Dhanalakshmi And Ors. vs P. Mohan And Ors.

on 6 January, 2005

Madras High Court Dhanalakshmi And Ors. vs P. Mohan And Ors. on 6 January, 2005 Equivalent citations: 2005 (2) CTC 254 Author: P Sridevan Bench: P Sridevan ORDER Prabha Sridevan, J. 1. By consent, the main revision itself is taken up. This revision is against the and order dismissing the application filed by the petitioners herein, to implead themselves in the suit filed by the first respondent for partition of his share of the property in O. S. No. 82 of 2004. 2. According to the petitioners, they have purchased the properties from the second, third, fourth and sixth respondents by two registered sale deeds dated 18.6.1999 and 21.6.1999 and they are the bonafide purchasers for the value and entitled for alienors' share in equity and therefore they are the necessary parties for effective adjudication of the dispute in O. S. No. 82 of 2004. The Principal District Judge, Thanjavur came to the conclusion that since the sales in favour of the petitioners were covered by the doctrine of lis pendens and since they can only have whether rights of their transferors had, it is not necessary to deal with their rights separately and dismissed the application. Against that the present revision has been filed. 3. The learned counsel for the petitioners would submit that the principles of plaintiff being the dominus litus would not be applicable to a partition suit, since each party in a partition suit is a plaintiff vis-a-vis the other parties. The learned counsel further submitted that there is no dispute regarding the shares and therefore there is no difficulty or hurdle in the way of impleading the petitioners. According to the learned counsel for the petitioners, the suit, though presented in 1998 itself, was taken on file only in the year 2001 and numbered as O. S. No. 1 of 2001 whereas, the sale deeds in favour of the petitioners were of the year 1998-1999. The learned counsel for the petitioners submitted that though it is true that the first respondent sent a telegram informing the petitioners of the pendency of the suit, the petitioners had purchased the properties prior to the said telegram and the respondent was duly informed of the same by their reply. The petitioners had made due enquiries regarding any prior encumbrance or alienation over the suit properties and had only thereafter bona fide purchased the property. According to the learned counsel, the trial Court had erred in dismissing the application. 4. The learned counsel appearing for the respondents would however submit that the petitioners are not bona fide purchasers for value. One G. Chandrasekar, brother of one of the petitioners had purchased the same property in the Court auction for a very low price and his application for taking delivery of the entire property was rejected by the Principal District Judge, Thanjavur, who set aside the Court auction sale on 21.6.99 on the ground that the Court auction sale itself is vitiated by fraud, and therefore the contention of the petitioners that they are the bona fide purchasers cannot be accepted. Further, it was submitted by the learned counsel for the respondents, that undoubtedly the purchases are hit by lis pendens and therefore Section 52 of the Transfer of Property Act will apply in any event. 5. The learned counsel for the respondents would submit that there was no justification warranting interference in revision. The learned counsel relied on the following judgments: 1. Amichand Aggarwal v. Nabi Hasan, 2003 AIR SCW 5858; 2. Raghavan v. M. Krishnammal, 1991 (1) LW 84; 3. G. Krishnamoorthy v. Sukumar and 4 Ors., ; 4. M. Ramanathan v. M. Vasantha and 8 Ors., 2003 (4) LW 771; 5. Chinnammal and Ors. v. Kuppusamy, 2003 (4) CTC 794 : 2004 (3) MLJ 518; 6. Madras Law Reporter (Short Notes) 157.
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Dhanalakshmi And Ors. vs P. Mohan And Ors. on 6 January, 2005

6. Section 52 of the Transfer of Property Act prohibits transfer of property which is directly or specifically involved in a suit or proceedings, which is not collusive, in a manner that will affect the rights of any other parties, except under the authority of the Court and on such terms as the Court may impose. The Explanation to this Section provides that pendency of the suit "shall be deemed to commence from the date of the proceeding of the plaint or the institution of the proceedings in a Court of competent jurisdiction" until the suit or proceedings will dispose of finally by a decree or an and ors. or full satisfaction of discharge of the decree is obtained. In the present case, there is no dispute that the property was purchased, pending the suit, inasmuch as the plaint was presented in the year 1998 itself. Even the respondent does not dispute this. In Raghavan v. M. Krishnammal, 1991 (1) LW 84, it was held: "the fact that the transfer is claimed to have been made during the period between the return of the papers before the Court below and its presentation in the High Court does not in any manner obviate the respondents of their liabilities under Section 52 of the Transfer of Property Act." In that case the learned Judge was not satisfied that the purchasers pendente life were bona fide purchasers. 7. G. Krishnamoorthy v. Sukumar and 4 Ors., , also arose out of suit for partition. In that case the preliminary decree was passed and an application was filed for passing of final decree, at that stage, one of the co-owners sold his undivided share to the third party. The Division Bench held that; "Section 52 envisages that during pendency of any proceedings in Court property cannot be transferred so as to affect rights of other parties -- Section 52 imposes statutory bar of alienation of property which is subject matter of legal proceedings -- Prior permission of Court is necessary before such alienation -- Intention of legislation is that no party to proceedings can defeat claim of other party when other party succeeds in litigation -- Purchaser during pendency of legal proceedings cannot claim equity because he has constructed building on the property." 8. All the other decisions relied on by the learned counsel for the respondents are to the same effect, that the transferee lis pendens are as much bound by the decree as the transferors who are the judgment debtor. In Bibi Zubaida Khatoon v. Nabi Hassan Saheb and Anr. with Amichand Aggarwal v. Nabi Hasan, 2003 AIR SCW 5858, the Supreme Court held that the decision in each case will revolve on the facts and circumstances of the said proceedings: "There is no absolute rule that the transferee pendente lite without leave of the Court should in all cases be allowed to join and contest the pending suits." 9. The following facts are necessary for deciding whether the impugned and order should be interfered with. The father of the third to sixth respondent and the husband of the second respondent, namely one Pakkiri Samy Pillai mortgaged item No. 1 of the suit property and during the pendency of O.S. No. 90 of 1977, he died intestate on 2.4.1992, leaving the respondents as his legal heirs. The mortgagee had obtained a decree in E. P. No. 74 of 1988 and the legal heirs were impleaded as judgment debtors. The mother, brothers and sisters of the first respondent appear to have sold the suit property by two registered sale deeds dated 18.6.1999 and 21.6.1999, and this also relates to suit item No. l. 10. In the Court auction sale held in E. P. No. 74 of 1988, the same property was sold to one G. Chandrasekar, who is none other than the brother of Dhanalakshmi, the first respondent, herein. It appears that the respondents themselves filed I. A. No. 43 of 2001 to implead the petitioners but subsequently, it was dismissed. The aforesaid G. Chandrasekar filed E. A. No. 98 of 2000 in E. P. No. 34 of 1998 under Order 21, Rule 95 for possession. E. A. No. 103 of 2000 was filed by the respondent and that E. A. was ordered recording that the witnesses did not come to Court to give evidence and the document alone was produced before the Court and the and ors. passed in the E. A formed part of the Order passed in the main E. A., namely E. A. No. 98 of 2000. E. A. No. 98 of 2000 was dismissed by the Principal District Judge, Thanjavur on the
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Dhanalakshmi And Ors. vs P. Mohan And Ors. on 6 January, 2005

ground that the Court cannot entertain fraudulent transaction. The learned Judge found that the purchase in the Court auction was vitiated by fraud. Therefore the sale was cancelled and directions were given for return of the sale certificate and the learned District Judge held that the auction purchaser was not entitled to get possession of the property. According to the learned counsel for the petitioners against this C. R. P. No. 294 of 2000 has been filed and it has been admitted. 11. In Savitri Devi v. District Judge, , the Supreme Court held that the transferee pendente lite of an interest in immovable property is a necessary party. But in that case, the facts necessitated that decision. Inspite of an interim injunction granted by the Court, sales were affected in the breach of the and ors. of injunction. An application was filed by the first defendant that the fourth defendant therein had forged her signature and filed a bogus vakalathnama. Taking note of all this, the trial Court held that the parties should be impleaded. The impleadment of the third parties was upheld because fraudulent and forgery were alleged to have been committed. 12. In the present case the purchases by the petitioners are clearly hit by lis pendens. They are not entitled to be impleaded, since any right that they may have cannot be larger than the right of their vendors, assuming that they are bona fide purchasers. The Order passed in E. A. No. 98 of 2000 is to the effect that brother of one of the petitioners had purchased the very same property by fraud at a Court auction. It is claimed that this Order is subject matter of a pending C. R. P. But the fact remains that as on date, the Order passed in the E. A. would indicate that the petitioners cannot even claim any equity. There is no justification to interfere in the Order passed by the Court below. In the result, this revision is dismissed. No costs. Consequently, the connected C. M. P. and V. C. M. P. are closed.

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