Yasodha vs V.G.P. Housing (Private Limited) and Others

K. Kalyanasundaram, J.—This civil revision petition is directed against the order dated 9.2.2010 passed by the Sub Judge, Perundurai, in

I.A. No. 91 of 2009 in O.S. No. 12 of 2009. The petitioner is a third party to the suit in O.S. No. 127 of 2009 on the file of Sub Court,

Perundurai. The respondents 1 to 6 herein had filed the suit for specific performance of the agreements dated 22.5.2000 and 2.5.2003, against

respondents 6 to 9 herein. In the suit, the petitioner filed an application in I.A. No. 118 of 2009 for impleading, contending that the third defendant

in the suit, namely, Mrs. Parimalam, had executed a settlement deed, dated 15.5.2008, in his favour. So, as per the settlement deed, he became

owner of the suit property and he has been in possession and enjoyment of the property as absolute owner. The respondents 1 to 6 herein had

filed their counter stating that the settlement deed must be a sham and nominal document and it is hit by lis pendens, so, the petitioner is not a

necessary and proper party to the suit. The learned Sub Judge, Perundurai, dismissed the petition. Aggrieved by the said order, the present

revision is filed.

Heard Mr. S. Mohammed Azaad, learned counsel for the petitioner and Mr. K. Balamurali, learned counsel for R1 to R6.

The learned counsel for the petitioner submitted that admittedly the third defendant in the suit, namely, Mrs. Parimalam, was the owner of the

property, as per the Will executed by Mrs. Muthayammal, in her favour. Subsequently, the third defendant had executed a registered settlement

deed in favour of the petitioner on 15.5.2008 and the same was accepted and acted upon. The learned counsel further argued that as on date, the

petitioner has been in possession and enjoyment of the property. So, the petitioner is a proper and necessary party to the suit and even a transferee

pendente lite, is a necessary party. The learned counsel has relied on the judgments of the Honourable Apex Court as well as this Court reported

in (i) Raj Kumar Vs. Sardari Lal and Others, , (ii) Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, , (iii) Thomson Press (India)

Ltd. Vs. Nanak Builders and Investors P. Ltd. and Others, , (iv) K.P. Rajendran and Andavar @ Loganathan Vs. N.R. Nachimuthu, R. Gopalan,

V. Gopinath and R. Uma Maheswari, and (v) (2011) 3 MLJ 452 M.K.M. Mohammed Nazar and Others v. R.A. Venugopal (Died) and Others.

Per contra, the learned counsel for the respondents 1 to 6 has submitted that the plaintiffs have not entered into any agreement or contract with

the petitioner and the suit is filed only against the parties to the agreement. The petitioner is claiming right only through the third defendant in the suit

and the third defendant had already filed her written statement and she was effectively contesting the case. The learned Sub Judge has considered

the entire aspect and dismissed the application rightly, which does not warrant interference by this Court.

The learned counsel for the respondents relied on the judgments of the Honourable Apex Court reported in (i) CDJ 1994 SC 375-Anil Kumar

Singh v. Shivnath Mishra alias Gadasa Guru, (ii) Kasturi Vs. Iyyamperumal and Others, , (iii) Bharat Karsondas Thakkar Vs. Kiran Construction

Co. and Others, and (iv) Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and Others, to substantiate

his contention that third parties to the agreement for sale are not necessary and proper parties and they cannot be impleaded in a suit for specific

performance.

In the recent judgment of the Honourable Apex Court reported in Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. and

Others, , it has been held as follows:

57.1. The appellant is not a bona fide purchaser and is, therefore, not protected against specific performance of the contract between the plaintiffs

and the defendant owners in the suit.

57.2. The transfer in favour of the appellant pendente lite is effective in transferring title to the appellant but such title shall remain subservient to the

rights of the plaintiff in the suit and subject to any direction which the Court may eventually pass therein.

57.3. Since the appellant has purchased the entire estate that forms the subject-matter of the suit, the appellant is entitled to be added as a party-

defendant to the suit.

57.4. The appellant shall as a result of his addition raise and pursue only such defences as were available and taken by the original defendants and

none other.

In the judgment in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, , the Supreme Court has held has follows:

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. A transferee pendente lite to the extent he has acquired

interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more

interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to

make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, 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.

The has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has

acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the

litigation; he is entitled to be heard in the matter on the merits of the case.

The same view has been taken in the judgment reported in Raj Kumar Vs. Sardari Lal and Others, .

In the light of the recent judgment of the Honourable Apex Court, even the pendente lite transferee is entitled to be impleaded as party to the

suit filed, for specific performance, by the respondents 1 to 6 herein. Hence, the order passed in I.A. No. 91 of 2009 is set aside and the I.A. is

allowed. In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.