G. Rajasuria, J.@mdashThis second appeal is focussed as against the judgment and decree dated 26.03.2008 passed by the learned Subordinate Judge, Tiruvallur in A.S. No. 4 of 2006, confirming the judgment 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 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 effect on Ashok Kumar, the Plaintiff/second Appellant in the present proceedings. The said Govindammal as revealed by Exs. Al0 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:
(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 u/s 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 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 u/s 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 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)
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 Bench has referred to a decision in Bellamy v. Sabine (1857) 44 ER 842 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)
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 language used in Order 1, Rule 10(2) of Code of Civil Procedure, 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 Section 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
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.
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 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
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 property even prior to the filing of the partition suit, is a far fetched argument having no legs to stand legally.
18. I am at a loss to understand as to how the Plaintiff/Ashok Kumar, a third party to the mortgage which emerged between Kanagavalliammal and Latha, simply by purchasing the suit property under Ex.A1 the sale deed dated 11.04.1990, during the pendency of the previous suit, can claim that he acquired some right even anterior to the filing of the partition suit. It is not even the case that Latha assigned her mortgage right in favour of her brother Ashok Kumar. But it is other way about. It is Ashok Kumar who purchased the suit property from D2 and he undertook to discharge the mortgage and even the endorsement made by Kanagavalliammal on the back of the second sheet of Ex.A8, the mortgage deed would reveal that the said mortgage also was discharged. As such, the Plaintiff/Ashok Kumar by purchasing under Ex.A1, the suit property and paying part of the sale consideration so to discharge the mortgage, could claim to have acquired right as a mortgagee whose right accrued even anterior to the filing of the partition suit.
19. The learned Counsel for the Plaintiff cited the following decisions:
(i)
4. The only question that has to be considered in this civil miscellaneous second appeal is whether the application of the Respondent u/s 47, Civil P.C. is maintainable or not. The mortgage in favour of the Appellant was long prior to the partition suit and he was not impleaded as a party to the partition suit. Rahiman Bibi alone was impleaded as Defendant 6 in that suit and the purchase by the Appellant in pursuance of his mortgage decree was no doubt during the pendency of the partition proceedings. It was contended on behalf of the Respondent here and also in the Courts below that the purchase by the Appellant is affected by the doctrine of lis pendens and that, therefore he is not entitled to resist the application of the Respondent for delivery of possession. If the mortgage in favour of Sikkandar was during the pendency of the partition suit and the court sale was also during the pendency of that suit, no doubt, the principle of the decision of me Privy Council in
A plain reading of the said decision would clearly exemplify that the facts of this case are entirely different in view of reason set out supra, as in this case there is no involuntary alienation emerged and the Plaintiff has not acquired any right in the mortgage also.
(ii) The decision reported in Raman Nayar Gopalan v. Lekshmi Amma Bharathi Amma 1951 KLT 660 is relating to the doctrine of lis pendens.
(iii) The precedent reported in
For Section 52 to apply, the right to Immovable property should be directly and specifically in question. Once there is a dispute, Section 52 will apply, so long as the litigation is terminated in one of the modes known to law; that is, there will be no distinction between a decision based on contest and that based on a compromise bona fide brought about between me parties. In either case it will be a decree of me Court. The section in terms contemplates rights having been secured by a party to the suit under a decree or order therein. The words "under a decree or order therein" imply that the right to the property must be me outcome of the decree. In other words, it should be me result of an affirmation of adjudication by me decree. The true principle underlying me rule has been laid down in Annamalai v. Malayandi, ILR 29 Mad 426 in me following passage:
The essence of the doctrine of "lis pendens" undoubtedly is that where a proceeding before a Court exercising contentious jurisdiction is honestly brought to a ''termination in one of me modes which the law permits'' it to be terminated by and a decision of the Court is obtained, such decision is binding upon all persons who claim title by virtue of a transfer pending the litigation. With reference to the underlying principle, there is no conceivable reason for attaching greater efficacy to a decision arrived at after actual contest than ''to decisions arrived at otherwise" (italics (here into") ours).
4. The foregoing observation makes it clear that unless the termination of the suit is honestly brought about in one of the visual modes, the doctrine will have no application.
The learned Counsel for the Plaintiff would develop his argument, placing reliance on the cited decision that the earlier partition suit was a collusive one and it was fraught with fraud and in such a case, doctrine of lis pendens is not applicable.
What I could understand is that the concept lis pendens could be successfully pressed into service, if at all, the sale emerged during a litigation ended in a logical manner without any fraud, coercion or abandonment. My discussion supra would clearly display and evince as to how, absolutely there is no collusion between the parties to the partition proceedings. In fact, they were fighting at arms length and contested the matter hotly and whereupon, ultimately, the partition resulted.
(iv)
15 ..."The essence of the doctrine of "lis pendens" undoubtedly is that where a proceeding before a Court exercising contentious jurisdiction is honestly brought to a termination in one of the modes which the law permits it to be terminated by and a decision of the Court is obtained, such decision is binding upon all persons who claim title by virtue of a transfer pending the litigation. With reference to the underlying principle, there is no conceivable reason for attaching greater efficacy to a decision arrived at after actual contest than to decisions arrived at otherwise
(v)
4... Further, if a party has purchased a property during the pendency of the suit, he can move an application for impleadment as one of the party in the suit under the previsions of Order XXII, Rule 10 of Code of Civil Procedure. Smt. Hira Devi after having sold the property if she does not contest the suit or colludes with the Plaintiffs, the right of the transferees shall not be affected. In
In fact, these decisions also are in parimeteria with the proposition found enunciated in the earlier decisions cited supra. As such, the same comments offered for inapplicability of the earlier decisions also are applicable to this decision.
(vi) Ramanagouda Siddanagouda and Ors. v. Basavantraya Madivalappa, Mulimani and Ors. AIR 2002 Karn 96. An excerpt from it would run thus:
17. The submission of Sri C.B. Srinivasan, learned Counsel for the Appellant being that in order to escape the rigour of Section 52 of the Transfer of Property Act, it must be shown that the suit filed by the parties was at its inception collusive. If a suit filed at the inception is not collusive, even if the compromise decree passed is collusive in character, then the provisions of Section 52 of the Act is applicable in all its force.
20. This section is an expression of the principle "pendente-lite nihil innovetor" meaning "Nothing is to be changed during the dependence of the suit". It embodies an ''equitable principle'' and should be so construed as to effactuate its purpose; as held by the Supreme Court in
"The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court, which is dealing with the property to which claims are put forward".
21. Section 52 of the Act will wipe out the effect of a sale validly executed by the person who has the authority to sell pendente lite but it is only to sub-ordinate the rights based on the decree in the suit. As between the seller and the purchaser, the transaction is perfectly valid and operates to vest a title in the purchaser (See the decision of the Supreme Court in Nagu Bai v. Shama Rao AIR 19056 SC 593 para 24).
22. In order for application of Section 52, it is clear that a suit must be pending and it should be non-collusive in character and involves any right to immovable property and there must be a transfer by a party to the suit who has some right under the decree in the suit. (See the decision of the Calcutta High Court in
23. Thus one of the important ingredients for application of the principle of lis pendens is that the suit should be non-collusive in character; but then the further question is whether the element of collusiveness must be present necessarily at the inception of the suit or subsequently, it begins to operate resulting in a decree obtained either by compromise or otherwise, though the institution of the suit at the inception was honestly done. On this question, various High Courts have taken the view that even when the suit is honestly instituted but during trial or later if parties, enter into a compromise collusively and obtain a decree which affects the transaction of transfer of immovable property, then the doctrine of lis pendens has no application evidently on the principle of equity. Sufficient for my purposes to refer to few of the decisions cited at the Bar. The Trivancore and Cochin High Courts in the case of Gnanapakiam v. Nadar Ponian Nadar AIR 1955 Triv- 3 has held:
the rule of lis pendens will apply to compromise decrees but will not apply only if the compromise was not result of fraud or collusion.
This decision is to highlight the point that a suit might not be a collusive one at the inception but subsequently, it might be a collusive one. I would like to recollect my finding that there was no collusion between the parties in the earlier partition suit. Hence, this precedent is also not applicable to the facts and circumstances of this case.
20. The learned Counsel for the Plaintiff relied on one other decision of this Court reported in
10... It was at that time, a question came up for consideration whether the decree is legally valid. The learned Judge said thus:
When this Court finds that a decree suffers from an error of law apparent on the face of the record owing to non-application of mind of the Court, to the relevant principles of law, this Court cannot keep silent and allow the decree to be in force, particularly, when it causes grave injustice. There can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as Class I heirs and all of them are entitled to succeed to the estate of the deceased Hindu. There is no earthly reason for depriving the mother of the deceased, of her legitimate share in the estate which in this case happens to be a moiety.
This is a typical case of miscarriage of justice which should be rectified the moment it comes to the notice of the Court. It is only for that reason, I am exercising my powers u/s 115 of the CPC and Article 227 of the Constitution of India.
The case on hand is also similar. A decree which is beyond the scope of the suit has been granted, thereby depriving certain temples of their properties. A wrongful gain has been obtained by the Plaintiffs, Respondents 1 and 2 herein. The decree passed by the Court below has resulted in miscarriage of justice. Therefore, this is a fit case where I have to exercise my powers under Article 227 of the Constitution of India. Accordingly, by exercising my powers u/s 115, Code of Criminal Procedure and Article 227 of the Constitution, I modify the decree passed by the court below as follows:
The decree of the court below will be read as if injunction was there restraining the Defendant (third Respondent herein) for conducting auction on 24.7.1991 or any other date till 30.6.1992, and the Defendant was entitled to auction or lease out the properties after the said period.
Placing reliance on the aforesaid decision, the learned Counsel for the Plaintiff would develop his argument that if there is error apparent on the face of the record, the decree is not executable.
21. The learned Counsel for the Plaintiff would submit that the sixth item in the earlier partition proceedings, which is the suit property herein, is a small portion in a corner alone, which was allotted to the Plaintiff''s vendor and the remaining was unjustifiably not allotted to her and as such, the Plaintiff cannot fully work out his equity on that small moiety.
22. I would like to point out that my discussion supra would disclose and display, convey and portray that the Plaintiff, qua vendee who only stepped into the shoes of Karpagavalliammal, his vendor cannot get re-opened the allotments made in the earlier partition proceedings as the present Plaintiff is bound by the partition proceedings and he cannot convert this second appeal as second appeal over the earlier partition proceedings. A fortiori, I hold that, by invoking the concept error of law, this second appeal cannot be made to be treated as second appeal over the earlier partition proceedings.
23. The learned Counsel for the Plaintiff also cited the following other decisions in support of his contention.
(a)
16... The Appellants are in the occupation of the respective portions as tenants and they claim to occupy the same as such. The question of validity or otherwise of the tenancy may have to be considered and determined in an appropriate proceeding. In the present proceeding, the auction-purchaser who is an outsider and was not a party to the suit resulting in the compromise decree in execution of which the property was put up for sale, is not entitled to recover physical possession from the Appellants in view of the provisions contained in Order XXI Rule 95, and the auction-purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in Order XXI, Rule 96 in respect of the portions in occupation of the Appellants.
In my considered opinion, this decision, is not at all applicable to the facts and circumstances of this case as the dictum found enunciated therein is that the right of a third party auction purchaser of a mortgaged property to recover possession from the tenants in occupation, is not automatic, but he could take only symbolic possession and thereafter, he could initiate proceedings for recovery of possession separately. As such, no more elaboration in this regard is required to highlight the point that the cited decision is not applicable to the facts and circumstances of this case.
(b) G.M.V. Krishnamachari v. M.D. Dhanalakshmi Ammal and Ors. AIR 1968 Mad 142
This decision is on the point that a mortgagee of a property, which happens to be the subject matter of a partition suit could be impleaded as a party. Absolutely, there could be no quarrel over such a proposition.
(c)
This decision is on the ground of impleading a party, even at the final decree stage.
24. Not to put too fine a point on it, here, the Plaintiff is not the mortgagee of the suit property, however, he failed to get himself impleaded as a party to the previous proceedings because of his own inaction for which he cannot blame Govindammal. ''
25. Mt. Gopal Devi v. Mt. Ghulam Fatima and Anr. AIR 1943 NULL 113
This decision has been cited to highlight the point that a person, who is a victim of fraud should not be penalised and that too at the instance of the person, who is responsible for the fraud.
26. My discussion supra would expound and evince as to how in the previous proceedings, there were no fraud. Hence, this decision is also not applicable.
27. Here Ashok Kumar by virtue of Ex.A1, has not stepped into the shoes of Latha, but in fact that mortgage itself was extinguished because it tantamounts to D2 having paid the mortgage dues from out of the sale consideration payable to her by Ashok Kumar and no more elaboration in this regard is required as it is glaringly and pellucidly clear that the principle of lis pendens is applicable, as against Ashok Kumar and he is bound by the partition decree which was passed as against Kanagavalliammal in respect of the suit property.
28. The learned Counsel for the Plaintiff/second Appellant would submit that simply because a decree relating to an immovable property is there, it cannot be taken as a decree for the purpose of pressing into service the doctrine of lis pendens in the subsequent proceedings initiated by the purchaser of such property during the pendency of the previous proceedings, unless it is shown that the earlier decree is a valid decree and not a decree based on collusion or fraud.
29. The learned Counsel for the first Defendant would submit that here absolutely there is no prayer for setting aside or cancellation of the partition decree on the ground of collusion or fraud. Whereas, the learned Counsel for the Plaintiff would submit that since Ashok Kumar was not a party to the earlier proceedings, he could ignore the earlier proceedings on the ground of fraud and press for the relief.
30. My discussion and my findings supra would disclose and highlight that the status of Ashok Kumar is only that of a purchaser of the suit property pendente lite and he is bound by the decree passed as against the vendor, namely Kanagavalliammal in the partition proceedings and in such a case, he cannot simply ignore the previous proceedings on whatever grounds. As such, if at all Ashok Kumar was genuine in his plea that the earlier proceedings were fraught with fraudulent motive, then he ought to have made a specific prayer in the plaint to that effect, even though he was not a party to the earlier proceedings.
31. Without being tautologous, but to the risk of repetition and pleonasm, I would indicate that Kanagavalliammal/D2 and Ashok Kumar/Plaintiff cannot be treated as different parties having had independent rights in view of the fact that Ashok Kumar happened to be only a purchaser pendente lite during the partition proceedings.
32. The learned Counsel for D1 cited the decision of the Hon''ble Apex Court reported in
53. There cannot be any doubt that even if an order is void or voidable, the same must be set aside, as has been held by this Court in
58. If the compromise has been accepted in absence of all the parties, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation (See Mohd. Noorul Hoda v. Bibi Raifunnisa)
67. We are concerned herein with a question of limitation. The compromise decree, as indicated hereinbefore, even if void was required to be set aside. A consent decree, as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all. In State of Rajasthan v. D.R. Laxmi this Court held: (SCC p.453, para 10)
"10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court u/s 26 enhancing the compensation was also accepted. The order of the appellate Court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification u/s 4(1) and declaration u/s 6.
In the light of the dictum of the Hon''ble Apex Court, my discussion supra would exemplify that Ashok Kumar being a purchaser pendente lite of the right of D2/Kanagavalliammal, if at all wanted to treat the previous partition decree passed as one not binding him, he should have prayed for setting aside the said partition decree on the ground of fraud, but he has not chosen to do so.
33. The learned Counsel for D1/Govindammal would invite the attention of this Court to the nature of the previous proceedings and highlight as to how by no stretch of imagination and even by phantasmagorical thoughts it could not be described as a collusive one. It is pellucidly and glaringly clear that the partition suit was filed by the Plaintiff informa pauperis for partition, but it was dismissed and as against which appeal was filed and the appellate Court remitted the matter back to the trial Court for considering the matter afresh. Whereupon, the trial Court decreed the partition suit, as against which appeal was filed by the affected party concerned and the appeal was dismissed. In fact, Murugesan/D2 in the partition suit, who happened to be the purchaser of some of the items of the suit properties in the partition suit was also impleaded and in such a case, by no stretch of imagination it could be stated that it is a collusive one.
34. The learned Counsel for the Plaintiff would develop his argument to the effect that in the previous proceedings in the partition suit, the appellate Court observed as though the original deed, so to say, Ex.A2 herein in favour of Kanagavalliammal, was not produced and that the title over the suit property in her favour could not be declared, is nothing but perverse and this Court could find fault with it in the Second Appeal. I cannot countenance such an argument for the reason that what the appellate Court held in the partition suit cannot be the subject matter of consideration in this Second Appeal which emerged out the proceedings taken by Ashok Kumar by filing O.S. No. 138 of 2004 and A.S. No. 4 of 2006. If at all the trial Court and the appellate Court in the present proceedings made any perverse finding, then certainly this Court could intervene. As such, the argument as put forth on the side of the second Appellant can-not be countenanced and upheld.
35. The learned Counsel for the Plaintiff would submit that after having chosen to file the application as revealed by Ex.A11, in the partition suit and that too after four days after the passing of the preliminary decree for partition, Govindammal was not justified in leaving it as such and thereafter filing an application for final decree and getting a decree in her favour. My finding supra clearly would indicate and display that the plain-tiff/Ashok Kumar has to blame himself for he having been not impleaded in the previous proceedings. As such, in my opinion Ashok Kumar cannot veer round and take a plea quite antithetical to his own conduct in the previous proceedings initiated by Govindammal herself as per Ex.A11.
36. The learned Counsel for the Plaintiff would strenuously argue that as per Ex.A11, Govindammal herself stated that the impleadment of Ashok Kumar was very much necessary, even so she did choose to obtain the final decree without getting impleaded Ashok Kumar and in such a case, the final decree proceedings in the partition suit could rightly be held as void for fraud and impropriety. This argument also I cannot countenance and uphold as correct in view of the fact that by way of abundant caution, so to say, ex abundanti cautela, Govindammal wanted to implead Ashok Kumar who happened to be the pendente lite of one of the suit properties, i.e. Item No. 6 in the partition suit. But subsequently, and that too surprisingly and shockingly, because Ashok Kumar had not come forward with any supine submission for getting himself impleaded as one of the parties to the partition proceedings, wherefore she dropped the idea of impleading Ashok Kumar. Now, as an afterthought, the same Ashok Kumar cannot raise his accusative finger for he having not been added as one of the parties to the previous proceedings. This Court at this stage could only visualise as to whether non impleadment of Ashok Kumar was fatal to the partition proceedings and whether the decrees passed in such partition case could be ignored as void ones.
37. My answer is an emphatic ''no'' to it for the reason that Ashok Kumar being the purchaser pendente lite of one of the items of the suit property in the partition suit, namely item No. 6, was not at all a necessary party; simply because at one stage Govindammal in the partition proceedings wanted to implead Ashok Kumar/Plaintiff and that too because Kanagavalliammal and Ashok Kumar presumably in collusion with each other initiated steps to demolish the super structure in the suit property, i.e. item No. 6 therein, she did choose to file such an application and subsequently she dropped it and that cannot be taken as fatal to the final decree passed in the previous partition proceedings. There is nothing to indicate or exemplify that without au fait with law or au courant with facts, the Courts below adjudged the lis before them; it is not as though they were unable to see the wood for trees. Keeping a sense of perspective about what were all the evidence placed before them, the matter was decided by both the Courts below warranting no interference by this Court. As such, I could see no merit in the Second Appeal and it has to be dismissed.
38. In the result, the substantial question of law No. 1 is decided to the effect that the Courts below were correct in arriving at the conclusion that the Plaintiff is only a purchaser pendente lite as per Ex. Al and thereby the doctrine of lis pendens is applicable as per Section 52 of the Transfer of Property Act. Non impleadment of the Plaintiff in the previous proceedings is not fatal to the partition proceedings.
39. The substantial question of law No. 2 is decided to the effect that both the Courts be-; low were justified in ignoring the Plaintiff''s purchase under Ex. A1.
40. The substantial question of law No. 3 is decided to the effect that the Courts below were justified in not declaring the entire suit property as the one belonging to the Plaintiff based on Ex.A1 by applying the principle of equity.
41. Accordingly, this Second Appeal is dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed.
