S.52 Transfer of Property Act

The Patna High Court has recently held that if a party wishes to sell the land which he is likely to receive after partition to meet the medical expenses of his daughter and himself, his application should be considered and not rejected solely on the ground of the fact that such sales are affected by Article 52 of the Transfer of Property Act.

Justice Arun Kumar Jha, who presided over the case, emphasized: “If the petitioner wishes to sell the land which he is likely to get after partition to meet the cost of treatment of his daughter and himself, his prayer should be taken into consideration and should not be rejected merely on the ground that that such requests have been made. alienation would be affected by section 52 of the Transfer of Property Act. Section 52 of the Transfer of Property Act does not prohibit the complete transfer of land during the pendency of the proceedings. The land can be transferred with the permission of the court and the petitioner has sought permission for the same.”

The above judgment came in a petition filed under Article 227 of the Constitution of India, challenging the order of a sub-judge, rejecting the petitioner’s request that part of the land belonging to his share be sold , was rejected.

The respondents, who were originally the plaintiffs, had filed a suit seeking allotment of 7/36 share in the ancestral property. The petitioner had also claimed 7/36 share of the suit properties. In 2003, the petitioner had obtained court permission to sell part of the property to finance his daughter’s wedding. However, sales were hampered by the actions of respondents.

Now the petitioner tried to sell two Bighas of his share to meet the medical expenses of himself and his daughter. He had applied to the court for permission to sell the land. However, the request for the same was dismissed by the Court citing the prohibition under Section 52 of the Transfer of Property Act, 1882, which prohibits transfer of property while a suit is pending.

While arguing that the trial court’s reasoning was erroneous, counsel for the petitioner pointed out that the same court had earlier granted the petitioner’s application, allowing him to sell two Bighas of his share of land to defray the expenses of his daughter’s wedding to cover.

Furthermore, counsel argued that the court failed to consider that the present case is a partition case in which permission for the sale of the land should not have been refused. The court had previously denied the plaintiffs’ request for an injunction, stating that since it was a partition case, the parties’ shares could be adjusted to take into account the sale of their land.

The Court noted that the suit in question was a partition suit, with a recognized claim in respect of the parties’ respective shares.

The Court stated, “If both the petitioner and the respondents have an equal share, which is not contradicted by any of the parties, prohibiting the petitioner from effecting sale of part of his share to meet his urgent expenses is certainly not proper in view the age of the petitioner and the facts as alleged.”

“So, the learned process erred in passing the order and there appears to be a manifest error of jurisdiction. It is also a fact that earlier the same prayer of the petitioner was granted even though the petitioner did not sell the land, but considering the prevailing situation, it is required that the petitioner’s application be granted.” the Court concluded

The contested decision has therefore been annulled.

Case title: Bijay Kumar Sarawagi v Sudhir Kumar Sarawagi & Anr.

Click here to read the verdict