Post-preliminary decree share transfers in partition suits valid, not barred by lis pendens under Section 52 TPA; assignees entitled in final decree.

JUDGMENT

This appeal raises a peculiar question. In a preliminary decree for partition, the 7^th respondent herein was allotted 1/4^th share in the plaint schedule property in O.S. No. 94 of 1998 of Sub Court, Neyyattinkara. Pending the issuance of final decree, it appears that the property was acquired by the Government. There was a clamour for receipt of compensation among the sharers. Subsequently, the 7^th respondent in the final decree proceedings and the 2^nd defendant in the suit, who is the mother of the 2^nd appellant sold the property to the 1^st appellant herein. The 1^st appellant sought to implead himself in FDA No. 1598 of 2008 and was impleaded as the 17th respondent. The 17th respondent raised a plea that the shares liable to be allotted in favour of the 2^nd defendant in the suit who was impleaded as the 7^th respondent in the final decree proceedings be assigned in his favour. Other contentions were also raised claiming a larger right over the properties. In support of his claim, two registered sale deeds were relied upon.

1.1. The Sub Court, Neyyattinkara, on the basis of the report of the Advocate Commissioner ignored the claim of the appellants and allotted the property back to the legal heir of the deceased 2^nd defendant who was impleaded as the 7^th respondent in the final decree proceedings. The contention of the appellants that they are entitled to assignment of shares allotted in favour of the original defendant was not acceded to. Aggrieved, the appellants preferred A.S. No. 36 of 2021. The Addl. District Court – III, Thiruvananthapuram concurred with the findings of the Trial Court and dismissed the appeal and hence the present appeal.

2. On 04.01.2023, this Court admitted the appeal on the following substantial questions of law;

“(a) Whether the finding of the court below that Ext.B3 partition deed based on Ext.B1 Will is an inoperative document is legal and proper?

(b) Whether the finding that the parties to preliminary decree alone will be entitled to get allotment of their respective shares in a final decree proceedings irrespective of release deed/sale deed/partition deed executed by co-sharers and those deed will not have any bearing on the allotment of sharers in the final decree proceedings is based on sound principles of law?

(c) Whether the judgment and decree passed by the court below is perverse due to misappreciation of evidence?”

3. Heard Sri. R. Lakshmi Narayan, the learned Senior Counsel appearing for the appellants and Smt. Lakshmi Rani, the learned Counsel appearing for respondents 1 and 2 and Sri. V. G. Arun, the learned Counsel appearing for respondents 13 and 14.

4. The learned Senior Counsel for the appellants, placing reliance on the decision of the Supreme Court in Yogesh Goyanka V. Govind [2024 (4) KLT 730 (SC)] and also in Maddineni Koteswara Rao v Maddineni Bhaskara Rao & Another [2009 (13) SCC 179] contended that the transfer of the property made during the pendency of allotment of shares in a final decree proceedings is not hit by Section 52 of the Transfer of Properties Act, 1882. If after passing of preliminary decree, respective sharer assigned his right in favour of a third person, then in the final decree proceedings, the subsequent assignee is entitled to hold the property to the extent of shares allotted to the sharer in the preliminary decree. This aspect has been completely lost sight by the Courts below while allotting the final share in the final decree proceedings.

5. Per contra, Smt. Lakshmi Rani, the learned Counsel appearing for respondents 1 and 2 contended that if as contended by the Senior Counsel for the appellants, the appellants are confining their claim to whatever share which