IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.09.2009 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1141 of 2008 and M.P.No.1 of 2008 T.G.Ashok Kumar .. Appellant/Appellant/Plaintiff Vs. 1. Govindammal 2. Kanagavalliammal .. Respondents/Respondents/Defendants Second Appeal filed as against the judgment and decree in A.s.No.4 of 2006 on the file of the Sub Court, Tiruvallur, dated 26.03.2008 in confirming the judgment and decree in O.S.No.138 of 2004 on the file of the District Munsif Court, Tiruvallur, dated 06.07.2005. For Appellant : Mr. V.Raghavachari For R1 : Mr.M.R.Khapali For R2 : No appearance J U D G M E N T This second appeal is focussed as against the judgement and decree dated 26.03.2008 passed by the learned Subordinate Judge, Tiruvallur in A.S.No.4 of 2006, confirming the judgement and decree dated 06.07.2005 passed by the learned District Munsif, Tiruvallur in O.S.No.138 of 2004. For convenience sake, the parties are referred to here under according to their litigative status and ranking before the trial Court. 2. Broadly but briefly, narratively but precisely the relevant facts which are absolutely necessary and germane for the disposal of this Second Appeal would run thus: The plaintiff being the appellant herein in the Second Appeal, filed the suit for declaration of his right over the land measuring an extent of 4.25 cents and for permanent injunction based on his title deed, viz., the sale deed dated 11.04.1990, Ex.A1 executed by Kanagavalliammal, the second defendant in favour of the plaintiff, setting out and projecting the grounds that D2, the https://hcservices.ecourts.gov.in/hcservices/ vendor of the plaintiff purchased the suit property vide sale deed dated 04.03.1957 and she also effected mortgage of the said property and thereafter sold it as per Ex.A1, in favour of the plaintiff. The earlier partition proceedings which alleged to have taken place between Govindammal and Kanagavalliammal, are collusive and fraudulent in nature in respect of the suit property. 3. Whereas the first defendant/Govindammal, refuting and remonstrating, impuging and challenging the averments/allegations in the plaint, filed the written statement contending that the suit property originally belonged to her father Egambara Reddy; Govindammal instituted O.S.No.8 of 1985 on 06.04.1984 informa pauperis for partition which was dismissed, as against which she preferred A.S.No.78 of 1985 before the District and Sessions Court, Chingleput, which Court remanded the matter back to the trial Court; whereupon the trial Court ordered partition in favour of Govindammal, as against which the appeal A.S.No.12 of 1995 was filed and it was dismissed; ultimately the share of Govindammal was carved out by dividing the suit property and allotted to her; as such, there was no collusion in the previous partition proceedings; the plaintiff was fully aware of the earlier partition proceedings and he being the alleged purchaser of the suit property pendente lite from Kanagavaliammal cannot claim any independent right over the suit property. Accordingly, he prayed for the dismissal of the suit. 4. During trial, on the side of the plaintiff, P.Ws.1 and 2 were examined and Exs.A1 to A12 were marked. On the side of the defendants, Govindammal, the first defendant examined herself as D.W.1 and Exs.B1 to B6 were marked. 5. Ultimately the trial Court dismissed the suit. Being aggrieved by and dissatisfied with the judgment of the trial Court, appeal in A.S.No.4 of 2006 was filed by the plaintiff, which was dismissed. 6. Animadverting upon the judgments of both the Courts below, the Second Appeal has been filed on various grounds, the gist and kernel of them would run thus: Both the Courts below fell into error in not upholding that the plaintiff is the bonafide purchaser for value of the suit property. The suit property happened to be the absolute property of Kanagavalliammal/D2 as per Ex.A2, and that being the case, D1 validly sold in favour of the plaintiff as per Ex.A1 the suit property. In the earlier partition suit O.S.No.8 of 1985, the plaintiff herein Ashok Kumar was not added as a party, despite Govindammal having known that as per Ex.A1 during the pendency of the partition proceedings he purchased the property. As such, the ultimate decision emerged in O.S.No.8 of 1985 is having no binding https://hcservices.ecourts.gov.in/hcservices/ effect on Ashok Kumar, the plaintiff/second appellant in the present proceedings. The said Govindammal as revealed by Exs.A10 and A11 filed petitions for impleading Ashok Kumar and his father in the previous proceedings, but subsequently she dropped such attempt and that bespeaks and evinces her fraudulent intention to obtain the final decree in the previous proceedings behind the back of Ashok Kumar, the plaintiff/second appellant herein. Accordingly, he prayed for setting aside the judgments of both the Courts below and for decreeing the suit O.S.No.138 of 2004 filed by the plaintiff. The second appellant suggested the following substantial questions of law: "1. Whether the courts below are right in arriving at a conclusion that the purchase of the plaintiff is excluded under the provision of Section 52 of Transfer of Property Act, when admittedly he was not made party to the earlier proceeding in O.S.8/1985? 2. Whether the courts below are justified in ignoring the plaintiff's purchase under Ex.A1 when it is supported by the valuable consideration of sale? 3. Whether the Courts below are justified in declaring the rights of the defendants on the basis of the collusive decree under Ex.B2 when the same had no binding effect on the plaintiff's purchase? 4. Whether the courts below are justified in upholding the rights of the defendants on the basis of the collusive decree and should it not have appreciated a collusive transaction is inoperative and stands removed from the mischief of Section 52 of the Transfer of Property Act? 5. Whether the courts below ought not to have decreed the suit on the basis of the principles of equity when he is entitled to claim the share of his vendor in the undivided property? 6. Whether the courts below ought not to have appreciated that the plaintiff's vendor is the co-owner and as such he is entitled to a share in the property and whether the courts below are justified in rejecting the claim of the plaintiff to the property when he is a successor in interest?" However, my learned Predecessor at the time of admitting the Second Appeal, framed the following substantial questions of law: https://hcservices.ecourts.gov.in/hcservices/ "(a) Whether the Courts below are right in arriving at a conclusion that the purchase of the plaintiff is excluded under the provision of Section 52 of Transfer of Property Act, when admittedly he was not made party to the earlier proceeding in O.S.8/1985? (b) Whether the Courts below are justified in ignoring the plaintiff's purchase under Ex.A1 when it is supported by the valuable consideration of sale? (c) Whether the Courts below ought to have decreed the suit on the basis of the principles of equity when he is entitled to claim the share of his vendor in the undivided property?" 7. Heard both sides. 8. The substantial questions of law Nos.1 to 3 are taken together for discussion as they are inter linked and inter woven with each other. 9. The learned counsel for the plaintiff would advance and develop his arguments thus: The principle of lis pendens as found envisaged under Section 52 of the Transfer of Property Act cannot be pressed into service by D1 for the reason that between D2/Kanagavalliammal and one Latha, who is none else than the sister of Ashok Kumar, a mortgage relating to the suit property emerged even anterior to the filing of the partition suit O.S.No.8 of 1985 informa pauperis. As per Ex.A1, Ashok Kumar the plaintiff herein purchased the suit property and he as per the understanding, discharged the mortgage in favour of Latha from out of the part of the sale consideration and paid the remaining sale consideration to Govindammal and thereby he acquired a right under the mortgage prior to the filing of the partition suit. In such an event, the plaintiff herein cannot be termed as a purchaser pendente lite and he is not bound by the decree passed in the partition suit in view of he not having been added as a party. After the passing of the preliminary decree for partition in the previous proceedings at the instance of Govindammal, curiously enough the same Govindammal filed applications for impleading the father of the plaintiff and the plaintiff herein and she failed to proceed further in those applications. But, on the other hand she clandestinely filed thereafter application for final decree and got her share carved out by dividing the suit property behind the back of the plaintiff/Ashok Kumar and that the records would speak the collusion between Govindammal and Kanagavalliammal and also the fraud committed on Ashok Kumar. Accordingly, reiterating the grounds found set out in the second appeal, he prayed for setting aside the https://hcservices.ecourts.gov.in/hcservices/ judgments of both the Courts below and for decreeing the original suit. 10. Whereas, by way of torpedoing and pulverising the arguments as put forth on the side of the plaintiff, the learned counsel for D1/Govindammal would portray and put forth his arguments that the very narration of the previous proceedings as set out supra would evince and evidence that absolutely there could be no collusion between Govindammal and Kanagavalliammal; no fraud also has been committed by Govindammal for the reason that she sincerely thought at one point of time that even the plaintiff/Ashok Kumar herein could be impleaded as a party in the previous proceedings and in view of the fact that the said process paved the way for further dragging on of the partition proceedings she dropped that idea and sought for final decree without impleading the plaintiff herein and got the final decree; the plaintiff was not at all a necessary party in the previous proceedings inasmuch as per Ex.A1 he only purchased the suit property during the pendency of the partition suit; in such a case, his non impleadment would not be fatal to the previous proceedings and he is also bound by the decree passed in the partition suit. Accordingly, he prayed for the dismissal of the suit. 11. It is therefore, just and necessary to analyse the entire facts under two segments, one concerning lis pendens and another concerning fraud. 12. I would like to extract here under Section 52 of the Transfer of Property Act : "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 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". 13. A bare perusal of the said section would clearly demonstrate and display, exemplify and portray that a third party purchaser of a suit property pending litigation, without the permission of the Court cannot have any independent right over and above the right of the seller who happened to be the party to the lis. Obviously and axiomatically, undisputedly and unassailably, unarguably and incontrovertibly, the plaintiff Ashok Kumar purchased as per Ex.A1 the sale deed, the suit property during the pendency of https://hcservices.ecourts.gov.in/hcservices/ the said partition proceedings and in such a case, he could only be taken as a person who stepped into the shoes of D2/Kanagavalliammal herein and whatever decree passed in the partition suit as against D2 is binding Ashok Kumar and he cannot try to wriggle out of his position as that of a person who merely stepped into the shoes of D2. 14. It is a trite proposition of law that the purchaser during the pendency of the suit is not a necessary party of the then pending proceedings, but it is also a common or garden principle of law that if a purchaser wants to get himself impleaded apprehending that his vendor would not protect his interest adequately, then it is open for him to get himself impleaded. But in this case, the plaintiff/Ashok Kumar despite fully knowing about the pendency of the previous partition proceedings, did not choose to get himself impleaded as one of the defendants. The fact remains that Govindammal herself filed I.A.No.428 of 1994 in the previous partition suit O.S.No.8 of 1985 as revealed by Ex.A11, the copy of the affidavit and petition for impleading the plaintiff as one of the defendants in the previous suit. Ex.A10 would reveal that the said Govindammal also filed another I.A.No.424 of 1994 for impleading the plaintiff/Ashok Kumar's father, Ganesa Mudali as one of the defendants. Taking advantage of such a situation, Ashok Kumar/the plaintiff herein could have very well expressed no objection for impleading him in the proceedings and he could have contested the matter had he really been genuine in his plea that there was collusion between Govindammal and Kanagavalliammal and that Govindammal was attempting to commit fraud on Ashok Kumar, but he had not chosen to do so for reasons best known to himself. 15. The following decisions on lis pendens could fruitfully be referred to: (i) AIR 2008 SC 2560 [Guruswamy Nadar v. P.Lakshmi Ammal (D) by L.Rs. and others.], an excerpt from it would run thus: 3. ..... Therefore, it is the admitted position that the second sale was definitely after the filing of the suit in question. Had that not been the position then we would have evaluated the effect of Section 19 of the Specific Relief Act read with Section 52 of the Transfer of Property Act. But in the present case it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens will govern the present case and the second sale cannot have the overriding effect on the first sale. The principle of lis pendens is still settled principle of law. In this connection, the Full Bench of the Allahabad High Court in Smt.Ram Peary has considered the scope of Section 52 of the Transfer of Property Act. The Full https://hcservices.ecourts.gov.in/hcservices/ Bench has referred to a decision in Bellamy v. Sabine (1857) 44 ER 842 at p.843) wherein it was observed as under: “It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the court in the suit shall be binding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end. ” ....... Normally, as a public policy once a suit has been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end." (ii) (2001) 1 MLJ 101 [Bakthavatsalam v. Anjapuli and others], an excerpt from it would run thus: "That a person is not to be added as a defendant merely because he or she would be incidentally affected by the judgment. The main consideration is whether or not the presence of such a person is necessary to enable the court to effectually and completely adjudicate upon and settle and questions involved in the suit. If the question at issue between the parties can be worked out without any one else being brought in, the stranger should not be added as a party. In the light of the https://hcservices.ecourts.gov.in/hcservices/ language used in O.1, Rule 10(2) of Civil Procedure Code, as well as various decisions and in the light of factual position in our case that preliminary decree has already been passed and application for passing of final decree is pending before the court below, the court is of the view that purchasers of properties during the pendency of the suit are neither necessary nor proper parties inasmuch as they would be bound by the decree in the suit in view of the principle enunciated in Sec.52 of the Transfer of Property Act. The parties sought to be impleaded as defendants in he suit and respondents in the final decree application are neither necessary nor proper parties." A plain reading of those decisions would clearly exemplify and demonstrate, disclose and portray that a third party purchaser of the suit property from the defendant in a suit is not bound to be added as one of the defendants at the instance of the plaintiffs. As such, in this case, Govindammal who was the plaintiff in the earlier partition suit was not bound to add Ashok Kumar as one of the parties to the partition suit. 16. The learned counsel for the plaintiff cited the decision of this Court reported in AIR 1952 Madras 419 [K.Peramanayakam Pillai v. S.T.Sivaraman and another], an excerpt from it would run thus: "37. It only remains to state my conclusions in order to avoid any confusion. 1. A coparcener of a joint Hindu family governed by Mitakshara obtaining in the State is entitled to alienate his undivided share either in the whole of the property or in a certain specific item of the property or even the whole of a specific item. In all such cases the only right which the alienee acquires is to stand in the shoes of his vendor and to work out his rights by a suit for partition and in such a suit, if without prejudice to the rights of the other members of the family, it is possible to have the share alienated allotted to the alienor, it may be allotted to the alienee in the right of the alienor. The alienee has to bear the proportionate share of the common burden of the family proportionate to the value of the share alienated to him. 2. Where an alienation is made by a father or manager of a joint Hindu Family and if either the alienation is fully supported by necessity or supported by necessity except to a small extent, the alienation has to be upheld. https://hcservices.ecourts.gov.in/hcservices/ 3. If, however, the alienation made by the father or manager of a joint family is supported only by partial necessity, the alienee would be entitled in a suit for partition instituted either by him or by other coparceners, impugning the alienation to have the alienor's share alloted to him & also to have the binding portion of the consideration distributed equally having regard to the interest of the alienor and the value of the property alienated. 4. If the non-alienationg coparcener challenges the sale made by the father or manager of the joint family property on the ground that it is not binding on him but institutes a suit only to recover his share in the property alienated thereby admitting the right of the alienee to the other share in that property, and if it is found that the alienation is supported by partial necessity, the common burden discharged from and out of the consideration should be distributed proportionately in the same suit on the principle of 'VADIVELAM v. NATESAM', 37 Mad 435. 5. If the alienation whether made by a father or manager or by any other coparcener, though purporting to be for value, is in fact a device to make a gift and not a transfer for consideration, the alienation would not defeat the right of the other coparceners to take the property by survivorship in case of death of the alienor. A non-alienating coparcener is not otherwise entitled to dispute the adequacy or fairness of the consideration for the sale by a coparcener and his only right is to insist that the property alienated should bear the proportionate share of the common burden on the family. 6. Neither the alienation of the entirety of the interest of a coparcener nor an adjudication of a coparcener as an insolvent would have the effect of disrupting the status of the family. 7. The share or in other words the fraction of the share which the alienee acquires is unalterably fixed on the date of the alienation and is not subject to fluctuation either by subsequent births or deaths in the family and in all respects his rights must be determined and equities worked out as on the date of the alienation. 38. It follows that whether the general principle of the right of an alienee to work out his https://hcservices.ecourts.gov.in/hcservices/ rights in a partition suit or whether the principle in 'VADIVELAM v. NATESAM', 37 Mad 435, is applied to the facts of this case, the third defendant is entitled to have a condition imposed that the plaintiff should not recover possession of his half share of the property without payment of a half share of the binding consideration, viz., Rs.3511. The decree, therefore, of the Courts below must be modified by adding that before the plaintiff recovers possession of the property he must deposit into Court a sum of Rs.3511 and the plaintiff would thereafter be entitled to recover possession of the property with mesne profits as from the date of deposit. The money so deposited shall be paid over to the 3rd defendant. The appellant is entitled to his costs throughout. The aforesaid decision in no way lays down any proposition quite different from the proposition as found enshrined in the recent decision of the Hon'ble Apex Court reported in AIR 2008 SC 2560 [Guruswamy Nadar v. P.Lakshmi Ammal (D) by L.Rs. and others.] and the decision of this Court reported in (2001) 1 MLJ 101 [Bakthavatsalam v. Anjapuli and others] (cited supra). 17. In fact, the learned counsel for D1/Govindammal would convincingly and appositely argue that at the first instance even Govindammal was not aware as to who should be added in the partition suit as the purchaser pendente lite from Kanagavalliammal and hence, she did choose to file such two applications, one for impleading Ganesa Mudali and another for impleading Ganesa Mudali's son Ashok Kumar, the plaintiff herein. But after understanding that they were resisting the applications, she dropped the idea of pursuing those applications. Pellucidly and palpably, obviously and axiomatically, it is clear that there was golden opportunity for Ashok Kumar to get himself impleaded in the previous proceedings and establish his alleged plea that the proceedings pending were collusive in nature and that fraud was attempted to be perpetrated on Ashok Kumar by Govindammal, but he has not chosen to do so. However, in such a case, it is too late in the day on the part of Ashok Kumar to file a separate suit O.S.No.138 of 2004 with the aforesaid prayers. The contention on the part of the plaintiff/Ashok Kumar that as per the recitals in Ex.A1, he discharged the mortgage created by Kanagavalliammal/D2 in favour of Latha, and thereby, he acquired independent right over the suit