# Smt. Savitri Devi v. Civil Judge Junior Division Court No. 22 Barabanki & Ors

- **Citation:** (2024) 2 ILRA 592
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-25
- **Case number:** Writ C No. 1006851 of 2011
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-savitri-devi-v-civil-judge-junior-division-court-no-22-barabanki-ors-51444
- **Pages:** 7

## Headnote

Civil Law - Constitution of India,1950Article 226-Civil Procedure Code,1908Order 1 Rule 10-Transfer of Property
Act,1882-Section 52-The respondent filed
a suit seeking cancellation of a sale deed
executed
on
28.04.2009-During
the
pendency of the suit, the property was
transferred to the petitioner through a
registered gift deed on 10.08.2009-the
application
for
impleadment
by
the
petitioner was rejected on the grounds
that the transfer was void under section
52 of the T.P. Act-Held, that the trial court
erred in declaring the gift deed void at the
preliminary
stage
without
framing
proper issues or conducting a trial-The
petitioner having acquired substantial
interest in the property, was deemed a
necessary party to the litigation to
avoid multiplicity of proceedings-Thus
the
impugned
order
was
set
aside.(Para 1 to 23)

A
transferee
pendente
lite
is
not
barred from being impleaded as a
party if their interest in the subject
matter of the suit is substantial. The
decision to implead lies within the
judicial discretion of the court.The
doctrine does not render a transfer
during litigation void but subordinates
it to the rights determined by the court
in the pending litigation.(Para 11 to
20)

The writ petition is allowed. .( E-6)

List of cases cited:

## Text

592 INDIAN LAW REPORTS ALLAHABAD SERIES
forthwith to pass necessary orders and
mutate the name of legal heirs of late Ram
Shankar Shukla.
----------
(2024) 2 ILRA 592
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.01.2024
BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 1006851 of 2011

Smt. Savitri Devi ...Petitioner
Versus
Civil Judge Junior Division Court No. 22
Barabanki & Ors. ...Respondents

Counsel for the Petitioner:
Ashish Kumar Rastogi, Anurag Shukla,
Prem Chandra Chauhan, R.R. Upadhyaya

Counsel for the Respondents:
Om Chandra Sahu, Piyush Kr. Singh

Civil Law - Constitution of India,1950Article 226-Civil Procedure Code,1908Order 1 Rule 10-Transfer of Property
Act,1882-Section 52-The respondent filed
a suit seeking cancellation of a sale deed
executed
on
28.04.2009-During
the
pendency of the suit, the property was
transferred to the petitioner through a
registered gift deed on 10.08.2009-the
application
for
impleadment
by
the
petitioner was rejected on the grounds
that the transfer was void under section
52 of the T.P. Act-Held, that the trial court
erred in declaring the gift deed void at the
preliminary
stage
without
framing
proper issues or conducting a trial-The
petitioner having acquired substantial
interest in the property, was deemed a
necessary party to the litigation to
avoid multiplicity of proceedings-Thus
the
impugned
order
was
set
aside.(Para 1 to 23)

A
transferee
pendente
lite
is
not
barred from being impleaded as a
party if their interest in the subject
matter of the suit is substantial. The
decision to implead lies within the
judicial discretion of the court.The
doctrine does not render a transfer
during litigation void but subordinates
it to the rights determined by the court
in the pending litigation.(Para 11 to
20)

The writ petition is allowed. .( E-6)

List of cases cited:

1. Amit Kumar Shaw & anr. Vs Farida
Khatoon & anr., (2005) AIR SC 2209

2. Sri Jaggannath Mahaprabbu Vs Pravat
Chandra Chatterjee & ors.. (1992) AIR
ORISSA 47

3. Thomson Press (India) Ltd. Vs Nanak
Builders & Investors Pvt. Ltd. & ors..(2013)
3 SCC 397

4. Purshottam Das Verma Vs 2nd Addl.
Distt. Judge, Alld. & ors.. (1991)9 LCD 567

5. The Municipal Corpn of the City of
Ahmedabad Vs Chandulal Shamaldas Patel
& ors.. (1971)3 SCC 821

 (Delivered by Hon'ble Alok Mathur J.)

1. Heard Sri Prem Chandra
Chauhan,
learned
counsel
for
the
petitioner as well as Sri Om Chandra
Sahu, learned counsel appearing on
behalf of respondent no. 2.

2. Controversy raised in the
present writ petition is with regard to
the scope of provisions contained in
Order 1 Rule 10 CPC as the application
preferred by the petitioner for impleadment
has been rejected by the Additional Civil
Judge (Junior Division), Barabanki by
means of order dated 25.07.2011, which
2 All. Smt. Savitri Devi Vs. Civil Judge Junior Division Court No. 22 Barabanki & Ors.
593
order has been impugned in the present writ
petition.

3. It has been submitted by learned
counsel for the petitioner that respondent
no. 2 had filed a suit against respondent no.
3 seeking a decree wherein the a suit for
cancellation of sale deed dated 28.04.2009
was filed by him. During the pendency of
the said suit respondent no. 3 had
transferred the property to the petitioner by
means of 'hibanama' (gift deed) dated
10.08.2009,
by
means
of
registered
instrument. After execution of gift deed the
petitioner had moved an application for
impleadment. The said application was
opposed by the respondent no. 2, stating
that no transfer made during pendency of
the suit would be void in terms of Section
52 of the Transfer of Property Act and
consequently petitioner has not got any
right to become a party in the present
litigation.

4. The trial Court sustained the
objections filed by respondent no. 2 and
held that the petitioner claims impleadment
on the basis of gift deed and the gift deed
itself would be void in terms of Section 52
of the Transfer of Property Act and
consequently, there is no occasion for the
petitioner to be impleaded as party on the
strength of a void instrument and rejected
the application for impleadment.

5. Learned counsel for the petitioner
has submitted that even if for the moment it
is assumed that gift deed would be hit by
the provisions of Section 52 of the
Transfer of Property Act, it cannot be
denied that the gift deed was infact
executed
and
the
petitioner
has
sufficient interest to become party in
the present suit and consequently as to
whether the gift deed was void or not,
could have been established only at the
conclusion of the trial. Had the said
disputed question translated into a issue
framed by the trial Court and after
examination of evidence adduced by the
parties, the said issue could have been
decided.
It
is
submitted
that
the
application for impleadment at the very
outset could not have been rejected by
recording a finding that the transaction
was hit by the provisions of Section 52
of the Transfer of Property Act and such
a procedure followed by the trial Court
is clearly arbitrary and it would have
been appropriate for the trial Court to
allow the application for impleadment
and
subsequently
after
doing
so
appropriate issue could have been
framed and adjudicated after following
due process.

6. It is next submitted by learned
counsel for the petitioner that the trial
Court should not have recorded a
finding at the very inception while
considering
the
application
for
impleadment that the petitioner could
not become party on the strength of
void instrument.

7.

Learned
counsel
for
the
respondent on the other hand has
opposed the writ petition. He has
submitted that the gift deed was
executed only on 10.08.2009 i.e. during
the pendency of the suit proceedings
and consequently, there is no dispute
regarding the said fact and in the light
of the provisions contained in Section
52 of the Transfer of Property Act, the
said instrument could be deemed to be
void and the petitioner does not get
any right over the disputed property
and there is no infirmity in the order of
trial Court.
594 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Heard learned counsel for the
parties and perused the record.

9. The issue which arises for
consideration before this Court is as to
whether the petitioner has sufficient interest
in the pending suit proceedings to be made
party and also as to whether merely on
account of the fact that gift deed was
executed during the pendency of the
proceedings, such an instrument can be
held to be void by the trial Court while
deciding the application for impleadment or
such a decision could have been passed
only after framing appropriate issues during
the trial and after affording opportunity to
the parties to adduce evidence and only
then return finding in this regard.

10. Case of the petitioner is that infact
it was a collusive suit filed by respondent
no. 2 against respondent no. 3. The
respondent no. 2 and 3 are real brother and
sister while the petitioner is the daughterin-law of the sister of respondent no. 2 and
3. After the sale deed was executed by
respondent no. 2 in favour of respondent
no. 3 on 28.04.2001, a valid sale deed was
executed by respondent no. 3 in favour of
petitioner. It was stated that the petitioner
was never made aware about the suit
preferred by respondent no. 2 against
respondent no. 3 for cancellation of sale
deed and therefore, the provisions of
Section 52 of the Transfer of Property Act
do not apply in the facts of the present case.
In this regard various pronouncements of
the Hon'ble Supreme Court are discussed
herein below.

11. In the case of Amit Kumar Shaw
and Another Vs. Farida Khatoon and
Another, AIR 2005 SC 2209, it has been
observed by the Apex Court that the
doctrine of lis pendense applies only where
the lis is pending before a Court. Further
pending the suit, the transferee is not
entitled as of right to be made a party to the
suit, though the Court has a discretion to
make him a party, but the transferee
pendente lite can be added as a proper
party if his interest in the subject matter
of the suit is substantial and not just
peripheral. Relevant paragraphs 16, 17
and 18 of the judgment on reproduction
read as under:

"16. The doctrine of lis pendens
applies only where the lis is pending before
a Court. Further pending the suit, the
transferee is not entitled as of right to be
made a party to the suit, though the Court
has a discretion to make him a party. But
the transferee pendente lite can be added as
a proper party if his interest in the subject
matter of the suit is substantial and not just
peripheral. A transferee pendente lite to the
extent he has acquired interest from the
defendant is vitally interested in the
litigation, whether the transfer is of the
entire interest of the defendant; the latter
having no more interest in the property may
not properly defend the suit. He may
collude with the plaintiff. Hence, though
the plaintiff is under no obligation to make
a lis pendens transferee a party; under
Order XXII Rule 10 an alienee pendente
lite may be joined as party. As already
noticed, the Court has discretion in the
matter which must be judicially exercised
and an alienee would ordinarily be joined
as a party to enable him to protect his
interests. The Court has held that a
transferee pendente lite of an interest in
immovable property is a representative-ininterest of the party from whom he has
acquired that interest. He is entitled to be
impleaded in the suit or other proceedings
where the transferee pendente lite is made
a party to the litigation; he is entitled to be
2 All. Smt. Savitri Devi Vs. Civil Judge Junior Division Court No. 22 Barabanki & Ors.
595
heard in the matter on the merits of the
case.

17. In the instant case, the
applications for substitution were filed by
the respective appellants in the second
appeals which are still pending on the file
of the High Court though it was filed in the
year 1993. The appellants have properly,
sufficiently and satisfactorily explained the
delay in approaching the Court. We see
bona fide in their explanation in not
coming to the Court at the earliest point of
time. Therefore, the appellants who are
transferees pendente lite should be made as
parties to the pending second appeals as
prayed for by them. In our opinion, the
High court has committed serious error in
not
ordering
the
applications
for
substitution filed by the appellants. In our
view, the presence of the appellants are
absolutely necessary in order to decide the
appeals on merits. Since the High Court
has committed error by rejecting the
appellants' applications for substitution
treating the same as additional parties and
thereby rendering the appellants nonsuited. We have no hesitation in setting
aside the said orders and permit the
appellants to come on record by way of
substitution as prayed for. The High Court
proceeded on a wrong premise that the
appellants had made the application for
addition
of
party
whereas
the
application under consideration was for
substitution as the owner had sold the
suit property to the appellants and had
no interest in the pending litigation.

18.
In
our
opinion,
the
presence
of
the
appellants
was
absolutely
necessary
since
the
appellants are the only persons who has
got subsisting right, title and interest in
the suit. The appellants are at liberty to
contest the matter on merits."

12. In the case of Sri Jaggannath
Mahaprabhu
Vs.
Pravat
Chandra
Chatterjee
and
Others,
AIR
1992
ORISSA 47, the Full Bench of Orissa High
Court while considering the scope of
Section 52 Transfer of Property Act has
held that even if a lis pendense transferee is
not a necessary party and the plaintiff can
ignore the transfer even if he has notice
thereof and a decree or order obtained by
him would be binding on the lis pendense
transferee, when a motion is made by the
lis pendents transferee to be impleaded as
party, the Court may, in exercise of its
discretion judicially, add him as a proper
party to prevent multiplicity of suits.
Relevant paragraph 9 of the judgment on
reproduction read as under:

"9. Though in Basant Ram's case
(ILR (3974) Him Pra 276) (supra), it has
been held that a lis pendens transferee is
not a proper party, we are of the view that
even if a lis pendens transferee is not a
necessary party and the plaintiff can ignore
the transfer even if he has notice thereof
and a decree or order obtained by him
would be binding on the lis pendens
transferee, when a motion is made by the lis
pendens transferee to be impleaded as a
party, the court may, in exercise of its
discretion judicially, add him as a proper
party to prevent multiplicity of suits."

13. In the case of Thomson Press
(India) Limited Vs. Nanak Builders and
Investors Private Limited and Others,
(2013) 3 SCC 397, the Apex Court has
considered a case where the property in
question was transferred despite having
notice and knowledge of injunction granted
by the Court below in such pending suit. It
was held that the transfer pendente lite is
neither illegal nor void ab initio but
remains subservient to rights eventually
596 INDIAN LAW REPORTS ALLAHABAD SERIES
determined by Court in pending litigation.
It was also held that the transfer in favour
of purchaser pendente lite is effective in
transferring
title
subject
to
certain
obligations as decision of Court in a suit is
binding not only on litigating parties but
also on those who derive title pendente lite.

14. This Court in the case of
Purshottam Das Verma Vs. 2nd Addl.
Distt. Judge, Allahabad and Others, 1991
(9) LCD 567, has held that the effect of the
provision of Section 52 Transfer of
Property Act is not to wipe out a sale
pendente lite altogether but to subordinate
it to the rights based on the decree in the
suit. It does not create any bar in the way of
the transferee to proceed with the suit. The
decree will have binding effect on the
vendee, though not party in the suit.
Execution proceeding are continuation of
the suit. Relevant paragraphs 30 to 36 are
reproduced herein below:

"30. Durga Prasad Nigam has
brought it on record that after filing the suit
he executed a sale deed in favour of Smt.
Janki Pandey on 16-1-84. This fact is not
disputed. The only question is whether Smt.
Janki Pandey had any right to file the
application on 20-5-86 for setting aside the
compromise decree.

31. Section 146 of the Civil
Procedure Code reads as follows.

"Save as otherwise provided by
this Code or by any law for the time being
in force, where any proceeding may be
taken or application made by or against
any person, then the proceeding may be
taken or the application may be made by or
against any person claiming under him."

32. There is no dispute that Smt.
Janki Pandey never chose to proceed with
the suit after the sale deed was executed in
her favour. She was watching her interest
and felt that it was safe in the hands of
Durga Prasad Nigam but it did not debar
her from coming in the picture at the time
of the execution of the suit. Execution
proceedings were the continuation of suit in
proceeding as contemplated under Section
52 of the Transfer of Property Act.

33. Order 22 Rule 10 of the Civil
Procedure
Code
which
provides
for
procedure in case of assignment before
final order in the suit runs as follows:

"In the case 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."

34. It empowered her to proceed
with the execution proceeding.

35. Accordingly, I agree with the
view of the trial court that Smt. Janki
Pandey had a right to file an application
for setting aside the order dated 7-5-86 and
the order has been rightly set aside.

36. No other point was pressed
for consideration. The impugned orders
have resulted into substantial justice
between the parties. I do not find any error
of law apparent on the face of record.
Accordingly the writ petitions are dismissed
with cost."

15. Learned counsel for respondents,
on the other hand, have relied on the
judgments of the Apex Court in the case of
The Municipal Corporation of the City
of Ahmedabad Vs. Chandulal Shamaldas
Patel and Others, 1971 (3) SCC 821,
where the Court has held that an appeal by
non-aggrieved party is not maintainable.

16. In the present case the petitioner
has submitted that she was not aware of the
pending litigation at the time of execution
of the gift deed, and also the suit for
2 All. Smt. Savitri Devi Vs. Civil Judge Junior Division Court No. 22 Barabanki & Ors.
597
cancellation of the sale deed is collusive.
She stated that the doctrine of lispendens
applies only where lis is pending before the
Court. Further, pending the suit, the
transferee is not entitled as of right to be
made a party to the suit, though the Court
has discretion to make a party. But the
transferee pendent lite can be added as a
proper party, it was interest in the subject
matter of the suit is substantial and not just
peripheral. The transferee pendent lite to
the extent he has acquired interest of the
defendant, the latter having no more
interest in the property may not properly
defend the suit or he may collude with the
plaintiff,
in
such
circumstances,
the
transferee may be joined as a party.

17. Hon'ble the Supreme Court in the
case of Savitri Devi Vs. District Judge,
Gorakhpur, (1992) 2 SCC 577, has upheld
the order passed by the trial Court for
impleadment of respondent nos. 3 to 5, who
had purchased the suit property without
knowledge of the pending litigation, as
parties. On behalf of the appellant, it was
argued that respondent nos. 3 to 5 cannot
be treated as necessary parties because
alienation made in their favour was in
violation of the injunction order passed by
the Court. In support of this argument,
reliance was placed on the judgment in
Surjit Singh Vs. Harbans Singh (supra).
This Court distinguished that the judgment
by observing that in that case the assignors
and the assignees had knowledge of the
injunction order passed by the Court and
held that the order passed by the trial Court
which was affirmed by the District Judge
and the High Court does not call for
interference.

18. The Apex Court in the case of
Vinod Seth Vs. Devinder Bajaj, (2010) 8
SCC 1, has interpreted Section 52 of the
Transfer of Property Act, 1882, and has
observed as under :-

"It is well settled that the doctrine
of lis pendens does not annul the
conveyance by a party to the suit, but only
renders it subservient to the rights of the
other parties to the litigation. Section 52
will not therefore render a transaction
relating to the suit property during the
pendency of the suit void but render the
transfer inoperative insofar as the other
parties to the suit. Transfer of any right,
title or interest in the suit property or the
consequential acquisition of any right, title
or interest, during the pendency of the suit
will be subject to the decision in the suit."

19. The principle underlying Section
52 of the Transfer of Property Act, 1882, is
based on justice and equity. The operation
of the bar under Section 52 is however
subject to the power of the Court to exempt
the suit property from the operation of
Section 52 subject to such conditions it
may impose. That means that the Court in
which the suit is pending, has the power, in
appropriate cases, to permit a party to
transfer the property which is the subjectmatter of the suit without being subjected
to the rights of any party to the suit, by
imposing such terms as it deems fit. Having
regard to the facts and circumstances, we
are of the view that this is a fit case where
the suit property should be exempted from
the operation of Section 52 of the Transfer
of Property Act, 1882, subject to a
condition relating to reasonable security, so
that the defendants will have the liberty to
deal with the property in any manner they
may deem fit, in spite of the pendency of
the suit.

20. From the aforesaid judgments of
the Apex Court as well as this Court, it
598 INDIAN LAW REPORTS ALLAHABAD SERIES
clearly brings out that the discretion to
make subsequent transferee as a party is
discretion of the Court and the Court has to
look into the fact as to whether the
transferee has substantial right in the suit
proceedings and the subject matter related
therein. Transfer pendente lite is neither
illegal nor void ab initio but remains
subservient to rights eventually determined
by Court in pending litigation. The transfer
in favour of purchaser pendente lite is
effective in transferring title subject to
certain obligations as decision of Court in a
suit is binding not only on litigating parties
but also on those who derive title pendente
lite.

21. From the aforesaid facts it is clear
that entire disputed property which is
subject matter of the suit has been gifted in
favour of petitioner by means of registered
sale deed on 10.08.2009. From the above
any
judgment
in
the
suit
would
substantially effect the right of petitioner
who claims to have received gift from the
purchaser. Accordingly, there is no doubt
that petitioner has substantial interest in the
suit property and is a necessary party.

22. Considering the effect of Section
52 of the Transfer of Property Act on the
gift deed, this Court is of the considered
view that once the petitioner had been
made party even effect of gift deed could
have been adequately adjudicated by the
trial Court by framing issue and permitting
the parties to lead evidence in this regard.
Such an issue could not have been decided
at the preliminary stage while considering
the application for impleadment filed by
the petitioner under Order 1 Rule 10 CPC.

23. In the light of above, impugned
order dated 25.07.2011, is set aside. The
writ petition stands allowed.
----------
(2024) 2 ILRA 598
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.01.2024
BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 3000020 of 2007

Nirmohan Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
U.S. Sahai

Counsel for the Respondents:
C.S.C., Deepak Chandra Jain

Civil Law - Constitution of India, 1950Article 226 -U.P. Imposition of Ceiling on
Land Holdings Act,1960-Section 5(6)(b)-
The
petitioner
challenged
the
classification and determination of surplus
land by the authorities-the petitioner the
recorded tenure holder, received a notice
u/s 10(2) of the Act in the year 1974,
proposing that 50.442 acres of his land be
declared surplus-the Prescribed Authority
rejected his objections, citing lack of
evidence and determing that the transfers
to his sons were not bona fide but aimed
at evading ceiling limits-the appellate
authority
upheld
these
findings-no
substantial
evidence
apart
from
oral
claims was presented by the petitionerHeld, the petitioner failed to meet the
criteria u/s 5(6)(b) of the Act for proving
good faith, adequate consideration, and
irrevocability of the transactions-Tenure
holders may be allowed to exercise
options u/s 12 of the Act for retaining
specific portions of surplus land, provided
the
application
is
made
within
the
permissible timeframe.(Para 1 to 30)

The writ petition is dismissed. .( E-6)

 (Delivered by Hon'ble Alok Mathur J.)