Holding

A transferee pendente lite is a representative‑in‑interest of the transferor and has locus standi to seek an equitable partition; the Collector may make such an equitable allocation.

Summary

The case concerned a partition suit for 108 acres of land where the original decree holder assigned his 3/8 share to Vishnu Hari Patil, who initiated execution proceedings under Section 54 of the Code of Civil Procedure. During the pendency of the partition, the appellants purchased five fields from the original parties and were in possession, but the Collector allotted the entire share to the assignee, ignoring the appellants' claims. The appellants argued that, as transferees pendente lite, they were bound by the suit under Section 52 of the Transfer of Property Act and should be allowed to be impleaded and heard under Rule 10 of Order 22 CPC. The Supreme Court held that a transferee pendente lite is a representative‑in‑interest of the transferor and therefore has locus standi to seek an equitable partition before the revenue authority. The Court further ruled that the Collector may allocate shares to heirs or transferees when there is no dispute, without violating the decree. Consequently, the orders denying the appellants’ locus standi were set aside and the partition was remanded for an equitable division.

Issues considered

Whether a transferee pendente lite of a share in property subject to a partition suit has locus standi to appear before the Collector under Section 54 of the Code of Civil Procedure and seek equitable partition.
Whether the Collector may allot shares to heirs or transferees when their names are not mentioned in the decree but there is no dispute.
Interpretation of Section 52 of the Transfer of Property Act and Rule 10 of Order 22 CPC regarding the rights of transferees in pending suit proceedings.

Legislation cited

Code of Civil Procedure, 1908s. 54, s. Rule 10 of Order 22
Transfer of Property Act, 1882s. 52

Subjects

partitiontransferee pendente litelocus standiequitable partitionSection 54 CPCSection 52 TPARule 10 Order 22 CPCrevenue authoritycivil procedure

Judgment

898
A
KHEMCHAND SHANKAR CHOUDHARY
AND AN0THER
v.
VISHNU HARI PATIL AND OTHERS
l
December 3, 1982

[S. MURTAZA FAZAL ALI AND E.S. VENKATARAMIAH, JJ.]

c Code of Civil Procedure, Section'54, Scope of-"In accordance with the
law (I/ any) for the time being in force relating to the partition.or the separate
possession of shares", meaning of-Whether the transftreeJ 11 pendente lite" for
partition of parts of an estate assessed to payment of land revenue to the Govern-
ment have a locus standi to appear before the Revenue authorities-Transfer of
Proflerty Act, Sectlo!J 52 read with Rule Jq of Order XX/I Civil Procedure Code.

D One ~atu, in his suit filed· in 1940- against his nephew Laxman for
partition of the joint family propertY and for separate possession of bis half share
obtained a decree in his favour. The total area of.the lands to ·be divided is 108
acres. Na tu and his four sons assigned on August 22, 1945, 3/8th share in decree
obtained by them in favour of Prem Chand Patil. Prem Chand filed a Special
Civil Suit No. 67 of 1950, for partition of his assigned share in the decree. ·In
that suit, a compromise ·decree was passed providing that if the sons of Natu
E paid Rs. 30,000 on or before March i, 1958, then the decree-holder would not
be entitled to clairri any partition and in default he should get .Possession of
the share claimed by him. The sons of Natu committed default and Prem
Ch3.nd Patil became entitled to partition of 3{8th share of 108 acres of land. Prem
Chand Patil, however assigned his decree in favour of Vishnu Hari Patil,
respondent No. 1, who started the execution proceedings, under section 54 of
the Code of Civil Procedure under which the lands in respect of which assessriient
F was payable to the Government had to be divided by the Collector and the
parties bad to be put in possession of their respective shares. During the
pendency of these proceedings, the appe!Jants purchased from the sons of Natu
who were parties to the suit five fields out of these 108 acres~four through
·private sales and one by court aucfioO-and wer.e in possession of the said fields,
having acquired title thereto. These fields were allotted by tbe Collector in
favour.of ReSpondent No. 1 as part of his 3/Sth share without giving any consi-
G deration to tb,e claims _of the appellants for equitable partition. The appellants
challena;ed the validity of the partition proceedings before the Com01issioner.
Bombay Division. The appeal was dismissed on the .ground that the appellants
had.no locus standt to ask for an equitable allotment under section 54 Code of
Civil Procedure, as their names did not figure in the decree even though the sales
in their favour were not in dispute. The further appeaJS before the .State Govern-
H ment as well as the Writ Petitions file.d ~efore the Bombay High Court also failed.
Hence the appeals by special leave.
i<:HEMCHAND v. VISHNU PATIL 899
Allowing the appeals, the Court A
HELD ~ 1.1. Section 52 of the Transfer of Property Act, .no doubt, lays
down that a transferee, pendente lite or an interest in an immovable pfoperty
Which is the subject-matter of a suit from any of the parties to the suii will .be
bound in so far as that interest is concerned .bY the proceedings in the sujt. ·Such
a transferee is a representative-in-interest of the party from whom he has acquired·
that interest. [902 E-F] B
1:2. A transferee from party of a property whicfl .is the subject
matter of pai"tition can exercise aU the rights of a transferor. When a party can
ask for an .equitiible p3rtifion, a transferee fr<?m him, therefore, can -also qo so.
(903 D-E]

2:1. Rule 10 of order XXII of the Code of .Civil Procedure clearly c
""J: ·.· '
. 't--- recognises the right of a transferee to be ioipleaded as a party to the.proceedings
\ and to be heard before any order is made. It may be that if he does not apply to
be impleaded, he may suffer by default on account of any order passed in the
proceedings. But if he applies to be impleaded and heard he can also prefer
an appeal against a~ order made in the said -proceedings bllt with the leave of
the appelJate court, where he is not already bro'ugbt on record. [902 PG-]
D
2:1.. The position of a person on whom any interest bas devolved on
account of a transfer during the pendency of an'y ·suit pr proceeding is some what
similar to.the position of an hefr or a legatee of a party who dies during the
pendency of a suit or a proceeding, ·or an official receiver who takes over the
assets of such a party on his insolvency. An heir or a tCgatee or an official receiver
or a transferee can participate ip the execution proceedings even though their
names may not b~ve been shown in the decree, preliminary, or final. If they
apply to the court to be impleaded as parties, they cannot be turned "out.
), . (902 G-H; 903 A-BJ

3. · The Collector, who has to effect partition of an estate under section
· 54 of the Code· of CiviJ Procedure has, no doubt, to divide it, ·in accordance with
the decree sent to him. But if a party to such a decree dies leaving some heirs
about whose interest there is no dispute, he need. not fold up his hands and F
return the papers to a civil court., He may proceed to allot the share of the
deceased. party to his heirs. Similarly, he maY, when there is no dispute, allot the
share of a deceased party in favour of his Iefiatees. In the case Of insolvancy of a
party, the Official Receiver may be al~Otted the share of the insolvent. In the
case of transferees. ·pendente lite also, if theie is no dispute~ .the Coilector may
Proceed to mak~ allotment ..of Properties in an equitable manner instead of reject-
ing their claim for such equitable partition on the ground that they have G
no locus standi. Stich a construction of section 54 of. the Code of Civil
Procedure advances the cause of justice. Otherwise, in every case where a
party dies or where he transfers some iot.erest in the suit property
· pendente.~lite, ihe matter has got to be refefred back to the Civil'"' Court,
even though thei-e may be no dispute about 'the succession, devolution or transfer
.of interest.· In any such case, where there is no dispute if the Collector makes an H
equitable partition taking into consideration the interests of all concerned includ-
ing those on whom any interest in the subject m8ttcr has devolved, he would
900 SUPREME cOUitT Rll'foRTS (1983j i s.c.w..

A neither be violating the decree nor transgressing any law. His action would not
be ultra vires. On the other halld, it would be in conformity with the intention
of the Legislature which has placed the work of partition of lands subject to
payment of assessment to the Government in his hands to. be carried out "in
accordance with the law (if any) for the time being in force relating to the parti~
tion or the separate possession of shares0 • [903 B·C; F~G]

I 8 CIVIL APPELLATE JURISDICTION: Civil Appeals Nqs. 3759-3761
of 1982.

From the Judgment and Order dated the 26th. June, 1980 of
the High Court of Bombay in S.C. Application No. 752/75, 951 and •
953 of 1975. ·
c
P.H: Parekh, M.A. Ram and Hemani Sharma. for the Peti-
tioners.

V.N. Ganpule for the Respondents .
.• ,
u The Judgment of the Court was delivered by

VENKATARAMIAH, J. The short question involved in these
appeals by special leave is whether the transferees during the pen-
dency of a suit for partition of parts of an estate assessed to payment
of land revenue to the Government which is the subject matter of the
suit have locus standi to appear before the Revenue authorities in
E proceedings under section 54 of the Code of Civil Procedure and ask
for an equitable partition of the lands even though they had not been
..
impleaded as parties to the suit in the civil court.

Natu had filed a suit in the year 1940 against his nephew
Laxman lor partition of their joint family property and for separate
F
possession of his half share in it and had obtained a decree for it.
Natu and his· four sons Shrawan, Nago, Digambar and Vithal
assigned on August 22, 1945 3/8th share in the decree obtained by
them in.favour of Prem' Chand Patil. Prem Chand Patil.filed Special
Civil Suit No. 67 of 1950 on the file of the.Civil Judge, Senior
G Division, Jalgaon for partition of his 3/8th share in the decree. In
that suit, a decree was passed on compromise. .The said decree
provided that if the sons of Natu paid Rs. 30,000 on or before
March 1, 1958 then the decree holder woul<l not be entitled to claim
any partition· and in default he should get possession of the share
H claimed by him. The sons of Natu failed to pay the amount of ·
Rs. 30,000 as per decree abd the result was3that Prem Chand Patil
became entitled to partition and separate possession of his share.
KHEMCHAND v. VISHNU PATIL (Veiikataramiah, J.) 901

Prem Chand Patil, however, assigned his rights under the decree in
... favour of Vishnu Hari Patil, respondent No. 1 herein who started
execution proceedings. Though the said' proceedings were styled as
execution proceedings, they were strictly final decree proceedings
under section 54 of the Code of Civil Procedure under which the
lands in respect of which assessment was payable to the Government
had to be divided by the Collector and the parties had to be put in B
possessfon of their respective shares. The total area of the lands
to be divided was in the order of 108 acres in which Vishnu Hari
Patil had 3/8th share and the remaining land had to be allotted to
the·share of the sons of Natu.

It should be stated here that five fields out of the lands which
c
were to be divided by the Collector had been sold to the appellants
during the pendency of the partition suit. Four of the. said fields
had been sold under private sales and one field in a court auction
and they were in possession of tho. respective purchasers during the
partition proceedings under section 54 of the Code of Civil .D
Procedure: The appellants had iicquired title to the said fields from
the sons of. Natu who were parties to the suit. The said fields were·
allotted by the Collector in favour of Vishnu Hari Pati.1 as part of
his 3/8th share without giving any consideration to the claiHJs of the
appellants for an equitable partition. The remaining ·5/8th share
was allotted. in favour of the sons. of Natu who had no object(on to E
. ), the partition effected by the Collector. The appellants challenged
the viilidity of the ·partition ,proceedings in appeal· before ihe
Commissioner, Bombay.. The appeals were dismissed on the
ground that the appellants had no locus standi to ask for an equitable
allotment under section 54 of the Code of Civil Procedure as their
names did not figure in the decree. The appeals filed by the F
appellants before the State Government against the orders of the
Commissioner were also dismissed. The appellants, thereafter filed
petitions before the High Court of Bombay under Article 226 of the
Constitution questioning the correctness of the partition. Those
petitions were also dismissed. These appeals arc filed against the
judgment of the High Court. G

There is no dispute that each of the appellants had acquired,
certain rights under the sale deeds and the court auctiop referred to
above and were in possession of certain parts of the estate which H
was to be partitioned under section 54 of the Code of Civil
frocedure. It is 11lso true that tl\eir n11mes had not been mentione<!
902 SUPREME COURT REPORTS (1983] I S.C.R

A in the decree which was sent for execution to the Collector. The
appellants do not also dispute that they being purchasers pendente
lit• are bound by the proceedings in ·the suit by virtue of the
provisions of section 52 of the Transfer of Property Act. The only
prayer made by them is that since the sales in their favour were not
in dispute and as they had acquired title under the parties to the
B suit and were also in possession of the fields in question the
Collector should have considered their prayer for an equitable
\ partition of the estate and, if possible, to allot the fields in question to
the share of the sons of Natu so that they could continue to remain
in possession of the lands purchased by them. The appellants allege
that the sons of Natu, their transferors, had colluded with Vishnu
c Hari Patil, respondent l'{o. I and had accepted the partition made
by the Collector in order to cause prejudice to them. The sons ·of
Natu got their 5/8th share of the property in addition to the price
paid by the appellants for the five fields purchased by them. The
appellants were not allotted any lands at the partition. ·
0 · The question for consideration is whether the High Court,
the Government and the Revenue authorities were right in the
circumstances of the case in holding that the appellants had no
locus standi to ask for an equitable partition particularly when the
sales 'in favour of the appellants were not in dispute.
E
Section 52 of the Transfer of Property Act no doubt lays down
that a transferee pendente lite of an interest in an immovable property
which is the subject matter of II suit from any of the parties to the
suit will be bound in so far as that interest is concerned by the
proceedings in. the suit. Such a transferee is it representative in
F interest of the party from whom he bas acquired that interest. Rule
l 0 of Order 22 of the Code of Civil Procedure clearly recognises the
right of a transferee to be impleaded as a party to the proceedings
and to be heard before any order is made. It may be that if be does
not apply to be impleaded, be may suffer by default on account of
any order passed in the proceedings. But if be applies to be
G impleaded as a party and to be beard, he has got to be so
· impleaded and heard. He can also prefer an appeal against an order
made in the said proceedings but with the leave of the appellate
court where be is not already brought on record. The position of a
person on whom any interest has devolved on account of a transfer
H during the pendency of any suit or a proceeding is somewhat similar
to the position of an heir or a legatee of a party who dies during
the pendency of a suit or a proceeding, or an official receiver who
KHEMCHAND v. VISHNU PATIL (V'enkataramiah, J.) 903

ta.kes over the assets of such a party on his insolvency. An heir or A
a legatee or an official receiver or a fransferee can· participate in the
execution proceedings even though their names may not have been
shown in the decree, preliminary or final. If they apply to the court
to be impleaded as parties they cannot be turned out .. The Collector
who has to effect parthion of an estate under section 54 of the Code
of Civil Procedure has no doubt to ·divide if in accordance ,with the 8
decree sent to him. But if a party to such a decree dies leaving
SO)lle heirs ·about whose interest there is no dispute should he fold
up his hands and return the papers to the civil court ? He need not
• do so. . He may proceed to allot the share of the. deceased party
to his heirs. Similarly he may, when, there is no dispute, allot the
shares of a deceased party in favour of his 'legat~e's. In the case of
c
insolvency of a party, the official receiver may be. allotted the share
.of the insolvent. In the· case of transferees pendente lite also, if
there .is no dispute, the Collector may proceed to make allotment of
properties in an equitable manner instead of rejecting their claim for
such equitable partition <m the· ground that they have ·no locus standi. D
A transferee from a party of a property which is the subject matter
of partition can exercise all the rights of the transferor. There is no
dispute that a party can ask for an equitable partition. A transferee
from him, th~refcire, can also do so. Such a construction of section
54 of the Code. of Civil· Procedure advances.the cause of justice.
Otherwise in every case where a party dies, or where a party is
adjudicated as an insolvent or where he transfers some interest in E
the suit property pendente lite the matter has got to be referred back
to the civil court even though there may be no dispute about the
·succession, devolution or transfer of interest. In any such case
where there is no dispute if° the Collector makes an equitable
partition taking into consideration tire interests of all concerned
including those on whom any interest in the subject matter has F
devolved, he would neither be violating the decree nor transgressing
any law. His action would not be ultra vires. ·On the other· hand,.
it would be in conformity with ·the intention of the Legislature which
has placed the work of partition of lands subjectJo payment of
assessment to· the Government in bis bands to be carried out 'in G
accordance with the law (if any) for the time being in force relating
to the partition or the separate possession of shares'.

. '
In view of the foregoing, the orders· of the High Court, the H
Stat~ Government and the Commissioner holding that the appellants
had no locus standi to ask the Collector to effect an equitable
904 SUPREME COURT REPORTS (1983) I S.C.R.

A partitiolf have got to be set aside and they are accordingly set aside.
The partition effected by the Collector is also set aside.

The appeals are accordingly allowed and the ·case is remanded
to the Collector to make a fresh partitio.n ·on an equitable basis in
accordance with the decree and the undisputed ·. iights of the
B appeUants referred to above. The Collector,while effecting partition
may consider whether the fields in possession of the appellants may ..
be allotted to the share of the ·sons of Natu so that the appellants
may continue to remain in possession of their respective fields. Since
the suit is a very old one, the Collector may expeditiously complete •
the work of partition preferably within six months from th~ date of
c receipt of a copy of this order. No costs.

S.R. Appeal allowed.