Facts
Mr. Saran Dass (deceased) had two wives, Ms. Bimla Devi (3rd Defendant) and Ms. Biasan Devi (4th Defendant). With Ms. Biasan Devi, Mr. Dass had two sons, Bir Singh alias Hari Ram (1st Defendant) and Sardev Singh alias Rikhi Ram (2nd Defendant). Ms. Bimla Devi took care of Mr. Dass as Ms. Biasan Devi and her sons neglected the deceased and were living separately. In lieu of this, Mr. Saran Dass gifted some landed property including the suit land in favor of Ms. Bimla Devi under Section 122 of the Transfer of Property Act, 1882 which she subsequently transferred to the plaintiff in this case, Ishwar Dass.

The gift to Ms. Bimla Devi by Mr. Saran Dass was challenged by the 1st and 2nd defendants on the grounds that the gift consisted of their ancestral property which resulted in the court recognising the ancestral property in the gift. The identified ancestral property was to be divided among the two widows and two sons that were left behind by the deceased according to Section 8 of the Hindu Succession Act, 1956 and therefore, the sons and widows were to receive 1/3rd and 1/6th each respectively of the ancestral property.

This judgment was challenged by the plaintiff, Ishwar Dass on the grounds that the plaintiff along with the proforma defendants 5 and 6 were joint owners of the suit land to which 1/3rd share was owned by Ms. Bimla Devi. Being a bona fide purchaser of the said land, the plaintiff claimed that he was not bound by the adjudication of the above mentioned suit. The plaintiff's suit was dismissed even though he had entitlement to 12th share of the suit land and the transfer of the same could have been held valid by the court and hence the appeal was granted.

Case Type
Regular Second Appeal (RSA 439/2002) filed at the High Court of Himachal Pradesh under Order 42 of the Civil Procedure Code of 1908.
Deals with Section 41, Transfer by Ostensible Owner and Section 58, Doctrine of Lis pendens under the Transfer of Property Act of 1882.
Bench And Quorum
Dharam Chand Chaudhary, J.

Procedural History
The initial suit filed by the 1st and 2nd defendants was dismissed by the trial court and the aggrieved party approached the Additional District Judge's Court which confirmed the trial court's decision and the suit was dismissed. However, the court observed and acknowledged that part of the gift was of ancestral property and is hence invalid.

On Regular Second Appeal at the Himachal Bench of the Delhi High Court, the court confirmed the decision of the first appellate court and the ancestral property was divided among the widows and sons.
The suit in this case was filed by the plaintiff against the defendants which was dismissed by the trial as well as the Additional District Judge's court and hence is at Regular Second Appeal at the High Court of Himachal Pradesh.

Issues
The substantial questions of law in this case were:

1. Whether the plaintiff (transferee) is entitled to the protection provided for in Section 41 of the Transfer of Property Act?
2. Whether the plaintiff could have sold the land for more than her part of the property under dispute?

Arguments
Plaintiff
The plaintiff vehemently argued that being a bona fide purchaser, who paid a consideration for the transfer, he is entitled to 1/3rd share of the suit land as given under Section 41 of the Transfer of Property Act, 1882.

Respondent
The respondents urged that the plaintiff along with the 5th and 6th proforma defendants purchased the suit land as joint possessors during the pendency of the initial suit filed by the 1st and 2nd defendants against the 3rd defendant and hence according to Section 52 of the Transfer of Property Act, 1882, the transfer is subject to the outcome of the suit. The suit resulted in declaring Ms. Bimla Devi as the owner of only 1/6th share of the suit land by Section 8 of the Hindu Succession Act, 1956 and therefore the plaintiff and the proforma 5th and 6th defendants were only entitled to the same.

Laws APPLIED

1. Section 122 in The Transfer of Property Act, 1882
   122. "Gift" defined.�"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made.�Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
    
2. Section 8 Hindu Succession Act, 1956:
   8. General rules of succession in the case of males:
   The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:
   
   1. firstly, upon the heirs, being the relatives specified in class I of the Schedule;
   2. secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
   3. thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
   4. lastly, if there is no agnate, then upon the cognates of the deceased.
       
3. Section 41 Transfer of Property Act, 1882:
   41. Transfer by ostensible owner.
   Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
    
4. Section 52 Transfer of Property Act, 1882:
   52. Transfer of property pending suit relating thereto:
   During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Judgment
The court observed that the object of the provisions under Section 52 of the Transfer of Property Act, 1882 is to make the transferee subservient to any decree that may be passed upon the land or property in dispute. Hence, the involvement of the transferee to the suit (whether a third party or not) stands immaterial before the law. Therefore, the transfer of property between the 3rd defendant and the plaintiff is valid, however, subject to the results of the suit filed upon it.

The contention of the plaintiff that he is a bona fide purchaser under Section 41 of the Transfer of Property Act, 1882 and therefore is protected from being bound by the court's decision does not stand as Section 52 of the act has an overriding effect over Section 41 and therefore makes the plaintiff bound by any decree passed by the court.

The transfer in favor of the plaintiff and proforma defendants 5 and 6, therefore is governed by the decree passed by the court in the suit filed by the 1st and 2nd defendant against the 3rd defendant which declared that Ms. Bimla Devi is entitled to only 1/6th share of the property and therefore the plaintiff is also entitled to only 1/6th share of the suit land.

The appeal filed by the plaintiff was therefore dismissed and the impugned judgment and decree was affirmed with no order of costs.

Rationale
Section 52 has an overriding effect upon Section 41 of the Transfer of Property Act, 1882 and therefore the transfer between the plaintiff and 3rd defendant is bound by the decree passed in the lis pendens between the 1st and 2nd defendant against the 3rd defendant.

Critical Analysis
Shri Ishwar Dass v. Shri Bir Singh and Ors. has been a case that yet again emphasized upon the essence and meaning of Section 52 of the Transfer of Property Act, 1882. In the case of Jayaram Mudaliar v. Ayyaswami and Ranjendr Singh v. Shantha the court redefined the Doctrine of Lis pendens as 'the jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein.'

The essentials to use Section 52 as ground for a suit are fulfilled in the present case resulting in the binding of the court's decree upon the suit land and therefore, the court has been meritorious in deciding the case in lines of the same.

The primary dispute in the present case was the conflict between Section 41 and Section 52 of the Transfer of Property Act, 1882. In the presence of a special provision of law applicable to pending suits as in Section 52, the general provisions of estoppel contained in Section 41 would not apply and therefore Section 52 overrides Section 41. This overriding effect of Section 52 over Section 41 of the Transfer of Property Act of 1882 highlights the binding nature of the law and of the orders and decrees of the courts in India upon its citizens.

However, the significantly long duration of pendency of this case in court, being filed in 2002 and receiving a judgment in 2015, with most of the parties passing away during this period when the essence of the very case depends on the enjoyment of the suit land by these parties, the judiciary fails to fulfill the expected aid to the aggrieved in this case.

Citations:

• Transfer of Property Act, 1882.
• Hindu Succession Act, 1956.
• Transfer of Property Act, 1882.
• Transfer of Property Act, 1882.
• AIR 1973 SC 569, para. 47; AIR 1973 SC 2537
• Md. Shafiqullah Khan vs Md. Samiullah Khan AIR 1929 All 943