Law: Transfer of Property Act (IV of 1882)

Section: 41 , 52

Law: Civil Procedure Code, 1908

Section: O. I, Rr.3 & 10, & O.XIII, R. 2

Transfer of Property Act (IV of 1882)---

----Ss. 41 & 52---Civil Procedure Code (V of 1908), O. I, Rr.3 & 10, & O.XIII, R. 2---Doctrine of pendente lite---Doctrine of lis pendens---Equitable doctrine of estoppels---Necessary or proper party---Public policy--- Scope--- Petitioner moved the Civil Court with two applications, one for impleading a person as a party to the suit whom he (petitioner) asserted as vendee of suit-property having purchased suitproperty during the pendency of suit; and the second (application) was for placement of an agreement regarding said purchase on record---Civil Court dismissed both applications, which order was maintained by the Appellate Court--Contention of the petitioner was that the said vendee was a necessary party and if he was not impleaded then the decree passed, would not be executable against such person---Held, that the contention of the petitioner was misconceived because a person who had purchased an immoveable property (subject-matter of suit) from a party to the suit, such person was neither a necessary nor a proper party, even though such purchase was without notice of the pendency of suit in good faith and for consideration---If a purchaser, bona fide or otherwise, having been purchased suit-property during pendency of suit was allowed to be a necessary party, then there would be an endless multiplicity of litigation---In order to overcome such situation and not to deprive a party from fruits of decree, the doctrine of lis pendens through S. 52 of the Transfer of Property Act, 1882 ('the Act 1882') had been introduced---Said doctrine rested on an equitable principle of 'ut lite pendente nihil innovetur' which meant 'pending litigation, nothing new should be introduced'--Section 52 of the Act 1882 was founded upon the public policy that any person purchasing suit-property during pendency of suit was bound by the judgment that could be made against the person from whom he had derived title, even though he (vendee) was not a party to the suit; and even he was a bona fide and innocent purchaser/ transferee---Although a transferee, who had purchased subject-matter of the suit before institution of suit, was entitled to be impleaded as defendant under O. I, R. 3 of the Civil Procedure Code, 1908, or during pendency of suit under O. I, R. 10 of the Civil Procedure Code, 1908, to defend his title as well as to prove that his transfer was protected by the statutory application of the equitable doctrine of estoppel as embodied in S. 41 of the Act, 1882, however, the said protection under S. 41 of the Act, 1882 was not available to a purchaser pendente lite, as the principle of lis pendens was based on public policy i.e. there should be an end of litigation---Section 41 of the Act 1882 was subordinate to S. 52 of the Act, 1882 or, in other words, the principle of lis pendens embodied in S. 52 of the Act 1882 superseded the statutory application of law of estoppel---Principle of lis pendence operated very hard but it was a rule founded upon public policy, for otherwise alienations pendente lite would defeat the very purpose of law---Effect of such principle was not to annul the conveyance of the vendee but only to render the same subservient to the right of parties as well as the final outcome of the lis--Transferee of subject-matter of a lis was not entitled to be impleaded in the suit and to defend his title independently; and had to swim and sink with the defendant from whom he had purchased the suit-property---Respondent (alleged vendor) had though denied selling out the suit-property; and even if he had sold it, the alleged vendee was neither a necessary nor a proper party; and he would be bound by the final outcome of the suit as the respondent/vendor would be, on the principle of lis pendens---No interference by the High Court in concurrent orders passed by both the Courts below was made out---Constitutional petitions were dismissed, in circumstances.

Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 ref.