Delhi High Court Upholds Partition Decree, Rules Property Buyer During Pending Suit Bound by Earlier Unchallenged Preliminary Decree Despite Claim of Bona Fide Purchase
Delhi High Court Rejects Subsequent Purchaser’s Challenge to Partition, Holds Lis Pendens Applies Despite Bona Fides and Reaffirms Binding Finality of Earlier Unchallenged Preliminary Decree
Facts
The suit concerned a Paschim Puri, Delhi property acquired in 1978 in the name of Kaushlya Devi. Following her death, seven heirs disputed ownership and partition. A 2005 injunction restrained alienation; on 9 February 2011 the trial court passed a preliminary decree allocating each heir a one-seventh share. Nevertheless, one heir obtained a DDA freehold conveyance and sold the property to Antara Majumdar on 22 May 2012 for ₹13.40 lakh. Impleaded in 2015, she failed to lead evidence. The trial court closed defence evidence on 27 February 2018, reiterated the preliminary decree on 7 April 2018 and passed a final decree on 8 May 2018.
Issues
Whether a subsequent purchaser could defeat or reopen an earlier partition decree by claiming bona fide purchase; whether Section 52 of the Transfer of Property Act bound her despite alleged lack of notice; and whether closure of her evidence and the final decree warranted appellate interference because of procedural unfairness or sufficient cause for absence.
Petitioner’s Arguments
The appellant, a purchaser under a registered sale deed, argued that she had been denied an effective opportunity to prove bona fide purchase. Her counsel attributed missed hearings to incorrect noting of dates and asserted that evidence was closed without notice, contrary to natural justice. She also maintained that the trial court should have awaited the outcome of proceedings seeking transfer and consolidation of related suits.
Respondent’s Arguments
The original plaintiffs invoked lis pendens under Section 52 of the Transfer of Property Act: the sale occurred during a pending partition suit, despite an injunction and after the first preliminary decree. They emphasised that the 2011 decree fixing one-seventh shares was never challenged, the buyer had repeatedly remained absent, and transfer petitions had largely failed. They also pointed to the non-substitution of legal representatives of deceased respondents.
Analysis of the Law
Section 52 of the Transfer of Property Act subjects a pendente lite transfer to the result of litigation concerning the property; the transferee’s asserted good faith or want of notice does not defeat the decree. A preliminary partition decree conclusively decides declared shares unless lawfully challenged or modified. Section 97 CPC precludes challenging an unappealed preliminary decree through an appeal against the final decree. For setting aside an ex parte decree under Order IX Rule 13 CPC, sufficient cause for non-appearance must be shown; repeated unexplained absence is significant.
Precedent Analysis
Shingara Singh v. Daljit Singh, 2024 INSC 770, confirms that a subsequent purchaser cannot invoke bona fide purchase to avoid lis pendens; Balwant Singh v. Buta Ram, 2009 SCC OnLine P&H 6642, was also cited. Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992, establishes that a preliminary partition decree is conclusive on matters decided and attracts Section 97 CPC. G.P. Shrivastava v. R.K. Raizada, (2000) 3 SCC 54, requires sufficient cause to excuse non-appearance, while permitting a liberal approach where absence is not negligent or deliberate.
Court’s Reasoning
Justice Amit Bansal found no adequate explanation for the appellant’s absence on successive dates between January and May 2018; she had not sought relief under Order IX Rule 13 CPC. The earlier transfer petitions had failed, and the appellant did not properly pursue the remaining petition. More fundamentally, her 2012 purchase followed the 2011 preliminary decree and was necessarily subordinate to the established one-seventh shares. Although impleaded in 2015, she challenged neither the 2011 nor the 2018 preliminary decree. Her claim of bona fide purchase could not displace lis pendens or reopen those findings.
Conclusion
The Delhi High Court dismissed the first appeal, declining to interfere with the order closing evidence or the final partition decree. A sale during pending litigation, particularly one executed after a preliminary decree and notwithstanding a subsisting restraint on alienation, cannot confer title free from the rights already adjudicated. The Court reaffirmed both the binding effect of lis pendens and the finality of unchallenged preliminary decrees, while holding that procedural indulgence requires a satisfactory explanation for non-appearance. Pending applications were disposed of.
Case: Antara Majumdar v. Vimla Choudhary & Ors.
Court: High Court of Delhi at New Delhi
Case Number: RFA 810/2019 with CM APPL. 40358/2019, 41751/2023 and 32535/2024
Judge: Justice Amit Bansal
Date: 29 October 2026 (reserved on 25 September 2026)
Result: First appeal dismissed; final partition decree and closure of defence evidence sustained.
