Ali upon noticing some divergence of judicial
opinion on the question whether an alinee from a co-sharer is entitled
to institute a suit for partition of the property in which he alone is
interested held that it is a general rule that a partition suit should
embrace all joint properties among the co-sharers, however, there is
also a complementary rule that a suit for partition cannot include
properties in which each of the parties does not claim an interest. The
general rule is the rule of equity and convenience and can be relaxed
19
39 CWN 1044
16
and a partial partition could be allowed where it is not proved that the
parties will be prejudiced or inconvenienced by such partition. This has
been reiterated by a coordinate bench of this court in the case of
Umapati Manna & ors. vs. Becharam Manna & ors. 20.
32. A division bench of Himachal Pradesh High Court in a
decision rendered in the case of Smt. Lila Wati & ors. vs. Paras Ram
& ors.21 has held that a partition between the coparceners might be
partial either in respect of the property or in respect of the persons
making it. It was further held that it is open to the members of a joint
family to 6 dns make a division and severance of interest in respect of a
part of the joint estate while retaining their status as a joint family and
holding the rest as the properties of a joint and undivided family.
33. In the instant case Gayatri also had sold her shares in
many of the joint family properties.
Mr. Dutta has referred to Prasanna Kumar Koley & Ors. v.
Biswanath Koley22 for the proposition that preliminary decree
should be based on the suit property mentioned in the plaint
schedule and the learned Trial Court has no jurisdiction to pass
a decree disregarding the plaint schedule. In Prasanna Kumar
Koley (supra) the issue that came up for consideration before
the Co-ordinate Bench was whether after final decree is passed
20
1990 (1) C.L.J. 461
21
AIR 1977 H.P. 1
22
2025 (1) ICC 417 (Cal) : AIR 2025 Cal 47
17
any amendment should be allowed to the plaint schedule. It was
found that the partition commissioners’ report is palpably bad
as it included allocation of the particular Dag number which is
not a part of the suit property and it omitted to allocate a
particular plot which in turn comprised of a portion of a suit
property. The co-ordinate Bench was of the view that once the
court passes a final decree it would be binding on the parties
and conclusive in terms of the rights and liabilities as well as
title of the parties. The subsequent ministerial work left
regarding drawing up of a decree and putting the proper stamp
thereon does not vitiate the existence of a final decree itself.
With regard to the amendment to the schedule of the plaint it
was observed that the order of the trial court refusing
amendment had attained finality and on such facts the Hon’ble
Court was of the opinion that the preliminary decree and/or
plaint schedule cannot be permitted to be amended or allowed to
be reopened at this juncture. In the instant case, the decree was
based on evidence and admission of the extent of the suit
property over which the parties were litigating. This would be
clear from the pleadings as well as the evidence of the parties.
34. Mr. Dutta the learned Counsel has submitted that heirs of
Chapalata would not inherit any share of the father of Chapalata,
Kantideb who is the grandfather of some of the defendants namely,
18
Netai, Santilata, Jayanti, Sanju, Basanti and Aparajita since as per the
Hindu Law that was in existence before 1956, daughters did not inherit
any share. However, it is considered that so far as the other legal heirs
of Pushpita Ranjan and Sreemati would devolve upon the aforesaid
persons.
35. It is thus submitted that since Chapalata did not acquire
any interest at the time of her death her legal heirs would not be
entitled to any share of Kantideb father of Chapalata, alive at the time
of death of his daughter Chapalata. In this regard reliance has been
placed by Mr. Dutta upon the decision of the Division Bench
Judgement of Bombay in Radhabai Balasaheb Shrike (since
deceased) through legal heirs & Ors. v. Keshav Ramchandra
Jadhav & Ors. 23 The learned Counsel has submitted that in
Radhabai Balasaheb Shrike (supra) it has been held in paragraph 35
that:
“35. A daughter would not have any right, either limited or
absolute, by inheritance prior to coming into force of the Act of
1956 in the property of her deceased father who died prior to
1956 leaving behind him in addition to such daughter, his
widow as well.”
36. The pivotal point raised in this appeal as by way of
objection fundamentally is the sanctity of the deed of sale executed by
Gayatri the original appellant on 11th July, 2007 in favour of the
23
2024: BHC-AS:43314
19
present appellant. The interplay between Section 52 of the Transfer of
Property Act and alienation in violation of the order of status quo or
injunction would also be relevant in deciding the future of the
substituted appellant vis-à-vis the suit property.
37. Although genealogical table may not be of much relevance
in deciding the issues but it cannot be said that it is completely
irrelevant as it would give a basic idea of the devolution of the
properties and the relationship between the parties. The genealogical
table of Pal family is given below:
Gadadhar Pal (died intestate)
Mahadeb Pal Kantideb Pal Gnandra Chandra Pal
(deceased) (deceased) (deceased)
Pushpita Ranjan Pal Sreemati Pal Chapalata Nandi
(Died before the death (widow) (w/o Bidya Prasad Nandi)
Of Kantideb Pal in 1992-93) (died long before HSA, 1956)Gayatri Pal (Issueless widow) Sunanda Dey Ananda Pal
(daughter) (son)
20Netai Nandi Santilata Dey Jayanti Sanju Basanti Aparajita
@Nitesh Nandi w/o Ananda Nandi Nandi Chowdhury Dey
Mohan Dey
38. Gadadhar was the original owner of entire 5 decimal land
appertaining to Mokuza-Sadpur, Touzi No.253, Holding No.45/54, J.L.
No.6, R.S. Khatian No.749, L.R. Khatian No.214, R.S. Dag No.
2680/3726, L.R. Dag No.3681, Ward No.2 within Kandi Municipality,
Police Station- Kandi, District- Murshidabad along with other
immovable properties in R.S. and L.R. Dag No.(s) 192 and 198, J.L. No.
85, Mouza-Ruppur, Police Station-Kandi, District- Murshidabad.
39. The appeal is presently confined to the dwelling house. In
the plaint, although it is stated that the suit property consists of 0.05
Satak (decimal) and the plaintiffs have in effect prayed for 18 gondas of
land which in effect is 2 ½ percent of .05 decimal the fact remains that
the suit land is 5 decimal and not .02 decimal. It would be evident from
the cross-examination of PW1 in which he has stated the following:
“The total land is 5 dec. I have instituted this suit in respect of 2
½ dec. land is containing three stories building. There is no
vacant land on any side of the suit building on the eastern side
there is a public passage.
xxx
21At present the defendant Gayatri Pal is residing in the suit
property. The defendant is the daughter-in-law of the family. We
pray for partition by metes and bounds by giving wall to maintain
privacy.”
40. The defendant Gayatri in her evidence admitted the
aforesaid fact in paragraphs 7 and 8 of her written statement. In her
evidence she has also admitted the aforesaid fact. The parties by their
pleadings and adducing evidence have consciously reaffirmed the
original position vis-à-vis their share in the schedule property and
accordingly we are unable to accept the submission of Mr. Rabindra
Narayan Dutta learned Counsel for the appellant that the Trial Court
has exceeded its jurisdiction in declaring the shares of the plaintiffs
and the defendant no.2 notwithstanding such mistake in the plaint.
The pleadings are required to be read as a whole along with the
evidence. The parties were not unmindful of the fact that the suit
property is of 5 decimal in which the dwelling house is situated. Both
the parties had the opportunity to lead evidence with regard to their
shares in respect of the suit schedule property and they have admitted
to the said facts in their evidence on the basis of which the judgment
was pronounced. Both sides understood the real issue and lead
evidence accordingly. The plaintiff cannot be denied just relief merely
because of an inadvertent mistake with regard to the declaration of
shares in the schedule of the plaint. The said mistake is obvious having
22
regard to the pleadings of the parties and the evidence adduced by the
parties at the trial.
41. The actual state of affairs in the family was known to
Gayatri insofar as the inheritance of the respective shares are
concerned and in the written statement Gayatri has not specifically
challenged the shares of the aforesaid persons. In any event in view of
the fact that the assignee transferee has no locus to maintain the
appeal and the other co-sharers who could have challenged the said
finding and would be vitally affected by such declaration of shares have
not challenged the preliminary decree, it is not necessary for us to go
into such question at this stage.
42. Mr. Dutta has tried to rely upon few documents at the
appellate stage to show that the joint family had other properties that
were not included in the partition suit and in view of the fact that the
present substituted appellant was not a party to the earlier
proceedings, the said documents could not be brought on record and
under such circumstances the court may permit production of
document at the appellate stage in the light of the decision of the
Hon’ble Supreme Court in Maharashtra State Road Transport
Corporation v. Mahadeo Krishna Naik24 in order to do complete
justice.
24
AIR 2025 SC 1172: AIR Online 2025 SC 80
23
43. We are not inclined to allow such prayer, in view of the fact
that the appellant itself is not entitled to maintain the appeal as a
transferee pendente lite and moreover the claim of the present
appellant can only be confined to the share in the dwelling house.
44. The decision in State of Haryana Anr. v. Amin Lal (since
deceased) through his LRs. & Ors.,25 was relied upon to show that if
there is no specific denial to the pleadings of the plaintiff then it should
be presumed that the allegations are deemed to have been admitted.
This was cited on behalf of the appellant to show that Chapalata’s right
to succeed to the estate was not denied by Gayatri in her written
statement nor any issue was framed in this regard. However, the right
of the defendants to the share in the property cannot be defeated on
the basis of the deed of assignment which is non-est in the eye of law.
The learned court observed in paragraph 8.1 which is reproduced
below:-
“8.1 We find this argument unconvincing for several reasons:
In their written statement before the Trial Court, the
appellants did not specifically deny the plaintiffs’ ownership
of the suit property. Instead, they primarily relied on the plea
of adverse possession. Under Order VIII Rule 5 of the Code of
Civil Procedure, 1908, allegations of fact not denied
specifically are deemed to be admitted. By asserting adverse
possession, the appellants have impliedly admitted the
plaintiffs’ title.”
25
2025 (1) ICC 794 (SC) : AIR Online 2024 SC 765
24
45. In Thangam & Anr. v. Navamani Ammal26 similar issue
came up for consideration where it has been categorically stated that in
absence of paragraph wise reply to the plaint it becomes a roving
enquiry for the court to find out as which line in some paragraph in the
plaint is either admitted or denied in the written statement filed as
there is not specific admission or denial with reference to the allegation
in different parts. In observation of the Court in paragraph 15.2 has
been reproduced below:
“15.2 The requirement of Order VIII Rules 3 and 5 CPC are
specific admission and denial of the pleadings in the plaint. The
same would necessarily mean dealing with the allegations in
the plaint para-wise. In the absence thereof, the respondent
can always try to read one line from one paragraph and
another from different paragraph in the written statement to
make out his case of denial of the allegations in the plaint
resulting in utter confusion.”
46. In Srinivas Raghavendrarao Desai (dead) by LRs. v. V.
Kumar Vamanrao @ Alok & Ors.27 the Court has stated in paragraph
15:
“15. There is no quarrel with the proposition of law that no
evidence could be led beyond pleadings. It is not a case in
which there was any error in the pleadings and the parties
knowing their case fully well had led evidence to enable the
Court to deal with that evidence. In the case in hand, specific
amendment in the pleadings was sought by the plaintiffs with26
2024(2) ICC 807 (SC) : AIR 2024 SC 1324
27
2024(2) ICC 641 (SC): AIR 2024 SC 1310
25reference to 1965 partition but the same was rejected. In such
a situation, the evidence with reference to 1965 partition cannot
be considered.”
47. In the instant case the parties knowing their case fully well
had led evidence to enable the court to deal with such evidence and
hence the said decision although cited on behalf of the substituted
appellant favours the defendants more than the appellant.
48. In Karan Chabria v. Yashwant Chabria & Ors.28 the Co-
ordinate Bench presided over by one of us has reiterated the same
principle in stating:
“If there is a variation between the pleading and the proof it is
elementary that the court should discard any evidence which
does not have its foundation in the pleadings. It is well settled
that no amount of evidence can be looked into upon a plea
which was never put forward. It is also equally well settled that
the court cannot grant relief to the plaintiff on a case for which
there is no foundation in the pleadings and which the other
side was not called upon or had an opportunity to meet. The
appellant has never disputed due execution and attestation of
the Will”
49. It has been strenuously argued by relying upon the
decision of the Hon’ble Supreme Court that the plaintiff could succeed
only on the strength of its own title and that could be done only by
adducing sufficient evidence to discharge the onus cast upon him
irrespective of the question whether the defendants have proved their
28
2023(1) ICC 63 (Cal): AIR Online 2022 Cal 1299
26
case or not. The instant suit is a suit for partition. Everyone is a
plaintiff and everyone is a defendant. The pleadings clearly admit that
the suit property is of 5 decimal and the original defendant has
admitted the said fact and proceeds on the basis that it relates to
declaration of half share of the total in the suit property consisting of 5
decimal and accordingly there is no ambiguity with regard to the
identity of the suit property or the respective shares as claimed in the
suit property. Moreover, admission is the best piece of evidence. A fact
admitted need not be proved. The only dispute is with regard to the
shares as claimed by the plaintiffs in the suit. They have admittedly
claimed half share of the total although there was an inadvertent error
initially with regard to their share of the suit property.
50. However, the more fundamental issue that requires to be
considered is the attempt of Gayatri to transfer the property during the
subsistence of the order of injunction and status quo. In fact, the sale
deed dated 11th July, 2007 clearly mentioned the pendency of the suit
which made it obligatory on the part of the present appellant to
ascertain the existence of the interim order or any prohibition against
alienation if in existence.
51. We have read the sale deed and it appears that the suit was
filed with full knowledge of the suit and the order of prohibition against
alienation. This itself disentitles the appellant to pled innocence and
the benefit of a bona fide purchaser for value without notice.
27
52. The interplay between Section 52 and an order of
injunction restraining a party from alienation during the pendency of
the suit concerning an immovable property has to be considered in the
context of the facts disclosed before the court. When a suit involving
immovable property is pending, transfer is permissible with the leave of
the court. A transfer during the pendency of the suit by itself will not
make such transfer invalid even if it is executed without the leave of
the court. A question may arise as to whether the transferee is aware of
the pendency of the suit at the time of transfer. If the transferee with
reasonable due diligence is unable to find out that no litigation is
pending concerning the immovable property or the deed of transfer is
silent with regard to pendency of a proceeding involving such
immovable property which the transferor even with due diligence was
unable to ascertain a transferee may in an appropriate case can take
the benefit of a bona fide transferee for value without notice.
53. However, when an order of injunction is in place and the
transferee has agreed to enter into such transaction knowing fully well
the predicament and uncertainties of such transaction, as it would
depend solely on the outcome of the proceeding he takes a calculated
risk. All the decisions that have been relied upon by Mr. Dutta in this
regard are distinguishable on facts and we have dealt with such at a
later stage. The decisions are not an authority for the proposition that a
transferee who is aware of the pendency of the proceeding on the teeth
28
of an order of injunction would acquire a valid title to the property. In
fact, in the earlier stage of this proceeding the fact of transfer was
considered by a Co-ordinate Bench presided over by Justice Jyotirmay
Bhattacharya, former Chief Justice of our Court on 17th March, 2015,
relevant portions, whereof are reproduced below:
“Having regard to the fact that such sale was made by the
appellant in violation of the order of injunction passed by the
Learned Trial Judge, the fate of the said sale is also required
to be considered in case occasion arises for such
consideration at the time of hearing of the appeal.
If it is ultimately held that the transfer which was made by
the appellant in favour of a stranger purchaser, becomes
ineffective due to sale of her share in the suit property in
violation of the injunction property then it cannot be held that
she lost her title in the property by virtue of such sale in
favour of the stranger purchaser. Since the pendency of the
suit itself has been disclosed by the appellant in the sale
deed itself, the purchaser admittedly purchased the said
property with notice of the suit.
Be that as it may, presently we are not concerned with the
right which the purchaser has acquired in the suit property
by virtue of the said sale. He has not come forward seeking
leave to continue with the suit under Order 22 Rule 10 of the
Code of Civil Procedure. Order 22 Rule 10 of the Code of Civil
Procedure does not provide for dismissal of the suit, in case,
any of the parties transfers his interest in the suit property
during the pendency of the suit. It simply gives an additional
right to the transferee to be added in the suit and/or appeal
for continuing the suit and/or appeal by himself.
29
Since there is no provision either in the Transfer of Property
Act or in the Civil Procedure Code which debars the plaintiff
and/or the appellant to continue with the suit and/or appeal
even if he transfers his share during the pendency of the suit,
attracting the provision of lis pendense under Section 52 of
the Transfer of Property Act, we cannot hold that the
appellant has lost her locus either to proceed with the appeal
or to file this application for recall of the order of dismissal of
the appeal.
Accordingly, we also do not find any substance in this part of
the contention of Mr. Panda.” (emphasis supplied)
54. The fundamental issue raised for consideration is whether
the present appellant can enforce any right in view of the order of the
status quo passed during the pendency of the suit. It is an admitted
position that during the pendency of the partition suit on 5th December,
2023 the learned Trial Court passed the following order:
“Advocate hajiras are filed on the concerned parties. Today is
fixed for filed written objection against the injunction petition. Ld.
Lawyer for the defendant submits that he is not willing to file
any written objection and he submits for hearing of the
injunction petition at this stage. Hence the injunction petition is
taken up for hearing. Heard the ld. Advocates of both sides.
Perused order no.2 dated 25.3.2003 together with plaint and
found that the status quo order has already been passed for
restraining the parties. Considering the nature and character of
the suit I am of the view that it should be wise to pass order of
maintaining status quo against the parties for the sake of
availing the multiplicity of cases between the parties future.”
(emphasis supplied)
30
55. It appears that during the subsistence of the interim order
Gayatri Pal executed deed of conveyance on 11th July, 2007 in favour of
the present appellant. In the event we arrive at a finding that the said
document is non-est by reason of prohibitory order then no interest
could be conveyed in law and in fact in favour of the third party
appellant. The subsistence of an order of injunction which in the
instant case is in the nature of status quo makes such transfer void ab
initio. It is immaterial whether a party has acquired any interest in the
property with or without notice of such proceeding.
56. The right of the present substituted appellant to continue
with the appeal by reason of devolution of interest appears to be based
on the decision of the Hon’ble Supreme Court in Amit Kumar Shaw
(supra).
57. Admittedly the transfer had taken place during the
pendency of the partition suit. The said judgment has reiterated that
an alienee pendente lite is bound by the final decree that may be
passed in the suit. Such an alienee can be brought on record both
under Section 52 of TPA as also under Order I Rule 10 of the CPC as a
decree passed in the suit in which such transfer had taken place binds
the transferee. After discussing on the elements of Section 52 of the
Transfer of Property Act it was stated that a transferee pendente lite to
the extent he has acquired interested from one of the parties in the suit
is vitally interest in the litigation where the transfer is of the entire
31
interest of the co-sharers concerned may not be a necessary
consideration. However, in the instant case the transfer is void ab initio
as it was effected when the parties were directed to maintain status
quo and hence the said judgment is distinguishable.
58. The right of a transferee on assignment, creation or
devolution of any interest has also come up for consideration in
Chandra Bai (supra) where after referring to Vidur Impex (supra) the
Hon’ble Supreme Court held that though the said judgment dealt with
impleadment under Order 22 Rule 10 of CPC and Section 52 of the
TPC however, the said decisions would not apply to the facts of the
case since the court was considering at what stage the assignee or a
succeeding interest pending litigation can seek impleadment. It would
clearly appear from the following paragraphs of the said judgment:
“6. Mr Sanjib Sen, learned Senior Counsel appearing for
Respondent 1 Society submitted that in a case under Order
22 Rule 10 CPC, where rights are derived by an assignee or
a successor-in-interest pending litigation, it is for that
assignee or transferee to come on record if he so chooses and
to defend the suit. In support of his submission he relied on
the decisions of this Court in State of Orissa v. Ashok
Transport Agency and Dhurandhar Prasad Singh v. Jai
Prakash University and pointed out that under Order 22 Rule
10, the right of the assignee and/or the successor-in-interest
will continue when there has been a devolution of interest
during the pendency of a suit. The suit can. by leave of the
Court, be continued by or against the persons upon whom
32such interest has devolved and this entitles the person who
has acquired interest in the subject-matter of a litigation by
assignment or creation or devolution of interest pendente lite
or any other person in interest, to apply to the Court for d
leave to continue the suit.
7. Mr Sanjib Sen further contended that no period of
limitation is prescribed under Order 22 Rule 10 CPC. In fact
the right to apply under this Rule is a continuous right and
application can therefore be made at any time till the
proceedings are pending. He further contended that the
question of delay/laches or setting aside abatement of suit
arises only where the case falls under Order 22 Rule 3 or
Rule 4 and not where the case is covered by Rule 10.
According to him, it is the discretion of the Court and if the
Court is prima facie satisfied with the facts so pleaded before
the Court, it can allow such application.
8. We have further noticed that in Baijnath Ram v. Tunkowati
Kuer the Full Bench of the Patna High Court has held: (SCC
OnLine Pat para 15)“15. Another thing to notice in connection with this rule is
that a party on whom the interest of the deceased
plaintiff or defendant devolves is not entitled to continue
the suit or appeal as a matter of right, it is V essential to
obtain the leave of the Court. The grunting of leave is
within the discretion of the Court. The Court, however, is
to exercise its discretion judicially and according to well-
established principles. Further, unlike Rules 3 and 4, no
limitation is prescribed for presentation of an application
under this rule and no penalty is laid down for failure to
substitute the person on whom the interest of the
33deceased plaintiff or defendant was devolved. Therefore,
the right to make an application under this rule is a right
which accrues from day to day and can be made at any
time during the pendency of a a suit. There is no
abatement under this rule.”
59. The Hon’ble Court was considering the period of the
limitation within which an assignee or a transferee pendente lite could
approach the court for impleadment. This is not the issue presently
with which we are concerned and forming the subject matter of the
appeal.
60. In Raj Kumar v. Sardari Lal & Ors. 29 the right of a
transferee pendente lite came up for consideration in which Section
146 of the CPC and Order 22 Rule 10 of the CPC were considered. In
deciding the said issue the Hon’ble Supreme Court has stated as
follows:
“8. A lis pendens transferee from the defendant, though not
arrayed as a party in the suit, is still a person claiming under
the defendant. The same principle of law is recognized in a
different perspective by Rule 16 of Order 21 of the CPC which
speaks of transfer or assignment inter vivos or by operation
of law made by the plaintiff-decree-holder. The transferee
may apply for execution of the decree of the Court which
passed it and the decree will be available for execution in the
same manner and subject to the same conditions as if the
application were made by the decree-holder. It is interesting
to note that a provision like Section 146 of the CPC was not to
29
2004(2) ICC 1: 2004 (2) SCC 601
34be found in the preceding Code and was for the first time
incorporated in the CPC of 1908. In Order 21, Rule 16 also an
explanation was inserted through amendment made by Act
No. 104 of 1976 w.e.f. 1-2-1977 whereby the operation of
Section 146 of CPC was allowed to prevail independent of
Order 21, Rule 16, СРС.
9. A decree passed against the defendant is available for
execution against the transferee or assignee of the
defendant- judgment-debtor and it does not make any
difference whether such transfer or assignment has taken
place after the passing of the decree or before the passing of
the decree without notice or leave of the Court.
10. The law laid down by a Four-Judges Bench of this Court
in Sm. Saila Bala Dassi v. Sm. Nirmala Sundari Dassi and
another, 1958 SCR 1287, is apt for resolving the issue arising
for decision herein. A transferee of property from defendant
during the pendency of the suit sought himself to be brought
on record at the stage of appeal. The High Court dismissed
the application as it was pressed only by reference to Order
22, Rule 10 of the CPC and it was conceded by the applicant
that, not being a person who had obtained a transfer pending
appeal, he was not covered within the scope of Order 22,
Rule 10. In an appeal preferred by such transferee this Court
upheld the view of the High Court that a transferee prior to
the filing of the appeal could not be brought on record in
appeal by reference to Order 22, Rule 10 of the CPC.
However, the Court held that an appeal is a proceeding for
the purpose of Section 146 and further the expression
“claiming under” is wide enough to include cases of
devolution and assignment mentioned in Order 22, Rule 10.
Whoever is entitled to be but has not been brought on record
35under Order 22, Rule 10 in a pending suit or proceeding
would be entitled to prefer an appeal against the decree or
order passed therein if his assignor could have filed such an
appeal, there being no prohibition against it in the Code. A
person having acquired an interest in suit property during the
pendency of the suit and seeking to be brought on record at
the stage of the appeal can do so by reference to Section 146
of the CPC which provision being a beneficent provision
should be construed liberally and so as to advance justice
and not in a restricted or technical sense. Their Lordships
held that being a purchaser pendente lite, a person will be
bound by the proceedings taken by the successful party in
execution of decree and justice requires that such purchaser
should be given an opportunity to protect his rights.
(emphasis supplied)
61. The attention of the Hon’ble Court was brought to the
observation in Surjit Singh (supra) and it was distinguished on the
grounds as observed in paragraph 14 of the said decision which states:
“14. Incidentally, we may observe that in Surjit Singh v.
Harbans Singh [(1995) 6 SCC 50] the assignees pendente lite
were refused by this Court to be brought on record as they
had purchased the suit property after the passing of the
preliminary decree and in clear defiance of the restraint order
passed by the Court injuncting any alienation/assignment. It
was a case of exercising discretion not to grant leave under
Order 22 Rule 10 CPC, in the circumstances of the case, as in
the opinion of this Court permitting impleadment and
recognizing the alienation/assignment would amount to
defeating the ends of justice and the prevalent public policy.
That case is clearly distinguishable.” (emphasis supplied)
36
62. It would thus appear that the transferee was not aware of
the pendency of the suit which is not the case we are presently
considering. While in the facts of the case of state of Raj Kumar (supra)
the respondent no. 4 therein had purchased the suit property from the
respondent nos. 2 and 3 by a registered deed of sale, during the
pendency of a civil suit and the said respondent no. 4 in that case was
not aware of the pendency of the suit and the vendors had rather
stated in the sale deed that the property was not a subject matter of
any litigation, the factual backdrop of the instant case shows that the
substituted appellant herein was aware of the pendency of the partition
suit before entering into the contract of sale with Gayatri.
63. In Chander Bhan (D) through LR Sher Singh v.
Mukhtiar Singh & Ors.,30 the right of a transferee pendente lite was
considered and in paragraph 16 the following observation was made:
“16. The object underlying the doctrine of lis pendens is for
maintaining status quo that cannot be affected by an act of
any party in a pending litigation. The objective is also to
prevent multiple proceedings by parties in different forums.
The principle is based on equity and good conscience. This
Court has clarified this position in a catena of cases.
Reference may be made here of some, such as : Rajendra
Singh v. Santa Singh, (1973) 2 SCC 705 : AIR 1973 SC 2537;
Dev Raj Dogra v. Gyan Chand Jain, (1981) 2 SCC 675;
Sunita Jugalkishore Gilda v. Ramanlal Udhoji Tanna, (2013)
10 SCC 258: 2014 (1) ICC (SC) 472″.
30
2024 (3) ICC 70 (SC): AIR 2024 SC 2267
37
64. In considering the factual aspect of the said matter the
observations of the Hon’ble Supreme Court are very relevant and apt in
relation to the present dispute. The said paragraphs are reproduced
below:
“20. In other words, the appellant filed a suit for permanent
injunction on 21.07.2003 and obtained an order of temporary
injunction on 28.07.2003. As on 21.07.2003 the doctrine of
lis pendens would take its effect. The release deed executed
by respondent no. 3 in favour of respondent no. 4 was of
28.07.2003, which is subsequent to the filing of the suit.
Respondent no. 4 executed the registered sale deed in favour
of respondents 1-2 on 16.06.2004 which is during the
operation of the temporary injunction order. Thus, the
alienation made by respondents, cannot operate against the
interests of the appellant considering he had obtained an
order of temporary injunction in his favour. The same position
has been held by this Court in a recent decision of
Shivshankara v. H.P. Vedavyasa Char (Supra), which has
similar facts in the context of an injunction order.
21. Once it has been held that the transactions executed by the
respondents are illegal due to the doctrine of lis pendens the
defence of the respondents 1-2 that they are bonafide purchasers
for valuable consideration and thus, entitled to protection under
Section 41 of the Act of 1882 is liable to be rejected.” (emphasis
supplied)
65. It has been categorically held in Surjit Singh & Ors.
(supra) that if an alienation by way of assignment by a registered deed
38
is permitted notwithstanding the existence of an interim order in the
form of status quo, it would defeat the ends of justice and prevalent
public policy when the court intends the particular state of affairs to
exist while it is in seisin of a lis that state of affairs is not only required
to be maintained but it is presumed to exist till the court’s order
otherwise. The court in such circumstances has the duty as also the
right to treat the alienation/assignment as having not taken place at all
for its purposes.
66. The principle in Surjit Singh (supra) both as regard to fact
and law squarely apply in the instant case. The trial court was very
specific that none of the parties should be allowed to change the state
of affairs as it existed on the date of the order of status quo. In Surjit
Singh (supra) the Hon’ble Supreme Court in clear terms has described
such kind of alienation by way of assignment in violation of order of
injunction as non est and had even refused to recognise the right of
such transferee to be added in the proceeding by taking aid of Order 22
Rule 10 of the Code. The law as it stands today clearly establish that a
transferee by virtue of such clandestine transfer in violation of order of
injunction acquires no title and such transferee is to be treated as non-
existent as if no transfer in fact or in law had taken place. Such
transfer the Apex Court comments: “would defeat the ends of justice
and the prevalent public policy”.
39
67. The learned Counsel for the appellant has referred to a
catena of decisions to show that such transfer is saved by the doctrine
of lis pendens. What however was overlooked consciously or otherwise
is that the principle of lis pendens would not be applicable in the teeth
of an order of injunction, whatever be the nature and form of such
interim order. There cannot be any two opinions or views that the trial
court wanted the parties not to alter the state of thing or affairs as it
existed on the date of the order. The present appellant knowingly had
purchased the said interest of the original appellant. In fact, the recital
in the said conveyance as produced would show that he was conscious
of the lis. In absence of any order of injunction or status quo possibly
the ground urged by the appellant that the transfer would not be hit by
the doctrine of lis pendens and hence is not void ab initio could have
come to the rescue of the appellant. None of the decisions cited by the
learned Counsel would show that the facts are similar to the facts at
issue whereas Surjit Singh (Supra) is the decision which is squarely on
the point.
68. There has been a paradigm shift in the law relating to
transfer in violation of an existing order of injunction from not affecting
the right, title and interest in the property of the party against whom
such order of injunction has been passed unlike an order of
attachment which makes the property custodia legis and only casts a
prohibition to act in a particular manner to an alienation completely
40
non-est and refused to recognise the right of such transferee to be
added in the proceeding by taking recourse to Order 22 Rule 10 of the
Code.
69. The Supreme Court of India in Surjit Singh (supra) holds
that when the Court intends a particular state of affairs to exist while it
is in seisin of a lis, that state of affairs is not only required to be
maintained, but it is presumed to exit till the Court orders otherwise.
The Court, in these circumstances, has the duty, as also the right, to
treat the alienation/assignment as having not taken place at all for its
purposes. Therefore, the assignees could not have been impleaded by
the Court as parties. (see Bijali Naskar vs. Amalendu Saha31,
paragraph 9 : Tara Narayan & Ors. v. Sheo Krishna & Ors32,
paragraph 10).
70. In fact Surjit Singh (supra) has been followed in various
decisions including in Vidur Impex & Trader Private Limited & Ors.
v. Tosh Apartment Private Limited & Ors.,33 in which the Hon’ble
Supreme Court held that the court will be justified in declining the
prayer for impleadment of an applicant who is of guilty conduct or a
beneficiary of a clandestine transaction or a transaction entered into
and completed in violation of the order of injunction or any other
restraint order. The legal consequences of an act in breach of or in
31
1999(2) CHN 704: 1999 SCC OnLine Cal 204
32
2010 SCC OnLine Cal 2064 : 2011 (1) CHN 237
33
2012 (8) SCC 384.
41
violation of the order of injunction should be undone and such
transactions are void ab initio is judicially well settled in view of the
decision of the Calcutta High Court in Sujit Pal v. Pradip Kumar Sun
& ors.,34 and the decision of Hon’ble Supreme Court in Delhi
Development Authority v. Skipper Construction Pvt. Ltd. & Anr. 35.
71. In all the aforesaid decisions it has been held that the
Courts in India are not only the courts of law but also courts of equity.
The doctrine of lis pendens and any transaction in violation of an order
of injunction do not stand on the same footing. The doctrine of lis
pendens does not make the transfer void ab initio or illegal as in a later
stage the said transaction can be perfected whereas any transaction
entered into in violation of the order of injunction is non est in the eye
of law.
72. In the judgment of B. Narasimha Reddy v. T. Seshikanth
Reddy36 a Division Bench of Telengana High Court denied a purchaser
pendente lite the right of a transaction entered into with the defendant
no.1 for purchase of the suit schedule property in the teeth of an order
of injunction relying upon the decision in Surjit Singh (supra) and
Vidur Impex (supra) as such transferee was “guilty of contumacious
conduct or is a beneficiary of a clandestine transaction or a transaction
in violation of the restraint order”.
34
AIR 1986 Cal 220,
35
1996 (4) SCC 622
36
AS No 32 of 2016, decided on 01.10.2024
42
73. In Balwantbhai Somabai Bhandari v. Hiralal
Somabhai Contractor (deceased) representative by L.R.s 37 the
Hon’ble Supreme Court while considering what would constitute a
wilful disobedience and the effect of breach of undertaking has
extensively dealt with the effect of a transfer in violation of an order of
injunction.
74. The trend of decisions that had culminated in Surjit Singh
(supra) and the subsequent decisions of the Hon’ble Supreme Court
can be traced back to the decision of the Chancery Division in Clarke
v. Chadburn38 in which it was held that an act done in wilful
disobedience of an injunction or court order is not only a contempt of
court but also an illegal and invalid act which could not, therefore,
effect any change in the rights and liabilities of others. Consciously or
unconsciously the courts in India have applied the said principle in a
large catena of decisions which have been summarised in
Balwantbhai Somabai Bhandari (supra) as would be evident from
paragraphs 81 to 90:
“81. A three-Judge Bench of this Court in SBI v. Vijay Mallya
[SBI v. Vijay Mallya, (2024) 12 SCC 85 : 2022 SCC OnLine SC
826] , in clear terms said that apart from punishing the
contemnor for his contumacious conduct, the majesty of law
may demand that appropriate directions be issued by the Court
so that any advantage secured as a result of such37
2023 SCC Online SC 1139: AIR 2023 SC 4390
38
1985 (1) WLR 78
43contumacious conduct is completely nullified. The approach
may require the Court to issue directions either for reversal of
the transactions in question by declaring said transactions to
be void or passing appropriate directions to the authorities
concerned to see that the contumacious conduct on the part of
the contemnor does not continue to enure to the advantage of
the contemnor or anyone claiming under him.
82. It would be pertinent, in this context, to refer to the decision
of the Chancery Division in Clarke v. Chadburn [Clarke v.
Chadburn, (1985) 1 WLR 78] , wherein it was held that an act
done in wilful disobedience of an injunction or court order is not
only a contempt of court, but also an illegal and invalid act
which could not, therefore, effect any change in the rights and
liabilities of others. Similar view was expressed by this Court in
Satyabrata Biswas v. Kalyan Kumar Kisku [Satyabrata
Biswas v. Kalyan Kumar Kisku, (1994) 2 SCC 266], wherein
the contempt jurisdiction was invoked by the respondents
against the appellants, and during the contempt proceedings, it
transpired that a sub-tenancy was created while the status quo
order was in operation. This Court held that creation of sub-
tenancy was in violation of the status quo order and parties
were relegated to the position as existed on the date of the
status quo order. This Court, inter alia, observed thus :
(Satyabrata Biswas case [Satyabrata Biswas v. Kalyan Kumar
Kisku, (1994) 2 SCC 266] , SCC p. 276, para 23)“23. … Such an order cannot be circumvented by
parties with impunity and expect the court to confer its
blessings. It does not matter that to the contempt
proceedings Somani Builders was not a party. It
cannot gain an advantage in derogation of the rights of
the parties, who were litigating originally. If the right of
44sub-tenancy is recognised, how is status quo as of 15-
9-1988 maintained? Hence, the grant of sub-lease is
contrary to the order of status quo. Any act done in the
teeth of the order of status quo is clearly illegal. All
actions including the grant of sub-lease are clearly
illegal.” (emphasis supplied)
83. We are aware of the two decisions of this Court one in
Thomson Press (India) Ltd. v. Nanak Builders & Investors (P)
Ltd. [Thomson Press (India) Ltd. v. Nanak Builders & Investors
(P) Ltd., (2013) 5 SCC 397 : (2013) 3 SCC (Civ) 1] and T. Ravi [T.
Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342 : (2017) 3 SCC
(Civ) 666] . In both these decisions, the view taken is that
Section 52 of the Transfer of Property Act, 1882 (for short “the
1882 Act”) does not render transfers affected during the
pendency of the suit void but only render such transfers
subservient to the rights as may be eventually determined by
the court.
84. In Thomson Press [Thomson Press (India) Ltd. v. Nanak
Builders & Investors (P) Ltd., (2013) 5 SCC 397 : (2013) 3 SCC
(Civ) 1] , T.S. Thakur, J. in his separate judgment while
supplementing the judgment authored by M.Y. Eqbal, J.,
observed as under : (SCC p. 424, para 53)
“53. There is, therefore, little room for any doubt that the
transfer of the suit property pendente lite is not void ab
initio and that the purchaser of any such property takes
the bargain subject to the rights of the plaintiff in the
pending suit. 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
45
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.”
(emphasis supplied)
85.Thomson Press [Thomson Press (India) Ltd. v. Nanak
Builders & Investors (P) Ltd., (2013) 5 SCC 397 : (2013) 3 SCC
(Civ) 1] referred to above has been relied upon in T. Ravi [T.
Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342 : (2017) 3 SCC
(Civ) 666] for the proposition that the effect of Section 52 of the
1882 Act is not to render transfers effected during the
pendency of a suit by a party to the suit void; the transfer
remains valid subject, of course, to the result of the suit. 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.
86. This Court in DDA v. Skipper Construction Co. (P) Ltd. [DDA
v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622] , held
that the legal consequences of what has been done in breach of
or in violation of the order of stay or injunction should be
undone and the parties could be put back to the same position
as they stood immediately prior to such order of stay or
injunction to not let the defaulting party enjoy any undue
advantage. This Court while relying upon cases decided by
various High Courts held as under : (SCC pp. 635-37, paras 18-
21)
46
“The contemnor should not be allowed to enjoy or retain
the fruits of his contempt
***
18. The above principle has been applied even in the case
of violation of orders of injunction issued by civil courts. In
Clarke v. Chadburn [Clarke v. Chadburn, (1985) 1 WLR 78]
Sir Robert Megarry V-C observed : (WLR pp. 80-81)
‘I need not cite authority for the proposition that it is of
high importance that orders of the court should be obeyed.
Wilful disobedience to an order of the court is punishable as
a contempt of court, and I feel no doubt that such
disobedience may properly be described as being illegal. If
by such disobedience the persons enjoined claim that they
have validly effected some change in the rights and liabilities
of others, I cannot see why it should be said that although
they are liable to penalties for contempt of court for doing
what they did, nevertheless those acts were validly done. Of
course, if an act is done, it is not undone merely by pointing
out that it was done in breach of the law. If a meeting is held
in breach of an injunction, it cannot be said that the meeting
has not been held. But the legal consequences of what has
been done in breach of the law may plainly be very much
affected by the illegality. It seems to me on principle that
those who defy a prohibition ought not to be able to claim
that the fruits of their defiance are good, and not tainted by
the illegality that produced them.’
19. To the same effect are the decisions of the Madras and
Calcutta High Courts in Century Flour Mills Ltd. v. S.
Suppiah [Century Flour Mills Ltd. v. S. Suppiah, 1975 SCC
OnLine Mad 73 : AIR 1975 Mad 270] and Sujit Pal v. Prabir
47
Kumar Sun [Sujit Pal v. Prabir Kumar Sun, 1985 SCC OnLine
Cal 146 : AIR 1986 Cal 220 : (1985-86) 90 CWN 342] . In
Century Flour Mills Ltd. v. S. Suppiah [Century Flour Mills
Ltd. v. S. Suppiah, 1975 SCC OnLine Mad 73 : AIR 1975
Mad 270] it was held by a Full Bench of the Madras High
Court that where an act is done in violation of an order of
stay or injunction, it is the duty of the court, as a policy, to
set the wrong right and not allow the perpetuation of the
wrongdoing. The inherent power of the court, it was held, is
not only available in such a case, but it is bound to exercise
it to undo the wrong in the interest of justice. That was a
case where a meeting was held contrary to an order of
injunction. The Court refused to recognise that the holding of
the meeting is a legal one. It put back the parties in the same
position as they stood immediately prior to the service of the
interim order.
20. In Sujit Pal [Sujit Pal v. Prabir Kumar Sun, 1985 SCC
OnLine Cal 146 : AIR 1986 Cal 220 : (1985-86) 90 CWN 342]
a Division Bench of the Calcutta High Court has taken the
same view. There, the defendant forcibly dispossessed the
plaintiff in violation of the order of injunction and took
possession of the property. The Court directed the restoration
of possession to the plaintiff with the aid of police. The Court
observed that no technicality can prevent the court from
doing justice in exercise of its inherent powers. It held that
the object of Rule 2-A of Order 39 will be fulfilled only where
such mandatory direction is given for restoration of
possession to the aggrieved party. This was necessary, it
observed, to prevent the abuse of process of law.
21. There is no doubt that this salutary rule has to be
applied and given effect to by this Court, if necessary, by
48
overruling any procedural or other technical objections.
Article 129 is a constitutional power and when exercised in
tandem with Article 142, all such objections should give
way. The court must ensure full justice between the parties
before it.” (emphasis supplied)
87. This Court in Vidur Impex & Traders (P) Ltd. v. Tosh
Apartments (P) Ltd. [Vidur Impex & Traders (P) Ltd. v. Tosh
Apartments (P) Ltd., (2012) 8 SCC 384 : (2012) 4 SCC (Civ) 1] ,
while deciding on a similar factual scenario held that the sale
transactions conducted in teeth of the injunction passed by the
Delhi High Court did not have any legal basis. This Court held
as under : (SCC p. 414, para 42)
“42. … At the cost of repetition, we consider it necessary
to mention that Respondent 1 had filed suit for specific
performance of agreement dated 13-9-1988 executed by
Respondent 2. The appellants and Bhagwati Developers are
total strangers to that agreement. They came into the picture
only when Respondent 2 entered into a clandestine
transaction with the appellants for sale of the suit property
and executed the agreements for sale, which were followed
by registered sale deeds and the appellants executed
agreement for sale in favour of Bhagwati Developers. These
transactions were in clear violation of the order of injunction
passed by the Delhi High Court which had restrained
Respondent 2 from alienating the suit property or creating
third-party interest. To put it differently, the agreements for
sale and the sale deeds executed by Respondent 2 in favour
of the appellants did not have any legal sanctity. The status
of the agreement for sale executed by the appellants in
favour of Bhagwati Developers was no different. These
transactions did not confer any right upon the appellants or
49
Bhagwati Developers. Therefore, their presence is not at all
necessary for adjudication of the question whether
Respondents 1 and 2 had entered into a binding agreement
and whether Respondent 1 is entitled to a decree of specific
performance of the said agreement.” (emphasis supplied)
88. The decision of Vidur Impex [Vidur Impex & Traders (P) Ltd.
v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384 : (2012) 4 SCC
(Civ) 1] was relied upon by this Court in Jehal Tanti v.
Nageshwar Singh [Jehal Tanti v. Nageshwar Singh, (2013) 14
SCC 689 : (2014) 3 SCC (Civ) 512 : AIR 2013 SC 2235] ,
wherein it was held that : (Jehal Tanti case [Jehal Tanti v.
Nageshwar Singh, (2013) 14 SCC 689 : (2014) 3 SCC (Civ) 512
: AIR 2013 SC 2235] , SCC p. 695, para 13)
“13. We may also notice Section 23 of the Contract Act, 1872,
which lays down that:
’23. What considerations and objects are lawful, and what
not.–The consideration or object of an agreement is lawful,
unless–
it is forbidden by law; or
is of such a nature that, if permitted, it would defeat the
provisions of any law; oris fraudulent; or involves or implies injury to the person or
property of another; or the court regards it as immoral, or
opposed to public policy.’In each of these cases, the consideration or object of an
agreement is unlawful and every agreement executed with
such an object or consideration which is unlawful is void.
Since the sale deed was executed in favour of Respondent 1
50in the teeth of the order of injunction passed by the trial
court, the same appears to be unlawful.” (emphasis supplied)
89. Thus, although Section 52 of the 1882 Act does not render a
transfer pendente lite void yet the court while exercising
contempt jurisdiction may be justified to pass directions either
for reversal of the transactions in question by declaring the said
transactions to be void or proceed to pass appropriate
directions to the authorities concerned to ensure that the
contumacious conduct on the part of the contemnor does not
continue to enure to the advantage of the contemnor or anyone
claiming under him.
90. The High Court declared all the sale deeds executed by the
contemnors in favour of the purchasers as non est. The High
Court ordered that the sale deeds stand cancelled and set
aside. The contemnors were directed to restore the position
which was prevailing at the time of the order dated 14-10-2015
[Harshad Somabhai Bhandari (Contractor) v. State of Gujarat,
2015 SCC OnLine Guj 6670] passed by the High Court. In our
opinion, the High Court was fully justified in declaring the sale
deeds as non est or void.”
75. The said decision also considered the effect of transfer
pendent lite as considered in Thomson Press (India) Ltd (supra) and
76. Mr. Dutta has strenuously argued that the present case is
required to be considered in the light of the law laid down in Thomson
Press (India) Ltd. v. Nanak Builders & Investors Pvt. Ltd. & Ors. 40
39
2017 (7) SCC 342: AIR Online 2017 SC 582
51
77. It is submitted that the said decision has recognised that
the principle that a transfer pendente lite is not illegal ipso facto jure
but remains subservient to the pending litigation as observed in
paragraph 49 and the learned Counsel has also relied upon the
following passage from the said judgment:
“52. We may finally refer to the decision of this Court in
Jayaram Mudaliar v. Ayyaswami [(1972) 2 SCC 200 : (1973)
1 SCR 139] in which were extracted with approval
observations made on the doctrine of lis pendens in
Commentaries on the Laws of Scotland, by Bell. This Court
said: (SCC p. 217, para 43)“43. … Bell, in his Commentaries on the Laws of Scotland
said, that it was grounded on the maxim: Pendente lite
nibil innovandum. He observed:
‘It is a general rule which seems to have been
recognised in all regular systems of jurisprudence, that
during the pendence of an action, of which the object is
to vest the property or obtain the possession of real
estate, a purchaser shall be held to take that estate as it
stands in the person of the seller, and to be bound by
the claims which shall ultimately be pronounced.'”
53. There is, therefore, little room for any doubt that the
transfer of the suit property pendente lite is not void ab initio
and that the purchaser of any such property takes the
bargain subject to the rights of the plaintiff in the pending
suit. Although the above decisions do not deal with a fact
situation where the sale deed is executed in breach of an
40
2013 (5) SCC 397
52
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.
54. The third dimension which arises for consideration is
about the right of a transferee pendente lite to seek addition
as a party-defendant to the suit under Order 1 Rule 10 CPC. I
have no hesitation in concurring with the view that no one
other than the parties to an agreement to sell is a necessary
and proper party to a suit. The decisions of this Court have
elaborated that aspect sufficiently making any further
elucidation unnecessary. The High Court has understood and
applied the legal propositions correctly while dismissing the
application of the appellant under Order 1 Rule 10 CPC. What
must all the same be addressed is whether the prayer made
by the appellant could be allowed under Order 22 Rule 10
CPC, which is as under:
“10. Procedure in case of assignment before final order in
suit.–(1) In other cases of an assignment, creation or
devolution of any interest during the pendency of a suit,
the suit may, by leave of the court, be continued by or
against the person to or upon whom such interest has
come or devolved.
(2) The attachment of a decree pending an appeal
therefrom shall be deemed to be an interest entitling the
53person who procured such attachment to the benefit of
sub-rule (1).”
A simple reading of the above provision would show that
in cases of assignment, creation or devolution of any
interest during the pendency of a suit, the suit may, by
leave of the court, be continued by or against the person
to or upon whom such interest has come or devolved.
What has troubled us is whether independent of Order 1
Rule 10 CPC the prayer for addition made by the
appellant could be considered in the light of the above
provisions and, if so, whether the appellant could be
added as a party-defendant to the suit. Our answer is in
the affirmative. It is true that the application which the
appellant made was only under Order 1 Rule 10 CPC
but the enabling provision of Order 22 Rule 10 CPC
could always be invoked if the fact situation so
demanded. It was in any case not urged by the counsel
for the respondents that Order 22 Rule 10 could not be
called in aid with a view to justifying addition of the
appellant as a party-defendant. Such being the position
all that is required to be examined is whether a
transferee pendente lite could in a suit for specific
performance be added as a party-defendant and, if so,
on what terms.”
78. In paragraph 22 of the said decision the Hon’ble Supreme
Court after noticing Surjit Singh (supra) and Savitri Devi v. District
Judge Gorakhpur 41 observed as follows:
41
1999 (2) SCC 577
54“22. While referring Surjit Singh‘s case this Court noticed that
in that case there was no dispute that the assignors and the
assignees had knowledge of the order of injunction passed
by the Court. On those facts, this Court held that the deed of
assignment was not capable of conveying any right to the
assignee and the order of impleadment of the assignees as
parties was unsustainable”. (emphasis supplied)
79. The decision in Vidur Impex (supra) was also considered in
paragraph 25 of Thomson Press (supra) in which paragraph 41 of
Vidur Impex (supra) was considered. For the present purpose
paragraph 41.6 of Vidur Impex (supra) would be relevant:
“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.” (emphasis supplied)
80. After considering all the said decisions the Hon’ble
Supreme Court summed up its conclusion in paragraph 57 which is
reproduced below:
“57. To sum up:
57.1. The appellant is not a bona fide purchaser and is,
therefore, not protected against specific performance of the
contract between the plaintiffs and the defendant owners in the
suit.
55
57.2. The transfer in favour of the appellant pendente lite is
effective in transferring title to the appellant but such title shall
remain subservient to the rights of the plaintiff in the suit and
subject to any direction which the Court may eventually pass
therein.
57.3. Since the appellant has purchased the entire estate that
forms the subject-matter of the suit, the appellant is entitled to
be added as a party-defendant to the suit.
57.4. The appellant shall as a result of his addition raise and
pursue only such defences as were available and taken by the
original defendants and none other.” (emphasis supplied)
81. Paragraph 57.1 in our view is to be read along with Surjit
Singh (supra) and Vidur Impex (supra). The decision in Vidur Impex
(supra) was subsequently considered in Jehal Tanti & Ors. v.
Nageshwar Singh (deceased) through LRs.42 in paragraph 11 of the
said decision and for the sake of convenience we reproduce the same
paragraph:
“11. The same issue was considered in Vidur Impex and
Traders (P) Ltd. v. Tosh Apartments (P) Ltd. [(2012) 8 SCC 384 :
(2012) 4 SCC (Civ) 1] , and it was held : (SCC p. 414, para 42)
“42. … At the cost of repetition, we consider it necessary to
mention that Respondent 1 had filed suit for specific
performance of agreement dated 13-9-1988 executed by
Respondent 2. The appellants and Bhagwati Developers
are total strangers to that agreement. They came into the
picture only when Respondent 2 entered into a clandestine42
2013 (14) SCC 689
56transaction with the appellants for sale of the suit property
and executed the agreements for sale, which were
followed by registered sale deeds and the appellants
executed agreement for sale in favour of Bhagwati
Developers. These transactions were in clear violation of
the order of injunction passed by the Delhi High Court
which had restrained Respondent 2 from alienating the
suit property or creating third-party interest. To put it
differently, the agreements for sale and the sale deeds
executed by Respondent 2 in favour of the appellants did
not have any legal sanctity.” (emphasis supplied)
82. The Hon’ble Supreme Court also considered the efficacy of
such order in the light of Section 23 of the Contract Act, 1872 in
paragraph 13 in which it is stated below:
“13. We may also notice Section 23 of the Contract Act, 1872,
which lays down that:
“23. What considerations and objects are lawful, and what
not.–The consideration or object of an agreement is lawful,
unless–
it is forbidden by law; or
is of such a nature that, if permitted, it would defeat the
provisions of any law; or
is fraudulent; or
involves or implies injury to the person or property of another; or
the court regards it as immoral, or opposed to public policy.”
In each of these cases, the consideration or object of an agreement
is unlawful and every agreement executed with such an object or
consideration which is unlawful is void. Since the sale deed was
executed in favour of Respondent 1 in the teeth of the order of
57
injunction passed by the trial court, the same appears to be
unlawful.” (emphasis supplied)
83. The aforesaid decision makes the sale deed in question
non-est and void ab initio on both grounds, namely, it was executed in
violation of an order of injunction and becomes unlawful under Section
23 of the Contract Act.
84. In Nasib Kaur & Ors. v. Colonel Surat Singh (Deceased)
through LRs. & Ors.43 it has been held that the interest acquired by
transferee, can only be the same as held by transferor that is that of
the co-sharer who holds an unpartitioned share in a joint holding
which is the subject matter for determination in a partition suit. In the
instant case, Gayatri had only transferred her share in respect of the
dwelling house and not in respect of any other properties. In view of
our finding that the said transfer was legally not permissible, the
question of a transferee claiming any share in the suit property or in
any other property to which Gayatri had succeeded is inconsequential
and immaterial.
85. In view of the fact that we are deciding against the
substituted appellant to continue with the appeal as a transferee
pendente lite and an assignee of Gayatri it is not required for us to
decide on the applicability of Section 4 of the Partition Act which gives
a right of pre-emption to the present appellants following the law laid
43
2013 (5) SCC 218
58
down in Ghantesher Ghosh (supra) paragraph 10. The said decision
however, answered to the character of a dwelling house in paragraph
15 in which the Division Bench judgment of our Court in Boto
Krishna Ghose v. Akhoy Kumar Ghose44 was affirmed. In Boto
Krishna Ghose (supra) it was held that a dwelling house of an
undivided family has a linkage with the dwelling house which belongs
to the family and which is not divided and that such dwelling house
may be owned by members of such family who need not be joint in
mess and that house itself should be undivided amongst the members
of the family who are its owners. The emphasis is really on the
undivided character of the house, and it is this attribute of the house
which imparts to the family its character of an undivided family. For
the members of the family may have partitioned all their other joint
properties and may have separated in mess and worship, but they
would still be an undivided family in’ relation to the dwelling house so
long as they have not divided it amongst themselves.
86. The conclusion of the Hon’ble Division Bench insofar as
Section 4 of the Partition Act is concerned can be found in paragraph
17 which is stated below:
“17. As a result of the aforesaid discussion, it must be held
that Section 4, of the Act can validly be pressed in service by
any of the co-owners of the dwelling house belonging to
undivided family pending the suit for partition till final decree44
AIR 1950 Cal 111: 54 CWN 660
59is passed and thereafter even at the stage of execution of the
final decree for partition so long as the execution proceedings
have not effectively ended and the decree for partition has
not been fully executed and satisfied by putting the
shareholders in actual possession of their respective shares
Beyond that stage, however, Section 4 will go out of
commission”.
87. In Rabindra Das Adhikari (since deceased) & Ors. v.
Iswar Kishore Kishori Jew & Ors.,45 in dealing with the scope of
addition of parties and in pleading legal representatives in the context
of devolution the interest, it was observed that Order 22 Rule 10 of the
CPC is based on the principles, “that the carriage of the proceeding
cannot be brought to an end because the interest of a party in relation to
subject matter of the suit has devolved upon another during the
pendency of the suit but the suit may be continued by or against such
person acquiring interest with the leave of the Court. The discretion to
implead or not to implead the parties to continue with the suit should be
exercised judicially and not capriciously or arbitrarily. If the interest of
the Appellant is claimed to have been assigned and/or devolved upon a
person who intends to carry with the suit or appeal or the proceeding,
the one and the foremost thing which the Court should consider whether
he can continue with the suit or appeal or the proceeding if the original
party can continue it.”
45
2019 (1) ICC 455 (Cal): 2018 SCC OnLine Cal 1498
60
88. Factually, unlike Rabindranath Das (supra) there is
declaration of share in favour of Gayatri. However, the stumbling block
would be the discretion to implead a person who has acquired interest
in violation of order of injunction. In view of Surjit Singh (supra) no
such discretion can be exercised in favour of a transferee who has
knowingly acquired interest in the property in violation of the order of
injunction.
89. In light of the discussion above, we are not inclined to
entertain the present appeal. The appeal stands dismissed.
90. There shall be no order as to costs.
91. Certified photocopy of this order, if applied for, be supplied to
the parties upon compliance with all requisite formalities.
(Soumen Sen, J.)
I agree.
(Smita Das De, J.)
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