Section 52 TP Act -Alienation Of Suit Property Pendente Lite Not Invalid; But It'll Be Subject To Rights Of Litigants : Supreme Court

The Supreme Court has observed that the principle of "lis pendens" is based on "justice, equity and good conscience" and the same will apply even in a case where the provisions of Section 52 of the Transfer of Property Act is not applicable in the strict sense.

A bench comprising Justices BR Gavai and CT Ravikumar explained that though the doctrine of "lis pendens" will not invalidate the sale transaction of a property which is the subject matter of the litigation during the pendency of the proceedings, such sale will not operate as against the successful party in the litigation.

The bench was deciding an appeal filed by the defendants in a suit against the decree of prohibitory and mandatory injunctions passed against them with respect to certain properties. The suit was filed by the plaintiffs based on possessory title. During the pendency of the suit, one of the defendants claimed that he purchased the property and sought to produce the sale deed by amending the pleadings. The High Court did not allow this course of action.

In appeal, the Supreme Court observed that the High Court was justified in doing so.

"Evidently, the High Court declined to act upon the same, in the light of the doctrine of lis pendens. Even if it is taken for granted that the provisions under Section 52 of the Transfer of Property Act are not applicable as such in the case on hand it cannot be disputed that the principle contained in the provision is applicable in the case on hand. It is a well-nigh settled position that wherever TP Act is not applicable, such principle in the  said provision of the said Act, which is based on justice, equity and good conscience is applicable in a given similar circumstance, like Court sale etc", the Top Court observed.

The judgment authored by Justice CT Ravikumar further said :

"Transfer of possession pendente lite will also be transfer of property within the meaning of Section 52 and, therefore, the import of Section 52 of the TP Act is that if there is any transfer of right in immovable property during the pendency of a suit such transfer will be non est in the eye of law if it will adversely affect the interest of the other party to the suit in the property concerned. We may hasten to add that the effect of Section 52 is that the right of the successful party in the litigation in regard to that property would not be affected by the alienation, but it does not mean that as against the transferor the transaction is invalid".

The bench noted that in the decision in Thomson Press (India) Ltd. v. Nanak Builders and Investors Private Limited , the Supreme Court held the provision of Section 52 pf the Transfer of Property Act, 1882, did not indeed annul the conveyance or the transfer otherwise, rendered it subservient to the rights of the parties to a litigation. The prohibition by application of the principles of the said doctrine would take its effect with the institution of the suit.

The bench further noted that the present suit was based on possessory title and the plaintiffs' claim was based on prior possession. Hence, the amendment sought by the defendants would have brought in new issues at the appellate stage. 

"Since the subject suit is based only on possessory title viz., on the basis of prior possession the finding and consequential rejection of the prayer for amendment of written statement to bring in the plea of purchase of the property pending the suit by the deceased second appellant cannot be said to be ground resulting in grave injustice", the bench noted.

Case Title : Shivashankara vs HP Vedavyasa Char

Citation : 2023 LiveLaw (SC) 261

Code of Civil Procedure 1908 - Order XLI Rule 23 - There can be no doubt with respect to the settled position that the Court to which the case is remanded has to comply with the order of remand and acting contrary to the order of remand is contrary to law. In other words, an order of remand has to be followed in its true spirit - Para 7

Code of Civil Procedure 1908 - Order VI Rule 17 -in dealing with prayers for amendment of the pleadings the Courts should avoid hyper technical approach. But at the same time, we should keep reminded of the position that the same cannot be granted on the mere request through an application for amendment of the written statement, especially at the appellate stage - Para 14

Transfer of Property Act 1882 - Section 52- Lis Pendens- It is a well-nigh settled position that wherever TP Act is not applicable, such principle in the said provision of the said Act, which is based on justice, equity and good conscience is applicable in a given similar circumstance, like Court sale etc-Transfer of possession pendente lite will also be transfer of property within the meaning of Section 52 and, therefore, the import of Section 52 of the TP Act is that if there is any transfer of right in immovable property during the pendency of a suit such transfer will be non est in the eye of law if it will adversely affect the interest of the other party to the suit in the property concerned. We may hasten to add that the effect of Section 52 is that the right of the successful party in the litigation in regard to that property would not be affected by the alienation, but it does not mean that as against the transferor the transaction is invalid - Para 16

Possessory Title- principle of “jus tertii”- ‘right of a third party-no defendant in an action of trespass can plead the ‘jus tertii’ that the right of possession outstanding in some third person-Para 28

Possessory Title - when the facts disclose no title in either party, at the relevant time, prior possession alone decides the right to possession of land in the assumed character of owner against all the world except against the rightful owner-‘Possessio contra omnes valet praeter eur cui ius sit possessionis’ (he that hath possession hath right against all but him that hath the very right)” - Para 30

Code of Civil Procedure 1908 - Order XXII Rule 2 CPC - Suit can't be held to be abated in the event of death of one of the defendants, when the estate/interest was being fully and substantially represented in the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives -In such cases, by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the defendants could not be heard to contend that the suit should stand abated on account of non-substitution of all the other legal representatives of the deceased defendant -Para 36

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