Lis pendens and partition rights: pendente lite transfer bound to vendor's share, with final decree and res judicata upheld.

A transfer of immovable property made during the pendency of a partition suit remains subject to the suit's outcome under lis pendens and is not void in the absolute sense. The earlier injunction decision, having conclusively confined the purchaser's rights to the vendor's share, operated as res judicata on that point and could not be reopened in final decree proceedings. The preliminary partition decree had attained finality and bound the parties and transferees pendente lite. No separate cancellation suit was necessary, adverse possession was not proved, and a Muslim co-sharer could alienate only his own definite share, not the shares of other co-heirs.

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Issues: (i) Whether the earlier injunction suit operated as res judicata on the question of lis pendens and the purchaser's rights; (ii) whether the sale deed dated 23.11.1959 was hit by lis pendens and whether Section 52 of the Transfer of Property Act rendered the transfer void; (iii) whether the preliminary decree for partition had attained finality and bound the parties and their transferees; (iv) whether it was necessary to file a separate suit for cancellation of the sale deed; (v) whether title was perfected by adverse possession; (vi) whether a Muslim co-sharer could alienate the shares of other co-heirs; (vii) whether the purchaser could claim equity in final decree proceedings beyond the vendor's share; (viii) whether the sale was justified by legal necessity; (ix) whether the tenancy proceedings affected the rights claimed in the partition suit.

Issue (i): Whether the earlier injunction suit operated as res judicata on the question of lis pendens and the purchaser's rights.

Analysis: The earlier suit for injunction had directly negatived the purchaser's claim to the whole property, held the purchase to be subject to the partition litigation, and confined the purchaser's rights to the vendor's share. The findings on lis pendens and the extent of transferable interest were essential to the decree and were carried to finality. Those findings could not be reopened in the final decree proceedings.

Conclusion: The earlier decision operated as res judicata to the extent of the findings on lis pendens and the purchaser's entitlement only to the vendor's share.

Issue (ii): Whether the sale deed dated 23.11.1959 was hit by lis pendens and whether Section 52 of the Transfer of Property Act rendered the transfer void.

Analysis: The partition suit had been instituted in 1935 and remained pending in law. The order of 8.1.1955 did not dismiss the suit; the later order treating it as dismissed was held illegal. The pendency therefore continued when the sale deed was executed in 1959. Section 52 applies to transfers during pendency and protects the rights of the parties in litigation. It does not require a separate challenge to the transfer for the doctrine to operate. The transfer is not void in the absolute sense, but it remains subject to the result of the suit.

Conclusion: The sale deed was hit by lis pendens, and Section 52 made the transfer subject to the partition decree.

Issue (iii): Whether the preliminary decree for partition had attained finality and bound the parties and their transferees.

Analysis: The preliminary decree had crystallised the shares in the matruka property, including the vendor's share, and the decree had attained finality. Under the Code of Civil Procedure, matters concluded by a preliminary decree cannot be reopened in an appeal or objection to the final decree. A transferee pendente lite stands in the shoes of the transferor and is bound by the preliminary determination of shares.

Conclusion: The preliminary decree was binding and could not be re-agitated; the transferees were bound by it.

Issue (iv): Whether it was necessary to file a separate suit for cancellation of the sale deed.

Analysis: Since the sale was pendente lite, the transferee's rights were automatically subject to the outcome of the pending partition suit. The transferor could not convey more than his own share. The doctrine of lis pendens avoids multiplicity of proceedings, and a separate cancellation suit was unnecessary.

Conclusion: No separate suit for cancellation was necessary.

Issue (v): Whether title was perfected by adverse possession.

Analysis: The plea of adverse possession lacked the necessary pleadings and proof of hostile, open, continuous possession. More fundamentally, possession taken under a transfer subject to pending litigation cannot mature into adverse possession against the true owners during the pendency of the suit. The High Court's contrary conclusion was held perverse.

Conclusion: Title was not perfected by adverse possession.

Issue (vi): Whether a Muslim co-sharer could alienate the shares of other co-heirs.

Analysis: Under Muslim law, heirs succeed as tenants in common in specific shares. One heir has no authority to bind the shares of other co-heirs. A co-sharer may alienate only his own interest, and any sale beyond that extent is ineffective against the others.

Conclusion: The co-sharer could alienate only his own share, not the shares of the other co-heirs.

Issue (vii): Whether the purchaser could claim equity in final decree proceedings beyond the vendor's share.

Analysis: Though a transferee pendente lite may in appropriate cases work out equities in final decree proceedings, such equity cannot enlarge the transferor's title. In the present case, no specific equitable foundation was pleaded or proved to justify allotment beyond the vendor's share. The court could not, on equitable considerations alone, defeat the rights already crystallised by the preliminary decree.

Conclusion: The purchaser could claim equity only to the extent of the vendor's share, not beyond it.

Issue (viii): Whether the sale was justified by legal necessity.

Analysis: The sale deed itself recited personal necessity and asserted exclusive ownership, not legal necessity for the benefit of the estate. No reliable evidence established that the sale was for payment of revenue or any necessity binding on the other co-heirs. The pleaded justification was therefore not accepted.

Conclusion: The sale was not proved to be supported by legal necessity.

Issue (ix): Whether the tenancy proceedings affected the rights claimed in the partition suit.

Analysis: The tenancy proceedings dealt only with protected tenancy and ownership certificate claims under the tenancy statute. They did not determine the validity or extent of the vendor's title in the matruka property, nor did they decide lis pendens. Those proceedings could not override the pending partition rights or enlarge the transferee's title.

Conclusion: The tenancy proceedings did not alter the rights flowing from the partition suit.

Final Conclusion: The transfer in favour of the purchaser was effective only to the extent of the transferor's undivided share, the preliminary partition decree remained binding, and the impugned High Court judgment could not stand against the final decree restored by the Court.

Ratio Decidendi: A transfer of immovable property made during the pendency of a partition suit is not void in the absolute sense, but it remains subject to the decree in the suit, and a Muslim co-sharer can alienate only his own definite share and cannot bind the shares of other co-heirs.

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