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Report No. 157

3.11. Rationale.-

The rationale underlying section 52 is simple enough and easily intelligible. If a party against whom relief is claimed were to be allowed to transfer his right pendente lite, then the plaintiff would be indirectly compelled to make the transferee a party to the litigation. If the first transferee is himself free to transfer his own right, then (on such a transfer), the plaintiff would be indirectly compelled to make the second transferee a party. The process could thus turn out to be endless, and so would be the hardship that might be experienced by the plaintiff, unless some restriction on the right of transfer is imposed by law.

It is precisely this object which section 52 has in view, when it enacts that the transfer or other dealing shall not affect the rights of any other party thereto under any decree or order to be passed in the suit (except with the authority of the court). Thus, the section, in effect, freezes proprietary rights as they stood at the time when the suit was instituted. No subsequent transactions can make a change in the situation as it existed when the suit was commenced. The law throws its cloak of protection around the party's rights, protecting those rights against the onslaughts of subsequent transfers.

It is to be pointed out that the section does not totally invalidate the transfer. It only prevents the transfer from affecting the right of any other party.1 In other words, it introduces its own scheme of priority, its own scale of superior and inferior rights, consequential on transfer pendente lite. The underlying principle is that a litigant who has obtained a judgment is entitled, not to be deprived of it, without any solid grounds. 2 Interest rei publicaeut sit finish litium ( Public interest requires finality in litigation).

1. T. Bhup Narain Singh v. Nazvab Singh, AIR 1957 Pat 729 (731), para. 9.

2. T. Bhup Narain Singh v. Nazvab Singh, AIR 1957 Pat 729 (Ramaswamy, C.J. and Raj Kishore Prasad, J.).



Section 52 of the Transfer of Property Act, 1882 and its Amendment Back




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