Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10325 OF 2010 [Arising out of SLP [C] No. 163 of 2010]

T.G. Ashok Kumar … Appellant

Vs.

Govindammal & Anr. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Notice to respondents was issued limited to the question whether the  

High Court ought to have decreed the appellant’s suit for declaration and  

consequential injunction at least in respect of the portion of the suit property  

which was allotted to the share of second respondent in the earlier partition  

suit  filed by the first  respondent.  Leave is  granted only in regard to that  

question.  

2. The appellant was the plaintiff in a suit for declaration of title and  

permanent injunction in regard to the suit property, that is, a plot measuring  

East to West : 49 feet and north south 81 feet,  total extent of 3969 sq.ft

(forming part  of  Natham Survey No.  178 (New No.  137-138)  of  a  total  

extent of 4 acres 25 cents situated at Kakkalur Village, Tiruvallur Taluk and  

District). The appellant filed the said suit in the year 2000 in the court of  

Subordinate  Judge,  Thiruvallur  (OS No.68/2000) subsequently transferred  

and renumbered as OS No. 138 of 2004 on the file of the District Munsiff,  

Thiruvallur.  

3. The case of appellant in brief is as under: that the suit property was  

purchased by the second respondent under sale deed dated 4.3.1957; that she  

was in possession and enjoyment of the suit property as absolute owner and  

had mortgaged it in favour of  appellant’s sister (T.N. Latha) on 30.6.1983;  

that second respondent sold the suit property in favour of the appellant under  

sale  deed  dated  11.4.1990  and  delivered  possession  thereof  to  him  in  

pursuance of the sale; that though the suit  property was the self acquired  

property  of  the  second respondent,  the  first  respondent  who is  her  step-

daughter,  filed  a  collusive  suit  against  the  second respondent  in  OS No.  

8/1985 on the file of the Sub-ordinate Judge, Thiruvallur alleging that the  

suit property and several other properties belonged to her father Ekambara  

Reddy and that she and second respondent had each an half share in those  

properties; that the appellant is a bona fide purchaser of the suit property  

from second respondent and he was unaware of the pendency of the said suit  

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for partition in O.S. No.8/1985; that subsequently the said suit for partition  

filed  by  the  first  respondent  was  decreed  vide  preliminary  decree  dated  

17.3.1994 holding that the first respondent was entitled to half share in the  

properties described as Items 1 to 6 in the partition suit  schedule (which  

included  the  suit  property  (as  Item  No.6);  that  in  the  final  decree  

proceedings, a Commissioner was appointed to divide the properties; that on  

the  basis  of  the  Commissioner’s  report,  a  final  decree  was  passed  on  

7.4.2000 dividing the properties; that on account of collusion between first  

and second respondents, the Commissioner’s report divided the suit property  

in a manner that nearly three fourth portion of the suit property was allotted  

to the share of the first respondent and only about a one-fourth portion was  

allotted to the share of the second respondent; and that adversely affected his  

right and title to the suit property and therefore it became necessary for him  

to file a suit for declaration of his right and title to the suit property with a  

consequential permanent injunction.

4. The first respondent resisted the suit contending that the appellant had  

purchased the suit property during the pendency of her suit for partition and  

that being a purchaser  pendente lite, the sale in his favour was hit by the  

doctrine of lis pendens and therefore he could not claim any right in the suit  

property.  She  asserted  that  the  suit  property  was  not  the  self-acquired  

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property of the second respondent, and that the suit property was purchased  

by her father in the name of the second respondent. She denied that there  

was  any  collusion  between  her  and  the  second  respondent.  The  second  

respondent did not contest the suit.

5. The trial court by judgment dated 6.7.2005 dismissed the appellant’s  

suit.  It  held  that  the  suit  property  was  not  the  self  acquired  property  of  

second respondent and that there was no collusion between first and second  

respondents; and that the appellant having purchased the suit property under  

sale  dated  11.4.1990  during  the  pendency  of  the  suit  for  partition  (OS  

No.8/1985) filed by the first respondent against the second respondent, the  

sale in his favour was hit by the doctrine of lis pendens and that therefore the  

appellant did not get any title to the suit property and he was not entitled to  

the relief of declaration and injunction sought by him. The appeal filed by  

the appellant  was dismissed by the first  appellate  court  by judgment and  

decree  dated  26.3.2008.  The  second  appeal  filed  by  the  appellant  was  

dismissed by the High Court by the impugned judgment dated 1.9.2009 by  

holding that appellant was a pendente lite purchaser, attracting the doctrine  

of lis pendens under Section 52 of Transfer of Property Act, 1882 (‘Act’ for  

short) and therefore the courts below were justified in ignoring the purchase  

by appellant.  Feeling aggrieved the appellant filed the present appeal.  

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6. The partition suit was decreed holding that the first respondent was  

entitled to half share in the six properties which were the subject matter of  

partition suit including the suit property. In the final decree proceedings, an  

equitable division was made accepting the report of the Commissioner who  

had  divided  the  suit  property  as  per  the  sketch  (Ex.  C-5)  resulting  in  

approximately three-fourth of the suit property (vacant site portion) being  

allotted to the first respondent and only the remaining one-fourth of the suit  

property (site with house thereon) being allotted to the second respondent.  

The contention of the appellant that the partition suit by the first respondent  

against the second respondent was collusive, and that the suit property was  

the self acquired property of the second respondent and the first respondent  

did  not  have  a  share  therein,  have  been  concurrently  negatived.  The  

alternative contention of the appellant that even if the first respondent had a  

half share therein, the division and allotment of the properties in the partition  

suit ought to have been made in a manner that the entire suit property was  

allotted to the share of second respondent to work out equities,  was also  

negatived by the courts below.  

7. As per  the  Report  of  Commissioner,  schedule  Items 1  to  5  in  the  

partition suit were agricultural lands in all measuring 44 cents (less than half  

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an  acre)  and  they  were  divided  equally  by  allotting  22  cents  to  first  

respondent and 22 cents to second respondent. Item No.6 was a house site  

with a house in the north western portion. As per the Commissioner’s sketch  

(Ex.C-5), it measured East to West, 48’3” on the northern side and 53’3” on  

the southern side and North to South : 53’9” on the eastern side and 60’3”  

on the western side. The entire plot was shown by the letters ‘A, B, C, D, E,  

F, G, H, A’ and as per the final decree based on the Commissioner’s report,  

the North Western portion shown by the letters A, B, I, H, A measuring East  

to West: 24’ on the north and 24’9” on the south, and North to South : 28’9”  

on the east and 29’ on the west with the house thereon (measuring 16’ x  

27’3”)  was allotted to the share of the second respondent; and the entire  

remaining portion which was of an inverted L shape shown by the letters B,  

C, D, E, F, G, H, I, B was allotted to the share of the first respondent.  As  

Items 1 to 5 in the partition suit schedule were small agricultural lands, they  

were equally divided and it was not possible to allot Item No.6 in entirety to  

the second respondent.  

8. The  trial  court,  first  appellate  court  and  the  High  Court  on  

appreciating the evidence have held that the partition suit was not collusive.  

There was a valid reason for a larger portion of Item No.6 being allotted to  

first respondent, as the portion allotted to the second respondent had a house  

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therein and to equalize the value, a larger portion (vacant plot) was allotted  

to first respondent. Therefore this court found no reason to interfere on that  

score and issued notice in the special leave petition restricted to the question  

whether the appellant should have been granted a decree at least in regard to  

the one-fourth portion in the suit property that was allotted to the second  

respondent instead of non-suiting him in entirety. That limited issue alone  

arises for our consideration.

9. Section  52  dealing  with  lis  pendens is  relevant  and it  is  extracted  

below :

“Transfer of  property pending suit  relating thereto.—During  the pendency in any Court  having authority within the limits of  India excluding the State of Jammu and Kashmir  or established  beyond  such  limits  by  the  Central  Government  of  any  suit  or  proceeding  which  is  not  collusive  and  in  which  any  right  of  immovable  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.”     x x x x x x  

In Jayaram Mudaliar v. Ayyaswami (AIR 1973 SC 569) this court held that  

the purpose of Section 52 of the 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. This court in  Hardev  

Singh v. Gurmail Singh (2007) 2 SCC 404 held that Section 52 of the Act  

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does not declare a  pendente lite transfer by a party to the suit as void or  

illegal, but only makes the pendente lite purchaser bound by the decision in  

the pending litigation.  

10. The principle underlying Section 52 is clear. If during the pendency of  

any suit in a court of competent jurisdiction which is not collusive, in which  

any right of an immovable property is directly and specifically in question,  

such property cannot be transferred by any party to the suit so as to affect the  

rights of any other party to the suit under any decree that may be made in  

such suit. If ultimately the title of the  pendente lite transferor is upheld in  

regard to the transferred property, the transferee’s title will not be affected.  

On the other hand, if the title of the pendente lite transferor is recognized or  

accepted  only  in  regard  to  a  part  of  the  transferred  property,  then  the  

transferee’s title will be saved only in regard to that extent and the transfer in  

regard  to  the  remaining  portion  of  the  transferred  property  to  which  the  

transferor is found not entitled, will be invalid and the transferee will not get  

any right, title or interest in that portion. If the property transferred pendente  

lite, is allotted in entirely to some other party or parties or if the transferor is  

held to have no right or title in that property, the transferee will not have any  

title to the property. Where a co-owner alienates a property or a portion of a  

property representing to be the absolute owner,  equities can no doubt be  

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adjusted while making the division during the final decree proceedings, if  

feasible  and  practical  (that  is  without  causing  loss  or  hardship  or  

inconvenience to other parties) by allotting the property or portion of the  

property transferred pendente lite, to the share of the transferor, so that the  

bonafide transferee’s right and title are saved fully or partially.

11. In this case, a suit for partition filed by the first respondent against the  

second respondent in the year 1985 which included the suit property, was  

pending  in  a  court  of  competent  jurisdiction  as  on  the  date  of  sale  

(11.4.1990)  by  the  second  respondent  in  favour  of  the  appellant.  The  

partition suit was not collusive. Having regard to Section 52 of the Act, the  

sale by the second respondent in favour of the appellant did not in any way  

affect the right of the first respondent (plaintiff in the partition suit) or the  

decree made in her favour in the said partition suit. It is thus evident that the  

sale by second respondent in favour of the appellant though not void, did not  

bind the first respondent who was the plaintiff in the partition suit. On the  

other hand, the sale in favour of appellant was subject to the right declared  

or  recognized  in  favour  of  the  first  respondent-plaintiff  under  the  decree  

passed in the pending partition suit. The sale  pendente lite would therefore  

be subject to the decree in the partition suit. In the final decree passed in the  

partition suit, the major portion of the suit property shown by the letters B,  

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C, D, E, F, G, H, I, B in the Commissioner’s sketch (Ex.C-5) was allotted to  

the share of the first respondent and to that extent, the sale in favour of the  

appellant would be ineffective. But in regard to the remaining portion of the  

suit property namely the portion shown by the letters A, B, I, H, A in the  

Commissioner’s  sketch (Ex.C-5)  which stood allotted  to  the  share of  the  

second respondent in the final decree in the partition suit, the sale by the  

second respondent in favour of the appellant is effective, valid and binding  

on the second respondent and to that extent, the appellant is entitled to a  

declaration of title and consequential injunction.  

12. We are  therefore  of  the  view that  the suit  ought not  to have been  

dismissed in entirety even if the sale by the second respondent in favour of  

appellant on 11.4.1990 was hit by the doctrine of  lis pendens.  The second  

respondent cannot avoid the sale made by her on the ground that she was  

held to be not the exclusive owner, in the pending partition suit. Therefore  

the courts below ought to have decreed the appellant’s suit in part, in regard  

to the portion of the suit property that fell to the share of second respondent  

instead of dismissing the suit.  

A related suggestion to the Law makers  

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13. It is necessary to refer to the hardship, loss, anxiety and unnecessary  

litigation  caused  on  account  of  absence  of  a  mechanism for  prospective  

purchasers to verify whether a property is subject to any pending suit or a  

decree or attachment. At present, a prospective purchaser can easily find out  

about any existing encumbrance over a property either by inspection of the  

Registration Registers or by securing a certificate relating to encumbrances  

(that is copies of entries in the Registration Registers) from the jurisdictional  

Sub-Registrar  under  Section  57  of  the  Registration  Act,  1908.  But  a  

prospective purchaser has no way of ascertaining whether there  is any suit  

or proceeding pending in respect of the property, if the person offering the  

property  for  sale  does  not  disclose  it  or  deliberately  suppresses  the  

information. As a result, after parting with the consideration (which is many  

a time the life time savings), the purchaser gets a shock of his life when he  

comes to know that the property purchased by him is subject to litigation,  

and that it  may drag on for decades and ultimately deny him title to the  

property. The pendente lite purchaser will have to wait for the litigation to  

come to an end or he may have to take over the responsibility of conducting  

the litigation if the transferor loses interest after the sale. The purchaser may  

also  face  objections  to  his  being  impleaded  as  a  party  to  the  pending  

litigation  on  the  ground  that  being  a  lis  pendens purchaser,  he  is  not  a  

necessary party. All these inconveniences, risks, hardships and misery could  

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be avoided and the property litigations could be reduced to a considerable  

extent,  if  there  is  some  satisfactory  and  reliable  method  by  which  a  

prospective purchaser can ascertain whether any suit is pending (or whether  

the property is subject  to any decree or attachment)  before he decides to  

purchase the property.   

14. It is of some interest that a solution has been found to this problem in  

the States of Maharashtra by an appropriate local amendment to section 52  

of  the  Act,  by  Bombay Act  4  of  1939.  Section  52,  as  applicable  in  the  

Maharashtra and Gujarat, reads thus (the amendment is shown in italics):  

“52. (1)  During  the  pendency  in  any  court  having  authority  within  the  limits  of  India  excluding  the  State  of  Jammu  and  Kashmir  established  beyond  such  limits  by  the  Central  Government, of any suit or proceeding which is not collusive and  in  which  any  right  to  immoveable  property  is  directly  and  specifically in question, if a notice of the pendency of such suit or   proceeding  is  registered  under  section  18  of  the  Indian   Registration  Act,  1908,  the  property  after  the  notice  is  so   registered  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.

(2) Every notice of pendency of a suit or proceeding referred  to  in  sub-section  (1)  shall  contain  the  following  particulars,   namely:- (a) the  name  and  address  of  the  owner  of  immoveable   

property or other person whose right to the immoveable   property in question;

(b) the  description of  the  immoveable  property  the right  to   which is in question;

(c) the court in which the suit or proceeding is pending; (d) the nature and title of the suit or proceeding; and  

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(e) the date on which the suit or proceeding was instituted.

x x x x         x x x x         x x x x  

We  hope  that  the  Law  Commission  and  the  Parliament  considers  such  

amendment or other suitable amendment to cover the existing void in title  

verification  or  due diligence procedures.  Provision can also  be  made for  

compulsory registration of such notices in respect of decrees and in regard to  

attachments of immoveable properties.  

15. We may also refer to another related area where registration should be  

made compulsory to reduce property litigation.  At present in most of the  

states,  agreements  to sell  are not  compulsorily registrable  as  they do not  

involve transfer  of any right,  title  or  interest  in an immoveable  property.  

Unscrupulous property owners enter into agreements of sale and take huge  

earnest  money  deposits/advances,  and  then  sell  the  property  to  others  

thereby plunging the original agreement holder and the subsequent purchaser  

into litigation. Registration of agreements of sale will reduce such litigation.  

It will also assist in putting an end to the prevalent practice of entering into  

agreements of sale showing the real consideration and then registering the  

sale deed for only a part of the real consideration. If all agreements of sale  

are compulsorily registered, that will go a long way to discourage generation  

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and circulation of black money in real estate matters, as also undervaluation  

of documents for purposes of stamp duty. It will also discourage the growth  

of land mafia and muscleman who dominate the real estate scene in various  

parts of the country. Prevention of a malaise, is always better than allowing a  

malaise to develop and then trying to cure it. Be that as it may.

Conclusion

16. We accordingly allow this appeal in part and set aside that part of the  

judgment of the High Court holding that the appellant-plaintiff is not entitled  

to any relief. Instead, the suit is decreed in part and declaration of title with  

consequential  permanent injunction as prayed is granted in regard to that  

portion of the suit property that was allotted to the second respondent in the  

partition  suit,  that  is  portion  shown  as  A,  B,  I,  H,  A  in  Ex.C-5  

(Commissioner’s sketch) in O.S.No.8/1985. Parties to bear their respective  

costs.

…………………………….J. (R V Raveendran)

New Delhi; …………………………..J. December 8, 2010. (A K Patnaik)            

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