(a) Transfer of Property Act (IV of 1882)‑‑
‑‑‑ S. 52‑‑Civil Procedure Code (V of 1908), 0. XXII, R.10‑‑Gift‑ Transfer of property during pendency of suit ‑‑ Defendant petitioner gifting property in suit by oral gift to his daughter‑in‑law and bringing an application under 0. XXII, R. 10, C.P.C., for bringing her on record‑‑ Application was dismissed by Court below on ground that property shown in application under O.XXII, R. 10, C.P.C. and gifted by defendant included property which was subject‑matter of suit and since no permission was obtained from trial Court, gift was in violation of S.52 of Transfer of Property Act ‑‑ Held, under provision of S.52 of Act, transfer of immovable property in suit to which any right was directly and specifically claimed therein was not completely prohibited‑ ‑What was contemplated by said provision was that property could not be transferred or otherwise dealt with without permission of Court by any party to suit or proceedings so as to affect rights of any other party thereto under any decree or order which might be passed therein ‑‑ Subject to these reservations, property could be transferred even without permission of Court but transferee / donee acquired right thereto or interest therein only subject to judgment or order of Court in suit ‑‑ Order of Court below set aside and donee ordered to be brought on record and suit to be proceeded according to law.
(b) Transfer of Property Act (IV of 1882)‑‑
‑‑‑ S. 52‑‑Doctrine of lis pendens as incorporated in S.52 of Act explained.
Bellamy v. Sabine 44 Eng. Rep. (F.R.) (Ch.) 842 & 847 and Faiyaz. Husain Khan v. Munshi ‑Prag Narain and others 34 1 A 102 rel.
Mrs. Rashid Patel for Applicants. S.S. Akbar for Respondents.
Date of hearing: 23rd November, 1987.
ZOHRA BAI VS A. A. ZUBERIP L D 1988 Karachi 58Before Naimuddin, CJMst. ZOHRA BAI and another‑‑ ApplicantsversusA.A. ZUBERI and 3 others ‑‑ RespondentsCivil Revision No. 360 of 1986, decided on 23/11/1987.
JUDGMENT
This revision application under Section 115, CPC is from the order of IV Additional District Judge, Karachi (South) dated 17‑7‑1986, passed in Civil Misc. Appeal No.11 of 1985, whereby he dismissed the appeal filed by the applicants from the order dated 9‑12‑1984 passed by the Ist Senior Civil Judge, Karachi, dismissing the application of one Dr. Ali Muhammad Nagori under Order XXII, Rule 10, CPC, which was filed in ‑'Suit No.1263/80, in the following circumstances.
2.The respondents filed a suit against Dr. Ali Muhammad Nagori for declaration claiming that the property No.VIT‑E‑98‑113, Sol B‑2/11]2. George Street, Karachi, in occupation of Irsha(f Khan tenant of the property‑ is their exclusive property and is owned by them and that, the defendant has no right o" interest in the property and that the said property does not form part of tenement No. G‑3 owned by the said Dr. Ali Muhammad Nagori. The respondents also prayed for a permanent injunction against the defendant or any person claiming under him restraining him from denying their title or disturbing U1 interfering with their possession, right, title to or interest in the suit property.
3. During the pendency of the suit, as stated at the Bar, Dr. Ali Muhammad Nagori gifted the property to his daughter‑in‑law, namely, Mst. Mehrunnisa Nagori by an oral gift. Thereafter, he made an application under Order XXII, rule 10, CPC to the trial Court for bringing the said Mehrunnisa the donee on record.
4. The trial Court, by order dated 9‑12‑1984, dismissed the application for the reason that the respondents have filed the suit against the predecessor of applicants for declaration and injunction and the property in possession of the respondents does not bear Number G‑3 but bears Number 1/3rd and as such the application of the said Dr. Ali Muhammad Nagori under Order XXII, rule 10, CPC was not maintainable.
5. Aggrieved by the order, Dr. Nagori filed and appeal before the Additional District Judge, in which the order impugned in this revision application was passed dismissing the appeal as stated before, The reasons, which weighed with the learned Additional District judge in dismissing the appeal were that the property shown in the application under Order XXII, rule 10, CPC, was gifted by Dr. Ali Muhammad Nagori to Mst. Mehrunnisa Nagori included the property, which was: the subject matter of the suit and under section 52 of the Transfer of Property Act, if any right to any immovable property is directly and specifically claimed, ‑the property could be transferred by a party to the suit only under the authority of the Court, and since in the suit no permission from the trial Court was obtained by Dr. Ali Muhammad Nagori for gifting the property in the suit to Mst. Mehrunnisa as such the said gift was in violation of section 52 of the Transfer of Property Act.
6.It may be pertinent to mention here that during the pendency of the appeal with the Additional District Judge, Dr. Ali Muhammad Nagori died and his legal representatives were substituted as appellants and the present revision application has been filed by the legal representatives of late Dr. Ali Muhammad Nagori.
7. 1 have heard Mrs. Rashida Patel, learned counsel for the applicants, and Mr. S.S. Akber, learned counsel for respondents Nos. 1 and 2.
8. Under rule 10 of Order XXII, CPC the donee could continue to defend the suit in view of the transfer of rights by the donor 'o the donee by way of gift. The question, whether the donor had any rights in the property, the subject‑matter of the suit had to be decided in the suit on the pleadings of the parties thereto or the evidence led by the parties thereto.
9. Under the provisions of Section 52 of the Transfer of Property Act, the transfer of immovable property in the suit to which any right is directly and specifically claimed therein is not completely prohibited. What is contemplated by the provisions is that the property cannot be transferred or otherwise dealt with without the permission of the Court by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order 'which might be passed therein. In other words it means that the transfer of property by a party to suit in any manner during the pendency of the suit would not affect the rights of any other party to the suit to which he may be found entitled to. In my opinion, subject to these reservations, the property could be transferred even without permission of the Court but the transferee donee acquired right thereto or interest therein only subject to the judgment or order of the Court in the suit.
10. Section 52 of the Transfer of Property Act incorporates the doctrine of Lis Pendens. The doctrine was very succinctly explained by Lord Cranworth in Bellamy v. Sabine 44 English Reports (F.R) (Chancery) 842, at page 847, in the following words:‑
"It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its, operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party."
"Lord Macnaghten, in the Privy Council's case of Faiyaz Husain Khan v. Munshi Prag Narain and others (34 IA 102) referring to the above‑mentioned case observed at page 105 of the report, as follows:‑
"The doctrine of Us pendens, with which section 52 of the' Act of 1882 is concerned, is not, as Turner L.J. observed in Bellamy v. Sabine (1857) ID&J. 566, at page 584). 'founded, upon any of the peculiar tenets of a Court of Equity as toll implied or constructive notice. It is ................a doctrine common, to the Courts both of law and of equity, and rests ...........upon this foundation, that it would plainly be impossible that any, action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail‑' The mode of stating the doctrine, as Cranworth L.C. observed in the same case, is that 'pendente lite neither party to the of litigation can alienate the property in dispute so as t affect his opponent'." (Emphasis supplied)
12. 1, therefore, accept the revision application and set aside the impugned order. Mst. Mehrunnisa Nagori will be brought on record and the suit will proceed according to law. Parties to bear their own costs in the circumstances of the case.
M.Y.H./Z‑36/KPetition allowed.
(a) Transfer of Property Act (IV of 1882)‑‑
‑‑‑ S. 52‑‑Civil Procedure Code (V of 1908), 0. XXII, R.10‑‑Gift‑ Transfer of property during pendency of suit ‑‑ Defendant petitioner gifting property in suit by oral gift to his daughter‑in‑law and bringing an application under 0. XXII, R. 10, C.P.C., for bringing her on record‑‑ Application was dismissed by Court below on ground that property shown in application under O.XXII, R. 10, C.P.C. and gifted by defendant included property which was subject‑matter of suit and since no permission was obtained from trial Court, gift was in violation of S.52 of Transfer of Property Act ‑‑ Held, under provision of S.52 of Act, transfer of immovable property in suit to which any right was directly and specifically claimed therein was not completely prohibited‑ ‑What was contemplated by said provision was that property could not be transferred or otherwise dealt with without permission of Court by any party to suit or proceedings so as to affect rights of any other party thereto under any decree or order which might be passed therein ‑‑ Subject to these reservations, property could be transferred even without permission of Court but transferee / donee acquired right thereto or interest therein only subject to judgment or order of Court in suit ‑‑ Order of Court below set aside and donee ordered to be brought on record and suit to be proceeded according to law.
(b) Transfer of Property Act (IV of 1882)‑‑
‑‑‑ S. 52‑‑Doctrine of lis pendens as incorporated in S.52 of Act explained.
Bellamy v. Sabine 44 Eng. Rep. (F.R.) (Ch.) 842 & 847 and Faiyaz. Husain Khan v. Munshi ‑Prag Narain and others 34 1 A 102 rel.
Mrs. Rashid Patel for Applicants. S.S. Akbar for Respondents.
Date of hearing: 23rd November, 1987.
JUDGMENT
This revision application under Section 115, CPC is from the order of IV Additional District Judge, Karachi (South) dated 17‑7‑1986, passed in Civil Misc. Appeal No.11 of 1985, whereby he dismissed the appeal filed by the applicants from the order dated 9‑12‑1984 passed by the Ist Senior Civil Judge, Karachi, dismissing the application of one Dr. Ali Muhammad Nagori under Order XXII, Rule 10, CPC, which was filed in ‑'Suit No.1263/80, in the following circumstances.
2.The respondents filed a suit against Dr. Ali Muhammad Nagori for declaration claiming that the property No.VIT‑E‑98‑113, Sol B‑2/11]2. George Street, Karachi, in occupation of Irsha(f Khan tenant of the property‑ is their exclusive property and is owned by them and that, the defendant has no right o" interest in the property and that the said property does not form part of tenement No. G‑3 owned by the said Dr. Ali Muhammad Nagori. The respondents also prayed for a permanent injunction against the defendant or any person claiming under him restraining him from denying their title or disturbing U1 interfering with their possession, right, title to or interest in the suit property.
3. During the pendency of the suit, as stated at the Bar, Dr. Ali Muhammad Nagori gifted the property to his daughter‑in‑law, namely, Mst. Mehrunnisa Nagori by an oral gift. Thereafter, he made an application under Order XXII, rule 10, CPC to the trial Court for bringing the said Mehrunnisa the donee on record.
4. The trial Court, by order dated 9‑12‑1984, dismissed the application for the reason that the respondents have filed the suit against the predecessor of applicants for declaration and injunction and the property in possession of the respondents does not bear Number G‑3 but bears Number 1/3rd and as such the application of the said Dr. Ali Muhammad Nagori under Order XXII, rule 10, CPC was not maintainable.
5. Aggrieved by the order, Dr. Nagori filed and appeal before the Additional District Judge, in which the order impugned in this revision application was passed dismissing the appeal as stated before, The reasons, which weighed with the learned Additional District judge in dismissing the appeal were that the property shown in the application under Order XXII, rule 10, CPC, was gifted by Dr. Ali Muhammad Nagori to Mst. Mehrunnisa Nagori included the property, which was: the subject matter of the suit and under section 52 of the Transfer of Property Act, if any right to any immovable property is directly and specifically claimed, ‑the property could be transferred by a party to the suit only under the authority of the Court, and since in the suit no permission from the trial Court was obtained by Dr. Ali Muhammad Nagori for gifting the property in the suit to Mst. Mehrunnisa as such the said gift was in violation of section 52 of the Transfer of Property Act.
6.It may be pertinent to mention here that during the pendency of the appeal with the Additional District Judge, Dr. Ali Muhammad Nagori died and his legal representatives were substituted as appellants and the present revision application has been filed by the legal representatives of late Dr. Ali Muhammad Nagori.
7. 1 have heard Mrs. Rashida Patel, learned counsel for the applicants, and Mr. S.S. Akber, learned counsel for respondents Nos. 1 and 2.
8. Under rule 10 of Order XXII, CPC the donee could continue to defend the suit in view of the transfer of rights by the donor 'o the donee by way of gift. The question, whether the donor had any rights in the property, the subject‑matter of the suit had to be decided in the suit on the pleadings of the parties thereto or the evidence led by the parties thereto.
9. Under the provisions of Section 52 of the Transfer of Property Act, the transfer of immovable property in the suit to which any right is directly and specifically claimed therein is not completely prohibited. What is contemplated by the provisions is that the property cannot be transferred or otherwise dealt with without the permission of the Court by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order 'which might be passed therein. In other words it means that the transfer of property by a party to suit in any manner during the pendency of the suit would not affect the rights of any other party to the suit to which he may be found entitled to. In my opinion, subject to these reservations, the property could be transferred even without permission of the Court but the transferee donee acquired right thereto or interest therein only subject to the judgment or order of the Court in the suit.
10. Section 52 of the Transfer of Property Act incorporates the doctrine of Lis Pendens. The doctrine was very succinctly explained by Lord Cranworth in Bellamy v. Sabine 44 English Reports (F.R) (Chancery) 842, at page 847, in the following words:‑
"It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its, operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party."
"Lord Macnaghten, in the Privy Council's case of Faiyaz Husain Khan v. Munshi Prag Narain and others (34 IA 102) referring to the above‑mentioned case observed at page 105 of the report, as follows:‑
"The doctrine of Us pendens, with which section 52 of the' Act of 1882 is concerned, is not, as Turner L.J. observed in Bellamy v. Sabine (1857) ID&J. 566, at page 584). 'founded, upon any of the peculiar tenets of a Court of Equity as toll implied or constructive notice. It is ................a doctrine common, to the Courts both of law and of equity, and rests ...........upon this foundation, that it would plainly be impossible that any, action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail‑' The mode of stating the doctrine, as Cranworth L.C. observed in the same case, is that 'pendente lite neither party to the of litigation can alienate the property in dispute so as t affect his opponent'." (Emphasis supplied)
12. 1, therefore, accept the revision application and set aside the impugned order. Mst. Mehrunnisa Nagori will be brought on record and the suit will proceed according to law. Parties to bear their own costs in the circumstances of the case.
M.Y.H./Z‑36/KPetition allowed.
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