Case: Khemchand Shankar Choudharyand Another Vs. Vishnu Hari Patil And Others

2. Natu had tiled 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. 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 S.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 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.3. 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 S.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 Division, Bombay. The appeals were dismissed on the ground that the appellants had no Locus standi to ask for an equitable allotment under S.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 Art.226 of the Constitution questioning the correctness of the partition. The petitions were also dismissed. These appeals are filed against the judgment of the High Court4. 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 S.54 of the Code of Civil Procedure. It is also true that their names had not been mentioned 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 S.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.

Reasoning: 6. S.52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in 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. R.10 of O.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 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 S.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 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. 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 S.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.7. 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 partition have got to be set aside and they are accordingly set aside. The partition effected by the Collector is also set aside.