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2010 DIGILAW 2529 (ALL)

Uttam Kumar v. Sona Devi and Others

2010-08-18

PRAKASH KRISHNA

body2010
Prakash Krishna, J.;- Heard learned counsel for the parties. 2. By means of the present writ petition, the legality and validity of the order dated 6th October, 2008 passed by the Additional District Judge, Court No. 7, Muzaffarnagar on application No. 32-C filed in Civil Appeal No. 57 of 2005 has been questioned. 3. One Sukhbeer Singh instituted Suit No. 65 of 1999 against Smt. Sona Devi and Smt. Krishna Devi for cancellation of the sale deed dated 4th October, 1993 executed by Smt. Sona Devi in favour of Smt. Krishna Devi. A relief that the said sale deed may be declared as null and void and be cancelled was sought for. The said suit has been dismissed by the trial court. The said decree is under challenge in the aforestated Civil Appeal No. 57 of 2005. 4. During pendency of the appeal, Sukhbeer has expired. Thereafter, an application for impleadment was filed by the present petitioner on the ground that he has purchased the property in question by means of registered sale deed dated 29th September, 2004. He sought the impleadment on the basis of aforesaid sale deed. The said impleadment application was contested by the respondents herein on the ground that the sale deed was executed by Sukhbeer Singh during pendency of the suit, without leave of the Court. It was submitted that on the basis of the sale deed no right accrued in favour of the applicant, petitioner. 5. The court below has relied upon a decision of the Apex Court in the case of Sanjay Verma v. Manik Roy & others, A.I.R. 2007 Supreme Court 1332 wherein it has been held that the doctrine of lis pendes is based upon an equitable and just foundation. Learned counsel for the respondents submits that in view of the aforestated pronouncement of the Apex Court, the court below has rightly rejected the application filed by the petitioner. 6. In contra, learned counsel for the petitioner has placed reliance upon the another judgment of the Apex Court in the case of Amit Kumar Shaw and another v. Farida Khatoon and another, A.I.R. 2005 Supreme Court 2209. 6. In contra, learned counsel for the petitioner has placed reliance upon the another judgment of the Apex Court in the case of Amit Kumar Shaw and another v. Farida Khatoon and another, A.I.R. 2005 Supreme Court 2209. In this case also the Apex Court has considered the doctrine of lis pendes as enshrined under Section 52 of the Transfer of Property Act and held that transferee pendente lite can be added as a proper party if his interest in the subject matter of suit is substantial and not just peripheral. It may be noted that the attention of the Apex Court was not brought to aforesaid case of Amit Kumar Shaw (supra) while delivering the judgment in the case of Sanjay Verma (supra). 7. On a close reading of the judgment of the Apex Court in the case of Sanjay Verma (supra) would show that a suit for specific performance of contract to sell was filed wherein the trial court had granted temporary injunction in favour of the plaintiff. After the order of injunction was passed, the defendant transferred a portion of suit land in favour of third person. There were other subsequent transfers. On these facts, the Apex Court has held that the transferee cannot claim his impleadment as a matter of right. While considering Section 52 of the Transfer of Property Act, it was observed that the principle underlying it is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The Section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court. 8. The factual scenario in the case on hand is quite different and therefore, the ratio laid down in the above case is distinguishable. Here is a case where the sole plaintiff has died and the sale deed in favour of the petitioner executed even during the pendency of the suit is not going to affect in any manner the defendant respondents herein. It is a case of death of the plaintiff and as such besides Order I Rule 10 Code of Civil Procedure Order XXII Rule 10 C.P.C. will be applicable. 9. It is a case of death of the plaintiff and as such besides Order I Rule 10 Code of Civil Procedure Order XXII Rule 10 C.P.C. will be applicable. 9. In the case of Amit Kumar Shaw (supra) the provisions of Order XXII Rule 10 C.P.C. was up for consideration. The ratio laid down in para-14 of the said judgment is reproduced below: "14. 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 this rule as also under Order I Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed." 10. In the case of Bibi Zubaida Khatoon v. Nabi Hassan Saheb, 2004 S.C.C. 191, the Apex Court has held that a transferee pendente lite without leave of the court, cannot, as of right, seek impleadment as a party in the suit. It has been further laid down that it is true that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as party to enable him to protect his interest. 11. Upshot of the above discussion is that the transferee pendente lite without leave of the court, cannot claim impleadment, as a matter of right under Order I Rule 10 C.P.C. read with section 52 of the Transfer of Property Act. But in the case of death, in view of the provisions of Order XXII Rule 10 C.P.C., in the absence of any other heir, the transferee pendente lite should be impleaded as a party to protect his interest, as the present case is. 12. It is also admitted to the parties that Sukhbeer Singh has left no other heir. In the absence of any other heir, the petitioner who has purchased the property in question is the only surviving heir. He should have been impleaded to watch his interest, in the appeal in place of Sukhbeer Singh. 13. In view of the above discussion, the impugned order cannot be allowed to stand. 14. The writ petition succeeds and is allowed accordingly. 15. The impleadment/substitution application filed by the petitioner is allowed. He should have been impleaded to watch his interest, in the appeal in place of Sukhbeer Singh. 13. In view of the above discussion, the impugned order cannot be allowed to stand. 14. The writ petition succeeds and is allowed accordingly. 15. The impleadment/substitution application filed by the petitioner is allowed. Let the petitioner be impleaded in the array party in the Civil Appeal No. 57 of 2005 in place of deceased Sukhbeer Singh. The appellate court is directed to hear and dispose of the appeal within a period of six months from the date of production of the certified copy of this order.