Under Section 52 of the Transfer of Property Act, 1882, the ‘lis’ continues so long as a final decree or order has not been obtained from the Court #indianlaws
Under Section 52 of the Transfer of Property Act, 1882, the ‘lis’ continues so long as a final decree or order has not been obtained from the Court. Even after the dismissal of a suit a purchaser is subject to “lis pendens”, if an appeal is afterwards filed.’ If after the dismissal of a suit and before an appeal is presented, the ‘lis’ continues so as to prevent the Defendant from transferring the property to the prejudice of the Plaintiff.
The case relates to partition of property between Ms. Kirpal Kaur and her deceased husband’s family. During the pendency of the proceedings and before the expiry of the period of limitation for filing SLP, a gift deed was executed by the deceased-first Defendant(plaintiff’s father-in-law) in favour of the second Defendant. The execution of the alleged gift deed by the deceased-first Defendant in favour of the second Defendant is contended, to be hit by Section 52 of the Transfer of Property Act, 1882, as the said deed was executed during the pendency of the proceedings and before the expiry of the period of limitation for filing SLP.
The legality of the alleged gift deed executed in favour of the second Defendant by the deceased-first Defendant in respect of the schedule ‘B’ property was examined by Supreme Court and the same was found hit by Section 52 of the of the Transfer of Property Act, 1882, in the light of the decision of this Court in the case of Jagan Singh v. Dhanwanti MANU/SC/0046/2012 : (2012) 2 SCC 628, wherein this Court has laid down the legal principle that under Section 52 of the Transfer of Property Act, 1882, the ‘lis’ continues so long as a final decree or order has not been obtained from the Court and a complete satisfaction thereof has not been rendered to the aggrieved party contesting the civil suit. It has been further held by this Court that it would be plainly impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail. The broad principle underlying Section 52 of the TP Act is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed, as held in Krishanaji Pandharinath v. Anusayabai.
Even after the dismissal of a suit a purchaser is subject to “lis pendens”, if an appeal is afterwards filed.’ If after the dismissal of a suit and before an appeal is presented, the ‘lis’ continues so as to prevent the Defendant from transferring the property to the prejudice of the Plaintiff, I fail to see any reason for holding that between the date of dismissal of the suit under Order 9 Rule 2 of the Code of Civil Procedure and the date of its restoration, the ‘lis’ does not continue.
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 a 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.
The physical possession of the entire suit property could not have been given to the second Defendant in the light of the undisputed fact that the physical possession of the second floor of the schedule ‘B’ property is with the Plaintiff. Further, the Plaintiff is in the possession of the second floor in her independent right of her husband’s share after they separated from the family. Therefore, the alleged gift deed executed by the deceased-first Defendant in favour of the second Defendant during the pendency of the proceedings with respect to the suit schedule ‘B’ property is not legally correct as it is the joint family property and even otherwise the same cannot be acted upon by the parties.
The Plaintiff must succeed for one more alternate reason viz. that the deceased-first Defendant died during the pendency of the proceedings and therefore, Section 8 of the Hindu Succession Act, 1956, will come into operation in respect of the suit schedule ‘B’ property even if it is considered that the said property is a self acquired property of the deceased-first Defendant.
Section 8 of the Hindu Succession Act, 1956, would come into operation in respect of the above said property. The said property of the deceased-first Defendant would devolve upon the deceased husband of the Plaintiff along with the second Defendant and the other daughters of the deceased-first Defendant as they are the joint owners of the said property by virtue of being Class I legal heirs of the deceased-first Defendant as per the schedule to the Hindu Succession Act, 1956, upon the death of the first Defendant. For this reason also, the Plaintiff is entitled for 1/4th share in the suit schedule “B” property.
For the reasons stated above, the Court allowed the civil appeal and assigned equally 1/4th share to the Plaintiff and each one of the Defendants in the suit property.