Conversion to another religion

The Caste Disabilities Removal Act, 1850 (Act 21 of 1850) had not been repealed so far. 

This Act contains only one Section, which is as follows:

"Law or usage which inflicts forfeiture of, or affects, rights on change of religion or loss of caste to cease to be enforced ; So much of any law or usage now in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair to affect any right of inheritance, by reason of his or her renouncing, or having excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in any Court."

Section 26 of the Hindu Succession Act held that the bar for inheritance is only in respect of legal heirs of the convert. The individual, who convert himself to other religion from Hinduism, will not forego the right of any inheritance.

Section 26 of the Act, prohibits the children, of the convert from inheriting the property of any of their Hindu relatives.

E. Ramesh And Anr. vs P. Rajini And 2 Ors., (2002) 1 MLJ 216 (Madras High Court’s Division Bench judgment)

Disproportionate Punishment

Quantum of punishment disproportionate to offence:

The question of choice and quantum of punishment is within the jurisdiction of the disciplinary body; but the sentence has to suit the offence and offender;

It should not be vindictive or unduly harsh. 

It should not be so disproportionate the offence as to shock the conscience and amount in itself to conclusive evidence of bias.

"The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the disciplinary body, if the decision of that body even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction."

Irrationality and perversity are recognized grounds of judicial review. All powers have legal limits.

"It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. In BhagatRam v. State of Himachal Pradesh, A.I.R. 1983 SC 454

Coram non judice

Coram non judice

It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons, acting fairly and without bias and in good faith. 

A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non judice". 

Ref: Vitarelli v. Seaton, 359 U.S. 535

Ref: Prithvi Pal Singh v. Union of India, AIR 1982 SC 1413.

Dismissal is shockingly disproportionate to the gravity of the charges:

Dismissal is shockingly disproportionate to the gravity of the charges:

 Whether the punishment of dismissal is shockingly disproportionate to the gravity of the charges. The principles relating to judicial review of punishment imposed, as a part of the decision making process by Court Martial, have been explained, in Ranjit Thakur vs. Union of India – 1987 (4) SCC 611, where the Hon'ble Supreme Court interfered with the punishment imposed by a court martial on the ground that it was strikingly disproportionate to the gravity of offence on the following reasoning: 

“Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". 

The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. 

It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. 

The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.”

Judicial Review in Court martial proceedings:

Judicial Review in Court martial proceedings:

The principles relating to judicial review in regard to court martial proceedings are well settled. Unless the court martial has acted without jurisdiction, or exceeded its jurisdiction or had acted perversely or arbitrarily, the proceedings and decision of the court martial will not be interfered in exercise of power of judicial review. 

In Union of India vs. Major A. Hussain – 1998 (1) SCC 537, the Hon’ble Supreme Court held:

“Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court-martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands. Proceedings of a court-martial are not to be compared with the proceedings in a criminal court under the CrPC where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A court-martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishment.”

Illegal detention and Compensation

Illegal detention and Compensation: 

In Rudul Sah Vs. State of Bihar & Anr. (1983) 4 SCC 141, Y.V. Chandrachud, CJ, speaking for a Bench of three learned Judges of this Court had observed thus: 

“One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt.”

In Bhim Singh, MLA Vs. State of J & K & Ors. (1985) 4 SCC 677, holding illegal detention in police custody of the petitioner Bhim Singh to be violative of his rights under Articles 21 and 22(2) of the Constitution, the Hon’ble Supreme Court, in exercise of its power to award compensation under Article 32, directed the State to pay monetary compensation to the petitioner. Relying on Rudal Sah (supra), O. Chinnappa Reddy, J. echoed the following views:

“When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation”.

In Nilabati Behera (Smt) Alias Lalita Behera Vs. State of Orissa & Ors. (1993) 2 SCC 746, clearing the doubt and indicating the precise nature of the constitutional remedy under Articles 32 and 226 of the Constitution to award compensation for contravention of fundamental rights, which had arisen because of the observation that “the petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial” in Rudul Sah ((1983) 4 SCC 141), J.S. Verma, J. (as His Lordship then was) stated as under:

“It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.” 

Inherent Powers of High Court:

Inherent Powers of High Court:

Section 482 CrPC. Saving of inherent power of High Court – “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice”.

Section 482 of the Cr.P.C., however, states that nothing in the Cr.P.C. shall be deemed to limit or affect the inherent powers of the High Court to make such orders as is necessary to give effect to any order under the Cr.P.C. or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Thus, the provisions of the Cr.P.C. do not limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Court or to prevent the abuse of any process of the Court or otherwise to secure the ends of justice.

It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a “State” to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar [(2008) 5 SCC 413] opined as under: (SCC p. 415, para 7);

In the recent case of State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others [(2010) 2 SCC 571] a Constitution Bench of this Court, while holding that no Act of Parliament can exclude or curtail the powers of the High Court under Article 226 of the Constitution, has cautioned that the extra-ordinary powers of the High Court under Article 226 of the Constitution must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. This caution equally applies to the cases where the High Court exercises inherent powers under Section 482 of the Cr.P.C. to direct investigation by the CBI for securing the ends of justice.

Further investigation and Re-investigation Difference:

Further investigation and Re-investigation Difference:

After the charge sheet is filed, the Court has powers under sub-section (8) of Section 173 of the Cr.P.C. to direct further investigation by the police, but the Court has no power to direct a fresh investigation or reinvestigation into the case by the police. 

The High Court, therefore, could not have directed the CBI to start a fresh investigation or reinvestigation of the case after the police had filed charge sheet under sub-section (2) of Section 173 of the Cr.P.C. 

In support of this submission, the cited decision of the Supreme Court is Mithabhai Pashabhai Patel v. State of Gujarat [(2009) 6 SCC 332] and in which the Hon’ble Supreme Court made a distinction between further investigation and reinvestigation and held that under subsection (8) of Section 173 of the Cr.P.C., the Court can grant permission for further investigation and not for reinvestigation.

At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation.”

A distinction, therefore, exists between a reinvestigation and further investigation.”

Joint Family doctrine

Joint-family doctrine:

The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body Gan Savant Bal Savant v. Narayan Dhond Savant I.L.R. 7 Bom. 467 and Mayne's 'Hindu Law and Usage,' 6th edition, paragraph 270 and the possession of property by such corporate body. 

The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose, female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition, viz., the undivided state--it forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family. Persons, who by birth or adoption are not members of a Hindu family, cannot, in the absence of a custom having the force of law, by more agreement, become or be made members of a joint family.

According to the above conception of a family, there may, of course, be one or more families all with one common ancestor, and each of the branches of that family, with a separate common ancestor.

As regards the property of such family, the 'unobstructed heritage' devolving on such family, with its accretions, is owned by the family as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate 'unobstructed heritage' which, with its accretions, may be exclusively owned by such branch as a corporate body.

--(Sudarsanam Maistri Vs. Narasimhulu Maistei and anr.  (1902)ILR25Mad149)   

son has a right by birth

Arunachala Mudaliar vs. Muruganatha Mudaliar, 

AIR 1953 SC 495:

"According to Mitakshara, the son has a right by birth in his father's and grandfather's estate, but a distinction is made in this respect by Mitakshara itself. In the ancestral or grandfather's property in the hands of the father, the son has equal right with his father, while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same."

The principle is that the son gets a right by birth in the father's property, whether it is ancestral or self-acquired. However while the son's right actually to dispose of the share is unobstructed when the father's properly is ancestral, it is obstructed when it is self-acquired by the father's full rights of disposal. 

But this distinction does not affect the factum of the son's getting a right at the very moment of his birth in all the property owned by the father. Once this is understood, succession, even to the father's self-acquired property, is by survivorship, properly called, and not by inheritance, Confusion is sometimes created by the loose use of the word "inheritance' as also by some passages cited out of context from old Privy Council judgments, and also in some of the translations of the old texts, where the word 'pitriam' is translated without clear reference to whether it is 'pitriam' in respect of the son who may succeed, or in respect of the father who owns the property, In the one case, it would mean all the property of the father, while in the other only that property which is ancestral in the father's hand. Be that as it may, the pronouncement of the Supreme Court makes the principle underlying the Oudh ruling quite untenable. Actually, even in Oudh the 1930 ruling is no more sound law. 

The later decision of the Allahabad High Court in Mt. Ram Dei v. Mt. Gyarsi, AIR 1949 All 545 clearly lays down: 'The self-acquired property of a Hindu father which his sons who were joint with him get on his death is in their hands joint family properly.' 20 The same problem has been discussed at some length in Girdharilal v. Fatehchand, (S) AIR 1955 Madh B 148:

"It is settled that a son has a right by birth in the father's self-acquired property. It follows as a necessary consequence that the property is unobstructed heritage devolving by survivorship and that if the self-acquired properly has been not disposed of by the father during his lifetime on his death, the undivided sons and grandsons would take the property to the exclusion of the separated sons or grandsons."

Inconsistent Pleadings

The Code of Civil Procedure does not prohibit inconsistent pleadings, and that there is nothing to prevent either party from setting up two or more inconsistent sets of material facts and claiming relief thereunder in the alternative. 

A plaintiff may rely upon several different rights alternatively, although they may be inconsistent; so a defendant may raise, by his statement of defence, without leave, as many distinct and separate, and therefore inconsistent, defences as he may think proper. 

This is fully established by the decision of the Full Bench in Narendra v. Abhay Charan (1907) 34 Cal. 51 and illustrations of the application of this doctrine to inconsistent claims by the plaintiff may be found in Mati Lal v. Judisthir (1915) 22 C.L.J. 254 and Official Assignee v. Bidyasundar (1919) 30 C.L.J. 428 and to conflicting defences by the defendant may be gathered from Purnendu v. Dwijendra (1908) 8 C.L.J. 289 and Bank Behari v. Rachialal (1912) 15 C.L.J. 439. 

(Reported in AIR 1924 Cal 467 - Bhuban Mohini Dasi And Ors. vs Kumud Bala Dasi And Ors.)

Coparcener Gift

A coparcener cannot pick and choose one of several coparceners so as to make a gift of his undivided interest. 

The law is now well-settled by a Full Bench of this court in Chella Subbanna v. Chella Baiasubbareddi, ILR (1945) Mad 610: (AIR 1945 Mad 142) In that case, it was ruled that a member of a joint Hindu family governed by the Mitakshara law cannot give his interest in the family estate to one of several coparceners if they remain joint in estate. In such circumstances, he can relinquish his interest, but the relinquishment operates for the benefit of all the other members. 

(Ponnuchami Servai vs. Balasubramanian, AIR 1982 Madras 281)

Land, Soil, Sub-soil

Land meaning:

 Meaning of ‘land’ and cognate terms.

Prima facie ‘land’ or ‘lands’ includes everything on or under the surface, although this meaning has in some cases been held to have been restricted by the context. ‘Soil’ is apt to denote the surface and everything above and below it, but similarly its meaning may be restricted by the context so as to exclude the mines. ‘Subsoil’ includes everything from the surface to the centre of the earth…….

(Halsbury’s Laws of England)  

Boundary must prevail as against measurements:

Boundary must prevail as against measurements:

"In Subbayya Chakkilian v. Maniam Muthiah Gounden, 46 M.L.J. 182 : 19 L.W. 245 : A.I.R. 1924 Mad. 493, a Bench of the Madras Court held that ordinarily when a piece of land is sold with definite boundaries, unless it is clear from the circumstances surrounding the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must Prevail as against the measurements."

Lord Coke’s view: --- “on revocable and irrevocable”

Lord Coke’s view: --- “on revocable and irrevocable”

Lord Coke said "if I make my testament and last will irrevocable, yet I may revoke it, for my act or my words cannot alter the judgment of the law to make that irrevocable which is of its own nature revocable."

This statement of law was relied upon by the Division Bench of Calcutta High Court in Sagar Chandra Mandal v. Digamber Mandal and others (1909) 9 CLJ 644;

"As to the true character of the instrument propounded by the appellant we think there can be no reasonable doubt that it is a will. A will is defined in section 3 of the Indian Succession Act as the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Section 49 then provides that a will is liable to be revoked or altered by the maker of it, at any time when he is competent to dispose of his property by will. If therefore an instrument is on the face of it of a testamentary character, the mere circumstance that the testator calls it irrevocable, does not alter its quality, for as Lord Coke said in Vynior's Case. "If I make my testament and last will irrevocable, yet I may revoke it, for my act or my words cannot alter the judgment of the law to make that irrevocable which is of its own nature revocable." The principal test to be applied is, whether the disposition made takes effect during the lifetime of the executant of the deed or whether it takes effect after his decease. If it is really of this latter nature, it is ambulatory and revocable during his life. [Musterman v. Maberley, and in Bonis v. Morgan]. Indeed, the Court has sometimes admitted evidence, when the language of the paper is insufficient, with a view to ascertain whether it was the intention of the testator that the disposition should be dependent on his death. [Robertson v. Smith].

minor property & Court permisssion

For minor’s property, Court permission is necessary:

Section 8 of the Hindu Minority and Guardianship Act, 1956, deals with the powers of natural guardian of a Hindu minor and this section mandates that the natural guardian has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate, etc.

Section 8:

Powers of natural guardian:

(1)   The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.

(2)   The natural guardian shall not, without the previous permission of the court, (a) mortgage, or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor; or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority;

(3)   Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him;

(4)   No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.

Sale transaction by a natural guardian even if beneficial for the minor is voidable and not void ab initio, if it is done without the previous permission of the court. Held that the minor can challenge only after attaining majority and not during his minority;

Naryan Laxman Gilankar v. Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152.

Dhansekaran v. Manoranjthammal, AIR 1992 Mad 214

Minor's share in a joint family property

Minor share in Joint family:

As per Section 8 of the Hindu Minority and Guardianship Act, 1956, no previous permission of Court is required to be obtained before disposing of an immovable property wherein the minor's interest/share is involved in respect of a joint Hindu family property. The Hon'ble Supreme Court Sri Narayan Bal and others V. Sridhar Sutar and others in AIR 1996 Supreme Court 2371;

Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the Court.

But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property.

The Hon’ble Madras High Court’s Division Bench decision in “K.Logambal and 3 others V. V.V.Sakunthala and 6 others in 1997 (II) CTC 602 at pages 604 and 605”

mother as natural guardian

Mother as a natural guardian:

As per the Hindu Minority and Guardianship Act -- 'natural guardian' means any of the guardians mentioned in Section 6."

Section 6:

“The natural guardians" of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are:

(a) in the case of a boy or an unmarried girl -- the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

In the phrase “the father and after him, the mother” the word ‘after’ need not necessarily mean after the lifetime of father. In the context in which it appears in section 6(a) it means ‘in the absence of ‘, the word ‘absence’ therein referring to the father’s absence from the care of minor’s property or person for any reason whatsoever. If the father is wholly indifferent to the matters of the minor or if by virtue of mutual understanding between the parents, the mother is put exclusively in charge of the minor or if the father is physically unable to take care of minor for any reason whatsoever, the father can be considered to be absent and mother being a recognised natural guardian can act validly on behalf of the minor as the guardian. Such an interpretation will keep the statute within the constitutional limits otherwise the word ‘after’ if read to mean a disqualification of a mother to act as guardian during lifetime of father the same would violate one of basic principles of our constitution i.e. gender equality; Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.

Doctrine of lis pendens

Lis pendens

It’s a Latin term;

It means ‘suit pending.’ 

Lis means = litigation;

Pendens means = pending;

In common law practice, the doctrine of ‘lis pendens’ is construed as a constructive notice to the public that some litigation is pending in a court of law in respect of that property.

Lis pendens is a constructive notice that shows that there is a cloud in the title of the property until the same is resolved in that suit.

Lis pendens does not invalidate any transfer of the property.

It is always the duty of the purchaser to make proper enquiry regarding any lis pendens in the property, before the purchase.

Section 52 of the Transfer of Property Act has clearly prohibited the transfer of property which is subject matter of a pending suit. The purchase can only be done with the permission of the Court. If no such permission has been obtained, then this transfer in favour of the purchaser is certainly hit by the doctrine of lis pendens as provided under Section 52 of the Act.  An alienee pendente lite is bound­ by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under O 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed.

The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral.

In order to constitute a lis pendens, the following elements must be present:

1)      There must be a suit or proceeding pending in a Court of competent jurisdiction.

2)      The suit or proceeding must not be collusive.

3)      The litigation must be one in which right to immovable property is directly and specifically in question.

4)      There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.

5)      Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.