Rajalakshmi Sivakumar vs N. Rajavelu and Others

S. Palanivelu, J.—The petitioner is third party to the suit, who filed two applications before the 14th Assistant Judge, City Civil Court,

Chennai in O.S. No. 8879 of 1997 to implead her as a party. The first respondent is plaintiff, who filed the suit for a mandatory injunction directing

the removal of superstructure available in the suit schedule property reportedly put up by the defendants. He also filed an application in I.A. No.

16639 of 2006 under Order 26 Rule 9 of C.P.C for appointment of an Advocate-Commissioner to note down the physical features of the

schedule mentioned property with the assistance of qualified surveyor. The two petitions filed by the present petitioner are, one in I.A. No. 15545

of 2007 to implead her as party u/s 94(e) r/w Section 151 of C.P.C., in I.A. No. 16639 of 2006 and Anr. in I.A. No. 15546 to implead her

under Order 22 Rule 10 and Section 151 of C.P.C., in O.S. No. 8879 of 1997. Both the applications were resisted by the first

respondent/plaintiff by filing separate counters.

In the affidavit filed by this petitioner before the Court below, it is alleged that during the pendency of the suit, the 7th defendant in the suit sold

the property in Door No. 31, Tanks Square West Street, Saidapet, Chennai, which is the subject matter of the suit under a registered sale deed

dated 5.7.2006 to this petitioner and hence she has become the owner of the property and that the right, title and interest in the property have

devolved upon her and she may be impleaded as 8th defendant in the suit and that there would be no prejudice to the plaintiff in impleading her in

the suit.

In the counter affidavits filed by the first respondent/plaintiff, it is stated that the petition for impleading the petitioner in the proceedings is not

maintainable in law and facts that she has no locus standi to seek impleadment that the alleged sale is hit by the doctrine of lis pendens u/s 52 of the

Transfer of Property Act, that there is no bona fide on the part of the petitioner and that it is well settled by the Apex Court and this High Court

that a transferee pendente lite need not be impleaded in the pending proceedings and hence the petition has to be dismissed.

Learned XIV Assistant Judge, City Civil Court, Chennai dismissed both the applications with cost by observing that any decision that is made

against the 7th defendant will be binding on the petitioner and the petitioner cannot have any independent defence that she is neither a necessary

party nor a proper party and effective adjudication of the dispute can be done even without the presence of the purchaser pending suit that the

petitioner can only await the decision that is going to be made in the suit and that it is nothing but only a futile exercise.

The petitioner purchased the property covered by the suit on 05.07.2006 from the 7th defendant/8th respondent pending the trial of the case. It

is her submission that even though the suit is in part heard stage, she does not seek to re-open the case afresh and that she is not going to file any

independent written statement in case of her application for the impleadment being allowed.

Mr.T. Paranthaman, learned Counsel appearing for the petitioner would submit that the petitioner is a necessary party to the suit. Even though

she purchased the property during the pendency of the case, the rights of the parties to the suit ought to be finally adjudicated only in the presence

of the petitioner and in her absence, any decree passed by the Court could only be an invalid one. It is his further contention that decisions on this

point have been pronounced by the Apex Court and by this Court in favour of impleadment of a person who got alienation during pendency of the

suit and though the said alienation is described to be hit by the principle of lis pendens, still, the petitioner has got to be included in the suit and that

it would avoid multiplicity of proceedings in future.

Arguing on the other side of the coin, the learned Counsel for the first respondent/plaintiff would stress the point that the petitioner has woefully

failed to comply with the statutory requirements before getting the sale of the property which is covered by a pending suit and such alienation

would not bind at all the first respondent, that whatever be the decree passed by the Court, binding the parties, would also govern the interests of

the petitioner and that the alienee/pendente lite need not be impleaded as a party since she can neither be a proper party nor a necessary party.

In order to have a thorough glimpse of subject the provision incorporated in the concerned legislations and the legal principles illuminated in

judicial pronouncements of the Apex Court on this point have to be referred and followed for better determination of the matter in issue. On the

one hand it could be considered that in the absence of a person who is having direct interest in the property, no effective adjudication could be

made and on the other hand, it is to be seen in the absence of observance of the legal requirements as elaborated in the provision of the statute

whether the person getting alienation pending the suit to be impleaded as a party and the legal implication of the absenteeism of such a party would

lead to make the decree passed by the Court unworkable.

Before entering into the discussion over legal arena, it is more advantageous to have extraction of relevant provisions under which the

observations are expected to be rendered. They are as follows:

Order I, Rule 10(2) of C.P.C. - Suit in name of wrong plaintiff

(2) Court may strike out or add parties. - The Court may at any stage of the proceedings, either upon or without the application of either party,

and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be

struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court

may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be

added.

Order XXII, Rule 10 of C.P.C. - Procedure in case of assignment before final order in suit

(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, may, by leave of the Court, be continued

by or against the person to or upon whom such interest has come or devolved.

Section 52 of the Transfer of Property Act, 1882

Transfer of Property Pending suit relating thereto.- During the pendency in any court having authority within the limits of India excluding the

State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in

which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any

party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except

under the authority of the Court and on such terms as it may impose.

As far as Order 1 Rule 10 of C.P.C is concerned, it is an enabling provision for adding of any person as party at any stage of the proceedings

provided his presence shall be deemed to be necessary one for the purpose of completely adjudicate effectively upon the issues involved in the

proceedings. As far Order XXII Rule 10(i) of C.P.C., it is a specific provision to be followed by the Courts as to the impleadment of any person

who got assignment or under whose favour a devolution of interest was made during the pendency of the suit, for the purpose of final adjudication

of the case. In so far as Section 52 of the Transfer of Property Act is concerned, it provides a statutory bar on the parties from transferring any

interest in the subject matter of the property and on this basis it is to be tested that the said alienation is non-est in the eye of law and the party

could be governed by the final verdict in the proceedings. The outstanding feature in the provision is that the above said legal consequences would

not occur if the alienation were made under the authority of the Court. It is well nigh settled that lis pendens has to be treated as a constructive

notice to a purchaser and that he is bound by a decree to be passed in the pending suit.

Learned Counsel for the petitioner placed much reliance upon a larger bench decision of the Apex Court in Savitri Devi Vs. District Judge,

Gorakhpur and Others, wherein their Lordships have dissected the terminology in Order 1 Rule 10 C.P.C and held that even if a person got

alienation of the property pending the suit he has to be impleaded as a party. It is further observed that avoidance of multiplicity of proceedings

would also one of the objects of the said provision in the code. In para 10, an earlier decision has been referred which is as follows:

In Khemchand Shankar Choudhari and Another Vs. Vishnu Hari Patil and Others, , this Court held that a transferee pendente lite of an interest

in an immovable property which is the subject-matter of suit is a representative in interest of the party from whom he has acquired that interest and

has a right to be impleaded as a party to the proceedings. The Court has taken note of the provisions of Section 52 of the Transfer of Property Act

as well as the provisions of Rule 10 of Order XXII, C.P.C. The Court said:

...It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies

to be impleaded as a party and to be heard he has got to be so impleaded and heard....

Concluding the case, the Supreme Court held that impleadment of the proposed parties as the parties to the suit was warranted.

Learned Counsel for the petitioner would also garner support from another decision of the Supreme Court in Amit Kumar Shaw and Another

Vs. Farida Khatoon and Another, in which it is held that under Order XXII Rule 10 an alienee pendente lite may be joined as party, the Court has

discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests.

Their Lordships posed a question in para 8 that can an application for substitution by a subsequent transferee be rejected and the subsequent

purchaser be non-suited altogether is the prime question for consideration, for which answer is available in para 17 that the transferees pendente

lite should be made as parties to the pending second appeals and their presence are absolutely necessary in order to decide the appeal on merits.

In 2000 AIHC 336 (Mad) [S. Sengamalam v. Idol of Arulmighu Renganagthaswami] this Court when dealing with the facts of the case under

Order XXII Rule 10 and Order I Rule 10(2) of C.P.C., referred and followed the preposition laid down in Savithiri Devi Case supra, and also a

decision in Khemchand Shankar Choudhari and Another Vs. Vishnu Hari Patil and Others, in which it is held by the Apex Court that Order XXII

Rule 10 of C.P.C., squarely recognises the right of the transferee to implead as party to the proceedings who has to be heard before any order is

made.

In another decision of this Court reported in AIR 1920 Mad 391 [Veeraraghava v. Subba Reddi] it is observed that under Order XXII Rule

10 and 11 of C.P.C., a transferee pendente lite is entitled to come on record and to conduct all proceedings from the date he is added as party,

though he is bound by all orders passed up to that date and cannot raise defences not open to his transferor. It is finally held in Sengamalam case

that the proposed party is entitled to participate in the proceedings from the stage when she came into record.

Yet another decision in Vellaya Gounder and Another Vs. A.P. Ramalingam, is also with respect to Order XXII Rule 10 of C.P.C., in which it

is held that pending the suit, when there was a transfer of suit property, it is a case of devolution of interest by the party on the proposed party and

hence the case squarely falls under Order XXII Rule 10 of C.P.C. and the application filed by the alienees to implead themselves and to continue

the proceedings is legal, sustainable and maintainable in law.

In 2001 (3) CTC 422 [Dhurandhar Prasad Singh v. Jai Prakash University and Ors.] it is laid down by the Supreme Court that under Rule 10

of Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be

continued by or against persons upon whom such interest has devolved and this entitles, the person who has acquired an interest in the subject

matter of the litigation by an assignment or creation or devolution of interest pendente lite on suitor or any other person interested, to apply to the

Court for leave to continue the suit.

Learned Counsel for the respondent cites a decision of the Supreme Court in 2004 SAR (Civil) 31 [Bibi Zubaida Khatoon v. Nabi Hassan

Saheb and Anr.] in which all the relevant provisions were under scrutiny and Savithiri Devi''s Case (supra) has also been referred and the law on

the subject has been formulated. After extracting Section 52 of the Transfer of Property Act, an operative portion of Dhurandhar Prasad Singh

case (supra) has been culled out wherein it is observed that the applications for impleadment of the transferee pendente lite are liable to be rejected

and the rejection by the trial Court has to be approved.

After referring to the relevant decisions on this point the Apex Court has expressed its view that when the purchaser obtained the property

during the pendency of the suit without seeking leave of the Court, as required by Section 52 of the Transfer of Property Act, he being a transferee

pendente-lite, cannot pray the Court as of right to seek impleadment as a party in the suit. It is also stated that there is no absolute rule that the

transferee pendente-lite, without leave of the Court, in all cases allowed to be joined and to conduct the pending suits. Referring to the case in

Sarvinder Singh Vs. Dalip Singh and Others, it also proceeded to say that when the alienation is barred by Section 52 of the Transfer of Property

Act, the purchaser could neither be termed to be a necessary nor proper party. The relevant portion in the decision of the Supreme Court in Bibi

Zubaida Khatoon case (supra), is as follows:

Section 52 of the Transfer of Property Act envisages that:

[omitted]

It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not

transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the

authority or order of the Court had not been obtained for alienation of those property. Therefore, the alienation obviously would be hit by the

doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or

proper parties to the suit.

In case of Dhurandhar Prasad Singh (supra), observations relevant for the purpose of these appeals read thus:

where a party does not ask for leave, he takes the obvious risk that the suit may not be property conducted by the plaintiff on record, yet he will

be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly

conducted by the original party or he colluded with the adversary.

An identical view has also been taken by the Supreme Court in Sanjay Verma Vs. Manik Roy and Others, in which it is held thus:

The principles specified in Section 52 of the T.P. Act are in accordance with equity, good conscience or justice because they rest upon an

equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A

transferee pendente lite is bound by the decree just as much as he was a party to the suit. 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 bona fide arises. The principle underlying Section 528 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.

In 2001 (1) CTC 19 [Bakthavatsalam v. Anjapuli and 5 Ors.] this Court after following the decisions of the Supreme Court has concluded as

follows:

...In the light of the language used in Order 1, 10(2) of C.P.C. as well as various decisions and in the light of factual position in our case that

preliminary decree has already been passed and application for passing of final decree is pending before the Court below, I am of the view that

purchasers of properties during the pendency of the suit are neither necessary nor proper parties inasmuch as they would be bound by the decree

in the suit in view of the principle enunciated in Section 52 of the Transfer of Property Act. I hold that the parties sought to be impleaded as

defendants in the suit and respondents in the final decree application are neither necessary nor proper parties.

This Court in E. Somasekaran and E. Kalyanakumar Vs. Kanchana, Mani and D. Settu, also has taken a similar view after following the

decision in Savithiri Devi Case (supra). It has been reiterated the purchasers of properties during the pendency of suit are neither necessary nor

proper parties.

Following the dictums laid down by the Apex Court and considering the facts of the present case, in order to get oneself impleaded in a

pending suit, a party who got alienation pendente lite, has to satisfy the following statutory requirement:

Alienation pending trial of the suit shall not be without the authority of the Court.

If it is not shown that the purchase was made without the knowledge of the Court then he disqualifies himself to get impleaded in the suit. The

statutory bar contained in Section 52 of the Transfer of Property Act would operate against the person to enter into the suit who is a transferee

pendente lite since the transfer is non-est in the eye of law. Such transferee would be entitled for the right of the transferor alone and nothing more.

Whatever be the decree, which adjudicates the rights of the transferor, the transferee pendente lite shall be bound by it. It is needless to elaborate

the term ""under authority of the Court"" incorporated in Section 52 of the Transfer of Property Act. A party who intends to get transfer of property

during the pendency of the suit has to get sanction from the Court.

(Emphasis supplied)

In the light of the observations aforementioned, I am of the considered view that the petitioner who is a transferee pendente lite could not

herself get impleaded in the suit and whatever the adjudication her transferor receives in the decree shall govern her. In such view of this matter,

this Court does not find any infirmity or illegality in the order passed by the court below which deserves to be confirmed and it is accordingly

confirmed. These Civil Revision Petitions suffer dismissal.

In fine, both the Civil Revision Petitions are dismissed with costs. Connected M.Ps. are also dismissed.