Shrimati Sulochana Devi @ Sulochana Devi v. Bibhuti Bhushan Prasad

defendants under Order 1 Rule 10 (2) of the Code of Civil Procedure (in short „the Code‟).

3. The respondents 2nd set are said to have purchased a part of the suit property from Bibhuti Bhushan Prasad and Ahilya Devi. The Title Suit was filed by the petitioner, Sulochana Devi, daughter of Bharat Bhushan Prasad claiming her share in the joint family property. The transfer is said to have been made during the pendency of the suit through Power of Attorney executed by said Bibhuti Bhushan Prasad (defendant No.1) in the name of Shrawan Kumar. Bibhuti Bhushan Prasad is the son and Ahilya Devi is wife of said Bharat Bhushan Prasad.

4. The impugned order has been assailed mainly on three grounds:- Patna High Court CWJC No.15646 of 2012 (5) dt.29-07-2013 (i) The Power of Attorney executed in favour of Sharawn Kumar by Bibhuti Bhushan Prasad was based on his claim of title over the property on the strength of an unprobated will executed by grand mother of Bibhuti Bhushan Prasad. (ii) The execution of the said Power of Attorney has itself been challenged in a separate suit being Title Suit No. 102 of

2012. (iii) The respondents 2nd set cannot be said to be a bonafide purchaser for the purpose of their impleadment as defendants in the suit inasmuch as they purchased the property thorough Power of Attorney during the pendency of the suit without seeking Leave from the court.

5. Mr. K. N. Choubey, learned senior counsel appearing on behalf of the petitioner, has contended that in a partition suit, the transferee pendente lite was not required to be impleaded as a party that too when the said transfer was being effected through Power of Attorney by one of the coparceners claiming his title Patna High Court CWJC No.15646 of 2012 (5) dt.29-07-2013 over the property on the basis of an unprobated will. He has placed reliance upon a Supreme Court judgement reported in (2004) 1 SCC 191 ( Bibi Zubaida Khatoon v. Nabi Hassan Saheb & anr).

6. Mr. P. N. Shahi, learned senior counsel appearing on behalf of contesting respondents 2nd set has, on the other hand, contended that the transferee pendente lite can be impleaded as a party if the court is of the opinion that his presence before it is necessary in order to enable the court effectually and completely adjudicate upon and settle the questions involved in the suit. He submits that though the transferee pendente lite may not claim as a matter of right to be impleaded as a party but if the court trying the suit considered it proper to join such person as a party so as to finally adjudicate upon the dispute, such order may not be interfered with by this court in exercise of power under Article 227 of the Constitution of India. He has placed reliance upon a Supreme Court judgement reported in AIR 2007 SC 1062 (Dhanlakshmi & Ors. v. P. Mohan & Ors) to contend that the respondents 2nd set being transferees pendente lite were rightly brought on record so that they might protect their interest in the suit. He submits, with reference to the said judgement, that the interveners/ defendants/ respondents 2nd set having purchased the property from other co-sharers were entitled to come on record Patna High Court CWJC No.15646 of 2012 (5) dt.29-07-2013 and there is no illegality in the impugned order. He has also placed reliance upon another Supreme Court judgement reported in (2013) 5 SCC 397 (Thomson Press (India) Ltd. V. Nanak Builders & Investors (P) Ltd.) to contend that a transferee pendente lite can be added as a party to the suit less the transferee suffered prejudice on account of transferer loosing interest in the litigation forced transfer.

7. Mr. Shahi, replying to the submissions made on behalf of the petitioners with reference to Supreme Court judgement in the case of Bibi Zubaida Khatoon (supra), has submitted that the High Court and the Supreme Court in that case refused to interfere with the exercise of discretion by the trial court, whereby the trial court had rejected the application for impleadment of a transferee pendente lite under Order 1 Rule 10 (2) of the Code. He submits that, in the present case, once the trial court has exercised its discretion under Order 1 Rule 10(2) of the Code by bringing on record the transferees pendente lite, the same would need no interference as it will cause no prejudice to the other party. He submits that the impugned order can neither be said to be beyond jurisdiction nor it can be said that it is so palpably illegal that it should be interfered with in supervisory jurisdiction of this court. Patna High Court CWJC No.15646 of 2012 (5) dt.29-07-2013

8. In has been submitted, in reply, on behalf of the petitioner that it is not a case where the entire suit property is said to have been purchased by the transferees/ respondents 2nd set and adds that the Supreme Court judgement in the case Thomson Press (India) Ltd. V. Nanak Builders & Investors (P) Ltd shall have no application, in the facts and circumstances of the present case. It has been emphasized that the present case is distinguishable on the basis that it was a suit for partition and, as per the case of respondents 2nd set, they purchased the property from one of the coparceners on the basis of an unprobated will, said to have been executed in favour of such coparcener. It has been submitted that an unprobated will has no evidentiary value and is useless piece of document. He has further submitted that the person, who is said to have executed the Power of Attorney, has himself filed the suit on the basis of the same being forged and fraudulent. In such circumstances, impleadment of such persons as defendants will only linger the disposal of the suit and will serve no purpose.

9. The primary question which requires to be dealt with in the present matter is as to whether this court should interfere with an order passed by the trial court exercising its discretion under Order 1 Rule 10(2) of the Code in the given circumstances and in view of the judicial pronouncements of Supreme Court as Patna High Court CWJC No.15646 of 2012 (5) dt.29-07-2013 has been cited on behalf of the parties noted above.

10. There can be no dispute about the proposition of law that this court can interfere with an order passed by subordinate inferior courts in exercise of power under Article 227 of the Constitution of India only when such order is without jurisdiction or it is palpably illegal and arbitrary. So far as jurisdiction of the court below is concerned, there is no challenge to it.

11. It is true that a transfer pendente lite is hit by Section 52 of the Transfer of Property Act but for that reason the transfer itself cannot be held to be void. In the present case, it has been contended on behalf of interveners/ defendants that after the respondents 2nd set filed their application under Order 1 Rule 10(2) of the Code for impleadment and after such application was allowed by the court below, his vendor, that is, Bibhuti Bhushan Prasad, has stopped doing Pairvi in the case. The contention is, that in such circumstance, if the respondents 2nd set are not there on record, they would not be in a position to protect their interest.

12. Mr. Shahi is correct in his submission that the Supreme Court in the facts and circumstances of that case reported in the case of Bibi Zubaida Khatoon (supra) refused to interfere with the order passed by the trial court. In the present case and in peculiar fact and circumstances, where transferees pendente lite Patna High Court CWJC No.15646 of 2012 (5) dt.29-07-2013 have been brought on record by the impugned order, such impugned order needs no interference. The impact of the doctrine of lis pendens on impleadment of such transferee in a suit has been elaborately dealt with in the Supreme Court judgement reported in the case of Thomson Press (India) Ltd. V. Nanak Builders & Investors (P) Ltd (supra) wherein taking into account previous judgements the court held in paragraphs 26 and 30 as follows:- “26. It would also be worth to discuss some of the relevant laws in order to appreciate the case on hand. Section 52 of the Transfer of Property Act speaks about the doctrine of lis pendens. Section 52 reads as under: “52. Transfer of property pending suit relating thereto. – During the [pendency] in any Court having authority [within 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 limitation the expiration of any period of Patna High Court CWJC No.15646 of 2012 (5) dt.29-07-2013 prescribed for the execution thereof by any law for the time being in force.” It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation”. “30. In the light of the settled principles of law on the doctrine of lis pendens, we have to examine the provisions of Order 1 Rule 10 of the Code of Civil Procedure. Order 1 Rule 10 empowers the court to add any person as party at any stage of the proceedings if the person whose presence before the court is necessary or proper for effective adjudication of the issue involved in the suit”.

13. The Supreme Court has held that Order 1 Rule 10(2) of the Code empowers “any person” as party at any stage of the proceedings if the person whose presence before the court is necessary or proper for effective adjudication of the issue involved in the suit. For the reasons aforesaid, I do not find any reason to interfere with the impugned order. This writ application is, accordingly, dismissed. It is, however, made clear in terms of judgement of Apex Court in case of Thomson Press (India) Ltd. v. Patna High Court CWJC No.15646 of 2012 (5) dt.29-07-2013 Nanak Builders & Investors (P) Ltd. (supra) that respondent 2nd set shall raise and pursue only such defences as are/ were available and taken by their vendors. BKS/- (Chakradhari Sharan Singh, J)