The rights of a purchaser pendente lite and the liberal consideration of applications by such purchasers to protect their interests in property disputes.

I.P. Mukerji, J.

This is an application by an alleged purchaser of a premises no. 1, Upper Wood Street, Kolkata to be added as a party in the suit.

2. The facts are interesting.

3. One Nirod Chandra Basu Mullick by a Will dated 4th March 1932 followed by a Codicil dated 29th June 1942 devised the above property. He appointed an executor.

4. On 2nd January 1962 this executor ostensibly sold the property to the first defendant. On 22nd August 1977 the University of Calcutta obtained the Letters of Administration of the estate of Basu Mullick.

5. According to the University, they are the ultimate beneficiary or legatee under the Will, that the executor had no power to sell the property to the first defendant and that it was invalid.

6. The University instituted the present suit in 1979 claiming this declaration. Although 35 years have passed it is still pending.

7. Meanwhile on 16th February 2010 the first defendant sold the property to the present applicant, Syndicate Infrastructure Reality Private Limited. This property was transferred during pendency of the suit, without informing the Court. There is no dispute regarding this.

8. This kind of a purchaser is known as "purchaser pendentelite". The two authorities which were cited before me deal with the right of the purchaser pendendelite to be added as a party to the suit. The first case is Bibi Zubaida Khatoon v. Nabi Hassan Saheb with an analogous matter reported in AIR 2004 SC 173, cited by Mr. Pal for the University. The judgment in this case makes a difference between these two kinds of purchasers. One who has purchased with the leave of the Court and the other who purchased the property without the leave of the Court. The Hon'ble Court was of the opinion that one who had bought the property without the leave of the Court did not have an automatic right to be added as a party. Section 52 of the Transfer of Property Act clearly prohibited transfer of the property under dispute in a suit, by a party. Any person receiving the property on such transfer was subject to the doctrine of lis pendis and not a necessary or proper party.

9. Then came the decision of A. Nawab John & Others v. V. N. Subramaniyam reported in (2012) 7 SCC 738. In that decision it seemed that the Hon'ble Supreme Court did not make any difference between the two types of purchasers. Any purchaser of a property in dispute in a litigation was described as a "purchaser pendendelite". It opined that the rights of any purchaser pendentelite were subject to a decree to be passed in the suit. Any application by a purchaser pendendelite had to be considered liberally.

10. The reason - as I understand it - is that a pendentelite purchaser is entitled to protect his interest in case his vendor fails to protect it.

11. In that view of the matter, the applicant is entitled to protect its interest. This application succeeds. I pass an order in terms of prayer (b) of the Notice of Motion. Let the amendment be carried out as expeditiously as possible, preferably within three weeks from date.

12. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

Application is allowed.