Purchaser with Knowledge of Pending Partition Suit Cannot Claim Protection as Bona Fide Purchaser – Allahabad High Court Upholds Rejection of Recall Plea Against Decree Modification

Preliminary Decree in Partition Suit Can Be Modified Due to Subsequent Events Without Necessity of Fresh Suit or Appeal” – Allahabad High Court, exercising civil supervisory jurisdiction under Article 227, upheld the rejection of a recall application seeking to challenge a 2012 modification of a preliminary decree in a long-standing partition suit. The Court dismissed the plea filed by Tara Chandra Gupta, who had sought to undo a modification of co-sharer shares, claiming lack of notice and asserting inheritance rights through a purchaser’s title.

Justice Rohit Ranjan Agarwal, while dismissing the writ petition, held: “Once the legal heirs of a co-sharer, after entering into transactions and withdrawing from proceedings, failed to challenge modification for nine years, the recall application is not sustainable. The modification of preliminary decree was proper, lawful, and within jurisdiction.”
(Paras 62–64)

Dispute Rooted in 1976 Partition Suit and Inheritance Claims

The litigation stems from Original Suit No. 254 of 1976, filed by Chandi Das Basu seeking partition of ancestral property at 63, Bahadurganj, Allahabad, and properties listed in Schedule B of the plaint. A preliminary decree was passed in 1979, defining co-sharer shares—5/48 to the plaintiff (Chandi Das) and 1/2 to other branches.

In 1995, after the death of one co-sharer, Chandi Charan Basu, his brother Chandi Das Basu entered into a registered agreement to sell his own and his deceased brother’s shares to the petitioner Tara Chandra Gupta, despite no modification of the preliminary decree. A suit for specific performance filed by Gupta was decreed in his favour, and the sale deed was executed in 2021.

Meanwhile, in 2009, legal heirs of another co-sharer (Ajay Kumar Basu) filed Application 65-C seeking modification of the 1979 preliminary decree to reflect succession changes after Chandi Charan’s death. This was allowed by the trial court on 07.05.2012. Gupta filed Application 86-C in 2021 seeking recall of the 2012 modification, claiming lack of notice and procedural violations.

Whether the 2012 Modification of Preliminary Decree Was Valid Without Notice to Petitioner

The Court rejected this contention, holding: “After entering into a transaction, legal heirs of Chandi Das Basu withdrew from litigation. Twice publication was effected for service. They were aware and chose not to appear. The 2012 modification was not ex parte.”
(Paras 48, 50, 63)

Further, the petitioner, aware of the litigation since 1995, failed to act for over nine years and did not implead himself until 2021:  “He knowingly purchased the litigation... after nine years of modification, he cannot now allege it to be an ex parte order.”
(Para 59)

Can Preliminary Decree Be Modified Without Fresh Suit or Appeal?

Yes, the Court reaffirmed that preliminary decrees in partition suits are not immutable and can be modified to reflect intervening events like death of parties:

“Pending final decree, shares are liable to be varied on account of death of a party... modification of preliminary decree is legally permissible.”
(Para 60, relying on Phoolchand v. Gopal Lal, AIR 1967 SC 1470 and S. Sai Reddy, (1991) 3 SCC 647)

“Though Section 97 CPC provides for appeal against preliminary decree, amendment of the decree is not barred.”
(Para 61, citing S. Satnam Singh v. Surender Kaur, (2009) 2 SCC 562)

Whether Petitioner Can Claim Succession Under Dayabhaga School of Hindu Law

The Court strongly rebuffed this attempt:

“No foundational pleading or material on record to suggest parties were governed by Dayabhaga law. All prior proceedings presumed Mitakshara applicability.”
(Paras 28–31, 52–54)

“Inheritance claims under Dayabhaga raised for the first time by a purchaser cannot be entertained in Article 227 jurisdiction.”

Whether the Petitioner Is a Bonafide Purchaser Entitled to Protection Under Section 41, TPA

Rejecting the plea, the Court held:

“Petitioner was fully aware that the property was under litigation and that final decree was not yet passed. He stepped into litigation with full knowledge.”
(Para 57)

“He cannot claim benefit under Section 41 of the Transfer of Property Act, 1882, being a purchaser with notice of title dispute and pending litigation.”
(Para 58)

Effect of Proceedings Taking Place in Connected Final Decree Case

The petitioner had also challenged the modification on the ground that Application 65-C was moved in Final Decree Case No.111/1980, but the order was recorded in connected Case No.33/1997.

This was dismissed as hyper-technical: “Though no formal consolidation order was passed, both cases were heard together. Intent of the order is clear—it was to modify the preliminary decree.”
(Para 66)

Petition Dismissed, Modification Valid

The High Court concluded that the petitioner had no legal right to seek recall of the 2012 order, which was lawfully passed after due process and long after the heirs of the transferor had withdrawn from proceedings.

“Petitioner, after nine years and having knowledge of pending litigation, cannot be permitted to disrupt settled judicial determinations.”

“No procedural illegality or miscarriage of justice has occurred. Recall rightly rejected.”
(Paras 68–69)

The writ petition was dismissed, and the Court directed expeditious transmission of records to the lower court.

This judgment is a notable affirmation of principles surrounding partition suits, especially that preliminary decrees are modifiable based on subsequent events. It reiterates that constructive notice of litigation binds purchasers, and that inheritance claims cannot be raised without foundational pleadings. The Court strictly enforced the bar on revisiting settled issues via recall, especially after prolonged inaction and procedural circumvention.

Date of Decision: June 9, 2025