# Shyoraj Singh and others v. Zahir Ahmad and others

- **Citation:** Second Appeal No. 1003 of 2006
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-30
- **Case number:** Second Appeal No. 1003 of 2006
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyoraj-singh-and-others-v-zahir-ahmad-and-others-42888
- **Pages:** 15

## Headnote

Transfer of Property Act, 1882-Section52- Doctrine of 'lis pendens'- explained-
486 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
sale deed executed during pendency of
litigation-hit by provisions of Section 52
of T P Act.

Held: Para-49
In the present case there is nothing on
record to show that plaintiffs sought to
raise such plea of collusion or fraud etc.
In the circumstances the first part of
question formulated above would have
to be returned in affirmative holding that
sale
deed
in
favour
of
plaintiffsappellants executed during pendency of
Suit No. 115 of 1969 is void on the
principle of lis pendens.

Code of Civil Procedure, Order XXII Rule5
Order
passed-being
summary
in
nature-no
bar
of
resjudicataimpleadment
of
transferee-held-not
necessary
party-not
entitled
to
be
substituted.

Held: Para-63
Accordingly, I answer the first part of
the question in affirmative holding that
sale
deed
in
favour
of
plaintiffsappellants during pendency of suit is
void on the principle of lis pendens and
return the second part of the question,
namely, whether they are entitled to be
substituted, in negative. In substance,
both the questions are answered against
plaintiffs-appellants.

Case Law discussed:
(1857 1 De G & J; 1907 (9) Bom. L.R.
1173; (1805) 11 Ves. 197; (1813) 2 Ves.
& B. 204; AIR 1928 Bom 65; (1873) 11
BHCR 64; ILR (1907) All 339; AIR 1938
Cal 1; AIR 1948 PC 147; AIR 1959 Bom.
475; AIR 1973 SC 569; AIR 1973 SC
2537; AIR 1981 SC 981; AIR 1973 Kant
131; 1979 A.L.J. 1273; AIR 1983 Raj
161; AIR 1987 MP 78; AIR 1986 Delhi
364; AIR 2002 Guj 209; 2007(1) AWC
907(SC); 2012(2) SCC 628; (1906)16
MLJ 372; AIR 1928 All 3; AIR 1985 All
163; 1910 IC (8) 288; AIR 1928 Oudh
146(DB); AIR 1925 Pat 462(DB); AIR
1943 Cal 227; 1996 (5) SCC 539;
1875(11) Bombay High Court 64; (1889)
All WN All 91; AIR 1924 Cal 188; AIR
1947 Lahore 175; (1920) ILR 43 Madras
37; AIR 1958 SC 394; 2002(93) RD 445;
1998 ACJ 43 (SC); AIR 1963 SC 1917;
1997 ACJ 126 (SC); 2005 ACJ 753; AIR
2005 SC 2209; 2010 (109) RD 256

## Text

_Characters 0–39,997 of 48,426. This is a partial read: ask again with offset=39997 for what follows._

1 All Amrik Singh Vs. M/S Bal Ji Rice Mills and others
485
would not be just and proper to grant an
ex parte temporary injunction. Therefore,
the trial Court chose to proceed under
Rule 3 of Order 39 of the Code. Rule 3
reads;

"The Court shall in all cases, except
where it appears that the object of
granting the injunction would be defeated
by
the
delay,
before
granting
an
injunction, direct notice of the application
for the same to be given to the opposite
party.

It is also required in the provision of
this rule that, where it is proposed to grant
an injunction without giving notice of the
application to the opposite party, the
Court shall record the reasons for its
opinion that the object of granting the
injunction would be defeated by delay."

8. In Lakhai Vs. Ram Niwas AIR
1987 All 345, it was held that (para 7) : .

"The mere order issuing notice on an
application for grant of an injunction
clearly comes under the provisions of
Rule 3 of Order 39. An order under Rule
3 of Order 39 is not appealable under
Order 43, Rule 1(r)."

9. Therefore, in view of the legal
proposition referred to above, we hold
that the impugned order is an order under
Rule 3 of Order 39 C.P.C. and no appeal
lies against that order under Order 43,
Rule 1(r) of the Code of Civil Procedure.

10. Learned counsel for the appellant
has valiantly tried to support the plaintiff's
case for grant of ad interim injunction and his
prima facie case in support thereof, but we
refrain to dwell upon these issues, as the
matter is still sub-judice before the learned
trial Court and any observation made by us
on merits of the case may adversely affect
case of any party. However, suffice it to say
that the learned counsel for the appellant
could not place before us any document,
except the affidavit of the plaintiff which was
filed in the trial Court in support of his
contention. The legal position noted above
also rules out the contention of the learned
counsel for the appellant that the impugned
order falls within the ambit of Rule 1 of
Order 39 of Code of Civil Procedure.

11. In view of the above, we find
that the instant appeal is not maintainable
and is accordingly dismissed in limine.

12. Let certified copy of the order be
sent to the court concerned within a week.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2013

BEFORE
THE HON'BLE THE HON'BLE SUDHIR
AGARWAL,J.

Second Appeal No. 1003 of 2006

Shyoraj Singh and others ...Appellants
Versus
Zahir Ahmad and others ...Respondents

Counsel for the Appellants:
Sri Namwar Singh, Sri S.N. Mishra
Sri Sanjiv Singh, Sri Lalit Kumar

Counsel for the Respondents:
Sri R.K. Yadav, Sri Mohd. Arif
Sri Sharda Madhyan

Transfer of Property Act, 1882-Section52- Doctrine of 'lis pendens'- explained-
486 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
sale deed executed during pendency of
litigation-hit by provisions of Section 52
of T P Act.

Held: Para-49
In the present case there is nothing on
record to show that plaintiffs sought to
raise such plea of collusion or fraud etc.
In the circumstances the first part of
question formulated above would have
to be returned in affirmative holding that
sale
deed
in
favour
of
plaintiffsappellants executed during pendency of
Suit No. 115 of 1969 is void on the
principle of lis pendens.

Code of Civil Procedure, Order XXII Rule5
Order
passed-being
summary
in
nature-no
bar
of
resjudicataimpleadment
of
transferee-held-not
necessary
party-not
entitled
to
be
substituted.

Held: Para-63
Accordingly, I answer the first part of
the question in affirmative holding that
sale
deed
in
favour
of
plaintiffsappellants during pendency of suit is
void on the principle of lis pendens and
return the second part of the question,
namely, whether they are entitled to be
substituted, in negative. In substance,
both the questions are answered against
plaintiffs-appellants.

Case Law discussed:
(1857 1 De G & J; 1907 (9) Bom. L.R.
1173; (1805) 11 Ves. 197; (1813) 2 Ves.
& B. 204; AIR 1928 Bom 65; (1873) 11
BHCR 64; ILR (1907) All 339; AIR 1938
Cal 1; AIR 1948 PC 147; AIR 1959 Bom.
475; AIR 1973 SC 569; AIR 1973 SC
2537; AIR 1981 SC 981; AIR 1973 Kant
131; 1979 A.L.J. 1273; AIR 1983 Raj
161; AIR 1987 MP 78; AIR 1986 Delhi
364; AIR 2002 Guj 209; 2007(1) AWC
907(SC); 2012(2) SCC 628; (1906)16
MLJ 372; AIR 1928 All 3; AIR 1985 All
163; 1910 IC (8) 288; AIR 1928 Oudh
146(DB); AIR 1925 Pat 462(DB); AIR
1943 Cal 227; 1996 (5) SCC 539;
1875(11) Bombay High Court 64; (1889)
All WN All 91; AIR 1924 Cal 188; AIR
1947 Lahore 175; (1920) ILR 43 Madras
37; AIR 1958 SC 394; 2002(93) RD 445;
1998 ACJ 43 (SC); AIR 1963 SC 1917;
1997 ACJ 126 (SC); 2005 ACJ 753; AIR
2005 SC 2209; 2010 (109) RD 256

(Delivered by Hon'ble Sudhir Agarwal, J)

1. Heard Sri Namwar Singh and Sri
Lalit Kumar, Advocates for appellants
and Sri R.K. Pandey, Advocate for
respondents.

2. The only substantial question of
law which was formulated in this appeal
after hearing under Order 41 Rule 11
C.P.C. is:

"Whether the sale deed in favour of
plaintiffs-appellants during pendency of
suit, is void on the principle of lis pendens
and if so, whether they are entitled to be
substituted?"

3. It is evident from record that
Original Suit No. 115 of 1969 instituted
by Sri Haji Bashir Ahmad (since deceased
and substituted by his legal heirs) resulted
in a compromise decree as a result
whereof defendant-vendor, who executed
sale deed in favour of plaintiffs, in respect
to
property
in
dispute,
became
incompetent to possess any right over the
said property and hence could not have
conferred title upon plaintiffs. The present
plaintiffs-appellants are purchaser of
disputed property during pendency of the
aforesaid suit.

4.

The
present
proceedings,
however, have arisen from a subsequent
Original Suit No. 184 of 1996 instituted
by plaintiffs-appellants in the Court of
Civil
Judge
(Senior
Division),
Bulandshahar. The plaint case set up by
plaintiffs is that property in dispute was
purchased
by
plaintiffs
from
Smt.
1 All Shyoraj Singh and others Vs. Zahir Ahmad and others
487
Saeedan, widow of Allah Diya, by sale
deed dated 21.09.1981. Prior thereto, one
Haji Bashir Ahmad, instituted Suit No.
115 of 1969 for specific performance on
the basis of a contract for sale dated
07.06.1966. Smt. Saeedan instead of
executing sale deed in favour of Sri Haji
Bashir Ahmad, proceeded to execute a
sale deed in favour of Smt. Ramsakhi,
Smt. Santosh Devi and Smt. Usha Devi
which was illegal. These subsequent
purchasers were also impleaded as
defendants no. 3 to 5 in Suit No. 115 of
1969.
Two
more
persons,
namely,
Alimuddin and Ramzani were also
impleaded as defendants no. 6 and 7 in
the aforesaid suit. The suit was contested
by Smt. Saeedan alleging that she had
only 1/3rd share in the disputed property
while 2/3rd share belong to defendants
no. 6 and 7.

5. The suit was decreed by Trial
Court, i.e., Additional Civil Judge,
Bulandshahar vide judgment and decree
dated 13.01.1972, whereagainst Civil
Appeal No. 139 of 1972 was filed by
Alimuddin and Ramzani, the defendants
no. 6 and 7, in the aforesaid suit. This
appeal was allowed on 22.08.1976. This
Court reversed Trial Court's decree and
directed
for
deciding
suit
again.
Thereagainst Sri Haji Bashir Ahmad
preferred Appeal No. 734 of 1978 before
Apex Court which was decided on
03.04.1978 whereby it was held that the
direction of High Court while remanding
matter was not to decide the entire suit
afresh but the intention was that Trial
Court shall first determine share of Smt.
Saeedan and thereafter shall pass decree
for specific performance to that extent.
Consequently, five additional issues were
framed in the Trial Court on 20.07.1982
whereby issue No. 8 was regarding share
of Smt. Saeedan in the disputed property.
While the matter was pending, Smt.
Saeedan executed further sale deed in
respect
of
disputed
property
on
21.09.1981
in
favour
of
plaintiffsappellants in the present case. These
appellants moved an Application No.
139A under Order XXII Rule 10 C.P.C.
for impleadment as defendants in Original
Suit No. 115 of 1969. In the meantime,
Smt. Saeedan, Alimuddin and Ramjani
also died hence their legal heirs were
brought on record. The application
seeking impleadment preferred by present
appellants was rejected by Trial Court by
order dated 26.02.1996, whereagainst the
present appellants preferred Misc. Civil
Appeal No. 50 of 1996 which was also
dismissed by Third Additional District
Judge, Bulandshahar vide order dated
28.07.1998. Thereagainst the present
appellants came to this court in Second
Appeal No. 1325 of 1998 but the same
was also dismissed by vide judgement
dated 24.11.1999.

6. In the meantime the Original Suit
No. 115 of 1969, it appears, that, after
rejecting present appellants' application
for impleadment, was decreed finally on
27.02.1996, on the basis of a compromise
entered between parties, wherein, it was
admitted that Smt. Saeedan had only
1/3rd share in the entire property and rest
2/3rd was with defendants no. 6 and 7
therein. Consequently and in the light of
decree passed by Trial Court, Smt.
Saeedan executed sale deed in respect of
her 1/3rd share, in the dispute property, in
favour of Sri Haji Bashir Ahmad, vide
sale deed dated 14.03.1996.

7.

The
plaintiffs-appellants
thereupon instituted Original Suit No. 184
of 1996 for cancellation of sale deed
488 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
dated 14.03.1996. The aforesaid suit was
dismissed by Trial Court vide judgment
and
decree
dated
07.01.2006
and
thereagainst plaintiffs-appellants' Civil
Appeal No. 17 of 2006 has also been
dismissed by Additional District Judge,
Court No. 3, Bulandshahar, i.e., Lower
Appellate Court (hereinafter referred to as
the "LAC") vide judgement and decree
dated 06.11.2006. Hence this appeal.

8. Sri Namwar Singh, learned
counsel for the appellants, attempted to
argue that compromise decree was illegal
being in violation of remand order passed
by this Court as clarified by Apex Court.

9. However, I do not find any
strength in the submission and the
argument is totally fallacious. The Apex
Court required the Trial Court to decide
first, the question of share of Smt.
Saeedan. This question was decided in
terms of compromise between the parties
and Smt. Saneedan's share was held to be
1/3rd. The suit was decreed accordingly
though based on compromise. It is this
share which has been transferred by sale,
by Smt. Saeedan, in favour of Sri Haji
Bashir Ahmad, the decree holder, vide
sale deed dated 14.03.1996. It thus cannot
be said that direction contained in remand
order of this Court, as clarified by Apex
Court, has not been observed or complied
by concerned courts.

10. Now the only question which is
to be considered is the one formulated
above, for the reason, that, plaintiffsappellants before this Court are purchaser
of property which was part of disputed
property in Original Suit No. 115 of 1969,
during pendency of aforesaid suit.

11. It cannot be doubted that the sale
deed of plaintiffs-appellants, executed lis
pendens, may not be void ab initio from
its very inception so long as the suit is
pending, but, once the suit is decided, the
aforesaid document executed, lis pendens,
will face the consequences of suit. In case
the suit is decreed and execution of decree
results in taking away the very subject
matter of instrument executed lis pendens,
such instrument shall be bad from its
inception giving no right to incumbent in
whose favour it had been executed.

12. The plaintiffs-appellants were
not heirs and legal representatives of Smt.
Saeedan.
They
were
subsequent
transferees during pendency of suit and,
therefore, sought impleadment in that suit,
which having already been negatived by
courts below and order has been upheld
by this Court, the plaintiffs-appellants
were clearly bound by the result of
Original Suit No. 115 of 1969. After the
same has been decreed, may be on the
basis of compromise, the plaintiffsappellants, who were beneficiary during
lis pendens, ceases to have no right over
the property in dispute.

13. The doctrine of lis pendens is
recognised under Section 52 of Transfer
of
Property
Act,
1882
(hereinafter
referred to as the "Act, 1882"). This
doctrine is expressed in the maxim "ut lite
pendente nihil innovetur". It imposes a
prohibition on transfer or otherwise
dealing of any property, during the
pendency
of
a
suit,
provided
the
conditions laid down in Section 52 are
satisfied.

14. The principle of lis pendens, it is
said, owe its origin to the maxim of
Roman Law "Rem de qua controversia
1 All Shyoraj Singh and others Vs. Zahir Ahmad and others
489
prohib mur in acrum dedicate", which
means, where the subject in dispute owing
to contest passes into the custody of the
judiciary, parties to it are under an
obligation not to withdraw it from the
protection of the Judge.

15. Tracing back the genesis of
doctrine, it relate back to a decision of
1857 in Bellamy Vs. Sabine, (1857) 1 De
G & J 566 wherein Lord Justice Turner
said:

"It is, as I thing, a doctrine common
to the Courts both of Law and Equity, and
rests, as I apprehend, upon this foundation
that it would plainly be impossible that
any action or suit could be brought to a
successful termination, if alienations
pendente lite were permitted to prevail.
The plaintiff would be liable in every case
to be defeated by the defendant's
alienating before the judgment or decree,
and would be driven to commence his
proceedings de novo, subject again to be
defeated
by
the
same
course
of
proceeding."

16. The definition of lis pendens
Corpus Juris Secundum, Vol. LIV, page
570, reads as under:

"Lis pendens literally means a
pending suit; and the doctrine of lis
pendens
has
been
defined
as
the
jurisdiction, power, or control which a
court acquires over property involved in
suit, pending the continuance of the
action, and until final judgment therein."

17. A Division Bench in Nathaji
Anandrav Patil Vs. Nana Sarjerao
Patil, 1907(9) Bom.L.R. 1173 said that
doctrine of lis pendens is not based on the
equitable doctrine of notice but on the
ground
that
it
is
necessary
to
administration of justice that decision of a
Court in a suit should be binding not only
on the litigant parties but all those who
derives title from them pendente lite
whether that notice to the suit or not. It
refers to the decision in Bellamy Vs.
Sabine (supra) and a more ancient
judgment in Bishop of Winchester Vs.
Paine (1805) 11 Ves. 197 where the
Master of Rolls said:

"Ordinarily, it is true, the decree of
the Court binds only the parties to the
suit. But he, who purchases during the
pendency of the suit, is bound by the
decree, that may be made against the
person, from whom he derives title. The
litigating parties are exempted from the
necessity of taking any notice of a title, so
acquired. As to them it is as if no such
title existed. Otherwise suits would be
indeterminable: or which would be the
same in effect, it would be in the pleasure
of one party, at what period the suit
should be determined."

18. The Division Bench also
referred to another decision of Vice
Chancellor in Metcalfe Vs. Pulvertoft
(1813) 2 Ves. & B. 204 where it was said:

"The effect of the maxim, pendente
lit nihil innovetor understood as making
the conveyance wholly inoperative, not
only in the suit depending but absolutely
to all purposes in all future suits and all
future time, is founded in error."

19. A Division Bench of Bombay
High
Court
in
Basappa
Budappa
Halavalad
Vs.
Bhimangowda
Shiddangowda Patil, AIR 1928 Bom 65
the plaintiff brought a suit against his
brother, Basangowda on 02.08.1918 for
490 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
partition of joint family property. On
10.08.1918 Basangowda sold the property
in suit which was included in the claim of
his brother to defendants no. 1 and 2
therein.
During
pendency
of
suit,
Basangowda died and his widow and
children were substituted. The suit was
decreed
pursuant
to
a
compromise
between
plaintiffs
and
heirs
of
Basangowda wherein half of suit property
was awarded to plaintiff. Another suit was
instituted against defendants no. 1 and 2
the
predecessors
of
property
from
Basangowda during pendency of earlier
suit for recovery of possession of half of
suit property of earlier litigation. The
Trial Court dismissed suit but the Lower
Appellate Court applying Section 52 of
Act, 1882 allowed appeal and decreed
suit. It hold that defendants no. 1 and 2 by
virtue of doctrine of lis pendens were
bound by concerned decree. The matter
came to High Court. It was argued that
predecessors should have been made
party in the earlier suit and since they had
not joined the earlier litigation, the
ultimate decree passed is not binding on
them. Secondly it was contended that they
are to be treated as representative of
Basangowda within the meaning of
Section 47 of C.P.C. and the second suit
is barred thereunder since the plaintiff
should have asked for possession of
property in execution proceedings. Both
the contentions were negatives by High
Court. The Court said referring to Section
52 of Act, 1882 and relying on decisions
in
Gulabchand
Manikchand
Vs.
Dhondi Valad Bhau (1873) 11 BHCR
64 and a Full Bench decision in
Lakshmandas Sarupchand Vs. Dasrat,
ILC (1880) Bom 168 the Court said that
it was immaterial whether the alienees
pendente lite had or had not noticed all
the pending proceedings, for, if this were
not so, there would be no certainty that
litigation would ever come to an end. In
such cases the Courts do not recognise the
allegations pendente lite as affording any
proper ground for staying the suit.

20. Then the Court referred and
followed Privy Council decision in Faiyaz
Husain Khan Vs. Prag Narain ILR (1907)
All 339 and said that pendente lite neither
party to the litigation can alienate the
property in dispute so as to affect his
opponents. The subsequent death of
Basangowda can make no difference to
this principle. Further in the context of
argument with reference to Section 47
C.P.C. the Court said that a transfer
cannot be recognised by Court as giving
subsequent purchases any right to be
regarded
as
representatives
for
the
purpose of attaching plaintiffs' right to
sue.

21. In Ramdhone Bulakidas vs
Kedarnath Mohata and others, AIR
1938 Cal 1 Hon'ble Ameer Ali, J. while
construing Section 52 of Act, 1882 said
that the Section although in general terms,
does limit its own operation. It must be a
suit in which the rights to immovable
property are in issue; the order must be an
order relating to rights to such property,
and the transaction which will give place
or be made subject to the order of the
Court must be one which derogates from
the other parties' rights to the property in
suit. His Lordship then explain what has
been said above in para 14 of the
judgment as under:

"A cannot transfer his interest in X
so as to affect any right in X which the
Court might have established in favour of
B, Therefore that any order which the
Court might have made as to the right of
1 All Shyoraj Singh and others Vs. Zahir Ahmad and others
491
B in respect of X will override or prevail
over any alienation by A. I think however
that the order of the Court must relate to
rights which the parties claim, or which
they might have claimed in the property
X. The Court cannot create proprietary
right in B on grounds distinct from the'
property itself."

22. In other words the aforesaid
doctrine is based on the principle that the
parties to a suit cannot allowed to shorten
the arms of Court in dealing with suit by
giving effect to the transfers of disputed
property to third party. In other words the
doctrine is one of convenience.

23. In Gouri Dutt Vs. Sukur
Mohammed, AIR 1948 PC 147 it was
held that broad principle underlying
Section 52 of Act, 1882 is to maintain
status quo uneffected by act of any party
to the litigation pending its determination
and the expression "decree" or "order"
includes a decree or order made pursuant
to the agreed terms of compromise.

24 . In Krishanaji Pandharinath
Vs. Anusayabai, AIR 1959 Bom. 475 it
was held that even after dismissal suit, the
purchaser is subject to lis pendens of an
appeal afterwards, if filed. The broad
principles underlying Section 52 is to
maintain status quo, unaffected by act of
any party, to the litigation, pending its
determination. The lis continues so long
as a final decree or order has not been
obtained and complete satisfaction thereof
has not been rendered.

25. In Jayaram Mudaliar Vs.
Ayyaswami and others, AIR 1973 SC
569 the Court said:

"It is evident that the doctrine, as
stated in section 52, applies not merely to
actual transfers of rights which are
subject-matter of litigation but to other
dealings with it by any party to the suit or
proceeding, so as to affect the right of any
other party thereto. Hence it could be
urged that where it is not a party to the
litigation but an outside agency such as
the tax collecting authorities of the
Government, which proceeds against the
subject-matter
of
litigation,
without
anything done by a litigating party, the
resulting transaction will not be hit by
section 52. Again, where all the parties
which could be affected by a pending
litigation are themselves parties to a
transfer or dealings with property in such
a way that they cannot resile from or
disown the transaction impugned before
the Court dealing with the litigation the
Court may bind them to their own acts.
All these are matters which the Court
could have properly considered. The
purpose of Section 52 of the Transfer of
Property Act is not to defeat any just and
equitable claim but only to subject them
to the authority of the Court which is
dealing with the property to which claims
are put forward."

26. In Jayaram Mudaliar (supra)
the Court also observed that exposition of
doctrine indicate that need for it arisen
from the very nature of jurisdiction of the
Court and their control over the subject
matter of litigation so that parties
litigating before it may not remove any
part of subject matter outside the power of
Court to deal with it and thus make the
proceedings infructuous. The doctrine of
lis pendens was intended to strike at
attempts by parties to a litigation to
circumvent the jurisdiction of a court, in
which a dispute on rights or interests in
492 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
immovable property is pending, by
private dealings which may remove the
subject matter of litigation from the ambit
of the court's power to decide a pending
dispute or frustrate its decree. Alienees
acquiring any immovable property during
a litigation over it are held to be bound,
by an application of the doctrine, by the
decree passed in the suit even though they
may not have been impleaded in it. The
whole object of the doctrine of Its
pendens is to subject parties to the
litigation as well as others, who seek to
acquire rights in immovable property
which are the subject matter of a
litigation, to the power and jurisdiction of
the Court so as to prevent the object of a
pending action from being defeated. This
has been followed in another decision in
Rajender Singh and others Vs. Santa
Singh and others, AIR 1973 SC 2537.

27. Section 52 has been construed
by a three Judge Bench of Apex Court in
Dev Raj Dogra and others vs Gyan
Chand Jain and others, AIR 1981 SC
981 and it says that for application of said
Section following conditions have to be
satisfied:

"1. A suit or a proceeding in which
any right to immovable property must be
directly and specifically in question, must
be pending;

2. The suit or the proceeding shall
not be a collusive one;

3. Such property during the
pendency of such a suit or proceeding
cannot be transferred or otherwise dealt
with by any party to the suit or proceeding
so as to affect the right of any other party
thereto under any decree or order which
may be passed therein except under the
authority of Court. In other words, any
transfer of such property or any dealing
with such property during the pendency of
the suit is prohibited except under the
authority of Court, if such transfer or
otherwise dealing with the property by
any party to the suit or proceeding affects
the right of any other party to the suit or
proceeding under any order or decree
which may be passed in the said suit or
proceeding."

28.

A
Division
Bench
in
Mohammed Ali Abdul Chanimomin
Vs. Bisahemi Kom Abdulla Saheb
Momin and another, AIR 1973 Kant
131 said that object of Section 52 is to
subordinate all derivative interests or all
interests derived from parties to a suit by
way of transfer pendente lite to the rights
declared by the decree in the suit and to
declare that they shall not be capable of
being enforced against the rights acquired
by the decree-holder. A transferee in such
circumstances
therefore
takes
the
consequences of the decree which the
party who made the transfer to him would
take as the party to the suit. This is
founded on the principle of public policy
and no question of good faith or bona
fides arises. The transferee from one of
the parties to the suit cannot assert or
claim any title or interest adverse to any
of the rights and interests acquired by
another party under the decree in suit. The
principle of lis pendens prevents anything
done by the transferee from operating
adversely to the interest declared by the
decree.

29. This Court in Thakur Prasad
Vs. Board of Revenue and others, 1979
A.L.J. 1273 said that a transfer lis
pendens is not a bad transfer. It is a
1 All Shyoraj Singh and others Vs. Zahir Ahmad and others
493
transfer subject to result of ultimate
decree that might be passed in the case.

30. In Smt. Sayar Bai Vs. Smt.
Yashoda Bai and others, AIR 1983 Raj
161 the Court said that during pendency
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 would be bound by the
claims
which
shall
ultimately
be
pronounced. When a suit is filed in
respect of immovable property, the
jurisdiction, power or control over the
property involved in the suit is acquired
by the Court, pending the continuance of
the action and until the final judgment is
pronounced and any transaction or
dealing of the property by the parties to
the suit or proceedings would not affect
the decree or order which may be passed
by the Court.

31. In Ramjidas Vs. Laxmi Kumar
and others, AIR 1987 MP 78 (Gwalior
Bench) following several authorities of
different Courts including the Apex
Court's decision in Jayaram Mudaliar
(supra) the Court observed that the
purpose of Section 52 is not to defeat any
just and equitable claim but only to
subject them to the authority of Court
which is dealing with the property to
which the claims are put forward.

32. In Lov Raj Kumar Vs. Dr.
Major Daya Shanker and others, AIR
1986 Delhi 364 it was held:

"31. The principles contained in
Section 52 of transfer of Property Act are
in accordance with the principle of equity,
good conscience or justice, because they
rest
upon
an
equitable
and
just
foundation, that it will be impossible to
bring an action or suit to a successful
termination if alienations are permitted to
prevail. Allowing alienations made during
pendency of a suit or an action to defeat
rights of a Plaintiff will be paying
premium to cleverness of a Defendant and
thus defeat the ends of justice and throw
away all principles of equity."

33. The Court went to the extent that
even in those cases where Section 52 of
Act, 1882, as such, is not applicable, since
it is founded on the principle of justice,
equity and good conscious, the principle
as such can be applied. However, for the
purpose of present case such wider
doctrine may not be necessary but what
has been observed with respect to Section
52 is unexceptionable.

34. In Narendrabhai Chhaganbhai
Bharatia Vs. Gandevi Peoples Co-op.
Bank Ltd. and others, AIR 2002 Guj
209 the Court said:

"20. The principle underlying the
object of the aforesaid provision is to
maintain the status quo unaffected by the
act of any party to the litigation pending
its
determination.
The
principles
contained in this section are in accordance
with the principle of equity, good
conscience or justice because they rest
upon an equitable and just foundation,
that it will be impossible to bring an
action or suit to a successful termination
if alienations are permitted to prevail.
Allowing
alienations
made
during
pendency of a suit or an action to defeat
rights of a plaintiff bank will be paying
premium to cleverness of a defendant and
thus defeat the ends of justice and throw
away all principles of equity."
494 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

35. In Hardev singh Vs. Gurmail
Singh (Dead) by Lrs., 2007(1) AWC 907
(SC) the Court said that Section 52
merely prohibits transfer. It does not say
that the same would result in an illegality.
The only declaration by application of
Section 52 is that the purchaser during
pendency of suit would be bound by
result of litigation. The transaction,
therefore, from its inception was not void
or of no effect but would abide by the
decision in pending suit. The real question
up for consideration therein was in regard
to Sections 41 and 43 of Act, 1882. The
Court clarified doctrine of feeding the
estoppel embodied in Section 43 which
envisages that where a granter has
purported to grant an interest in land
which he did not at the time possess, but
subsequently acquires the benefit of a
subsequent acquisition goes automatically
to the earlier grantee or as it is usually
expressed,
feeds
the
estoppel.
The
principle is based on equitable doctrine
that a person who promise to perforce
more than he can perform must make
good his contract when he acquires power
of performance. The Court also clarified
that transfer where is invalid the above
doctrine will have no application.

36. The Apex Court recently in
Jagan Singh Vs. Dhanwanti, 2012(2)
SCC 628 has favoured to apply principle
of lis pendens irrespective of the fact,
whether there was any stay order passed
by Court or not. The Court said:

"If such a view is not taken, it would
plainly be impossible that any action or
suit could be brought to a successful
termination if alienations pendente lite
were
permitted
to
prevail.
The
explanation to this section lays down that
the pendency of a suit or a proceeding
shall be deemed to continue until the suit
or a proceeding is disposed of by final
decree or order, and complete satisfaction
or discharge of such decree or order has
been
obtained
or
has
become
unobtainable by reason of the expiration
of any period of limitation prescribed for
the execution thereof by any law for the
time being in force. In the present case, it
would be canvassed on behalf of the
respondent and the applicant that the sale
has taken place in favour of the applicant
at a time when there was no stay
operating against such sale, and in fact
when the second appeal had not been
filed. We would however, prefer to follow
the dicta in Krishanaji Pandharinath
(supra) to cover the present situation
under the principle of lis-pendens since
the sale was executed at a time when the
second appeal had not been filed but
which came to be filed afterwards within
the period of limitation. The doctrine of
lis-pendens is founded in public policy
and equity, and if it has to be read
meaningfully such a sale as in the present
case until the period of limitation for
second appeal is over will have to be held
as covered under section 52 of the T.P.
Act."

37. The consensus of various Courts
in the last more than two decades which
includes almost all the High Courts as
also the Apex Court, whose decision is
law of the land, is very clear that
transactions which affects a property in
dispute in a pending suit, executed during
such pendency, would abide by the
decision of Court and no right can be
conferred upon a third party which is
inconsistent to the ultimate decree passed
by Court.
1 All Shyoraj Singh and others Vs. Zahir Ahmad and others
495

38. Faced with the situation, the
effect and consequence of principle laid
down in Section 52 of Act, 1882, Sri
Singh, learned counsel for the appellants
contended that doctrine of lis pendens
shall have no application where the suit
has been decreed on the basis of a
compromise.

39. This submission, in my view,
also has no legs to stand and in any case it
is also no more res integra but is well
settled by various authorities.

40. Section 52 as it stands today in
the statute book was slightly differently
worded initially and read as under:

"52. During the active prosecution in
any Court having authority in British
India Chief Justice, or established beyond
the limits of British India by the
Governor-General
in
Council
of
a
contentious suit or proceeding in which
any right to immoveable property is
directly and specifically in question, the
property
cannot
be
transferred
or
otherwise dealt with by any party to the
suit or proceeding so as to affect the rights
of any other party thereto under any
decree or order which may be made
therein, except under the authority of the
Court and on such terms as it may
impose."

41. The aforesaid provision was
amended subsequently by Amending Act
No. 20 of 1929.

42. Be that as it may, the initial
provision was attempted to be construed as if
it would not apply to a compromise decree
since it has used the words "contentious suit
or proceeding". The matter was considered
by a Full Bench in Annamalai Chettiar vs
Malayandi Appaya Naick and others,
(1906) 16 MLJ 372. Rejecting the
contention, Court said that mere fact that
there is a compromise shows that suit was
originally contentious, otherwise there would
be nothing to compromise. A decree is none
the less a 'decree' as defined in Code of Civil
Procedure, even if it is based on compromise.
The legal effects of decree contemplated by
Section 375 (as the provision existed then in
C.P.C.) do not defer from the legal effects of
a 'decree' where the suit has been fought to
the end. The fact that a decree is given in
accordance with the terms which have come
to, between the parties, does not prevent the
decree being the formal expression by the
Court, of an adjudication, on a right claimed
or a defence set up within the meaning of the
definition. The Court (Charles Arnold White,
Kt., C.J.) in para 13 of the judgment said:

"13. I think Section 52 of the
Transfer of Property Act should be
construed as applying to the case of a
compromise decree in the absence, of
course, of anything in the nature of fraud
or collusion. This seems to be the natural
construction of the section and it is in
accordance with the principles on which
the doctrine of lis pendens is based."

43. The above view was concurred
by Subrahmanya Aiyar, J. and Benson, J.,
though they also wrote their separate
opinions.

44. A Division Bench in Shyam Lal
Vs. Solian Lal, AIR 1928 All 3 said that
a transferee pendente lite is bound by the
decree just as much as he were a party to
the suit. Such transferee puts himself in
privity with the suit, and must be treated,
not as a stranger to the suit, but as a party
to it and consequently bound by the terms
of the decree in full. A decree based upon
a compromise is just as much binding as a
496 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
decree founded upon a decision on merits.
This was followed subsequently by a
Single Judge of this Court in Amarnath
and others Vs. Deputy Director of
Consolidation, AIR 1985 All 163.

45. In Dhiraj Singh Vs. Dina Nath,
1910 IC (8) 288 Judicial Commissioner
followed the Full Bench judgment in
Annamalai Chettiar (supra) to hold that
the doctrine of lis pendens would apply in
case of a compromise decree also.

46. The dictum laid down in
Annamalai Chettiar (supra) has also
been followed in Sat Narain Singh Vs.
Badri Prasad Singh, AIR 1928 Oudh
146(DB). The same view has been taken
in Mt. Ramdulari Kuer and others Vs.
Upendra Nath Basu, AIR 1925 Pat
462(DB) wherein it has been held:

"To my mind the fact that Rai
Bindeswari had taken a kobala before the
compromise petition was filed will not
affect the rights of the parties and it must
be held that the purchase of the plaintiff
was during the active prosecution of a
contentious suit. That the doctrine of Lis
Pendens will apply to a purchase during
the pendency of a suit which terminates in
a consent decree is settled by authorities."

47. Hon'ble S.C. Agrawal, J. (as His
Lordship then was) followed the Full
Bench decision in Annamalai Chettiar
(supra) and another decision of Calcutta
High
Court
in
Hiranya
Bhusan
Mukherjee v. Gouri Dutt Maharaj,
AIR 1943 Cal 227 in Mohammad
Aleem Vs. Maqsood Alam and others,
AIR 1989 Raj 43 and said:

"The law is well settled that the
doctrine of lis pendens is also applicable
in cases where the pending litigation is
ultimately compromised by the parties
and a compromise decree is passed in
terms of the compromise."

48. However, there is an exception.
Where it is alleged by subsequent
transferee that compromise is collusive
and for defeating the rights of subsequent
transferee the matter will then be
examined in the light of such ground.

49. In the present case there is
nothing on record to show that plaintiffs
sought to raise such plea of collusion or
fraud etc. In the circumstances the first
part of question formulated above would
have to be returned in affirmative holding
that sale deed in favour of plaintiffsappellants executed during pendency of
Suit No. 115 of 1969 is void on the
principle of lis pendens.

50. Now coming to the second
aspect,
whether
the
appellants,
the
subsequent transferee of disputed property
which was subject matter of Suit No. 115
of 1969 ought to be substituted or
impleaded therein. The answer I find in
the Apex Court's decision in Sarvinder
Singh v. Dalip Singh and Ors. 1996(5)
SCC 539. The Court held that the
alienation pendente lite is inherited by
doctrine of lis pendens, by virtue of of
Section 52. Alienee cannot be considered
to be either a necessary or property party
to the suit. It has been held that neither the
plaintiff is bound to implead such alienee
nor the alienee has an absolute right to be
joined as a party. In Gulabchand Vs.
Dhondi, 1875(11) Bombay High Court
64 and Dammar Singh Vs. Nazir-uddin, (1889) All WN All 91 it was held
that plaintiffs are not bound to make
subsequent alienee a party in the suit.
1 All Shyoraj Singh and others Vs. Zahir Ahmad and others
497
Similarly in Lakshan Chunder Dey Vs.
Sm. Nikunjamoni Dassi and others,
AIR 1924 Cal 188 and Chanan Singh
Vs. Warayam Singh, AIR 1947 Lahore
175 it was held that alienee has no
absolute right to be joined as a party. In
Subba Reddi vs Veeraraghava Reddi,
(1920) ILR 43 Madras 37 it was
however held that the Court has a
discretion in the matter which must be
judicially exercised.

51. To mitigate the hardship to
subsequent alienee, in Saila Bala Dassi
Vs. Sm. Nirmala Sundari Dassi and
another, AIR 1958 SC 394 the Court
said that the transferee would be entitled
to prefer an appeal against the decree or
order passed therein if his assigner could
have filed such an appeal in view of
Section 146.

52. In the case in hand the question
of appellants' impleadment has already
attained finality, so far as this Court is
concerned, in view of the judgment in
Second Appeal No. 1325 of 1998, decided
on 24.11.1999.

53. Sri Singh placed reliance on
Smt.