Good Shepherd Evangelical Mission vs Meenakshi Achi on 9 February, 2012

[Cites 33, Cited by 0]

Madras High Court

Good Shepherd Evangelical Mission vs Meenakshi Achi on 9 February, 2012

These appeals arise from a common order dated 29.4.2011 passed by a learned Single Judge in Application Nos.2357 and 5193 of 2010 in C.S.No.83 of 1965 and Application No.5301 of 2010 in C.S.No.686 of 2000. While appellant filed Application Nos.2357 and 5193 of 2010 in C.S.No.83 of 1965 for impleading itself, namely Good Shepherd Evangelical Mission Private Limited, formerly known as "The Siloam Evangelical Mission Private Limited", as the 64th defendant in the suit stated above and to implead or substitute the appellant either in the place of Andiappan (7th defendant) or VR.M.Meenakshi Sundaram Chettiar (25th defendant) or M.Veerappan (26th defendant) respectively, Application No.5301 of 2010 in C.S.No.686 of 2000 has been filed by the appellant, which was arrayed as 10th defendant in the said suit, to transpose it as the third plaintiff in C.S.No.686 of 2000. All the applications came to be dismissed by the learned Single Judge, against which the present appeals are filed.

2.1. Originally, the land property called Edamallapatti land in Pratiyur, Trichy comprising of 77.39 Acres belonged to one Late T.S.PL.P.Chidambaram Chettiar, who is stated to have sold a portion of the said property in the year 1960 to one Andiappan (7th defendant in C.S.No.83 of 1965) under a registered sale deed. The said T.S.PL.P.Chidambaram Chettiar died on 18.8.1964, leaving behind him his widow CT.Sivagami Achi (4th defendant in C.S.No.83 of 1965), who also died subsequently on 26.11.1988, apart from three sons, namely PL.CT.Subramaniam Chettiar, PL.CT.Palaniappa Chettiar and PL.CT.Senthilnathan Chettiar, arrayed as defendants 1 to 3 in C.S.No.83 of 1965, and three daughters, namely Umayal Achi, L.Velliammai Achi arrayed as defendants 5 and 6 in C.S.No.83 of 1965, and K.R.Meenakshi Achi, who filed C.S.No.83 of 1965 for partition.

2.2. The first son of late T.S.PL.P.Chidambaram Chettiar, namely the 1st defendant, also died leaving behind him his two wives, namely Dhoniprathambal Achi (48th defendant) and Umayal Achi (49th defendant), who also subsequently died, and their sons and daughters have been impleaded as defendants 50 to 62 in C.S.No.83 of 1965.

2.3. Likewise, Umayal Achi (5th defendant), one of the daughter of late T.S.PL.P.Chidambaram Chettiar, also died, who was succeeded by her husband VR.M.Meenakshi Sundaram Chettiar (25th defendant), who also subsequently died and thereafter his son M.Veerappan has been impleaded as 26th defendant in C.S.No.83 of 1965.

2.4. Some of the left out properties while filing the suit in C.S.No.83 of 1965 were subsequently added by an application filed by the plaintiff and third parties, including Andiappan (7th defendant), were impleaded by order dated 24.11.1967.

2.5. A preliminary decree by consent of the parties was passed on 22.11.1968 declaring that the plaintiff and each one of defendants 1 to 6 are entitled to 1/7th share in the estate of late T.S.PL.P.Chidambaram Chettiar. However, it appears that there was no decision regarding the item of properties stated to have been purchased by the said Andiappan (7th defendant).

2.6. It appears that Andiappan (7th defendant) has sold away various portions of the properties under registered sale deeds to and in favour of VR.M.Meenakshi Sundaram (husband of the 5th defendant), Sivagami Achi (daughter of the 6th defendant), Muthulakshmi Achi (wife of the 3rd defendant) and one Rangasamy Gounder, who was not related to the sharers. The plaintiff in the suit C.S.No.83 of 1965 filed Application No.3220 of 1975 to implead the said purchasers and the said application for impleadment came to be dismissed by this Court on 12.3.1976 on the ground that they are pendente lite purchasers and, therefore, the doctrine of lis pendens would apply. The order is as follows:

"Admittedly the property in relation to which injunction is sought does not form part of the preliminary decree in C.S.No.83 of 1965. Nevertheless, that the applicant contends is that the 7th defendant is only a servant of the deceased father who has sold away the property in favour of respondents 2 to 5 sought to be impleaded as parties. Admittedly the sale is pending C.S.No.83 of 1965 in which even the doctrine of lis pendens can be invoked by the applicant as and when he succeeds in establishing his right to these survey numbers forming the subject amtter of the application. In this view, I see no need to continue the interim injunction. Accordingly that will stand vacated and application No.3220 of 1975 will also stand dismissed."

Accordingly, the application for impleadment as well as the injunction application came to be dismissed by this Court.

2.7. After the conclusion of trial, by a second preliminary decree dated 21.11.1977 in C.S.No.83 of 1965, it was held that the transfer effected to Andiappan (7th defendant) is sham and nominal and, therefore, the said property also formed part of the estate of late T.S.PL.P.Chidambaram Chettiar. The operative portion of the said judgment is as under:

"... Therefore, even in the case of the 7th defendant, I had to accept the case of the plaintiff and I hold that the sale in favour of the 7th defendant was a sham and nominal transaction and that no title passed in respect of item (a) of III Schedule and the same remained as part of the estate of Chidambaram Chettiar. Accordingly, issue No.1 is found in favour of the plaintiff."

2.8. As against the said portion of the judgment, Andiappan (7th defendant) filed O.S.A.No.85 of 1979 and that appeal came to be dismissed as withdrawn on 14.8.1984. Thereafter, the above said four purchasers from Andiappan (7th defendant), who are not sharers in the joint family property, have filed various applications to set aside the order dated 14.8.1984 made in O.S.A.No.85 of 1979 and all the said applications were dismissed on 23.12.1986 by a Division Bench of this Court. The Division Bench has, in fact, held that it was these purchasers who have resisted the application filed by the plaintiff in C.S.No.83 of 1965 to implead them as parties based on the doctrine of lis pendens and, therefore, they are estopped from taking a different stand.

2.9. As against the said order of the Division Bench in the applications filed by the pendente lite purchasers, there was no further appeal, obviously because it was barred by limitation by that time. Instead the said pendente lite purchasers filed C.S.No.674 of 1987 praying to annul the order dated 21.11.1977, by which the second preliminary decree was passed by this Court in C.S.No.83 of 1965 holding that the subject matter of properties stated to have been purchased by Andiappan (7th defendant) are sham and nominal, and benami. It was that suit which was subsequently transferred to the City Civil Court, Chennai based on monetary limit and was thereafter transferred to this Court and re-numbered as C.S.No.686 of 2000.

2.10. The said pendente lite purchasers earlier filed application for injunction against the sharers from proceeding further, which came to be dismissed by this Court on 9.1.1989, and the said order was also confirmed by a Division Bench in O.S.A.No.40 of 1989 on 22.2.1989. It appears that there was an Advocate Commissioner appointed to identify the properties for division by metes and bounds, apart from the appointment of a Receiver in C.S.No.83 of 1965.

2.11. It is also relevant to point out at this stage that the plaintiff in C.S.No.83 of 1965, having come to know about the purchase made by the appellants, has filed Application No.2034 of 1992 to implead the purchasers, including the Siloam Evangelical Mission Private Limited, and there was also an order of injunction obtained in O.A.No.285 of 1992 restraining them from trespassing into the property. Ultimately, the plaintiff withdrew the application seeking impleadment on 16.4.2010.

2.12. The appellant herein, being the third party to the suit in C.S.No.83 of 1965 and stated to have been called as "The Siloam Evangelical Mission Private Limited" (10th defendant in C.S.No.686 of 2000), claiming itself to have purchased about an extent of 26.49 Acres from Meenakshi Sundaram (25th defendant), who subsequently died and is represented by M.Veerappan (26th defendant), Muthulakshmi Achi (wife of the 3rd defendant) and Sivagami Achi (daughter of the 6th defendant) under various registered sale deeds, which are as follows:

Sl.No. Date of the sale deed Document No. Survey No. Extent of the property 1 21.7.1976 3889 128/2C, 128/3B 2 acres 2 21.7.1976 3887 282 7 acres 3 21.7.1976 3848 282 7 acres 4 21.7.1976 3846 128/2C, 128/3B 2 acres 5 15.7.1976 3844 281/3 4 acres, 66 2/3 6 21.7.1976 3888 281/3 4 acres, 66 2/3 7 21.7.1976 3847 281/3 4 acres, 66 2/3 8 15.7.1976 3845 128/2C3B 2 acres Total 33.99 acres has filed the above said applications on the grounds that it is a bon fide purchaser having paid the amount of full consideration to its vendors; that the plaintiff and sharers in collusion with the vendors of the appellant have obtained preliminary decree; that by collusion they entered into an arrangement among themselves and there is likelihood of the plaintiffs in C.S.No.686 of 2000 to withdraw the same on the basis of a compromise and execute the decree passed in the partition suit C.S.No.83 of 1965, apart from many other grounds.

2.13. The applications filed by the appellant were resisted by the plaintiff in C.S.No.83 of 1965 on the ground that the purchase stated to have been made by the appellant from non-sharers is fraudulent in nature and in any event, the validity of the appellant's purchase depends upon the rights of Andiappan (7th defendant) and inasmuch as it has been settled and become final that the transfer effected to Andiappan (7th defendant) is sham and nominal, the appellant or its vendors cannot claim any better title.

2.14. It was after considering the rival contentions, the learned Judge has dismissed the applications on the ground that the appellant is pendente lite purchaser of a portion of the property forming part of C.S.No.83 of 1965 and, therefore, under the legal concept of lis pendens, it is not necessary party to decide the lis, and also on the ground that the rights of the appellant are limited, since the partition suit between the members of the family can be decided even in the absence of the appellant and hence, the appellant is not a necessary and proper party.

2.15. It is as against the said order of the learned Judge, the applicant before the learned Single Judge has filed the present appeals on various grounds, including that the appellant is necessary and proper party to the suit in C.S.No.83 of 1965, as any decision in the partition suit will result in dispossession of the appellant, who is in possession; that the learned Judge ought to have appreciated the implication of Order I Rule 10 of the Code of Civil Procedure (for brevity, "the CPC"); that the reason given by the learned Judge that the appellant is pendente lite purchaser is not correct; that the learned Judge has not taken into consideration the application filed by the plaintiff in C.S.No.83 of 1965 to implead the appellant, which was withdrawn on 16.4.2010 and, therefore, she cannot now say that the appellant is not necessary and proper party; that the appellant is bona fide purchaser for valuable consideration and its right is protected under Section 52 of the Transfer of Property Act, 1882; and that no valid reason has been given for dismissing all the three applications, especially when the presence of the appellant will facilitate effective adjudication of the entire issue.

3. Mr.P.S.Raman, learned counsel for the appellant would vehemently contend as under:

(i)that the dismissal of Application No.5301 of 2010 in C.S.No.686 of 2000 to transpose the appellant, who was arrayed as 10th defendant, as the third plaintiff in the said suit is unsustainable;

(ii)that the appellant should be given opportunity to continue the suit filed by its vendors to set aside the decree in C.S.No.83 of 1965, consequent to the withdrawal of O.S.A.No.85 of 1979 by Andiappan (first defendant in C.S.No.686 of 2000), insofar as it relates to schedule properties in the suit measuring 77.39 Acres in Pratiyur, Edamallapatti Village, Trichy District, especially when the plaintiffs in C.S.No.686 of 2000, who are near relatives to the sharers, namely the plaintiff and defendants 1 to 6 in C.S.No.83 of 1965, are attempting to withdraw the suit and arrive at a compromise final decree, in which event the appellant will be losing its valuable right;

(iii)that it has been the judicial precedent, as held in Bhupendra Narayan Sinha Bahadur v. Rajeswar Prosad Bhakat and others, AIR 1931 PC 162 and in the latest judgment of this Court in R.Dhanasundari @ R.Rajeswari v. A.N.Umakanth and others, 2006 (5) CTC 440, that right of transposition under Order I Rule 10 and Order XXII Rule 10 of the CPC is to be decided on two factors, namely complete adjudication of disputes and to avoid multiplicity of proceedings;

(iv)that Section 52 of the Transfer of Property Act is applicable only if it is not a collusive suit and since the plaintiffs in C.S.No.686 of 2000 have already approached the court on the basis that the decree obtained in C.S.No.83 of 1965 is collusive, the appellant, being the bona fide purchaser from the said plaintiffs, must be given opportunity to continue the suit in the absence of the efforts taken by the plaintiffs in C.S.No.686 of 2000 to proceed with the case;

(v)that the plaintiffs in C.S.No.686 of 2000 themselves have no objection for transposition except raising objection now and, therefore, that creates a strong suspicion that they are not interested in prosecuting the suit, in which event the appellant will be the affected party;

(vi)that the plaintiff in C.S.No.83 of 1965 having filed an application to implead the appellant and other subsequent purchasers realizing that they are necessary parties, has chosen to withdraw the application with a view to collusively file a compromise memo in order to deprive the appellant its right;

(vii)that the withdrawal of O.S.A.No.85 of 1979 by the predecessor-in-interest of the appellant and declining efforts to restore O.S.A.No.85 of 1979 was on the facts of that case and that does not mean that the subsequent purchaser has no right to continue the litigation;

(viii)that even if the appellant is pendente lite purchaser, if it comes under Section 52 of the Transfer of Property Act proving that the suit is collusive in nature, it is entitled to be impleaded and in this regard, reliance was placed on the decisions in Dhanlakshmi and others v. P.Mohan and others, (2007) 10 SCC 719 and Raj Kumar v. Sardari Lal and others, (2004) 2 SCC 601, following the earlier judgment of the Four Judges Bench of the Supreme Court in Saila Bala Dassi v. Nirmala Sundari Dassi and another, AIR 1958 SC 394;

(ix)that insofar as it relates to the sale effected by Meenakshi Sundaram (25th defendant) after the death of his wife who is a sharer, namely Umayal Achi (5th defendant), he has actually inherited the share and after his death, his son M.Veerappan (26th defendant) having inherited the share, cannot go back from the sale executed by his father and likewise, defendants 3 and 6 are also bound by the sale made by their respective wife and daughter; and

(x)that the order of this Court in 11.7.1989 supports his case that the appellants should be made as parties and in this regard, he placed reliance on the decision in T.G.Ashok Kumar v. Govindammal and another, (2011) 2 MLJ 317 (SC).

4. Per contra, Mr.K.Ravi, learned counsel appearing for the first respondent, who is the plaintiff in C.S.No.83 of 1965, submits:

(i)that the appellant, being third party, is neither a necessary nor proper party;

(ii)that the appellant Good Shepherd Evangelical Mission Private Limited has never been in the scene and the appellant has never stated that Siloam Evangelical Mission Private Limited has been converted as Good Shepherd Evangelical Mission Private Limited and, therefore, the status of the appellant is dubious;

(iii)that inasmuch as indisputably the share has been identified in the preliminary decree dated 22.11.1968 giving 1/7th share to each of the sharers and subsequently, since the wife of T.S.PL.P.Chidambaram Chettiar died, it has been made as 1/6th, and there is nothing to be adjudicated;

(iv)that 77.39 Acres in Pratiyur, Edamallapatti Village, Trichy District stood in the name of Andiappan (7th defendant in C.S.No.83 of 1965), who is not a sharer and was only a servant of T.S.PL.P.Chidambaram Chettiar, and the transfer effected to him was held to be sham and nominal by the second preliminary decree which was passed on 21.11.1977;

(v)that when proceedings were pending, Andiappan (7th defendant in C.S.No.83 of 1965) has fraudulently sold the properties to the non-sharers, who are not entitled to any share in the estate, under two sale deeds dated 10.2.1970 and 9.6.1970 and at the time of sale, the properties which were sold were in custodia legis, namely within the custody of the court appointed Receiver;

(vi)that when the first respondent herself filed an application for impleading the appellant and also the purchasers, it was they who resisted their impleadment on the ground of lis pendens and they cannot now take a contrary stand;

(vii)that the order passed by this Court dated 12.3.1976 refusing impleadment has become final and the appeal filed by Andiappan (7th defendant in C.S.No.83 of 1965) having been withdrawn, the appellant, who purchased lands from the vendors to whom Andiappan has sold the property, has no right and even the vendors of the appellant have filed applications to set aside the withdrawal order and that also came to be dismissed on 23.12.1986;

(viii)that pendente lite purchasers have no right of getting themselves impleaded and in this regard, he would rely upon the decisions in Sarvinder Singh v. Dalip Singh and others, (1996) 5 SCC 539, Bibi Zubaida Khatoon v. Nabi Hassan Saheb and another, (2004) 1 SCC 191, Sanjay Verma v. Manik Roy and others, 2007 (2) CTC 562 and T.G.Ashok Kumar v. Govindammal and another, (2011) 2 MLJ 317 (SC);

(ix)that even as per the decisions of the Supreme Court in Amit Kumar Shaw and another v. Farida Khatoon and another, (2005) 11 SCC 403 and Dhanlakshmi and others v. P.Mohan and others, (2007) 10 SCC 719, only in cases where there is none to defend the title except the pendente lite purchaser, the pendente lite purchaser may be impleaded and such impleaded party will only get what is allotted to his vendors in a partition suit, and inasmuch as the appellant has purchased from non co-sharers, they are not entitled even on equity;

(x)that during the pendency of the suit for partition, which according to him is not collusive, no transfer of property subject matter of partition suit can be effected without permission of the Court and the allegation of collusion should be raised at the earliest point of time; and

(xi)that the plaintiff, being the admitted sharer, having filed the suit as early as in the year 1965, even in her advanced years is not able to get her right in respect of the property due to vexatious litigation.

5. Mr.S.Raghavan, learned counsel appearing for the fourth respondent (Senthilnathan Chettiar) would elaborate his contention on custodia legis stating that the Division Bench has, in fact, appointed a Receiver. He would also very strongly repudiate the contention that there has been collusion. It is his submission that by the efforts of the Receiver, one of the properties, which is a theatre in the city of Chennai, came to be sold and, therefore, on the principle of custodia legis, when the property is in the custody of the Court, if a purchaser has not obtained any permission from the Court, he cannot claim to be a bona fide purchaser and in this regard, he would rely upon the Full Bench judgment of this Court in Arumugha Gounder v. Ardhanari Mudaliar and others, AIR 1975 Madras 231. To substantiate his contention about constructive res judicata, he would rely upon the decision in M.Nagabhushana v. State of Karnataka and others, (2011) 3 SCC 408 and to show that benami transaction has been effected, which is fraudulent in nature, he would rely upon the decisions in R.Rajagopal Reddy (dead) by Lrs. and others v. Padmini Chandrasekharan (dead) by Lrs., (1995) 2 SCC 630.

6. Mr.Rahul Balaji, learned counsel appearing for the 27th respondent in O.S.A.Nos.186 and 187 of 2011 M.Veerappan, would submit that the conduct of the appellant would amount to approbation and reprobation and it is not a necessary and proper party. He would submit that the doctrine of election is based on the rule of estoppel by relying upon a judgment in Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and others v. Director General of Civil Aviation and others, (2011) 5 SCC 435. It is his submission that the title of the third parties is traceable to their vendors and inasmuch as Andiappan is not a sharer and his position has already been decided by this Court holding that the transfer effected to him is sham and nominal, which has become final, the appellant cannot go beyond that and can never claim itself to be a necessary and proper party and in this regard, he would rely upon the decision in Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417. It is his submission that no person has any right to insist that he has to be impleaded as a party merely because he is a proper party, by relying on the decision in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others, (1992) 2 SCC 524. It is his submission that inasmuch as the appellant is a rank outsider, it cannot have interest over the partition suit. He further submitted that the appellant cannot even claim any equitable allotment, as it was held by the Apex Court in T.G.Ashok Kumar v. Govindammal and another, (2011) 2 MLJ 317 (SC). In respect of transposition of the appellant as the third plaintiff in C.S.No.686 of 2000, it is his submission that when the issue has been determined in entirety, such transposition would amount to abuse of process and re-litigation, as it was held by the Supreme Court in K.K.Modi v. K.N.Modi and others, (1998) 3 SCC 573. According to him, none of the grounds required for transposition is satisfied in the present case. Mr.M.Sriram, counsel appearing for the 7th respondent in O.S.A.Nos.186 to 187 of 2011 and counsel appearing for various parties also adopted the above said contentions.

7. We have heard the elaborate submissions made by the learned Senior Counsel appearing for the appellants as well as the respective counsel appearing for various respondents, referred to the impugned order of the learned Judge, and given our anxious thought to the issue involved in this case.

8. At the outset, it has to be made clear that admittedly C.S.No.83 of 1965 filed by the plaintiff therein, who is the first respondent in O.S.A.Nos.186 and 187 of 2011, is still pending for passing final decree. It is also not in dispute that the first preliminary decree passed in the said suit for partition on 22.11.1968 declaring that the plaintiff and each one of defendants 1 to 6 are entitled to 1/7th share in the estate of late T.S.PL.P.Chidambaram Chettiar has become final. In the second preliminary decree passed in the said suit on 21.11.1977, while confirming the entitlement of the plaintiff in respect of her 1/7th share, in respect of the other properties which were left out in the first preliminary decree, including the properties which are subject matter in these proceedings situated at Pratiyur, Edamallapatti Village, Trichy District, a finding has been given by this Court that the transaction effected between T.S.PL.P.Chidambaram Chettiar and Andiappan (7th defendant in C.S.No.83 of 1965) under various sale deeds is sham and nominal.

9. It is against the said preliminary decree, Andiappan (7th defendant in C.S.No.83 of 1965) filed O.S.A.No.85 of 1979, which was subsequently withdrawn by him and it is also not in dispute that after such withdrawal of the appeal by Andiappan, four persons who have purchased from him, who are the vendors of the appellants, have filed C.M.P.Nos.15248 and 15249 of 1984 and 6836 of 1985 to implead them as appellants in the said O.S.A.No.85 of 1979 and all those three petitions were dismissed by a Division Bench on 23.12.1986 and the said four persons, who are non-sharers, have also not filed any appeal against the second preliminary decree dated 21.11.1977. Even otherwise, filing of such appeal is totally time barred. It was in the above said background we have to consider the appeals filed by the appellant for impleadment, transposition, etc.

10. The appellant cannot claim better title than their transferors. Their transferors (vendors), in their turn, having purchased from Andiappan (7th defendant in C.S.No.83 of 1965), cannot claim better title than Andiappan. Now that the transactions in the year 1960 between Andiappan (7th defendant in C.S.No.83 of 1965) and T.S.PL.P.Chidambaram Chettiar have been held by this Court as sham and nominal, which has become final, it is yet to be seen as to whether the second suit (C.S.No.686 of 2000) filed by the vendors of the appellant, in effect to annul the second preliminary decree dated 21.11.1977, is maintainable in the light of the dismissal of their own applications to implead themselves in O.S.A.No.85 of 1979.

11. As far as the implead petition filed by the appellant to implead in C.S.No.83 of 1965, which is a suit for partition in which the shares of the plaintiff and defendants 1 to 6 have been ascertained in the preliminary decree dated 22.11.1968, it is to be seen as to whether in the absence of the appellant the final decree can be passed effectively (or) as to whether the presence of the appellant will facilitate the proper adjudication of the partition suit, so as to come to a conclusion that the appellant is either a necessary or proper party.

12. On the face of it, it is clear that the presence of the appellant is neither necessary for adjudication nor it is a proper party for arriving at a proper conclusion in the partition suit. It is not as if by not impleading the appellant, the appellant is left in the lurch. The contention raised by the learned Senior Counsel for the appellant that the appellant has parted with huge amount of consideration in respect of the purchase and, therefore, it cannot be denied relief, even though appears to be attractive, in our considered opinion, is without substance. It would have been different if the appellant has paid the consideration to the sharers. Having paid consideration to the non-sharers in the joint family property, it is certainly not open to the appellant to make a hue and cry that enormous amount has been parted with. Even if some of the vendors of the appellant, being the relatives of the sharers, receive any share ultimately in the final decree to be passed in the partition suit, by virtue of inheritance due to the death of the sharers, the appellant can always proceed against their respective shares. Even in the absence of such shares having been received by the vendors of the appellant, there are other remedies available. If it is taken as a commission of cheating by a non-owner, the larger issue to be decided is as to whether the doctrine of caveat emptor will be applicable against the appellant.

13. It is not the case of the appellant that it is not a pendente lite purchaser, but the case of the appellant, as contended by Mr.P.S.Raman, learned Senior Counsel, is that the doctrine of lis pendens would apply only if the suit is not a collusive suit. The case of the appellant is that the suits are collusive in nature and, therefore, the transfer effected in favour of the appellant is not affected by lis pendens.

14. Section 52 of the Transfer of Property Act, 1882, which refers to the transfer of property pending suit, is as follows:

Section 52. 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 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.

Explanation. For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. A reading of the said provision, no doubt, shows that the doctrine of lis pendens would apply only in respect of the transfer effected pending suit which is not collusive. But in the present case, it is pending the partition suit C.S.No.83 of 1965 filed by the first respondent in O.S.A.Nos.186 and 187 of 2011, to which she is certainly entitled to being a sharer, in which no final decree has been passed so far, the appellant has purchased a portion of the property forming part of the estate. In the light of the declaration in the form of the first preliminary decree dated 22.11.1968 identifying the shares of the plaintiff as well as each of defendants 1 to 6, it is not known as to how anybody can come to a conclusion that there is collusion. Even the suit (C.S.No.686 of 2000) filed by the vendors of the appellant cannot be termed as collusive for the simple reason that the vendor of the plaintiffs in the said suit himself has lost his right by virtue of the second preliminary decree dated 21.11.1977, wherein his purchase from T.S.PL.P.Chidambaram Chettiar has been held to be sham and nominal. There cannot be any remote possibility of collusion between the plaintiffs in C.S.No.686 of 2000 and the plaintiff and defendants 1 to 6 in C.S.No.83 of 1965. Merely because the appellant has purchased one of the properties of the family, it does not mean that it becomes a necessary party in the suit for partition, especially when the appellant has admittedly purchased from non-sharers. Therefore, the contention that doctrine of lis pendens would have affect only in cases of non-collusive suit has no applicability to the facts of the present case.

15. Further, even on going through the pleadings in C.S.No.686 of 2000, one cannot come to a conclusion that the suit is collusive in nature. The averment contained therein only shows that the first defendant in the said suit, namely Andiappan, posed as the owner under the sale deed of the year 1960 and after the second preliminary decree was passed on 21.11.1977, he has assured the plaintiffs therein that he would file appeal to take appropriate steps, however in collusion with defendants 2 to 4 and 6 to 8 in the said suit, he has withdrawn the appeal, namely O.S.A.No.85 of 1979. Further, the pleading shows that while withdrawing O.S.A.No.85 of 1979, the first defendant in the said suit, namely Andiappan, in collusion with defendants 2 to 4 and 6 to 8, has stated that the suit property was that of T.S.PL.P.Chidambaram Chettiar. The paragraphs which dealt with the so-called collusion in the plaint in C.S.No.686 of 2000 are as follows:

"38. Even then, the first defendant assure the plaintiffs and the 9th defendant that he would take up the matter on appeal and requested the first plaintiff to provide funds for filing appeal; and accordingly with the funds provided by the plaintiffs, O.S.A.No.85 of 1979 was filed by the 1st defendant herein. In the said appeal originally on 11.10.1979, interim stay was granted in C.M.P.No.10061 of 1979 and subsequently on 17.9.1980, interim stay granted in C.M.P.No.10061 of 1979 was made absolute.

39. Thereafter it appears that some of the defendants had purchased the 1st defendant and he having sold all properties, evidently fell into the trap and colluding with other defendants and in particular defendants 2 to 4 and 6 to 8, he had actually taken steps to withdraw the appeal O.S.A.No.85 of 1979.

40. The Plaintiffs, and in particular the first plaintiff, having come to know of the move of the first defendant, opposed the said withdrawal. It appears that while withdrawing the said O.S.A.No.85 of 1979, the first defendant, in collusion with the other defendants 2 to 4 and 6 to 8, had stated that the suit property was that of the Chidambaram Chettiar."

Therefore, in filing C.S.No.686 of 2000 by the plaintiffs there is no collusion at all and collusion is attributed to Andiappan (7th defendant in C.S.No.83 of 1965) and defendants 2 to 4 and 6 to 8 in C.S.No.686 of 2000. Hence, it cannot be said that C.S.No.686 of 2000 or C.S.No.83 of 1965 is collusive in nature and, therefore, it is clear that the appellant is a pendente lite purchaser.

16. The contention of the learned Senior Counsel for the appellant that the appellant should be considered as necessary and proper party based on the decision in Dhanlakshmi and others v. P.Mohan and others, (2007) 10 SCC 719 cannot be accepted for the simple reason that, on fact, in the said case the appellants have purchased undivided share from the co-sharers, namely respondents 2, 3, 4 and 6, and it was on the said facts the Apex Court has held that the appellants having purchased from the co-sharers are entitled to come on record to workout equity. In paragraph (5) of the said judgment, it was held as follows:

"5. Section 52 deals with a transfer of property pending suit. In the instant case, the appellants have admittedly purchased the undivided shares of Respondents 2, 3, 4 and 6. It is not in dispute that the first respondent P. Mohan has got an undivided share in the said suit property. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent herein in the suit or proceeding will not affect his right in the suit property by enforcing a partition. Admittedly, the appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the appellants are necessary and proper parties to the suit, which is now pending before the trial court. We also make it clear that we are not concerned with the other suit filed by the mortgagee in these proceedings.

But on the facts of the present case, admittedly, the purchase by the appellant is not from the co-sharers and it is from third parties.

17. The reliance placed by the learned Senior Counsel for the appellant on the judgment in Amit Kumar Shaw and another v. Farida Khatoon and another, (2005) 11 SCC 403 to support his contention that for granting leave under Order XXII Rule 10 or Order I Rule 10 CPC read with Section 52 of the Transfer of Property Act no elaborate enquiry is required and the purchaser should be made a party in the pending proceedings, is also not applicable to the facts of the present case. That was a case where two items of properties were obtained by the appellants before the Supreme Court, one by way of deed of assignment dated 15.12.1995 and other by way of a sale deed dated 15.12.1995 from Birendra Nath Dey and Kalyani Dey respectively, who have become owners of the property by the transfer effected by the original owner Khetra Mohan Das. There was a litigation between the original owner, namely Khetra Mohan Das, and the said Birendra Nath Dey and Kalyani Dey and a suit was filed and ultimately, a second appeal was pending at the time when the said assignment and sale were effected in favour of the appellants. It was in those circumstances, when the appellants came to know later about the pendency of the appeal, they filed application for impleading themselves as parties. It was in the light of the above said facts and circumstances, the Supreme Court has held that on a combined reading of Order I Rule 10, Order XXII Rule 10 of the CPC and Section 52 of the Transfer of Property Act it is clear that the object of the said provisions is to save honest and bona fide claimants from being non-suited. The observation made by the Supreme Court is extracted here under:

"8. On a combined reading of Order 1 Rule 10, Order 22 Rule 10 of the Code of Civil Procedure and Section 52 of the Transfer of Property Act, 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 in these appeals.

9. The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases:

(1) when he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) when, without his presence, the questions in the suit cannot be completely decided."

Ultimately, the Supreme Court has held that the transferee pendente lite to the extent he has acquired the property is vitally interested in the litigation, thereby meaning a transferee from a sharer. In this regard, it is relevant to extract paragraph (16) of the judgment, which is as follows:

"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 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 heavy reliance placed on by the learned Senior Counsel for the appellant on the above said portion of the judgment of the Supreme Court, in our view would be applicable to a case where the transferee claims right from the sharer. Unfortunately, on the facts of the present case, the appellant is not claiming any transfer of right from the co-sharers of the family and, therefore, it cannot be said that the claim of the appellant is bona fide.

18. Again, the Four Judges Bench judgment of the Apex Court in Saila Bala Dassi v. Nirmala Sundari Dassi and another, AIR 1958 SC 394 relates to a case where an owner of the property at Calcutta executed mortgage in favour of Nirmala Sundari Dassi, who instituted a suit on mortgage and obtained a preliminary decree on 8.3.1935 and final decree was passed on 20.4.1936. As per the Original Side Rules of the Calcutta High Court, a person in whose favour a decree is passed has to apply for drawing up of the decree within four days. However, the said Nirmala Sundari Dassi, who has hurriedly filed a suit and obtained decree, has not taken steps to draw up a decree for 18 years and it was in those circumstances, the second respondent (Sudhir Kumar Mitter), namely the owner of the property, has sold the property and the purchaser under the said sale wanted to participate in the execution proceedings and it was in those circumstances, the Supreme Court has held as follows:

"9. It remains to consider whether, on the merits, there should be an order in favour of the appellant. Of that, we have no doubt whatsoever. The proceedings in which she seeks to intervene arise in execution of a mortgage decree. She has purchased the properties comprised in the decree for Rs.60,000 under a covenant that they are free from encumbrances. And after her purchase, the first respondent has started proceedings for sale of the properties, nearly 18 years after the decree had been passed. The appellant maintains that the execution proceedings are barred by limitation, and desires to be heard on that question. It is true that P.B. Mukharji, J., has rejected this contention, but a reading of his judgment shows and that is what he himself observes that there are substantial questions of law calling for decision. Even apart from the plea of limitation, there is also a question as to the amount payable in discharge and satisfaction of the decree obtained by the first respondent in Suit No.158 of 1935. Both the respondents claim that they have settled it at Rs.17,670. But it is stated for the appellant that under the decree which is sought to be executed the amount recoverable for principal and interest will not exceed Rs.6000. In the affidavit of Sanjit Kumar Ghose dated December 20, 1956, filed on behalf of the first respondent, particulars are given as to how the sum of Rs.17,670 was made up. It will be seen therefrom that a sum of Rs.7200 is claimed for interest up to March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate. Then a sum of Rs.5000 is included as for costs incurred by the mortgagee in suits other than Suit No.158 of 1935 and in proceedings connected therewith. The appellant contends that the properties in her hands could, under no circumstances, be made liable for this amount. A sum of Rs.1750 is agreed to be paid for costs in the sale reference, in the proceedings before P.B. Mukharji, J., and in Appeal No. 152 of 1955. Asks the appellant, where is the settlement in this, and how can it bind me? It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested. As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that she should be given an opportunity to protect her rights."

That is certainly not the case before this court.

19. As correctly submitted by Mr.K.Ravi, learned counsel appearing for the first respondent in O.S.A.Nos.186 and 187 of 2011, the Supreme Court has consistently held that pendente lite purchaser has no automatic right to be impleaded and the same is the discretion of the Court based on the facts and circumstances of the case. The finding of the Apex Court in respect of necessary party and the implication of Section 52 of the Transfer of Property Act given in Sarvinder Singh v. Dalip Singh and others, (1996) 5 SCC 539 makes it abundantly clear that such discretion cannot be claimed as a matter of right. The relevant portion of the said judgment is as follows:

"5. Having regard to the respective contentions, the question that arises for consideration is whether the respondents are necessary or proper parties to the suit? It cannot be disputed that the foundation for the exclusive right, title and interest in the property, the subject-matter of the suit, is founded upon the registered Will executed by Hira Devi, the mother of the appellant as on 26-5-1952. The trial court noted that in a suit filed on a previous occasion by the appellant, the Will was propounded as basis for an exclusive right, title and interest in the said property. He impleaded Rajender Kaur, one of the daughters of Hira Devi, to the suit along with two other sisters and the suit came to be decreed by the trial court on 29-3-1974. The decree became final. In view of those facts, the necessary conclusion that can be deduced is that the foundation for the relief of declaration in the second suit is the registered Will executed by Hira Devi in favour of the appellant on 26-5-1952. The respondents indisputably cannot challenge the legality or the validity of the Will executed and registered by Hira Devi on 26-5-1952. Though it may be open to the legal heirs of Rajender Kaur, who was a party to the earlier suit, to resist the claim on any legally available or tenable grounds, those grounds are not available to the respondents. Under those circumstances, the respondents cannot, by any stretch of imagination, be said to be either necessary or proper parties to the suit. A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes. In either case the respondents cannot be said to be either necessary or proper parties to the suit in which the primary relief was found on the basis of the registered Will executed by the appellant's mother, Smt Hira Devi. Moreover, admittedly the respondents claimed right, title and interest pursuant to the registered sale deeds said to have been executed by the defendants-heirs of Rajender Kaur on 2-12-1991 and 12-12-1991, pending suit.

6. Section 52 of the Transfer of Property Act envisages that:

During the pendency in any court having authority within the limits of India ... of any suit or 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 the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. 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 properties. 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."

20. In Bibi Zubaida Khatoon v. Nabi Hassan Saheb and another, (2004) 1 SCC 191, while referring to Order I Rule 10 and Order XXII Rule 10 CPC and Section 52 of the Transfer of Property Act, the Supreme Court has reiterated that such party who seeks to implead must make out a prima facie case and impleadment is a matter of discretion. It is relevant to extract paragraphs (7) to (12) of the said judgment which are as follows:

"7. The learned Senior Counsel Shri S.B. Sanyal strenuously urged that even though the petitioner is a transferee pendente lite within the meaning of Section 52 of the Transfer of Property Act, to afford effective opportunity to her to prosecute the suit for redemption of mortgage and the counter-suit for specific performance of the contract, her joinder in the two suits as party and prayer to bring subsequent events on record by proposed amendment to the pleadings ought to have been allowed by the trial court. It is submitted that the High Court ought to have interfered with the orders of the trial court as the latter had failed to exercise its judicial discretion in accordance with law. Reliance is placed on Khemchand Shankar Choudhari v. Vishnu Hari Patil, (1983) 1 SCC 18, Jayaram Mudaliar v. Ayyaswami, (1972) 2 SCC 200, Savitri Devi v. District Judge, Gorakhpur, (1999) 2 SCC 577, Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394 and Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534.

8. The learned counsel appearing for the contesting respondents, supported the impugned orders of the trial court and the common order passed by the High Court. Reliance is placed on Sarvinder Singh v. Dalip Singh, (1996) 5 SCC 539.

9. It is not disputed that the present petitioner purchased the property during pendency of the suit and without seeking leave of the court as required by Section 52 of the Transfer of Property Act. The petitioner being a transferee pendente lite without leave of the court cannot, as of right, seek impleadment as a party in the suits which are long pending since 1983. It is true that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as a party to enable him to protect his interest. But in the instant case, the trial court has assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. The trial court saw an attempt on the part of the petitioner to complicate and delay the pending suits.

10. The decisions cited and relied on behalf of the appellant turned on the facts of each of those cases. They are distinguishable. 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. The decision relied on behalf of the contesting respondents of this Court in the case of Sarvinder Singh v. Dalip Singh, (1996) 5 SCC 539 fully supports them in their contentions. After quoting Section 52 of the Transfer of Property Act, the relevant observations are thus:

6. Section 52 of the Transfer of Property Act envisages that:

During the pendency in any court having authority within the limits of India of any suit or 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 the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. 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 properties. 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. (emphasis supplied)

11. In the case of Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534 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 properly 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.

12. The above statement of law by this Court in the cases (supra) clearly shows that the trial court has rightly exercised its discretion in rejecting the three applications for impleadment of the transferee pendente lite as a party to the suits and for amendment of the pleadings. The High Court was also justified in refusing to interfere with the order of the trial court. Consequently, there is absolutely no merit in any of these appeals. They are, accordingly, dismissed with costs to be borne by the petitioner of the contesting respondents."

21. While referring to the implication of Section 52 of the Transfer of Property Act, the Apex Court has held that the purpose of the said section is not to prevent the parties from dealing with the property, but postulates that pending suit any alienation will not affect the rights of the other parties under any decree, unless such alienation is made with the permission of the Court. That was in Sanjay Verma v. Manik Roy and others, 2007 (2) CTC 562, wherein the Supreme Court has observed as follows:

"11. The principles specified in Section 52 of the TP 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 TP Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 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."

22. While construing the said provision, the Apex Court in T.G.Ashok Kumar v. Govindammal and another, (2011) 2 MLJ 317 (SC) held that only if a transferee has purchased from a co-owner, equities can be worked out by allotting the property or portion of the property transferred pendente lite. The Apex Court held as follows:

"10. The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bona fide transferee's right and title are saved fully or partially."

In fact, in that case, the Apex Court has made suggestion to the Law-makers to find out a solution in order to enable the transferee to know whether there is a pending litigation, which is as follows:

"13. It is necessary to refer to the hardship, loss, anxiety and unnecessary litigation caused on account of absence of a mechanism for prospective purchasers to verify whether a property is subject to any pending suit or a decree or attachment. At present, a prospective purchaser can easily find out about any existing encumbrance over a property either by inspection of the Registration Registers or by securing a certificate relating to encumbrances (that is copies of entries in the Registration Registers) from the jurisdictional Sub-Registrar under Section 57 of the Registration Act, 1908. But a prospective purchaser has no way of ascertaining whether there is any suit or proceeding pending in respect of the property, if the person offering the property for sale does not disclose it or deliberately suppresses the information. As a result, after parting with the consideration (which is many a time the life time savings), the purchaser gets a shock of his life when he comes to know that the property purchased by him is subject to litigation, and that it may drag on for decades and ultimately deny him title to the property. The pendente lite purchaser will have to wait for the litigation to come to an end or he may have to take over the responsibility of conducting the litigation if the transferor loses interest after the sale. The purchaser may also face objections to his being impleaded as a party to the pending litigation on the ground that being a lis pendens purchaser, he is not a necessary party. All these inconveniences, risks, hardships and misery could be avoided and the property litigations could be reduced to a considerable extent, if there is some satisfactory and reliable method by which a prospective purchaser can ascertain whether any suit is pending (or whether the property is subject to any decree or attachment) before he decides to purchase the property."

23. On the facts of the present case, as admitted, neither Andiappan (7th defendant in C.S.No.83 of 1965) nor the vendors of the appellant are co-sharers.

24. It is not in dispute that in the above legal proceedings Receiver was appointed and, in fact, some of the properties were also sold and it was during that time alienation has taken place, which ultimately resulted in the purchase of the portion of the property by the appellant and in such event, in our considered view, by applying the principle of custodia legis, the appellant may not be entitled to have any legal protection, as submitted by Mr.S.Raghavan, learned counsel. While construing the Tamil Nadu Cultivating Tenants Protection Act, a Full Bench of this Court in Arumugha Gounder v. Ardhanari Mudaliar and others, AIR 1975 Madras 231 has observed as follows:

"6. So then the act of the Receiver in letting out the land in the suit is an act of the Court itself and it is done on behalf of the Court, the whole purpose of the Court taking possession through the Receiver appointed by it is to protect the property for the benefit of the ultimate successful party. If that is the essence and purpose of appointment of a Receiver as we hold it is, it will be difficult to agree that by a literal application of the Tamil Nadu Cultivating Tenants Protection Act, it could be put beyond the reach of the Court to give relief to the successful party entitled to possession. Not only actus curiae nominem gravabit (an act of the Court shall prejudice no man) but also the doctrine of the property being in custodia legis coupled wife public policy in rendition of proper justice and conservance of power therefor would be valid and effective reasons for our view that the intention of the Act is not to extend the protection to the tenant of the Receiver and thus defeat justice eventually. Actus legis nomini est damnosus, that is to say an act of law shall prejudice no man is another aspect of public policy. Our view derives also strength from the fact that an act of the Receiver done on behalf of the Court is done pendente lite and anyone who gets possession through such act can only do so subject to the directions and orders of Court. That is implied from the nature and legal position relating to the appointment and powers as well as the management by the Receiver."

25. The vendors of the appellant, who have filed the second suit in C.S.No.686 of 2000, even though are not the co-sharers, are admittedly related to the co-sharers and they cannot plead ignorance of the pendency of the partition suit as well as the first and second preliminary decrees passed in the said suit wherein not only a decision regarding the identification of the share of the co-sharers has been arrived at, but also the transfer of property effected to Andiappan (7th defendant in C.S.No.83 of 1965) has been held to be sham and nominal and, therefore, such finding cannot be said to be not binding on the plaintiffs in C.S.No.686 of 2000 by applying the principles of constructive res judicata, as it has been explained in detail by the Apex Court in M.Nagabhushana v. State of Karnataka and others, (2011) 3 SCC 408, wherein the Apex Court has culled out the principle from various foreign legal sources. It is worthwhile to extract paragraphs (11) to (16) of the said judgment, which are as under:

"11. We find that disregarding the aforesaid clear finding of this Court, the appellant, on identical issues, further filed a new writ petition out of which the present appeal arises. That writ petition, as noted above, was rejected both by the learned Single Judge and by the Division Bench in clear terms. It is obvious that such a litigative adventure by the present appellant is clearly against the principles of res judicata as well as principles of constructive res judicata and principles analogous thereto.

12. The principles of res judicata are of universal application as they are based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eademn causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause. This doctrine of res judicata is common to all civilised system of jurisprudence to the extent that a judgment after a proper trial by a court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.

13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties.

14. Tek Chand, J. delivering the unanimous Full Bench decision in Lachhmi v. Bhulli, ILR (1927) 8 Lah 384 traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows: (ILR pp. 391-92) In the Mitakshra (Book II, Chapter I, Section V, verse 5) one of the four kinds of effective answers to a suit is a plea by former judgment and in verse 10, Katyayana is quoted as laying down that one against whom a judgment had formerly been given, if he brings forward the matter again, must be answered by a plea of purva nyaya or former judgment (Macnaughten and Colebrooke's translation, p. 22). The doctrine, however, seems to have been recognised much earlier in Hindu jurisprudence, judging from the fact that both Smriti Chandrika (Mysore Edn., pp. 97-98) and Virmitrodaya (Vidya-Sagar Edn., p. 77) base the defence of prang nyaya (former decision) on the following text of the ancient law-giver Harita, who is believed by some Orientalists to have flourished in the 9th century BC and whose Smriti is now extant only in fragments The plaintiff should be non-suited if the defendant avers: in this very affair, there was litigation between him and myself previously, and it is found that the plaintiff had lost his case. There are texts of Prasara (Bengal Asiatic Society Edn., p. 56) and of Mayukha (Kane's Edn., p. 15) to the same effect.

Among Muhammadan law-givers similar effect was given to the plea of Niza-i-munfasla or Amar Mania taqrir mukhalif. Under Roman Law, as administered by the Proetors' courts, a defendant could repel the plaintiff's claim by means of exceptio rei judicatoe or plea of former judgment. The subject received considerable attention at the hands of Roman jurists and as stated in Roby's Roman Private Law (Vol. II, p. 338) the general principle recognised was that one suit and one decision was enough for any single dispute and that a matter once brought to trial should not be tried except, of course, by way of appeal.

15. The learned Judge in Bhulli case also noted that in British India the rule of res judicata was first introduced by Section 16 of Bengal Regulation 3 of 1773 which prohibited the Zila and City Courts from entertaining any cause which, from the production of a former decree or the record of the court, appears to have been heard and determined by any Judge or any Superintendent of a court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule insofar as it embodied the principles relating to estoppel by judgment or estoppel by record. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject.

16. It is nobody's case that the appellant did not know the contents of the FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of constructive res judicata."

26. For a person to claim himself to be a necessary party, it is not just sufficient that his presence may enable to give certain evidence or give correct solution to some of the questions, as it was held by the Apex Court in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others, (1992) 2 SCC 524. The relevant portion of the judgment is extracted hereunder:

"14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., (1956) 1 All ER 273, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England, (1950) 2 All ER 605, that their true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin,J. has stated:

The test is May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights."

27. It was in Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and others v. Director General of Civil Aviation and others, (2011) 5 SCC 435 the Apex Court has held that even by the conduct of the parties the principle of estoppel can be applied on equitable ground. In fact, in the said case, the Supreme Court has also discussed about the doctrine of election as follows:

"12. The doctrine of election is based on the rule of estoppelthe principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. [Vide Babu Ram v. Indra Pal Singh, (1998) 6 SCC 358, P.R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507 and Mumbai International Airport (P) Ltd. v. Golden Chariot Airport, (2010) 10 SCC 422.]"

28. On the facts of the present case, inasmuch as the appellant has denied his right to be impleaded when the plaintiff in C.S.No.83 of 1965 took steps to implead on the ground that it is not a proper and necessary party, it cannot now turn back to say that it is a necessary and proper party, for, a party cannot be permitted to approbate and reprobate, as it was held by the Apex Court in Mumbai International Airport (P) Ltd. v. Golden Chariot Airport, (2010) 10 SCC 422 and that would amount to an abuse of process of Court, as it was held by the Apex Court in K.K.Modi v. K.N.Modi and others, (1998) 3 SCC 573 in the following paragraphs:

"42. Under Order 6 Rule 16, the court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his treatise on the Code of Civil Procedure, (15th Edn., Vol. II, p. 1179, note 7) has stated that power under clause (c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of the process of the court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of the court on the basis of what is stated in the plaint.

43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p. 344) explains the phrase abuse of the process of the court thus:

This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.

44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding."

29. Therefore, looking from any angle, we are unable to agree with the contention of the learned Senior Counsel for the appellant that the appellant is a necessary and proper party and on this score, we see no reason to interfere with the finding of the learned Single Judge.

30. This now leads us to the next issue of the plea of transposition of the 10th defendant in C.S.No.686 of 2000 as the third plaintiff. Transposition, as contemplated under Order XXIII Rule 1-A of the CPC which is as follows:

"Order XXIII Withdrawal and adjustment of suits.

Rule 1. **** Rule 1-A. When transposition of defendants as plaintiffs may be permitted. Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.", connotes that such applicant who desires to transpose himself as a plaintiff should not only prove that the original plaintiff has abandoned the suit, but the condition precedent is the identity of interest between the plaintiff and the defendant who wants to transpose and the suit must be such that such defendant was added only as a proforma defendant and in other words, both the parties must be projecting the same claim. Sivasubramaniam,J. (as His Lordship then was) has observed in Nagoor Gani @ Rajamani and others v. Gandhi Meenal and others, 1988 (II) MLJ 171 as follows:

"12. Insofar as the right of the defendants 19 and 20 to transpose themselves as plaintiffs is concerned, I have already extracted the provision of Order 23, Rule 1-A C.P.C. This new rule has been enacted in order to enable a defendant, who has identical interest, from being denied his interest if he rested on the success of the plaintiff's suit and the plaintiff wanted to withdraw the suit. Before a defendant could invoke this provision, it must be shown that the plaintiff is seeking to withdraw or abandon his claim under Rule 1 of Order 23, C.P.C. It is a condition precedent to enable a defendant to get himself transposed. The principle that follows this rule is that there must be identity of interest between the plaintiff and such a defendant who wants to transpose as a plaintiff. It must be a suit where the defendant is entitled to succeed automatically on the success of the plaintiff in the suit. Such a defendant is usually called as a proforma defendant. To put it in other words, both the parties are projecting the same claim against the other defendants, and, therefore, the success of one is the success of the other. In such cases, the law comes to the rescue of such a defendant so that the plaintiff, who is having a similar right, cannot defeat the rights of the defendant by colluding with the other contesting defendants. Though Courts lean against multiplicity of suits, they would not permit sch transposition just to give a chance to a litigant to avoid filing a suit or permit him to take advantage of the suit filed by his adversary against him by becoming a plaintiff and trying to bring out the averments and reliefs which are contrary to those claimed by the original plaintiff, as held in Jethiben v. Maniben, AIR 1983 Gujarat 194. Here in this case, we find that the suit is for possession on the basis that the plaintiff is the exclusive owner of the same. On the other hand, it is the case of the defendants 19 and 20 that they are the exclusive owners of the property. Practically, there is a serious fight between the plaintiff and the defendants 19 and 20. The plaintiff in this case cannot be deemed to have withdrawn or abandoned her claim by entering into a compromise with the other defendants. What has been done is, instead of the plaintiff getting actual possession of the properties, she allowed the same to be vested in a Trust to be managed by herself and some others. In such circumstances, it is not possible to hold that she has abandoned her claim in full. Secondly, if we apply the test of identify of interest, it is impossible to come to a conclusion that the parties have such identical interest. If defendants 19 and 20 are transposed as plaintiffs 2 and 3 in the suit, there will be two sets of plaintiffs having conflicting claims between themselves. In such a case, the main fight would be between the plaintiffs and there is no common platform on which they can stand, and fight the defendants. Defendants 19 and 20, after transposition as plaintiffs, cannot agitate their rights against the interest of the original plaintiff. It is not a case where the existing plaintiff has vanished from the scene by abandoning her claim so that the proposed plaintiffs can take up the case and get a decree in their favour on the averments contained in the plaint already. On the other hand, she is very much in the suit and show has sought for a compromise decree being passed in recognition of her rights. Therefore, in the presence of the plaintiff, the defendants 19 and 20 cannot be permitted to be impleaded as plaintiffs in such a way as to defeat the rights of the plaintiff herself."

31. First of all, there is nothing on record to show that the plaintiffs in C.S.No.686 of 2000 have withdrawn the suit. Merely because the plaintiff and defendants 1 to 6 in the partition suit, namely C.S.No.83 of 1965, have arrived at a final decision regarding the demarcation of the portions to them as per the preliminary decree, it does not mean that the suit in C.S.No.686 of 2000 is likely to be withdrawn. Even otherwise, as discussed in detail, the appellant having not purchased the property from the co-sharers, especially when the transfer effected to Andiappan has been finally held to be sham and nominal, the transposition is certainly not going to serve any purpose. When the right of the predecessor-in-title of the appellant has been held to be sham and nominal, by transposing, the appellant does not get any better title.

32. Even if the second suit (C.S.No.686 of 2000) is withdrawn, it is not as if the appellant has no right against the vendors in the event of deciding that its vendors have fraudulently deceived the appellant. Moreover, if the vendors of the appellant, being related to the sharers, by virtue of succession obtain any share, the appellant can always workout its remedy.

33. The power of Court in ordering transposing of parties is not merely discretionary, but there should be bona fide on the part of the party seeking such transposition, as it was held by a Division Bench of this Court in Vasantha Ammal v. V.P.Dhanaraj, 1990-I-LW 209 with the following observation:

"3. On the question of transposition of parties, the powers of Court, are wide enough to confer a discretion on it to transpose the necessary and proper party, if that is required for an effective and a comprehensive adjudication of the controversy in the lis. The use of the discretion will depend upon the facts and circumstances of the case. This discretion is not an unbridled one, but is circumscribed by two broad limitations. One is, where rights valuable have accrued to the other side. The other is, where there is lack of bona fides on the part of the party seeking transposition, in that he has no plausible case to agitate, having a genuine interest in the lis. In these circumstances, the Court will fetter its hands and will not exercise its discretion. But, the question, as already noted, has to be decided depending on the facts of each case and by bare recapitulation of the principles, the Court should not abdicate its discretionary power for ordering transposition, when, in fact, that application needs to be countenanced in the interests of justice and on the facts of the case."

34. Therefore, it is clear that a person who seeks to transpose himself as a plaintiff must prove that he has substantial question to be decided and must have identity of interest along with the plaintiff, etc. Inasmuch as the appellant cannot be categorized as a bona fide purchaser, in our considered view, the appellant cannot claim as a matter of right to be transposed itself as the third plaintiff in C.S.No.686 of 2000.

35. In that view of the matter, we are not impressed by the contentions raised on behalf of the appellant to interfere with the order of the learned Judge. It is true that the issue has not been elaborately discussed, but the decision arrived at by the learned Judge cannot be said to be inappropriate. We are of the firm opinion that the appellant is not entitled to any relief claimed and there is absolutely no reason warranting interference of this Court with the order of the learned Single Judge.

For the foregoing reasons, the appeals stand dismissed and the order of the learned Single Judge stands confirmed. No costs. Consequently, M.P.Nos.1 of 2011 (3 petitions) are closed.

(P.J.M.J.)     (S.V.J.)
9.2.2012      
Index		:	Yes
Internet	:	Yes

Note to Registry:
Issue judgment copy on 10.2.2012.

sasi	

O.S.A.NOS.186 to 188 of 2011

P.JYOTHIMANI,J.
AND
S.VIMALA,J.

(Order of the Court was made by P.JYOTHIMANI,J.)

To day, after the pronouncement of the judgment in the above appeals, learned counsel appearing for the appellant has prayed for leave to file an appeal and further requested to suspend the proceedings till then.

2. Since, we have decided that the appellant has no right to implead itself as third plaintiff in C.S.No.686 of 2000, the above request of the counsel for the appellant cannot be heeded to.

		  (PJMJ)       (SVJ)
			    09.02.2012
P.JYOTHIMANI,J.
AND
S.VIMALA,J.

(sasi)


















O.S.A.Nos.186 to 188 of 2011




















9.2.2012

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