Madras High Court
V.L.Dhandapani vs Revathy Ramachandran on 17 June, 2014
Author: M.M.Sundresh
Bench: Satish K.Agnihotri, M.M.Sundresh
o;? IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.06.2014
CORAM
The Hon'ble Mr.SATISH K.AGNIHOTRI, ACTING CHIEF JUSTICE
and
The Hon'ble Mr.Justice M.M.SUNDRESH
C.R.P(P.D)Nos.1337 of 2009 and 1056, 1249 and 2062 of 2011
C.R.P.(PD) No.1337 of 2009
V.L.Dhandapani .... Petitioner
Vs.
1. Revathy Ramachandran
2. Kumar
3. The Village Administrative Officer,
Vadanenmeli, Perur Post,
Chengalpettu Taluk
4. The Tashildar
Chengalpattu TAluk,
Chengalpettur
5. The Inspector of Police,
Mamallapuram
6. Divya Paduval .. Respondents
C.R.P(PD) No.1056 of 2011:
1. S.Ramadoss
2. N.Gajapathy ... Petitioners
Vs.
1. S.Jothi Ramalingam
2. Amuthavalli @ America
3. Malarvizhi
4. Delhi Bai
5. Kommeswaran Primary
Agricultural Co.operative Bank,
rep.by its Secretary,
Gangapuram Post, (via) Ambur,
Vaniyampadi Taluk
6. G.Saravanan
7. J.Premkumar
8. J.Sanjeevi kumar
9. J.Rajkumar
10. Sumathi
11. Mahalakshmi
12. A.Murugesan .... Respondents
C.R.P(PD) No.1249 of 2011:
Christian Medical College (Vellore) Association
represented by its Council Secretary, Vellore
Dr.Raju Titus Chacko, Christian, aged
about 45 years, S/o.Chacko, Vellore-4,
having Office on Ida Scudder Road,
Vellore - 4. ... Petitioner
Vs.
1. S.Jothi Ramalingam
2. Amuthavalli @ America
3. Malarvizhi
4. Delhi Bai
5. Kommeswaran Primary Agricultural
Co.operative Bank, represented by
its Secretary, Gangapuram Post,
via Ambur, Vaniyambadi Taluk
6. G.Saravanan
7. G.Premkumar
8. J.Sanjeevi Kumar
9. J.Ramkumar
10. Sumathi
11. Mahalakshmi
12. A.Murugesan .... Respondents
C.R.P(PD) No.2062 of 2011:
Mr.K.Mani ... Petitioner
Vs.
1. Mrs.Kanthamani
2. Mrs.Valliammal
3. Mr.Durai .... Respondents
C.R.P.(PD) No.1337 of 2009 is filed under Article 227 of the Constitution of India against the Order and decretal Order dated 19.12.2008 in I.A.No.1241 of 2008 in O.S.No.254 of 2002 on the file of the District Munsif's Court, Chengalpattu.
C.R.P.(PD) No.1056 of 2011 is filed under Article 227 of the Constitution of India against the Order dated 2.2.2011 passed in I.A.No.5 of 2009 in O.S.No.51 of 2005 on the file of Additional District and Sessions Judge, Fast Track Court, Vellore.
C.R.P(PD) No.1249 of 2011 is filed under Article 227 of the Constitution of India against the Order dated 02.02.2011 made in I.A.No.257 of 2009 in O.S.No.51 of 2005 on the file of the Additional District and Sessions Judge, Fast Track Court, Vellore.
C.R.P(PD) No.2062 of 2011 is filed under Article 227 of the Constitution of India against the Order and decree dated 18.4.2011 made in I.A.No.54 of 2011 in O.S.No.11 of 2008 on the file of the District Munsif cum Judicial Magistrate, Uthiramerur.
For Petitioner : Mr.V.Lakshminarayan
in C.R.P.(PD) No.
1337 of 2009
For Petitioners : Mr.R.Munuswamy
in CR.P(PD) No.
1056 of 2011
For Petitioner : Mr.Krishnasrinivasan
in CRP(PD) No. for M/s.S.Sramasubramaniam Associates
1249 of 2011
For Petitioner : Mr.Kumar & Mr.Baskar
in CRP(PD) No.
2062 of 2011
For 1st Respondent: Mr.R.Margabandhu
in CRP(PD) No.
1056 & 1249 of 2011
For Respondents : Mr.M.Venugopal, Spl.G.P.(CS)
3 to 5 in CRP.(PD)
No.1337 of 2009
For 6th respondent : M/s Paul & Paul
in CRP(PD) No.
1337 of 2009
For 12th respondent: Mr.T.Sathiamoorthy
in CRP(PD) Nos.1056
and 1249 of 2011
For Respondents 2: Mr.S.Mukunth for
to 4 and 6 to 11 M/s.Sarvabhauman Associates
in CRP(PD) Nos.
1056 and 1249 of 2011
For Respondent : Mr.G.Paunniyakotti
No.1 in CrP(PD)
No.2062 of 2011
For Respondents : Mr.V.Stalin
2 and 3 in CRP
(PD) No.2062 of
2011
COMMON ORDER
Civil Revision Petition in C.R.P(PD) No.1337 of 2009 has been filed against the order dated 19..12.2008 passed in I.A.No.1241 of 2008 in O.S.No.254 of 2002 on the file of District Munsif Court, Chengalpattu.
2. The learned single Judge, in and by the order dated 12.01.2011, was pleased to refer the following issue to be decided by the Larger Bench as in his view, there are conflicting decisions over the same.
"Whether the transferee pendente lite is entitled to be impleaded in the suit"
In view of the said issue having been referred to the Division Bench, as a consequence, C.R.P.(PD) Nos.2062 of 2011, 1056 of 2011 and 1249 of 2011 were also directed to be posted along with C.R.P.(PD) No.1337 of 2009. Accordingly, all the four revisions are before us.
3. The learned counsels appearing for the petitioners have made submissions on merits. In all these revisions, challenge is to the orders passed in the interlocutory applications filed pending suits. The suits are pending for quite some time. Therefore, we do not propose to send back the revisions before the learned single Judge and instead we decide them on merits.
4. BRIEF FACTS:-
A suit was filed by one Gopinathan in O.S.No.254 of 2002 on the file of the District Munsif's Court, Chengalpattu seeking the relief of permanent injunction against the respondents herein. During the pendency of the suit, the petitioner has purchased a suit property from the plaintiff and based upon the same, an application was filed under Order 1 Rule 10 of the Civil Procedure Code to implead him as the second plaintiff in the suit. In the application filed in I.A.No.1241 of 2008, the petitioner has contended that he is a bonafide purchaser for valuable consideration and after the purchase, he is in possession and enjoyment of the suit property by putting up compound wall and terraced house.
5. The learned District Munsif, Chengalpattu, dismissed the application holding that the application filed cannot be allowed as the remedy open to the petitioner was to file a fresh suit instead of continuing the old one. Challenging the same, the petitioner has come before this Court.
6. CRP.(PD) No.2062 of 2011:- The first respondent herein is the plaintiff in the suit in O.S.No.11 of 2008. The suit was filed for declaration and permanent injunction. It is the case of the first respondent that a sale deed has been falsely created as if it was executed by the father on 16.06.1998 when he died as a matter of fact on 05.05.1972. The respondents as defendants are attempting to dispossess and hence the suit. Pending the suit, an application was filed in I.A.No.54 of 2011 in O.S.No.11 of 2008 by the petitioner herein on the ground that he purchased the suit property from the first defendant on 13.02.2009 by way of a registered sale deed. He was not aware of the pendency of the suit when the sale deed was effected and being the bonafide purchaser for valuable consideration, he is entitled to be impleaded as a party defendant in the suit.
7. The learned District Munsif cum Judicial Magistrate, Uthiramerur dismissed the application on the ground that inasmuch as the sale was made during the pendency of the suit, it is hit by Section 52 of the Transfer of Property Act, the request cannot be considered.
8. C.R.P.(PD) No.1056 of 2011:- The plaintiff filed the suit in O.S.No.13 of 1997, which is renumbered as O.S.No.51 of 1997 on the file of District Munsif, Vellore, seeking the relief of partition and separate possession as well as permanent injunction and for rendition of accounts. I.A.No.5 of 2009 has been filed by the petitioners stating that the second defendant in the suit sold the item 2 of the 'A" Schedule properties to them under the registered sale deed dated 24.12.2008 for good and valid consideration. Though the petitioners are the bona fide purchasers for the value, they do not have any notice of the pendency of the suit filed by the plaintiff and as such, they are entitled to be impleaded as party defendants. The trial Court dismissed the application by holding that the suit is pending for quite long time, the transaction is not genuine and a purchaser pendente lite is not a proper and necessary party to be impleaded. Challenging the same, the petitioners have filed this revision before us.
9. C.R.P.(PD)No.1249 of 2011:- In this case also, the plaintiff filed a suit for partition, separate possession, permanent injunction and rendition of accounts. I.A.No.257 of 2009 was filed to implead the petitioner before us as a party defendant being the bonafide purchaser of the petition mentioned property from the plaintiff by a registered sale deed dated 13.06.2003. It has been stated in the affidavit that it is the bona fide purchaser for the value without notice of any encumbrance. It has been in possession from the date of the purchase. It has to come to know about the pendency of the suit in pursuant to the notice received on 24.01.2009 from one Mr.S.Ramadoss and N.Gajapathy, who inter-alia purchased the petition mentioned property from the second defendant in the suit and there is a civil suit pending between the parties. Apart from the same, the said persons have also filed a suit against the petitioner in I.A.No.257 of 2009 in O.S.No.51 of 2009 on the file of Principal District Munsif, Vellore for permanent injunction. In those circumstances, the petitioner herein sought to implead itself as a party defendant in the suit.
10. The learned Additional District and Sessions Judge cum Fast Track Court, Vellore, dismissed the application on the ground that the sale was effected during the pendency of the suit after a long time and the transactions are not genuine. The petitioner, being a pendente lite purchaser, is not a necessary party. Accordingly, the application was dismissed.
11. The issue required to be answered by us has already been dealt with in extenso by the decision of the Supreme Court in THOMSON PRESS (INDIA) LIMITED V. NANAK BUILDERS AND INVESTORS PRIVATE LIMITED AND OTHERS (2013) 5 Supreme Court Cases 397. Therefore we are of the view that the reference as sought for by the learned single Judge is no longer required to be answered. However, as the cases are pending for quite some time and arguments have been made before us on merits, we would like to pass final orders instead of requesting the learned single Judge to decide them. This we do so also for the reason that there is no intra Court Appeal or Revision against the order of the learned single Judge. Therefore, the parties also would not lose any right to approach the Forum before this Court.
12. In the decision referred supra, the Supreme Court has considered the scope of both Section 52 of the Transfer of Property Act, 1882, as well as the Order 1 Rule 10 of the Code of Civil Procedure. In the said case, the suit was filed for specific performance. Inspite of the prohibitory orders passed, there was an alienation by a party to the suit. Even though the purchaser could not be termed as a bona fide purchaser, the Supreme Court, after considering the scope and ambit of Section 52 of the Transfer of Property Act, 1882, and Order 1 Rule 10 of the Civil Procedure Code and Section 19(b) of the Specific Relief Act, 1963, allowed the application for impleadment sought for.
13. Considering the scope of Section 52 of the Transfer of Property Act, 1882, after considering all the earlier judgments, it has been held that doctrine of lis pendens does not indeed annul the conveyance or the transfer otherwise, but merely makes it subservient to the rights of the parties to a litigation. Section 52 of the Transfer of Property Act, 1882, does not render transfers affected during the pendency of the suit as void and a mere pendency of the suit does not prevent one of the parties from dealing with the property constitute in the subject matter of the suit. On the contrary, it only postulates a condition that the alienation will in no manner affects the rights of the other party to the suit.
14. Similarly, on the scope of Order 1 Rule 10, it has been held that a transferee pendente lite can be added as a party to the suit. Where a transfer is effected, the transferor would lose all his rights and interest in the litigation post transfer. Therefore, it is imperative that the transferee will have to be allowed to step into the shoes of the transferor and prosecute the case in his place. The duty of the Civil Court is to conclude and settle the dispute between the parties instead of driving them to multiply the proceedings. It would be proper to implead all the parties. It cannot be said that a transferee has got no interest in the suit in which the transferor is a party. The following paragraphs of the Supreme Court are apposite:
26...... It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.
31.......From the bare reading of the aforesaid provision, it is manifest that sub-rule (2) of Rule 10 gives a wider discretion to the Court to meet every case or defect of a party and to proceed with a person who is a either necessary party or a proper party whose presence in the Court is essential for effective determination of the issues involved in the suit.
49.The second aspect which the proposed judgment succinctly deals with is the effect of a sale pendete lite. The legal position in this regard is also fairly well settled. A transfer pendete lite is not illegal ipso jure but remains subservient to the pending litigation. In Nagubai Ammal & Ors. v. B. Shama Rao & Ors. AIR 1856 SC 593, this Court while interpreting Section 52 of the Transfer of Property Act observed:
"25. The words ''so as to affect the rights of any other party thereto under any decree or order which may be made therein", make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto".
50. To the same effect is the decision of this Court in Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1 where this Court held that Section 52 does not render transfers affected during the pendency of the suit void but only render such transfers subservient to the rights as may be eventually determined by the Court. The following passage in this regard is apposite:
"42. It is well settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit."
51. The decision of this Court in A. Nawab John & Ors. v. V.N. Subramanyam (2012) 7 SCC 738 is a recent reminder of the principle of law enunciated in the earlier decisions. This Court in that case summed up the legal position thus:
"18.....''12...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."
52. We may finally refer to the decision of this Court in Jayaram Mudaliar v. Ayyaswami and Ors. (1972) 2 SCC 200 in which were extracted with approval observations made on the doctrine of lis pendens in b� Commentaries of Laws of Scotland, by Bell. This Court said:
"43....Bell, in his commentaries on the Laws of Scotland said that it was grounded on the maxim: Pendente lite nibil innovandum. He observed:
''It is a general rule which seems to have been recognised in all regular systems of jurisprudence, that during the pendence of an action, of which the object is to vest the property or obtain the possession of real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced.''
53. There is, therefore, little room for any doubt that the transfer of the suit property pendete lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent Court may issue in the suit against the vendor.
56. To the same effect is the decision of this Court in Amit Kumar Shaw v. Farida Khatoon (2005) 11 SCC 403 where this Court held that a transferor pendente lite may not even defend the title properly as he has no interest in the same or collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored. To avoid such situations the transferee pendente lite can be added as a party defendant to the case provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires interest in the entire estate that forms the subject matter of the dispute. This Court observed:
"16. 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 Court 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 the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."
To the same effect is the decision of this Court in Rikhu Dev, Chela Bawa Harjug Dass v. Som Dass (deceased) through his Chela Shiama Dass, (1976) 1 SCC 103.
57. To sum up:
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 owner defendants 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 defenses as were available and taken by the original defendants and none other."
15. Now coming to the reference made, we are of the view that in the light of the decision rendered in THOMSON PRESS (INDIA) LIMITED V. NANAK BUILDERS AND INVESTORS PRIVATE LIMITED AND OTHERS (2013) 5 Supreme Court Cases 397 that a transferee pendente lite can be impleaded as a party to the suit. However, we make it clear that the question as to whether such a party is entitled to be impleaded will have to be decided from the facts of the case. Accordingly, the reference sought for is answered .
16. In the light of the above pronouncements, we are of the view that all these revision petitions will have to be allowed. Merely because the sale has been effected a few years after the pendency of the suit, it would not non-suit the purchaser pendente lite from seeking to implead himself as a party defendant. It is also not as if the petitioners in all these revisions are trying to put up a different case other than the case of their vendors. There are no materials to hold that the petitioners are not the bonafide purchasers for the value. Considering the above, we are inclined to allow all the revision petitions. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed.
(S.K.A., ACJ) (M.M.S.J.,) 17.06.2014 Index:Yes Internet:Yes raa To 1. Additional District and Sessions Judge, Fast Track Court, Vellore. 2.The District Munsif Court, Chengalpattu. 3. The District Munsif-cum-Judicial Magistgrate,Uthiramerur. THE HON'BLE THE ACTING CHIEF JUSTICE AND M.M.SUNDRESH,J. raa Pre-Delivery Common Order in CRP.PD.No.1337 of 2009 etc., batch 17.06.2014