Madras High Court
Marappa Gounder And Ors. vs Chennimalai Gounder And Ors. on 29 November, 1991
Equivalent citations: (1992)2MLJ140
JUDGMENT Kanakaraj, J.
1. The defendants 1 to 3 in O.S. No. 282 of 1975, who suffered a decree in the trial court as well as in the first appellate court, are the appellants in the second appeal. Respondents 1 and 2 herein were the plaintiffs in the suit. Respondents 3 and 4 were the defendants 4 and 5 in the suit. For the purpose of convenience, I will refer to the parties as per their rank in the original suit.
2. The suit was for declaring the plaintiffs title to 1/3rd share in the suit property, for partition and separate possession of the same, for directing the defendants to pay Rs. 7,500 as mesne profits for three years prior to the suit and for future mesne profits.
3. The case of the plaintiffs was as follows:
The suit property of the extent of 7.83 acres belonged to three groups, namely, the defendants 4 and 5 being one branch, Bomma Naicker and his two sons being the second branch and Nagammal and her minor sons being the third branch. On 9.8.1966 the fourth defendant (Malla Naicker) for himself and on behalf of his minor son-5th defendant (Kuppa Naicker) entered into a sale agreement with the plaintiffs for sale of a 1/3rd share belonging to the defendants 4 and 5 in the entire property, for a total consideration of Rs. 17,500. On 28.9.1966 there was an agreement for sale of the entire property for a total consideration of Rs. 52,000 to and in favour of the first defendant (Marappa Gounder), the agreement having been signed by eight persons as vendors. The defendants 4 and 5 were not signatories to the said agreement dated 29.8.1966. On the basis of the said agreement dated 29.8.1966, the first defendant (Marappa Gounder) filed O.S. No. 250 of 1966 seeking specific performance of the agreement. The plaintiffs in this suit (Chennimalai Gounder and R.Gurusami) were impleaded as nineth and tenth defendants in O.S. No. 250 of 1966. The said suit was filed on or about 15.12.1966. On 26.12.1966 the agreement dated 9.8.1966 was given effect to and defendants 4 and 5 executed the sale deed in respect of 1/3rd share to the plaintiffs herein. O.S. No. 250 of 1966 was dismissed on 5.8.1970. An appeal was filed in this Court in A.S. No. 706 of 1970. On 24.1.1975 the defendants 4 and 5 (Malla Naicker and Kuppa Naicker) executed a sale deed in favour of defendants 2 and 3 sons of (Marappa Gounder) in pursuance of the agreement dated 29.8.1966. In this sale deed defendants 4 and 5 referred to the pendency of AS. No. 706 of 1970 and by way of compromise it has decided to enforce the agreement dated 29.8.1966. A compromise was effected in A.S. No. 706 of 1970 only between the first defendant (Marappa Gounder) and defendants 4 and 5 (Malla Naicker and Kuppa Naicker) on 12.2.1975. The appeal was allowed only against the defendants 4 and 5 (Malla Naicker and Kuppa Naicker). The appeal was not pressed against the other respondents and accordingly the appeal was dismissed against the other respondents. The plaintiffs have come forward with this suit O.S. No. 282 of 1975 on account of the cloud caused by the compromise decree in A.S. No. 706 of 1970. They claimed an annual income of Rs. 2,500 from their 1/3rd share and claimed mesne profits for a period of three years.
4. The third defendant alone had filed a written statement and the same has been adopted by defendants 1 and 2. Defendants 4 and 5 remained ex parte.. According to them they are entitled to the entire property including the suit property. The sale deed dated 26.12.1966 (Ex.A-4) would not bind the defendants. Defendants 2 and 3 have acquired valid title under the sale deed dated 24.1.1975 (Ex.A-2). The decree in O.S. No. 250 of 1966 as modified by the High Court in A.S. No. 706 of 1970 would operate as res judicata against the claim of the plaintiffs.
5. The trial court held that the plaintiffs are the absolute owners in respect of 1/3rd share of the property, that the sale deed dated 26.12.1966 (Ex.A-4) is binding on the defendants and that the plaintiffs are entitled to partition and separate possession of 1/3rd share. The mesne profits of Rs. 7,500 for three years was also decreed. The future mesne profits was directed to be ascertained under Order 20, Rule 12, C.P.C.
6. On appeal, the appellate court framed the main point for consideration as follows:
Whether the original of Ex.A-2 sale deed, dated 24.1.1975 executed by fourth defendant Malla Naicker and his son fifth defendant Kuppa Naicker in favour of second defendant C.M. Ramasamy Goundar and third defendant C.M. Arumugham who are appellants No. 2 and 3 in this appeal is valid or Ex.A-4 which is the sale deed executed by fourth defendant Malla Naicker for himself and on behalf of his then Minor son Kuppa Naicker on 26.12.1966 in favour of the plaintiffs is valid?
Inasmuch as on the date of Ex.A-4, dated 26.12.1966 the fifth defendant, Kuppa Naicker, was a minor, the appellate court has elaborately discussed the validity of the passing of consideration under Ex.A-4. The appellate court has also discussed the evidence and come to the conclusion that Ex.A-4 was for the discharge of binding antecedent debts of the father and so the sale was binding on the minor, 5th defendant. On the question whether Ex.A-4 was hit by the doctrine of lis pendens, the appellate court held as follows:
Hence so far as the plaintiffs are concerned, they are entitled to ignore Ex.A-2 and file the present suit for partition and separate possession (in O.S. No. 282 of 1975). The appeal so far plaintiffs are concerned in A.S. No. 706 of 1970 was dismissed and therefore the dismissal of the suit in O.S. No. 250 of 1966 so far as the plaintiffs are concerned has been confirmed in appeal and hence the plaintiffs have won the appeal. The result is that the agreement dated 29.8.1966 in favour of first defendant, Marappa Gounder has not been held as true, valid and binding on merits by the High Court and consequently Ex.A-4 sale deed dated 26.12.1966 cannot be held as having been decided invalid.
The appellate court also went into the question whether the defendants 2 and 3 can question the alienation under Ex.A-4, dated 26.12.1966, It was held that the minor, fifth defendant had not questioned the sale under Ex.A-4 within three years of his attaining majority and consequently it was held that the transferees from minor, fifth defendant, namely, defendants 2 and 3 cannot question the sale deed under Ex.A-4, For all the above reasons, the appellate court found that Ex.A-4, dated 26.12.1966 was a valid document which transferred the share of defendants 4 and 5 to the plaintiffs. The decree for partition of 1/3rd share in favour of the plaintiff was therefore confirmed by the appellate Court. So far as the past mesne profits were concerned, the appellate court reduced the same to Rs. 5,250.
7. Before me in second appeal, the only point argued by Mr. S. Venkateswaran, for the appellants is that the sale deed Ex.A-4, dated 26.12.1966 having been executed during the pendency of O.S. No. 250 of 1966 was invalid, being hit by the doctrine of lis pendens. The argument is that even though the suit was dismissed on 5.8.1970, on appeal, by a compromise decree the suit was decreed forspecific performance as against the defendants 4 and 5 herein (Malla Naicker and Kuppa Naicker). The decree in A.S. No. 706 of 1970 was made on 12.2.1975. The contention therefore is that Section 52 of the Transfer of Property Act cannot be avoided and the sale deed dated 26.12.1966 cannot be upheld. Section 52 of the Transfer of Property Act reads as follows:
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 proceeding 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 proceeding 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.
The learned Counsel for the appellants relies on the words that the property cannot be transferred by any party to the suit so as to affect the rights of any other party thereto under any decree or order which may be made therein. The contention therefore is that defendants 1 and 2 in O.S. No. 250 of 1966 cannot transfer the property to the plaintiffs herein so as to affect the rights of the plaintiffs (Marappa Gounder) in that suit, who is the first defendant in this suit and who ultimately obtained a decree in A.S. No. 706 of 1970.
8. On the other hand, Mr. V. Bharathi Dasan, learned Counsel for the respondents 1 and 2 contends that the decree in A.S. No. 706 of 1970 was collusive and behind the back of the plaintiffs. Therefore, according to them Section 52 cannot be invoked in this case. Before considering the rival submissions, I would like to refer to a few facts. O.S. No. 250 of 1966 was filed on or about 15.12.1966. Theexact date of filing of the suit is not clear from the records. The sale deed Ex.A-4 was executed on 26.12.1966. There is no evidence and the parties did not consider it important to find out whether the plaintiffs had been served with summons in O.S. No. 250 of 1966 prior to the date of the sale deed Ex.A-4. The parties have proceeded on the basis that the sale deed Ex.A-4 was during the pendency of O.S. No. 250 of 1966. Defendants 4 and 5 had been impleaded as defendants 1 and 2 in O.S. No. 250 of 1966 and were therefore made subject to the bar of lis pendens under Section 52 of the Transfer of Property Act, O.S. No. 250 of 1966 was dismissed on 5.8.1970. On the basis of the dismissal the sale deed Ex. A-4 would have been valid. But in A.S. No. 706 of 1970 a decree was obtained by Marappa Gounder (first defendant) against Malla Naicker and Kuppa Naicker (defendants 4 and 5) for specific performance. So far as the other respondents, including the plaintiffs herein (Defendants 9 and 10 in O.S. No. 250 of 1966) the appeal was dismissed confirming the dismissal of the decree in O.S. No. 250 of 1966. Even assuming that the compromise decree as between the consenting parties cannot be assumed to be collusive, the question is whether the plaintiffs were bound by the decree and at any rate whether for the purpose of Section 52 the sale deed, dated 26.12.1966 would come under the mischief of Section 52.
9. The object of Section 52 of Transfer of Property Act is to afford protection of law in respect of a property which is the subject matter of litigation, being alienated to the prejudice of the decree which may ultimately result in the pending suit. The law does not allow litigant parties to give others, pending the litigation rights, in the property under dispute, so as to prejudice the opposite party. The decision of the court shall be binding not only on the litigating parties, but also on those who derive title under them by alienations pendente lite. The learned Counsel for the respondent has cited a decision reported in Veeraraghava Reddi v. Subba Reddi and seven Ors. 37 M.L.J. 449 : I.L.R. 43 Mad. 37 : 531. C. 428. It appears to me that the facts of the said case are very close to the facts of the present case. I will therefore refer to the facts of the said case before referring to the ratio of the said decision. The first defendant had executed two mortgages in favour of the fourth respondent (party subsequently impleaded) in the year 1914. The plaintiff's mortgagee was long anterior to the said mortgages, being of the year 1895. The suit was brought upon the mortgage of 1895 in or about February, 1907. The decree of the trial court was on March, 1910. It was during the pendency of the appeal against the decree that the mortgage in favour of the fourth respondent were created. The fourth respondent filed an application seeking to be impleaded in the suit, at the stage of the appeal. He was so impleaded. On 16.9.1915 a compromise was entered into between the plaintiff and the first defendant. The fourth respondent objected to the said compromise and a decree in terms of the compromise. It was found that the compromise was not collusive, or the result of fraud. The question was whether the fourth respondent was bound by the terms of the compromise. The Full Bench decision of this Court took note of the fact that the purchaser had been made a party to the suit and the subject matter of the dispute in which he is interested could not be decided upon, to his prejudice without hearing him. That right the purchaser acquired once he is made as a party to the suit. While recognising right of the parties to enter into a compromise under 0.23, Rule 3 of C.P.C., the Full Bench pointed out:
If any one of them stands out it is a well recognised principle of jurisprudence that the compromise between the other parties should not in the least derogate from his rights. It follows from these provisions of the Code of Civil Procedure that although a purchaser pendente lite takes the transfer subject to the result of the litigation, and if he is not impleaded as a party he will be bound by any lawful compromise or adjustment which may be entered into between the plaintiff and his transferor, the moment that he becomes a defendant, the only detraction of right to which he subjects himself is the result of the litigation which has been openly and in his presence tried and decided upon. Once he is in the array of parties what could have been done by way of compromise or adjustment if he is not before the Court should not be allowed to interfere with his claim for a fair trial and a decision on the merits.
The Full Bench therefore gave the opinion that the compromise although it may be binding upon the parties to the compromise, could not affect the rights of the fourth respondent in that case. It was held that the fourth respondent could argue and contest the validity of the compromise.
10. Respondents 1 and 2 herein can take advantage of the said judgment only to the limited extent that they are not bound by the compromise decree in O.S. No. 250 of 1966 entered into between the plaintiff and the defendants 1 and 2 therein. To put it conversely the defendants 1 and 2 therein (defendants 4 and 5 in the present proceedings) are disabled by Section 52 of the Transfer of Property Act from alienating the property to any third party, prejudicing the rights of the plaintiff in O.S. No. 250 of 1966 (first defendant in these proceedings) who obtained a decree in his favour compelling defendants 1 and 2 therein to execute a sale deed in his favour as provided in the agreement dated 29.8.1966. In other words, the sale dated 26.12.1966 executed by defendants 1 and 2 in O.S. No. 250 of 1966 in favour of the plaintiffs in these proceedings is hit by the doctrine of lis pendens. The suit based on that saledeed has to fail necessarily. The courts below have wrongly decided this substantial question of law. The second Appeal is therefore allowed. The judgments of the courts below are set aside. The suit O.S. No. 282 of 1975 shall stand dismissed. There will however be no costs throughout.