IMPORTANT POINTS
Decision leading to preliminary decree regarding sale being made during lis pendens attaining finality. Operating as res judicata in final decree proceedings.
Mohammadan law not containing any rule as to lis pendens. Hence, held, section 52 applies.
Doctrine of lis pendens applies to applications including one u/O IX, R. 9, CPC. It would also be applicable even to the proceedings in the nature of an appeal.
Sale deed executed during lis pendens is not void, but would be valid to the extent of vendor’s share.
When shares are decided by preliminary decree and a person purchases property during lis pendens, purchaser pendente lite would be bound by the preliminary decree and outcome of the suit. Hence filing of suit for cancellation of sale deed not required.
Section 52 of TP Act negates the very plea of adverse possession.
Legal representatives and heirs in Muhammadan law are tenants in common and not joint tenants.
When law and equity cannot be harmonised, law will prevail over the equity principle.
Sale deed executed neither for legal necessity nor in fiduciary capacity is not binding on co-sharers.
SLP dismissed by reasoned order has relevance.

Headnote:(a) Property law – Partition suit filed in 1935 for partition of ancestral property among three brothers and their LRs – One brother selling property in 1959 – Preliminary decree in partition suit drawn in 1970 – Courts below holding sale to be during lis pendens – Rejecting plea for perpetual injunction based upon the sale deed – Giving liberty to petitioners to work out their remedy to the extent of share of their vendor – Decision regarding sale being made during lis pendens attaining finality – Operating as res judicata – Not open to question in the present proceedings – Section 11, Code of civil procedure, 1908. (Para 18, 19, 22)
       (2000) 3 SCC 350; (2008) 4 SCC 594 – Relied upon
       (2007) 11 SCC 410 – Referred
       (b) Transfer of Property Act – Section 52 and 2 – Lis pendens – Partition suit filed in 1935 – Civil court keeping the case sine die in 1955 – No question of dismissal of the case in default – Petitioner filing application for restoration under wrong impression – Order IX Rule 9, Code of Civil Procedure, 1908 – Mohammadan law not containing any rule as to lis pendens – Hence, held, section 52 applies. (Para 23, 24, 32)
       (c) Transfer of Property Act – Section 52 and 2 – Lis pendens – Doctrine applies to applications including one u/O IX, R. 9, CPC – It would also be applicable even to the proceedings in the nature of an appeal. (Para 30, 31)
       (2004) 6 SCC 378; (2013) 5 SCC 397; (2012) 7 SCC 738; (2006) 13 SCC 608 – Relied upon
       AIR 1962 Cal. 485; AIR 1959 Bom 475 – Cited with approval
       (d) Transfer of Property Act – Section 52 – Sale/purchase during lis pendens – Sale deed executed during lis pendens – Not void – Valid to the extent of vendor’s share. (Para 36)
       (2010) 8 SCC 1; (2012) 7 SCC 738; (2013) 5 SCC 397 – Relied upon
       (e) Property law – Preliminary decree – Shares of respective parties declared – Shares crystallizing in each and every property – Attaining finality – Purchaser pendente lite bound by preliminary decree – Section 97, Code of Civil Procedure, 1908. (Para 37, 39)
       AIR 1963 SC 992 – Relied upon
       (f) Transfer of Property Act – Section 52 – Sale deed executed during pendency of suit– Purchaser pendente lite bound by outcome of suit – Filing suit for cancellation of sale deed not required – Lis pendens commences to operate from date of presentation of the plaint and operates till passing of final decree and even during execution. (Para 40)
       (2014) 15 SCC 394 – Relied upon
       (g) Transfer of Property Act – Section 52 and adverse possession – Section 52 negates the very plea of adverse possession – Trial court and first appellate court rightly holding that there was no question of adverse possession. (Para 41)
       (2004) 10 SCC 779 – Relied upon
       (h) Property Law – Muhammadan law – Legal representatives and heirs in Muhammadan law are tenants in common – Tenants in common and joint tenants – Tenants in common have several interests, whereas joint tenants have one interest – Tenants in common may be entitled to equitable shares in the land in unequal shares – For interests which may be unequal in duration; different shares would be subject to different limitations and the limitations may include entailed interests – No new entailed interests can be created either in real or personal property – In Muhammadan law share holders are tenants in common – Not having right to act on behalf of others. (Para 48, 54)
       (1971) 1 SCC 597 – Relied upon
       AIR 1973 MP 222; AIR 1997 MP 210; (1990) 4 SCC 672; (2004) 13 SCC 385; AIR 1969 All. 526; AIR 1934 All 702; AIR 1918 Mad 1049 (FB); AIR 1932 PC 235; (1874) LR 1 Ind. App. 106; AIR 1963 Patna 375; (1989) MP LJ 178; (1972) 4 SCC 238; AIR 1922 Sind 41; (1916) 16 Bombay L.R. 224; (1913) 38 Bombay 449; AIR 1948 Sind 83 – Referred
       (i) Mohammedan Law – Inheritance – Preemption – A vendee cannot compel a Muslim to sue for a general partition for the purpose of adjusting equities between the co-sharer-vendor and himself – “Sic utere tuo ut alienum non leadas” – Preference has to be given to pre-emptor as a right of substitution, but not as a re-purchase – Instantly property in question being huge and capable of division – Already exchanged several hands by now – Instant sale deed validated to the extent of share of the vendor – Sale beyond share of vendor held void. (Para 60, 63,68)
       (1885) ILR 7 All 775; AIR 1952 All 541; (1970) 1 MLJ 358; (1917) 5 LW 767 – Referred
       (2012) 4 ALD 680 (DB) – Distinguished
       (j) Property law – Even if trial court does not give any direction to adjust equity of purchasers, executing court can do so to permissible extent as purchasers pendente lite can work out the equities in final decree proceedings. (Para 69)
       (1972) 2 SCC 200; (2009) 4 SCC 66; (2007) 10 SCC 719 – Relied upon
       (k) Property law – Preliminary and final decree – Equities can be worked out in final decree proceedings – Limited to legally permissible extent and not beyond – When vendor’s share is determined in preliminary decree, purchaser cannot lay claim on entire property. (Para 71, 82)
       (1995) 6 SCC 150 – Relied upon
       AIR 1939 Mad. 306; (1841) 10 LJ Ch 221; AIR 1959 MP 190; AIR 1971 MP 23; (2010) 14 SCC 370; (1983) 1 SCC 18; (1972) 2 SCC 200; (2009) 12 SCC 710; (2011) 11 SCC 153 – Referred
       (l) Administration of justice – Equity – When law and equity cannot be harmonised, law will prevail over the equity principle – Maxim “dura lex sed lex” meaning “the law is hard, but it is the law”. (Para 80, 82)
       (2015) 13 SCC 257 – Relied upon
       AIR 1962 SC 753; (2003) 3 SCC 541; (2007) 2 SCC 230; AIR 1963 SC 1633; (2003) 5 SCC 413; (2003) 2 SCC 577; (2003) 1 SCC 123; (2003) 9 SCC 393 – Referred
       (m) Property law – Sale deed executed neither for legal necessity nor in fiduciary capacity – Not binding on co-sharers. (Para 83)
       (n) Constitution of India – Article 136 – SLP dismissed by reasoned order – Has relevance. (Para 88)
       (o) Approbation and reprobation – Purchasers taking inconsistent stands – Not permissible – Not accepted up to Supreme Court. (Para 89, 90)
       AIR 1965 SC 241; (2010) 10 SCC 422 – Relied upon
       (p) Administration of justice – Delay and laches – Preliminary decree passed in 1970 – Attaining finality in 1976 – Proceedings for final decree taken in 1984, within limitation period – Respondents challenging the same in 1993 – Delay unexplained – Filing successive cases – Responsible for delay in final decree, passed in 2004. (Para 92)
       (2000) 2 SCC 48 – Relied upon
       Facts of the case:
       In these appeals, the final decree which has been drawn up in a partition suit with respect to item No.6 of Schedule ‘B’ pertaining to land admeasuring 68 acres 10 guntas comprised in survey Nos. 63, 68, 69 and 70 situated at village Madhapur, District Ranga Reddy, Hyderabad is in question.
       The property was matruka property of Late Mohd. Nawab Jung who passed away on 25.4.1935. Civil Suit No.82/1935 was instituted by Mohd. Hashim Ali Khan, son of Mohd. Nawab, in Darul Qaza City Court, Hyderabad, for partition of matruka properties of Late Nawab comprised in Schedules ‘A’, ‘B’ and ‘C’.
       As the file was not received by the City Civil Court from the Custodian, it passed order dated 8.1.1955 to the effect that the file of the case was not yet received, the plaintiff was also absent, as such the case be closed for the time being and be revived only on receipt of the file and on an application to be filed by the plaintiff.
       The city civil court understood the order to be of dismissal of suit in default. The plaintiff moved an application for revival of the suit. The city civil court directed the plaintiff vide order dated 1.12.1955 to deposit Rs.50 towards costs and if the costs were not paid by 15.12.1955, the suit shall stand dismissed.
       The plaintiff could not pay the cost within the stipulated time and prayed for extension of time which was not extended.
       The High Court held that the suit was not dismissed for default. It was an order adjourning the suit with a direction that it may be revived only on receipt of the file from the Custodian. Therefore, there was no necessity for the plaintiff to file an application under Order 9 Rule 9 CPC for restoration. Thus the trial court had no jurisdiction to direct the plaintiff vide order dated 1.12.1955 to pay the cost of Rs.50 to the defendants on or before 15.12.1955 as a condition precedent. The appeal was allowed and the order dated 1.12.1955 was set aside. The order passed by the High Court attained finality.
       Hamid Ali Khan, defendant No.1 sold Item No.6 of Schedule ‘B’ property in area 68 acres 10 guntas on 23.11.1959 to Bala Mallaiah vide registered sale deed. He sold the share inherited by other co-heirs also to Bala Mallaiah. It was found in the preliminary decree for partition dated 24.11.1970 that defendant No.1, Hamid Ali Khan, was having only 14/104th share in matruka properties. The plaintiff, and defendant Nos.2, 3 and 12 were also having 14/104th share each. Defendant Nos.4 to 6, daughters of Nawab had 7/104th share in matruka properties. Nurunnisa Begum, widow of Late Nawab, defendant No.7 was entitled to 13/104th share in matruka properties.
       The plaintiff and legal heirs of defendant No.1 i.e. defendant Nos.23 to 25 and defendant No.27 preferred appeal in the year 1972 before the High Court. The High Court dismissed the appeals and allowed the cross-objections of defendant No.6 with respect to item No.4 of Schedule ‘A’ property. LPA thereagainst was dismissed and the decision with respect to preliminary decree has attained finality.
       Ultimately the final decree came to be passed on 7.7.2005 in terms of the preliminary decree dated 24.11.1970.
       The final decree was questioned in Appeal Nos.385 and 386 of 2006 with respect to item No.6 of plaint ‘B’ schedule property. The appeals were dismissed on 27.4.2007. The Second Appeal had been allowed by the impugned judgment and decree dated 15.4.2010.
       Finding of the Court:
       Impugned judgment cannot be sustained.
       Result: Appeals allowed.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points summarized without specific case law references:

The decision establishing that a sale made during the pendency of a suit (lis pendens) is not void but operates as res judicata in final decree proceedings, thereby binding the parties involved (!) (!) .
The law applicable to Muslim and Muhammadan law does not contain a rule that negates the application of the doctrine of lis pendens; thus, section 52 of the Transfer of Property Act applies in such cases (!) (!) .
A sale deed executed during the period of lis pendens is valid only to the extent of the vendor’s share in the property. Sale beyond that share is considered void, and the sale is not automatically void but is subject to the rights and final decision in the pending suit (!) (!) .
Shares declared in a preliminary decree for partition are final and binding, and any purchaser pendente lite is bound by these shares and the outcome of the suit. The rights of purchasers are limited to their vendor’s share, and they cannot claim rights over the entire property (!) (!) .
It is not necessary to file a separate suit for cancellation of a sale deed executed during lis pendens if the sale was only of the vendor’s share and not beyond it. The sale remains valid subject to the final decree and the outcome of the litigation (!) .
Parties cannot adopt inconsistent standpoints during litigation; they are bound by their earlier representations and cannot reprobate or approbate, especially when their conduct was aligned with the doctrine of lis pendens (!) (!) .
Delay or laches in initiating proceedings or in taking steps after the final decree does not necessarily bar a party's rights, especially when the earlier decree has attained finality and the parties have actively participated in subsequent proceedings (!) (!) .
The doctrine of lis pendens applies to proceedings including appeals, applications, and other related steps, and such proceedings do not affect the validity of transfers made during the pendency of a suit unless expressly prohibited (!) (!) (!) .
The effect of final and preliminary decrees is that they operate as final decisions, and the rights declared therein are binding on all parties, including subsequent purchasers, to the extent of their vendor’s share. Purchasers can work out equities and adjust their interests during final decree proceedings but within legally permissible limits (!) (!) (!) .
In cases involving Muslim law, co-sharers succeed as tenants in common with specific shares, and they cannot act on behalf of each other to alienate property beyond their own share. Sale of property beyond a co-sharer’s own share is invalid unless expressly permitted by law or agreement (!) (!) (!) .
The law emphasizes that transfers made during the pendency of a suit are subject to the final outcome and that the rights of the parties are to be determined by the final decree, with the transfer being valid only to the extent of the vendor’s share as declared in the preliminary decree (!) (!) (!) .
The law also recognizes that equitable considerations can be adjusted in final decree proceedings, but such adjustments are limited to legally permissible extents, and no transfer or sale can override the finality of the decree or the rights established therein (!) (!) .
The doctrine of lis pendens is rooted in principles of justice and public policy, designed to maintain the status quo and prevent parties from circumventing the jurisdiction of the court by private dealings during ongoing litigation (!) (!) .
It is also clarified that the effect of section 52 is that a transfer during the pendency of a suit is not void but is subordinate to the rights and final decision of the court. The transfer remains valid but is subject to the outcome of the litigation (!) (!) .
The legal position is that the law will prevail over equitable principles when there is a conflict, and parties cannot claim higher rights or equitable adjustments that are not supported by the final or preliminary decree or pleadings (!) (!) (!) .

If you need further elaboration or specific legal advice based on this document, please let me know.

JUDGMENT :

Arun Mishra, J.

1. Leave granted in S.L.P. (C) Nos. 23864-23865 of 2011.

2. In the appeals, the final decree which has been drawn up in a partition suit with respect to item No.6 of Schedule ‘B’ pertaining to land admeasuring 68 acres 10 guntas comprised in survey Nos. 63, 68, 69 and 70 situated at village Madhapur, District Ranga Reddy, Hyderabad is in question.

3. The property was matruka property of Late Mohd. Nawab Jung who passed away on 25.4.1935. Civil Suit No.82/1935 was instituted by Mohd. Hashim Ali Khan, son of Mohd. Nawab, in Darul Qaza City Court, Hyderabad, for partition of matruka properties of Late Nawab comprised in Schedules ‘A’, ‘B’ and ‘C’. The suit was contested, inter alia, by defendant No. 1. Darul Qaza Court was abolished in the year 1951. On abolition of original jurisdiction of the High Court, the case was assigned to the City Civil Court. It appears that later on as the file was not received by the City Civil Court from the Custodian, it passed order dated 8.1.1955 to the effect that the file of the case was not yet received, the plaintiff was also absent, as such the case be closed for the time being and be revived only on receipt of the file and on an application to be filed by the plaintiff. The city civil court understood the order to be of dismissal of suit in default. The plaintiff moved an application for revival of the suit. The city civil court directed the plaintiff vide order dated 1.12.1955 to deposit Rs.50 towards costs and if the costs were not paid by 15.12.1955, the suit shall stand dismissed. The plaintiff could not pay the cost within the stipulated time and prayed for extension of time which was not extended. The order was questioned by the plaintiff in the High Court by way of filing an appeal. The High Court decided the appeal vide order dated 23.1.1962 and held that vide order dated 8.1.1955, the suit was not dismissed for default. It was an order adjourning the suit with a direction that it may be revived only on receipt of the file from the Custodian, therefore, there was no necessity for the plaintiff to file an application under Order 9 Rule 9 CPC for restoration. Thus the trial court had no jurisdiction to direct the plaintiff vide order dated 1.12.1955 to pay the cost of Rs.50 to the defendants on or before 15.12.1955 as a condition precedent. The appeal was allowed and the order dated 1.12.1955 was set aside. The order passed by the High Court attained finality. Thereafter, the suit was re-numbered as Civil Suit No.42/1962 in the city civil court. Hamid Ali Khan, defendant No.1 sold Item No.6 of Schedule ‘B’ property in area 68 acres 10 guntas on 23.11.1959 to Bala Mallaiah vide registered sale deed. He sold the share inherited by other co-heirs also to Bala Mallaiah. It was found in the preliminary decree for partition dated 24.11.1970 that defendant No.1, Hamid Ali Khan, was having only 14/104th share in matruka properties. The plaintiff, and defendant Nos.2, 3 and 12 were also having 14/104th share each. Defendant Nos.4 to 6, daughters of Nawab had 7/104th share in matruka properties. Nurunnisa Begum, widow of Late Nawab, defendant No.7 was entitled to 13/104th share in matruka properties.

4. Aggrieved by the preliminary decree for partition determining the shares to the aforesaid extent, the plaintiff and legal heirs of defendant No.1 i.e. defendant Nos.23 to 25 and defendant No.27 preferred appeal in the year 1972 before the High Court. Cross-objections were also preferred by defendant No.6 – Shareefunnisa Begum. The High Court dismissed the appeals and allowed the cross-objections of defendant No.6 with respect to item No.4 of Schedule ‘A’ property. The plaintiff questioned the decision by way of filing LPA No.199/1977 and the same was dismissed vide order dated 12.11.1976, the decision with respect to preliminary decree has attained finality.

5. Defendant No.25 – daughter of defendant No.1 – filed IA No.854/1984 for passing a final decree in terms of the preli

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2017 Supreme(SC) 263

Cases Referred (51)