T.G.Ashok Kumar vs Govindammal & Anr

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 4 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. 5

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 6 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 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.

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, 1 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.

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.