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2025 Supreme(Online)(KER) 12166
HIGH COURT OF KERALA
SYAM KUMAR V.M., J
LAILA – Appellant
Versus
GEORGE BENSON – Respondent
FAO 75/2019
NAVEEN THOMAS, SRI.ANSU VARGHESE, SRI.M.P.RAMNATH, R1, SRI.P.RAJESH (KOTTAKKAL), SEI.M.VARGHESE VARGHESE, SRI.SEBASTIAN K.JOSE, SMT.S.SANDHYA, SRI.BEPIN PAUL, SRI.SHALU VARGHESE, SRI.S.DEEPAK, SRI.ANTONY THARIAN, A.BALAGOPALAN, ADDL. R7 & R8, A.RAJAGOPALAN, ADDL. R7 & R8, M.N.MANMADAN, M.S.IMTHIYAZ AHAMMED, P.SEENA
The doctrine of feeding the grant by estoppel allows a third party purchaser to be included in final decree proceedings of a partition suit, ensuring equitable treatment of all parties.
Headnote:(A) Transfer of Property Act - Section 43 - Doctrine of lis pendens - The court examined whether a third party purchaser could be impleaded in final decree proceedings of a partition suit. The District Judge allowed the impleadment based on the principle of feeding the grant by estoppel. (Paras 2, 5, 6, 7)
(B) Co-ownership - The court reiterated that until joint status is severed, co-owners are entitled to the entire property, and assignments can only be made to the extent of undivided shares. (Paras 7, 8)
Facts of the case:
The appeal challenged the setting aside of a final decree in a partition suit, where a third party purchaser sought to be included in the proceedings to claim property based on a sale deed.
Findings of Court:
The District Judge's decision to allow the third party purchaser to participate in the final decree proceedings was upheld, ensuring equitable treatment of all parties involved.
Issues: The main issue was whether the District Judge erred in allowing a third party purchaser to be impleaded in the final decree proceedings.
Ratio Decidendi: The court found that the doctrine of feeding the grant by estoppel justified the inclusion of the third party purchaser in the proceedings, as the assignment was acknowledged by the Advocate Commissioner.
Result: F.A.O. is dismissed.
JUDGMENT
Dated this the 02nd day of April, 2025
This F.A.O. is filed challenging the judgment and decree in A.S.No.156 of 2016 dated 21.07.2018 of the I Additiona l District Court, Ernakulam and seeking to confirm the final decree and order dated 08.04.2015 of the I Additional Sub Court, Ernakulam, in I.A.No.5626 of 2007 in O.S.No.65 of 1999. Appellant herein was the 1st respondent in the A.S. and plaintiff in the O.S. The 1st respondent was the appellant (3rd party) in the A.S. (hereinafter referred to as the 3rd party purchaser). The other respondents were the respondents in the A.S. and defendants in the O.S. (hereafter referred to as per their status in the O.S.).
2. The question to be considered in this appeal is whether the I Additional District Judge erred in setting side the final decree passed by the learned Sub Judge in a partition suit permitting a third party purchaser to get impleaded in the final decree proceedings, so as to seek allotment of property to the share of his assignors.
3. O.S.No.65 of 1999 was filed by Laila Thomas, a daughter of Koikkara Luka and his wife Kochuthressia (who had five children - a son and four daughters) seeking partition of the property owned by her parents having an extent of 1.21 acres situated in Kanayannur Taluk. The suit was decreed and a preliminary decree of partition was passed. In A.S.No.212 of 2003 filed challenging the preliminary decree, the District Court made some alterations in shares to accommodate a testamentary disposition by the mother Kochuthressia in favour of her son Santhosh and his wife. Subsequently based on the Commissioner's report, a final decree was rendered by the Sub Court. It is at that stage, the 3rd party purchaser, who claimed title from Kochuthressia (mother), Santhosh (son) and Leelamma (daughter) filed an appeal after seeking special leave contending that the Advocate Commissioner, who had knowledge about the assignment in his favour, had chosen to ignore the same though he had accepted and acted upon similar dispositions in favour of third parties. He thus sought setting aside of the final decree and remanding the matter back for affording him an opportunity to implead in the final decree proceedings and seek allotment of property based on the relevant sale deed as regards the shares of his assigned. The said prayer was allowed by the District Judge and the said order is impugned before me in this F.A.O.
4. Heard Sri.Naveen Thomas, Advocate for the appellant (Plaintiff), Sri.M.P.Ramanth, Advocate for the 1st respondent (3rd party purchaser) and Sri.A.Balagopalan Advocate for R7 and R8.
5. The learned counsel for the appellant assails the judgment placing reliance on the dictum laid down by the Hon’ble Supreme Court in Ravi T. and another v. B.Chinna Narasimha and others [2017 KHC 6209] wherein, in the context of doctrine of lis pendens, it was held that transferee of a property pendente lite would be bound by the decree as much as if he were a party to the suit and that where a co sharer of property had sold the property to a third party, the purchaser pendente lite is bound by the preliminary decree with respect to the shares so determined and that the same cannot be reopened. The purchaser would be entitled to the specific share of his vendor only and cannot claim the entire property.
6. Per Contra, Sri.M.P.Ramnath, Advocate for the 1st respondent, contended that the judgment of the District Court was valid and proper and that the learned Judge was only following the trite and settled law. He contends that transferees are entitled to protection of Section 43 of the Transfer of Property Act which substantially amounts to satisfying the equitable principle of feeding the grant by estoppel. He placed reliance on the dictum laid down in Brahmvart Sanathan Dharam Mahamandal, Kanpur and others v. Prem Kumar and others [1985 KHC 659] and seeks to augment the said proposition further by pointing to the judgments rendered by this Court inMichael v. Victor an
