1. These appeals arise out of the order of the learned Dist. J., Parur dated 23-1-1950 passed on C.M.P 130 of 1950 in O.S No. 37 of 1103, A, 8. No. 98 is by the obstructor petnr. in C.M.P 130 & A.S No. 136, by deft. 7 & some other defts.
2. A.S No. 98 of 1950. The applt. in A.S No. 98 obstructed delivery of possession of properties in execution of the decree in O.S No. 37 of 1103 which was a decree for partition in a Malabar Tarwad. The obstruction related to six items. The obstruction was upheld in respect of items 2 to 6 & was disallowed in respect of the first item. A.S No. 98 relates to the first item regarding which obstruction was disallowed & A.S 136 relates to items 2 to 6 regarding which the obstruction was allowed.
3. The resp. in A.S No. 98 raises a preliminary objection to the maintainability of the appeal on the ground that the applt. is a transfers of properties pendente lite, that is, the transfer relied upon by him which is a mtge. executed in his favour by deft. 4 was after the institution of the suit O.S No. 37 of 1103 which was a suit for partition. The transferee pendente lite, it is contended, is not a representative of the party & therefore, will not come within the operation of S. 40, Travancore Civil P.C with the result that the order passed by the lower Ct. must be regarded as an order passed against a stranger to the suit & that only an original suit is competent as provided in the Code. In Parameshari Din v. Ram Charan, A.I.R (24) 1937 P.C 260 : (31 S.L.R 652) the P.C held that a transferee pendente lite is a representative in interest of the party from whom he got the transfer. The reason is obvious became a transfer alter the institution of a contentious suit is not had for all purposes; such a transferee would be disentitled to raise any claim against the decree or order that may ultimately be passed in the action. The learned counsel for the resp. relies upon Basappa v. Bhimangowda, 52 Bom. 208 : (A.I.R (15) 1928 Bom. 65) to support his position, namely, that a transferee pendente lite is not a representative. That decision when perused reveals that the non-representative character of the transferee is only for the purpose of questioning the pltf's. right to sue & that for all other purposes the transferee is a representative. Thus on the reaps. own showing, where a transfer is effected lis pendens the transferee is entitled to raise the objections & pursue the remedies as the transferor could have done. The preliminary objection is, therefore, overruled.
4. Coming to the merits of the matte, Mr. N.K Narayana Pillai, for the applt. complains that his client has had no opportunity to adduce necessary evidence in the case and that the matter was straightway posted for argument without posting the case for evidence. It appears to us that the case should have been posted for evidence & that the parties should have been afforded an opportunity to adduce evidence in the case. The learned counsel for the resp. is not prepared to argue the case as a demurer accepting all allegations made on behalf of the applt. We have, therefore, to reverse the order of the Ct. below in so far as it relates to item 1, which is the subject-matter of appeal suit No. 98, allow that appeal & remand the case to the Ct, below for disposal according to law after affording an opportunity to the parties to adduce evidence, oral or documentary, or both. The Transfer of Property Act is not in the Satute Book of Travancore but the principles underlying in S. 52 thereof have been accepted by the Travancore H.C & it is the Common case of the litigants in this case that these principles apply. In fact the resp. depends upon those principles. We direct that the costs of this appeal shall abide & follow the result in the Ct. below which will provide for it in the revised order to be passed by it.
5. A.S No. 136 of 1950. This appeal as already mentioned relates to items 2 to 6 in the petn. filed by the resp. These items were admittedly outstanding with lessees under the tarwad who were not parties to the suit. The obstructor obtained possession from these lessees. In a matter of obstruction what the Ct. is concerned with is only possession & title to possession. The tarwad not having had title to actual possession at the time the suit was filed the lower Ct. rightly upheld the obstruction of the reap. The fact of the properties being outstanding on lease under the tarwad before the date of the suit is not canvassed before us by the applt. In this view the appeal is without merits & has to be dismissed with costs.
6. Order accordingly.