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1993 Supreme(Ori) 329
IN THE HIGH COURT OF ORISSA
G.B. Pattnaik, J.
HALADHAR MAJHI - APPELLANT
Versus
BALARAM MAJHI AND OTHERS - RESPONDENT
Second Appeal No. 146 of 1982
Decided On : 18-02-1993
M. Patra, for the Appellant; B. Patnaik, G.N. Mohanty and B.K. Panda, for the Respondent
The principle of lis pendens enshrined in Section 52 of the Transfer of Property Act applies to a suit for partition claiming relief of pre-emption enshrined in Section 4 of the Partition Act.
Headnote:
PARTITION ACT - SECTION 4 - TRANSFER OF PROPERTY ACT - SECTION 52 - LIS PENDENS - APPLICABILITY TO SUIT FOR PRE-EMPTION UNDER PARTITION ACT - RIGHT TO IMMOVABLE PROPERTY - RECONVEYANCE BY STRANGER PURCHASER AFTER SUIT FILED - EFFECT.
Fact of the Case:
Plaintiff filed a suit for partition and allotment of his one-fourth share and sought relief under Section 4 of the Partition Act to repurchase the undivided ancestral property from Defendant No. 8. Defendant No. 8, a stranger to the family, had purchased the undivided ancestral homestead property from Defendant No. 1. Defendant No. 8 later reconveyed the property to Defendant No. 1 after the suit was filed.
Finding of the Court:
The court held that the principle of lis pendens enshrined in Section 52 of the Transfer of Property Act applies to a suit for partition claiming relief of pre-emption enshrined in Section 4 of the Partition Act. The court reasoned that the right of pre-emption involves a right to the immovable property and that a subsequent reconveyance by the stranger purchaser after the suit is filed cannot defeat the plaintiff's right to repurchase the property.
Issues: Whether the principle of lis pendens applies to a suit claiming relief under Section 4 of the Partition Act.
Ratio Decidendi: The court relied on the decision of the Supreme Court in Deputy Commercial Tax Officer, Saidapet and Another Vs. Enfield India Ltd., Co-operative Canteen Ltd., which held that the rule of lis pendens is applicable to a suit to enforce the right of pre-emption. The court also relied on the decision of a learned Single Judge of the Orissa High Court in Sundari Bewa Vs. Ranka Behara and Others, which held that the transfer of interest of stranger-purchasers pendente lite cannot oust the jurisdiction of the court under Section 5 of the Partition Act.
Final Decision: The court allowed the second appeal, set aside the judgment and decree of the lower appellate court, and affirmed the judgment and decree of the trial court.
JUDGMENT :
G.B. Pattnaik, J. - Plaintiff is the appellant against a reversing judgment. Plaintiff filed the suit for partition and allotment of his one-fourth share and sought for relief u/s 4 of the Partition Act to re-purchase the undivided ancestral property from defendant No. 8 with respect to Schedule -Kha property. Plaintiff's case, in brief, is that plaintiff and defendants 1 to 7 are descendants of the common ancestor Banamaii and defendant No. 8 is a stranger to the family. Defendant No. 8 got a registered sale deed in respect of the undivided ancestral homestead property from defendant No. 1 on 14-2-1978 in respect of Schedule-Khar property of the plaint which comprises of a part of the residential house and the tank appurtenant thereto and the plaintiff is entitled to protection of Section 4 of the Partition Act.
2. The defendants contested the suit challenging the share- claimed by the plaintiff and it was further contended that though defendant No. 1 had sold his share of homestead to defendant No. 8 on 14-2-1978, but defendant No. 8 had re-conveyed the same in favour of defendant No. 1 on 21-4-1978 on receiving the consideration money of Rs. 2,000/- and, therefore, the plaintiff is not entitled to the protection of Section 4 of the Partition Act.
3. The learned trial Judge framed several issues of which the most crucial issue is whether in view of the reconveyance made by defendant No 8 in favour of defendant No. 1, the relief u/s 4 of the Partition Act can at all be given to the plaintiff. This in turn makes it obligatory to decide whether the principle o1 lis pendens would be applicable in respept of the rights of the parties u/s 4 of the Partition Act. So far as the share of the plaintiff is concerned, there is no controversy between the parties, the same having been determined at one-sixth. The learned trial Judge on the crucial issue in question came to the conclusion that the right of pre-emption has to be worked out at the time of filing of the suit and the subsequent re-conveyance by defendant No. 8 in favour of defendant No. 1 will not effect that right of the plaintiff so as to defeat his claim of re-purchase u/s 4 of the Partition Act. He further held that the subsequent re-conveyance is hit by Section 52 of the Transfer of Property Act. On this conclusion, the suit having been decreed, defendant No. 1 carried the matter in appeal.
4. The lower appellate Court on considering the question as to whether the principle of lis pendens would apply to a suit claiming relief u/s 4 of the Partition Act, came to hold that the said principle will be of no application, since the transfer in question does not relate to any immovable property directly or specifically in question. In other words, according to the lower appellate Court since specific property is not in issue, but an undivided share in the joint family, the principle of Iis pendens will not be applicable. The lower appellate Court further held that by virtue of reconveyance, the stranger purchaser walks out having no interest in the suit property and, therefore, the trial Court's decree directing defendant No. 1, a member of the family, to execute a sale deed in favour of the plaintiff, is on the face of it absurd and hence the present second appeal.
5. The only question that arises for consideration in the present second appeal is whether a suit claiming relief u/s 4 of the Partition Act can be said to involve a right to a specific immovable property and, therefore, would be governed by Section 52 of the Transfer of Property Act, or not. There is no manner of doubt that the subsequent reconveyance by defendant No. 8 made in favour of defendant No. \ was much after the filing of the suit. Mr. Patnaik appearing for the respondent No. 1 argues with vehemence that a suit for pre-emption enshrined in Section 4 of the Partition Act does not involve a right to any specific immovable property and, therefore, the provision of Section 52 of the Transfer of Property
