S.52 Transfer Of Property Act | Court Can Permit Party In Pending Partition Suit To Sell Its Share Of Land To Meet Medical Expenses: Patna HC

The Patna High Court recently ruled that if a party seeks to sell the land it is likely to receive after partition- to cover medical expenses for his daughter and himself, his request should be considered and not dismissed solely on the grounds that such a sale would be affected by Section 52 of the Transfer of Property Act.

Justice Arun Kumar Jha, who presided over the case, emphasized, “If the petitioner wants to sale the land which he is likely to get after partition to meet the expenses of treatment of his daughter as well as for himself, his prayer ought to be considered and should not have been rejected merely on the ground that such alienation would be hit by Section 52 of the Transfer of Property Act. Section 52 of the Transfer of Property Act does not bar complete transfer of land during pendency of the suit. The land could be transferred with leave of the court and permission for the same has been sought by the petitioner.”

The above ruling came in a petition filed under Article 227 of the Constitution of India, challenging a Sub Judge's order, which had denied the petitioner's request to sell a portion of land belonging to his share.

The respondents who were originally the plaintiffs, had filed a suit seeking allocation of a 7/36 share in the ancestral property. The petitioner had also claimed a 7/36 share of the suit property. In 2003, the petitioner had obtained court permission to sell a part of the property to fund his daughter's marriage, however, the sale was obstructed due to the actions of the respondents.

Now, the petitioner sought to sell two Bighas of his share to cover medical expenses for himself and his daughter. He had filed an application before the trial court for seeking permission to sell the land. However, the request for the same was denied by the Court, citing the prohibition under Section 52 of the Transfer of Property Act, 1882 which bars the transfer of property while a suit is pending.

While contending that the trial court's reasoning was flawed, the Counsel for the Petitioner pointed out that the same court had earlier allowed the petitioner's application, allowing him to sell two Bighas of his share of the land to cover the expenses of his daughter's wedding.

Furthermore, the counsel contended that the trial court failed to consider that the present case is a partition suit, where permission for the sale of the land should not have been denied. The court had earlier declined the plaintiffs' request for an injunction, stating that, as it was a partition suit, the parties' shares could be adjusted to account for the sale of their land.

The Court noted that the suit in question was a partition suit, with an admitted claim regarding the parties' respective shares.

The Court stated, “If the petitioner as well as the respondents are having equal share, which is not objected by any of the parties, forbidding the petitioner from executing the sale of a portion of his share for meeting his urgent expenses is certainly not proper considering the age of the petitioner and the facts as brought on record.”

“So, the learned trial erred in passing the order and there appears an apparent error of jurisdiction. It is also a fact that earlier the same prayer of the petitioner was allowed though the petitioner did not sell the land but considering the emergent situation, it is required that the application of the petitioner be allowed,” the Court concluded

Accordingly, the impugned order was set aside.

Case Title: Bijay Kumar Sarawagi v Sudhir Kumar Sarawagi & Anr.

Click Here To Read Judgement