K.Devanand vs Periasamy

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 26.02.2020

CORAM

THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN

C.R.P.(PD)(MD).No.1688 of 2011 and C.R.P.(PD)(MD)No.1140 of 2013

C.R.P.(MD)No.1688 of 2011

1.K.Devanand

2.K.Premanand ...Petitioners

Vs.

1.Periasamy 2.Siva Vasuki 3.Vasumathi 4.Meenakshi 5.Mahalakshmi 6.Valavanthan 7.Veeraperumal 8.Seeli 9.Valavanthal 10.Sirumani Servai 11.Devaki 12.Subburaj 13.Ramasamy ...Respondents

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Prayer:- This Civil Revision Petition is filed under Article 227 of the Constitution of India, to allow this Revision Petition thereby to set aside the order dated 31.03.2011 in I.A.No.107 of 2020 in O.S.No.9 of 2009 on the file of Principal District Judge, Virudhunagar District at Srivilliputhur and dismiss the petition.

For Petitioner : Mr.S.Parthasarathy

For R1 : Mr.G.marimuthu

For R2 to R4 : Mr.J.Gunasekaran

For R8 to R10& R13 : Mr.V.Perumal

For R5, R6, R7, R11 : dispensed with and R12

C.R.P.(MD)No.1140 of 2013

1.K.Devanand

2.K.Premanand ...Petitioners

Vs.

1.Periasamy 2.M/s.Q 425 Karuppatti Manufacturers Co-op Society, through its Special Officer. 3.Siva Vasuki 4.Vasumathi 5.Meenakshi ...Respondents

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Prayer:- This Civil Revision Petition is filed under Article 227 of the Constitution of India, to allow this Revision Petition thereby to set aside the order in I.A.No.620 of 2010 in O.S.No.266 of 2003 on the file of the District Munsif, Aruppukottai dated 23.01.2013 and dismiss the petition.

For Petitioner : Mr.S.Parthasarathy

For R1 : Mr.G.marimuthu

For R2 : Mr.M.Balamurugan

For R3 to R5 : Mr.V.Perumal

Notice Exparte vide memo USR 1904

COMMON ORDER

While C.R.P.(MD)No.1688 of 2011 arose out of the petition for

impleading in I.A.No.107 of 2010 filed in O.S.No.9 of 2009 on the file

of the Principal District Judge, Virudhunagar at Srivilliputhur, C.R.P.

(MD)No.1140 of 2013 arose out of a petition in I.A.No.620 of 2010 in

O.S.No.266 of 2003 on the file of the District Munsif, Aruppukottai.

2.The suit in O.S.No.9 of 2009 was filed by three daughters of

one Sivasubramaniya Muthaliyar, claiming that the suit properties

numbering about 6 items belonged to the Sivasubramaniya

Muthaliyar, as his ancestral properties and on his death on

04.01.2006, the plaintiffs being the daughters would be entitled to 1/6

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share each as per the provisions of Section 29-A of the Hindu

Succession (Amendment) Act, 1990. In the said suit, apart from

adding their siblings as defendants 1 to 3, the plaintiffs also had

impleaded defendants 4 to 11 who had purchased the properties from

either Sivasubramaniya Muthaliar or the defendants 2 and 3 who are

the sons.

3.The suit is being resisted by the petitioners herein who are

defendants 4 and 5, contending that the properties purchased by them

are the absolute properties of Sivasubramaniya Muthaliar and they

have purchased the said properties vide sale deeds dated 03.05.2003.

Therefore, the plaintiffs cannot seek partition on the said properties.

4.While the case stood thus, the first respondent herein filed an

application in I.A.No.107 of 2010 claiming that he has purchased the

suit second item under two sale deeds dated 17.04.2009 and

11.01.2010 from the plaintiffs. It is the further contention of the first

respondent herein that the plaintiffs in the suit who were shown as

respondents 2 to 4 in this revision petition, had suppressed the

pendency of the suit and had sold the property for valuable

consideration, as if it belongs absolutely to them. He would also claim

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that he is a bonafide purchaser.

5.This application was resisted by the petitioners herein

contending that the first respondent being a lis pendens purchaser he

is not entitled to be heard in the suit for partition. He is neither a

necessary nor a proper party and in view of Section 52 of the Transfer

of Property Act, the decision in the suit would binding on him and his

purchase would be subject to the result of the litigation. Therefore,

the petitioner in I.A.No.107 of 2010 namely the first respondent

herein who is neither a proper nor a necessary party to the

proceedings cannot seek impleadment as of right.

6.The Trial Court upon hearing the parties concluded that

Section 52 of the Act does not invalidate a transfer of property that

takes place pending the litigation. The effect of Section 52 of the Act,

is only to make of alienations and transfers of immovable properties

pending a litigation subject to the result of the litigation. To put it in

otherwise, the effect of Section 52 of the Act is to make the judgement

and decree in the suit binding on the pendente lite purchaser. The

claim that the purchase was bonafide or not, is to be decided only at

the time of trial. On the above conclusions, the learned Principal

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District Judge, Srivilliputhur, allowed the application for impleading.

7.Aggrieved defendants 3,4 and 5 in O.S.No.9 of 2009 have

come up with this Civil Revision Petition in C.R.P.(MD)No.1688 of

2011. There is an another suit filed by the defendants 4 and 5 in

O.S.No.266 of 2003 against the plaintiffs in O.S.No.9 of 2009 and the

co-operative society seeking declaration of their title and permanent

injunction on the strength of their purchase from Sivasubramaniya

Muthaliyar. The plaintiffs in O.S.No.9 of 2009 sought impleading in

the said suit and were impleaded as defendants 2 to 4.

8.Based on the very same sale deeds, dated 17.04.2009 and

11.01.2010, the first respondent in the said revision petition, sought

impleading in I.A.No.620 of 2010. The said petition was also resisted

by the petitioners herein who were the plaintiffs in the said suit, on

the very same contentions raised by them in I.A.No.107 of 2010 in

O.S.No.9 of 2009. The District Munsif, Aruppukottai, heard the

petition and allowed the same. Aggrieved petitioners have come up

with this C.R.P.(MD)No.1140 of 2010.

9.The properties involved in both the suits are the same and the

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parties are also substantially same. I have heard Mr. Parthasarathy,

learned counsel appearing for the petitioner and Mr.G.Marimuthu, for

the first respondent, Mr.Gunaseelan for respondents 2 to 4,

Mr.V.Perumal, learned counsel for the respondents 8 to 10 and 13.

Notice to respondents 5,6,7, 11 and 12 has been dispensed with as

they had remained ex parte before the Court below.

10.Mr.Parthasarathy, learned counsel for the petitioner, would

vehemently contend that the Courts below are not right in allowing

the applications for impleading on the ground that a lis pendens

purchaser is not entitled to seek impleading as of right, in view of

Section 52 of the Transfer of Property Act, which lays down that the

decree passed in the suit will be binding on the subsequent purchaser.

He would neither be a necessary nor a proper party to the suit. He

would also invite my attention to the judgement of the Hon'ble

Supreme Court in Vidur Impex and Traders Private Limited and

other Vs. Tosh Apartments Private Limited and others reported

in (2012) 8 SCC 384. The Hon'ble Supreme Court has held that a

pendente lite purchase is not entitled to seek impleading in the suit as

of right. The Hon'ble Supreme Court while setting out the parameters

for impleading a person in the suit as observed as follows:

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41.1.The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.

41.2.A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.

41.3.A proper party is a person whose presence would enable theh court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

41.5.In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

41.6.However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment.”

11.After setting out the above guidelines on facts, the Hon'ble

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Supreme Court found that the application for impleading filed in the

said proceedings was highly belated and the subsequent purchaser

was also guilty of commissions and omissions therefore, he is not

entitled to seek impleadment in the suit.

12.The next judgment relied upon by the learned counsel for the

petitioner is the judgment of the Hon'ble Supreme Court in the

decision reported in (2006) 13 SCC 608, Sanjay Verma Vs Manik

Roy and others, wherein the Hon'ble Supreme Court had pointed out

that a transferee pendente lite is bound by the decree just as much as

he was the party to the suit and the principle of lis pendens embodied

in Section 52 of the Transfer of Property Act being a principle of

public policy, no question of good faith or bonafide arises. After

concluding so, the Hon'ble Supreme Court had observed that a

pendente lite purchaser cannot seek impleading as of right and the

question of impleading the pendente lite purchaser would very much

depend on the facts and circumstances of each case.

13.Mr.Parthasarathy, learned counsel for the petitioner would

also invite my attention to another judgement of the Hon'ble Supreme

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reported in (2015) 9 SCC 356 wherein again the question of transfer

during pendency of litigation was considered in a totally different

context as to whether the property was sold after the dismissal of the

appeal by the High Court within a limitation period for filing a Special

Leave Petition. But the donee in that case who got the property by

way of gift, approached the Hon'ble Supreme Court belatedly and

therefore, the Supreme Court dismissed the impleading application.

14.Reliance is also placed in the case of K.N.Aswathnarayana

Setty(Dr)Tr.LRS and others Vs. State of Karnataka and others

reported in AIR 2014 Supreme Court 279 wherein again the

Hon'ble Supreme Court has pointed out that the lis pendens

purchaser cannot deprive the successful plaintiff of the fruits of the

decree if he had purchased the property pendente lite. The question

of impleading of lis pendens purchaser was not considered in the said

decision.

15.Contending contra, Mr.G.Marimuthu, learned counsel for the

first respondent would submit that the law relating to impleading a lis

pendens purchaser in a suit is well settled. A lis pendens purchaser

though not a necessary party, he can be impleaded in the suit only in

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order to protect his interest. He would also invite my attention to the

judgement of a Three Bench of the Hon'ble Supreme Court reported

in AIR 1999 Supreme Court 976 in the case of Savitri Devi Vs

District Judge, Gorakhpur and others. While considering the

scope of Order 1 Rule 10 and the power of Court to implead

purchasers pendent lite, the Hon'ble Justice M.Srinivasan who

authored the judgment observed as follows:

“8.The facts set out by us in the earlier paragraphs are sufficient to show that there is a dispute as to whether the first defendant in the suit was party to the order of injunction made by the Court on 18.08.192. The proceedings for punishing him for contempt are admittedly pending. The plea raised by him that the first respondent had played a fraud not only against him but also on the Court would have to be decided before it can be said that the sales effected by the first defendant were in violation of the order of the Court. The plea raised by the respondents 3 to 5 that they were bonafide transferees for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property. The aforesaid questions have to be decided by the Court either in the suit or in the application filed by respondents 3 to 5 for impleadment in the suit. If the application for impleadment is thrown out without a decision on the afiresaid questions, respondents 3 to 5 will certainly come up with a separate suit to enforce their alleged rights which means multiplicity of proceedings. In such circumstances, it cannot be said that respondents 3 to 5 are neither necessary nor proper party to the suit.

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9.Order I, Rule 10, C.P.C enables the Court to add any person as party at any stage of the proceedings if the person whose presence beforet he Court is necessary in order to enable the Court to effectively and completely adjudicated upon the settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code.”

16.After referring to various previous decisions of the Hon'ble

Supreme Court, it was finally concluded that the Court is not

powerless or barred from impleading a lis pendens purchaser. A lis

pendens purchaser can be made a party to the suit, only to protect his

rights and to prevent multiplicity of litigation. This view of the three

Judges Bench was followed in Thomson Press (India) Ltd Vs

Nanak Builders & Investors P.Ltd and others reported in 2013

(2) CTC 104 in a suit for specific performance, it was held that a lis

pendens purchaser can be made as a party.

17.A Division Bench of this Hon'ble Court in the case of Devaki

Thiyagarajan Vs Ahamed reported in 2015 (4) CTC 293 while

following the judgment of the Hon'ble Supreme Court in Thomson

Press (India) Ltd., case, referred supra, held that a party who gains

interest in the subject matter of suit would become an interested

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party and can be impleaded under Order 1 Rule 10. While ruling on

the scope of Section 52 of the Transfer of Property Act, the Hon'ble

Division Bench clearly observed as follows:

“In so far as the present Appeal is concerned, we would like to place it on record that the Principle of lis pendens embodied in Section 52 of the T.P.Act being a Principle of Public Policy, no question of good faith or bonafide arises. The principle underlying section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a Suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The Section only postulates a condition that the alienation will in no manner affect the rights of the other party under any Decree, which may be passed in the suit unless the property was alienated with the permission of the Court.”

18.A perusal of the above judgements cited on either side would

clearly pointed out that impleading of a pendente lite purchaser is not

prohibited either by Section 52 of the Transfer of Property Act and

under Order 1 Rule 10 of the Civil proceedings. Order 1 Rule 10 is

essentially allow the Court to implead any person who may have an

interest in the subject matter of the suit in order to conduct an

effective litigation. Moving a step ahead, it is not uncommon today to

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see parties to a litigation transfer their interest to third party for

consideration and step away from the litigation thereby jeo pardising

the purchaser's interest also. Ofcourse, the remedy by way of a suit is

always available. The attempt of the Court while dealing with an

application under Order 1 Rule 10 of C.P.C., filed by a pendente lite

purchaser is to examine whether knowledge of the proceedings could

be imputed to the purchasers. If the answer is negative then as a

rule, a pendente lite purchaser must be made as a party to the

litigation, so that he can atleast protect his interest from being

defeated by the actions of his vendors.

19.Though, Mr.Parthasarathy, the learned counsel for the

petitioner would vehemently contend that his interest would be

prejudiced by such impleading. I am unable to accept the said

submission. It is the case of the defendants 4 and 5 in the suit in

O.S.No.9 of 2009 that the property purchased by them from

Sivasubramaniya Mudaliyar absolutely belongs to him and he had

every right to alienate the same. If his defence is upheld then the

plaintiffs as well the purchasers from them, cannot claim any right

over the property. In the event, the plaintiff have a share in the

property, then it will be always open to the pendente lite purchaser

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namely, the first respondent in these Civil Revision Petitions, to claim

that the properties that has been sold by his vendors should be

allotted to him to the extent possible.

20.I do not think that it would be fair on Courts to deny such an

opportunity to the purchasers on the ground that their purchase is

pending the lis. As regards, the other suit namely suit in O.S.No.266

of 2003, the suit is for declaration of title by the plaintiff based on the

sale deeds executed by Sivasubramaniya Mudaliyar. It is the said

power of sale of Sivasubramaniya Mudaliyar which is in question in

O.S.No.9 of 2009. The respondents 2 to 4 herein, who are the

plaintiffs in O.S.No.9 of 2009, had admittedly alienated the properties

in favour of the first respondent and on the strength of the said

purchase, the first respondent sought impleading. In a suit for

declaration of title and injunction, it cannot be said that the first

respondent who is a pendente lite purchaser, is absolutely a

unnecessary party to the suit. Adding him as a defendant would in no

way affect the rights of the plaintiff under the sale deed executed in

their favour by Sivasubramaniya Mudaliyar as far back in the year

2003.

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R.SUBRAMANIAN, J.

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21.I am, therefore, of the considered opinion that the Courts

below cannot be faulted for allowing the applications for impleading.

I see no error of jurisdiction in the orders of the Courts below. Hence,

both the revision petitions are dismissed. However, there will be no

order of costs.

22.Both Civil Revision Petitions are dismissed.

26.02.2020

Index : Yes / No Internet : Yes / No

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