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PETITIONER: KHEMCHAND SHANKAR CHOUDHARYAND ANOTHER

       Vs.

RESPONDENT: VISHNU HARI PATIL AND OTHERS

DATE OF JUDGMENT03/12/1982

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) FAZALALI, SYED MURTAZA

CITATION:  1983 AIR  124            1983 SCR  (1) 898  1983 SCC  (1)  18        1982 SCALE  (2)1120

ACT:      Code of  Civil Procedure,  Section  54,  Scope  of-  In accordance with the law (if any) for the time being in force relating to  the partition  or the  separate  possession  of shares", meaning  of-Whether the transferees "pendente lite" for partition  of parts  of an estate assessed to payment of land revenue to the Government have a locus standi to appear before the  Revenue authorities  - Transfer of Property Act, Section 52  read with  Rule 10 of order XXII Civil Procedure Code.

HEADNOTE:      One Natu,  m his  suit filed in 1940 against his nephew Laxman for  partition of  the joint  family property and for separate possession  of his  half share obtained a decree in his favour. The total area of the lands to be divided is 108 acres. Natu  and his  four sons assigned on August 22, 1945, 318th share  in decree  obtained by  them in  favour of Prem Chand Patil.  Prem Chand filed a Special Civil Suit No 67 of 1950, for  partition of his assigned share in the decree. In that suit,  a compromise decree was passed providing that if the sons of Natu paid Rs. 30,000 on or before March 1, 1958, then the  decree-holder would  not been  titled to claim any partition and  in default  he should  get possession  of the share claimed by him. The sons of Natu committed default and Prem Chand Patil became entitled to partition of 318th share of 108 acres of land. Prem Chand Patil, however assigned his decree in favour of Vishnu Hari Patil, respondent No. 1, who started the  execution proceedings,  under section 54 of the Code of  Civil Procedure under which the lands in respect of which assessment  was payable  to the  Government had  to be divided by  the Collector  and the  parties had to be put in possession of  their respective  shares. During the pendency of these proceedings, the appellants purchased from the sons of Natu  who were  parties to  the suit  five fields  out of these 108  acres-four through private sales and one by court auction-and were  in possession  of the  said fields, having acquired title  thereto. These  fields were  allotted by the Collector in favour of Respondent No. 1 as part of his 3/8th share without  giving any consideration to the claims of the appellants   for   equitable   partition.   The   appellants challenged the  validity of the partition proceedings before

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the Commissioner,  Bombay Division. The appeal was dismissed on the ground that the appellants had no locus standi to ask for an  equitable allotment  under section  54 Code of Civil Procedure, as  their names did not figure in the decree even though the  sates in  their favour  were not in dispute. The further appeals  before the  State Government as well as the Writ Petitions  filed before  the Bombay  Hit h  Court  also failed. Hence the appeals by special leave. 899      Allowing the appeals, tho Court. ^      HELD : 1.1. Section 52 of the Transfer of Property Act, no doubt,  lays down  that a transferee, pendente lite of an interest in  an immovable  properly which  is  the  subject- matter of a suit from any of the parties to the suit will ba bound in  so far  as  that  interest  is  concerned  by  the proceedings  in   the  suit.   Such  a   transferee   is   a representative-in-interest of  the party  from whom  he  has acquired that interest. [902 E-F]      1:2. A transferee from party of a property which is the subject matter of partition can exercise all the rights of a transferor. When a party can ask for an equitable partition, a transferee from him, therefore, can also do so.                                                    [903 D-E]      2:1. Rule  10 of  order  XXII  of  the  Code  of  Civil Procedure clearly recognises the right of a transferee to be impleaded as  a party  to the  proceedings and  to be  heard before any  order is  made. It  may be  That if  he does not apply to  be impleaded,  he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded  and heard he can also prefer an appeal against an order  made in the said proceedings but with the leave of the appellate  court, where  he is  not already  brought  on record. [902 FG-]      2:2. The  position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or  proceeding is  some what similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the  assets of  such a party on his insolvency. An heir or a  legatee or  an official  receiver or  a transferee can participate in  the execution  proceedings even though their names may not have been shown in the decree, preliminary, or final. If  they apply  to  the  court  to  be  impleaded  as parties, they cannot be turned out.                                           [902 G-H; 903 A-B]      3. The  Collector, who  has to  effect partition  of an estate under  section 54 of the Code of Civil Procedure has, no doubt,  to divide  it, in accordance with the decree sent to him.  But if  a party  to such a decree dies leaving some heirs about  whose interest there is no dispute, he need not fold up his hands and return the papers to a civil court. He may proceed  to allot the share of tho deceased party to his heirs. Similarly,  he may,  when there  is no dispute, allot the share  of a deceased party in favour of his legatees. In the case of insolvency of a party, the official Receiver may be allotted  the share  of the  insolvent. In  the  case  of transferees, pendente lite also, if there is no dispute, the Collector may  proceed to make allotment of properties in an equitable manner  instead of  rejecting their claim for such equitable partition  on the  ground that  they have no locus standi. Such  a construction  of section  54 of  the Code of Civil Procedure advances the cause of justice. Otherwise, in every case  where a  party dies  or where  he transfers some interest in  the suit  property pendente lite the matter has

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got to  be referred  back to  the Civil  Court, even  though there may  be no dispute about the succession, devolution or transfer of  interest. In  any such  case, where there is no dispute if the Collector makes an equitable partition taking into consideration  the interests of all concerned including those on  whom  any  interest  in  the  subject  matter  has devolved, he would 900 neither be  violating the  decree nor transgressing any law. His action  would not  be ultra vires. On the other hand, it would be in conformity with the intention of the Legislature which has  placed the  work of partition of lands subject to payment of  assessment to  the Government in his hands to be carried out  "in accordance  with the  law (if  any) for the time being  in  force  relating  to  the  partition  or  the separate possession of shares". [903 B-C; F-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeals Nos. 3759- 3761 of 1982.      From the  judgment and  order dated the 26th June, 1980 of the  High Court of Bombay in S.C. Application No. 752/75, 951 and 953 of 1975.      P.H.  Parekh,  M.A.  Ram  and  Hemant  Sharma  for  the Petitioners      V.N. Ganpule for the Respondents.      The Judgment of the Court was delivered by      VENEATARAMIAH, J.  The Short question involved in these appeals by  special leave  is whether the transferees during the pendency  of a  suit for partition of parts of an estate assessed to  payment of land revenue to the Government which is the  subject matter  of the  suit have  locus  standi  to appear before  the Revenue  authorities in proceedings under section 54  of the  Code of  Civil Procedure  and ask for an equitable partition  of the  lands even  though they had not been impleaded as parties to the suit in the civil court.      Natu had  filed a  suit in  the year  1940 against  his nephew Laxman  for partition  of their joint family property and for  separate possession of his half share in it and had obtained a  decree for  it. Natu  and his four sons Shrawan, Nago, Digambar  and Vithal assigned on August 22, 1945 3/8th share in the decree obtained by them in favour of Prem Chand Patil. Prem  Chand Patil  filed Special Civil Suit No. 67 of 1950 on  the file  of  the  Civil  Judge,  Senior  Division, Jalgaon for  partition of  his 3/8th share in the decree. In that suit,  a decree  was passed  on  compromise.  The  said decree provided  that if the sons of Natu paid Rs. 30,000 on or before  March 1, 1958 then the decree holder would not be entitled to claim any partition and in default he should get possession of  the share  claimed by  him. The  sons of Natu failed to pay the amount of Rs. 30,000 as per decree and the result  was   that  Prem  Chand  Patil  became  entitled  to partition and separate possession of his share, 901 Prem Chand  Patil, however,  assigned his  rights under  the decree in  favour of  Vishnu Hari  Patil, respondent  No.  1 herein who  started execution  proceedings. Though  the said proceedings were  styled as execution proceedings, they were strictly final  decree proceedings  under section  54 of the Code of  Civil Procedure under which the lands in respect of which assessment  was payable  to the  Government had  to be divided by  the Collector  and the  parties had to be put in possession of their respective shares. The total area of the

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lands to  be divided  was in the order of 108 acres in which Vishnu Hari Patil had 3/8th share and the remaining land had to be allotted to the share of the sons of Natu.      It should  be stated  here that  five fields out of the lands which  were to  be divided  by the  Collector had been sold to  the appellants during the pendency of the partition suit. Four  of the  said fields  had been sold under private sales and  one field  in a  court auction  and they  were in possession of the respective purchasers during the partition proceedings under section 54 of the Code of Civil Procedure. The appellants  had acquired  title to  the said fields from the sons  of Natu  who were  parties to  the suit.  The said fields were  allotted by  the Collector  in favour of Vishnu Hari Patil  as part  of his  3/8th share  without giving any consideration  to  the  claims  of  the  appellants  for  an equitable partition.  The remaining 5/8th share was allotted in favour  of the  sons of  Natu who had no objection to the partition  effected   by  the   Collector.  The   appellants challenged the  validity of  the  partition  proceedings  in appeal before  the Commissioner,  Bombay. The  appeals  were dismissed on  the ground  that the  appellants had  no locus standi to ask for an equitable allotment under section 54 of the Code of Civil Procedure as their names did not figure in the decree.  The appeals  filed by the appellants before the State Government against the orders of the Commissioner were also dismissed.  The appellants,  thereafter filed petitions before the  High Court  of Bombay  under Article  226 of the Constitution questioning  the correctness  of the partition. Those petitions were also dismissed. These appeals are filed against the judgment of the High Court.      There is  no dispute  that each  of the  appellants had acquired certain  rights under  the sale deeds and the court auction referred  to above and were in possession of certain parts of  the estate  which  was  to  be  partitioned  under section 54  of the  Code of Civil Procedure. It is also true that their names had not been mentioned 902 in the decree which was sent for execution to the Collector. The  appellants   do  not   also  dispute  that  they  being purchasers pendente lite are bound by the proceedings in the suit by  virtue of  the provisions  of  section  52  of  the Transfer of  Property Act.  The only  prayer made by them is that since the sales in their favour were not in dispute and as they had acquired title under the parties to the suit and were also  in possession  of  the  fields  in  question  the Collector  should   have  considered  their  prayer  for  an equitable partition of the estate and, if possible, to allot the fields  in question  to the share of the sons of Natu so that they  could continue  to remain  in possession  of  the lands purchased by them. The appellants allege that the sons of Natu,  their transferors,  had colluded  with Vishnu Hari Patil, respondent  No. 1 and had accepted the partition made by the  Collector in  order to  cause prejudice to them. The sons of  Natu got  their 5/8th  share  of  the  property  in addition to  the price  paid by  the appellants for the five fields purchased  by them.  The appellants were not allotted any lands at the partition.      The question  for consideration  is  whether  the  High Court, the Government and the Revenue authorities were right in the  circumstances  of  the  case  in  holding  that  the appellants had  no locus  standi to  ask  for  an  equitable partition particularly  when the  sales  in  favour  of  the appellants were not in dispute.      Section 52  of the  Transfer of  Property Act  no doubt lays down  that a transferee pendente lite of an interest in

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an immovable  property which is the subject matter of a suit from any  of the parties to the suit will be bound in so far as that  interest is  concerned by  the proceedings  in  the suit. Such  a transferee  is a representative in interest of the party  from whom  he has acquired that interest. Rule 10 of  Order   22  of  the  Code  of  Civil  Procedure  clearly recognises the  right of  a transferee  to be impleaded as a party to the proceedings and to be heard before any order is made. It  may be  that if he does not apply to be impleaded, he may  suffer by  default on account of any order passed in the proceedings.  But if  he applies  to be  impleaded as  a party and  to be  heard, he  has got  to be so impleaded and heard. He can also prefer an appeal against an order made in the said  proceedings but  with the  leave of  the appellate court where  he  is  not  already  brought  on  record.  The position of  a person  on whom  any interest has devolved on account of  a transfer  during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee  of a party who dies during the pendency of a suit or a proceeding, or an official receiver who 903 takes over  the assets of such a party on his insolvency. An heir or  a legatee  or an  official receiver or a transferee can participate  in the  execution proceedings  even  though their  names   may  not  have  been  shown  in  the  decree, preliminary or  final. If  they apply  to the  court  to  be impleaded  as   parties  they  cannot  be  turned  out.  The Collector who  has to  effect partition  of an  estate under section 54  of the  Code of  Civil Procedure has no doubt to divide it  in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court ? He need not do so. He may proceed  to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the shares of a deceased party in favour of his legatees. In the case of  insolvency of a party, the official receiver may be allotted  the  share  of  the  insolvent.  In  the  case  of transferees pendente  lite also, if there is no dispute, the Collector may  proceed to make allotment of properties in an equitable manner  instead of  rejecting their claim for such equitable partition  on the  ground that  they have no locus standi. A transferee from a party of a property which is the subject matter  of partition  can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable  partition. A  transferee from  him, therefore, can also  do so.  Such a  construction of  section 54 of the Code of  Civil Procedure  advances  the  cause  of  justice. Otherwise in every case where a party dies, or where a party is adjudicated  as an  insolvent or  where he transfers some interest in  the suit  property pendente lite the matter has got to be referred back to the civil court even though there may be  no  dispute  about  the  succession,  devolution  or transfer of  interest. In  any such  case where  there is no dispute if the Collector makes an equitable partition taking into consideration  the interests of all concerned including those on  whom  any  interest  in  the  subject  matter  has devolved, he  would neither  be  violating  the  decree  nor transgressing any  law. His action would not be ultra vires. On the  other hand,  it would  be  in  conformity  with  the intention of  the Legislature  which has  placed the work of partition of  lands subject  to payment of assessment to the Government in  his hands  to be  carried out  ’in accordance with the  law (if  any) for the time being in force relating to the partition or the separate possession of shares’.

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    In view of the foregoing, the orders of the High Court, the State  Government and  the Commissioner holding that the appellants had  no locus  standi to  ask  the  Collector  to effect an equitable 904 partition have  got to be set aside and they are accordingly set aside.  The partition  effected by the Collector is also set aside.      The appeals  are accordingly  allowed and  the case  is remanded to  the Collector  to make  a fresh partition on an equitable basis  in  accordance  with  the  decree  and  the undisputed rights  of the  appellants referred to above. The Collector while effecting partition may consider whether the fields in  possession of  the appellants  may be allotted to the share  of the  sons of  Natu so  that the appellants may continue to remain in possession of their respective fields. Since the  suit  is  a  very  old  one,  the  Collector  may expeditiously complete  the  work  of  partition  preferably within six months from the date of receipt of a copy of this order. No costs. S.R.                                         Appeal allowed. 905