Whether transferee of property can get impleaded in partition suit?

 A transferee gets the right of the transferor and can
pursue those rights only. In this case the transferor is a co-sharer in a partition
and administration suit where a preliminary decree has been passed. The
property has also been proposed to be partitioned in a particular way by the
Commissioner of Partition. The transferee’s right is limited to ensuring that the
transferor’s share, as conveyed to her is properly partitioned in accordance with
the preliminary decree. If the transferor loses interest in the suit then the
transferee by participation in the trial can continue the suit in the shoes of the
transferor, to this limited extent only. I grant such right to the applicant.
GA 1217 OF 2016


IN THE HIGH COURT AT CALCUTTA
Extra-Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SUMARMAL SURANA V BHAWARLAL BHANDARI
 & ORS.

 BEFORE:
 The Hon'ble JUSTICE I. P. MUKERJI
 Date : 14th July, 2016.
Citation:AIR 2016 (NOC)711 Cal


The Court : The Commissioner of Partition has filed a preliminary report.
An exception to this report has been taken by an application [GA no.1217 of
2016].
I find that the Commissioner has done his duty diligently and made a very
fair and equitable division of the property, giving opportunities to all parties in the
suit to make their comments. Therefore, there is no merit in the exception to the
report. The report of the Commissioner is confirmed.
The other point raised by Mr. Bhattacharyya in the present application [GA
no.1985 of 2016] is this. His client is a transferee from one of the co-sharers of
the property during the pendency of the suit. She has a right to being added as a
defendant, seek a declaration with regard to the shares transferred to her and
reopen the preliminary decree.
Order XXII Rule 10 of the Code of Civil Procedure clearly provides for a
situation when there is transfer of an interest during pendency of the suit. There
is no provision for addition of the transferee as a party. This provision supports
the submission of Mr. Chowdhury, learned advocate that the applicant transferee
was bound by the preliminary decree. Order XX Rule 18[2] of the Code referred to2
by Mr. Bhattacharyya does not have any application to this case as it refers to a
situation when a decree trenches upon a property other than the suit property.
That is not the case here.
In my opinion, a transferee has the right to take part in the trial under
Order XXII Rule 10 of the Code, inasmuch as, this rule says that the suit can be
continued by or against the transferee.
There is logic in this. A transferee gets the right of the transferor and can
pursue those rights only. In this case the transferor is a co-sharer in a partition
and administration suit where a preliminary decree has been passed. The
property has also been proposed to be partitioned in a particular way by the
Commissioner of Partition. The transferee’s right is limited to ensuring that the
transferor’s share, as conveyed to her is properly partitioned in accordance with
the preliminary decree. If the transferor loses interest in the suit then the
transferee by participation in the trial can continue the suit in the shoes of the
transferor, to this limited extent only. I grant such right to the applicant.
For the above reasons, the application made for confirmation of the
Commissioner’s report [GA no.1710 of 2016] is allowed. The application made
taking exception to the report [GA no.1217 of 2016] is dismissed.
The other application [GA no.1985 of 2016] is disposed of in terms of the
above observation.
The unpaid share of the remuneration of the Commissioner is to be paid by
the party obliged to make payment within 31st July, 2016. In default, Mr.
Chowdhury’s client will make payment and such payment will be deemed to be
part of the decree and executable as a decree.
Certified photocopy of this order, if applied for, be supplied to the parties
subject to compliance with all requisite formalities.
(I. P. MUKERJI, J.)
Pkd.
A.R.[C.R.]

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