Renu Devi v. Chhotan Singh

.... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

07. 17-12-2012 Heard Mr. Satyendra Narayan Singh, learned counsel appearing on behalf of the petitioner and Mr. Sidheshwari Prasad Singh, learned Senior Counsel appearing for the plaintiff- respondent no. 1. Though served plaintiff-respondent no. 2 who happens to be the vendor and the architect of the dispute which is the subject matter of the proceedings, he has not chosen to appear. This application under Article 227 of the Constitution of India has been filed questioning the order dated 05.08.2011 passed by learned Sub Judge-II, Nalanda at Bihar Sharif in Title Suit No. 14 of 1997 / 33 of 2001, whereby the application filed by Patna High Court CWJC No.19650 of 2011 (7) dt.17-12-2012 2 the petitioner under Order 1 Rule 10(2) of the Code of Civil Procedure seeking impleadment in the suit which is in the nature of a partition suit, has been rejected. The suit in question has been filed by the plaintiff- respondent nos. 1 and 2 herein seeking partition as also to declare a deed of gift dated 01.11.1991 purported to have been executed by the original plaintiff Reshma Devi in favour of the respondent nos. 2 and 3 as a void document. The petitioner claimed to have purchased 1.46 acres of land from the plaintiff-respondent no. 2 Lalan Singh @ Lilku Singh on 16.11.2009. It is the case of the petitioner that the land in question had been gifted to his vendor by the original plaintiff Reshma Devi and which is sought to be questioned in the suit. The Title Suit was dismissed by the trial court on 04.01.2002 and against which the plaintiffs filed Title Appeal No. 2 of 2002 which was allowed by a judgment and decree dated 05.09.2009. Following the judgment and decree passed by the appellate court and at the stage of preparation of the final decree, the petitioner filed the application in question on

29.03.2011 for being impleaded. The prayer was rejected by the learned trial court, inter alia, on grounds of the transaction having been effected during the pendency of the final decree proceedings. Mr. Satyendra Narayan Singh, learned counsel appearing Patna High Court CWJC No.19650 of 2011 (7) dt.17-12-2012 3 for the petitioner with reference to two judgments of the Supreme Court reported in (2007)1 SCW 954 : (2007) 10 SCC 721 (Dhanalakshmi vs. P. Mohan), more particularly paragraph 5 and a judgment reported in (2012)6 SCW 4248 : (2012) 7 SCC 738 (A. Nawab John & Ors. vs. V.N. Subramaniyam), more particularly to paragraph 19 of the judgment, submits that the order impugned is not sustainable in view of the opinion expressed by the Supreme Court allowing impleadment of lis pendens purchaser even at the stage of final decree proceedings. The argument has been contested by Mr. Sidheshwari Prasad Singh, learned Senior Counsel appearing for the plaintiff- respondent no. 1, inter alia, in view of the provisions underlying Section 52 of the Transfer of Property Act, 1885 (hereinafter referred to as the „Act‟). It is submitted by Mr. Singh that the alienation of the property is merely to delay the finality of the proceedings and with a view to harass co-plaintiff. It is stated that even if the learned trial court has not allowed the impleadment considering the stage of proceedings, the petitioner is not remediless and he could yet seek his share in the share allotted against his vendor and for that he need not be impleaded in the final decree proceedings which would only delay the disposal of the suit. Learned counsel in support of his submissions has relied Patna High Court CWJC No.19650 of 2011 (7) dt.17-12-2012 4 upon a judgment of the Supreme Court reported in (1996) 5 SCC 539 (Sarvinder Singh vs. Dalip Singh and others) and a bench decision of this Court reported in 2009(4) PLJR 117 (Smt. Sumitra Devi vs. Sitasharan Bubna). In each of the two cases, the impleadment has been rejected in view of the provisions of Section 52 of the Act. Mr. Singh has submitted that not only the petitioner but there are other vendees also waiting in the pipeline to obstruct the disposal and hence the prayer may not be accepted. I have heard learned counsel for the parties and have perused the materials on record. The assertion of Mr. Singh, learned Senor Counsel appearing for the plaintiff to question the impleadment in the light of the provisions of Section 52 of the Act stands answered by the judgment of the Supreme Court rendered in the case of A. Nawab John (supra) and reference to paragraph 17 would be needful in this context: “17. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights Patna High Court CWJC No.19650 of 2011 (7) dt.17-12-2012 5 and obligations of his vendor as may be eventually determined by the Court. “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 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.” The Supreme Court with reference to an earlier judgment reported in (2005) 11 SCC 403 (Amit Kumar Shaw vs. Farida Khatoon and another) has held in paragraph 22 of the same judgment that an application of a pendente lite purchaser should be allowed or considered liberally. The judgment rendered in the case of Dhanalakshmi (supra) is a matter arising out of a partition suit and while allowing the impleadment the Supreme Court has held in paragraph 5 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 the respondents nos. 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 Patna High Court CWJC No.19650 of 2011 (7) dt.17-12-2012 6 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.” The provisions of Section 52 of the Act having been noted by the Supreme Court and interpreted in context with lis pendens purchase, the prayer of the petitioner cannot be refused. Mr. Singh when he submits that it would delay a proceeding, may be correct but for attaching a finality to a proceeding, such impleadment requires to be allowed for the ends of justice. It is informed at the bar that a Second Appeal has been preferred by the judgment debtors which is pending before this Court in Second Appeal No. 412 of 2009. It is again not in contest that the plaintiff-respondent no. 2 Lalan Singh has a share in the property; his share stands approved by the judgment of the appellate court and the transfer made in favour of the petitioner is within his share. The conduct of the said vendor of the petitioner Patna High Court CWJC No.19650 of 2011 (7) dt.17-12-2012 7 i.e. plaintiff-respondent no. 2 in not responding to the courts notice only goes to vindicate the fear of the petitioner, necessitating impleadment. For the reasons aforesaid, the order impugned is set aside. The application filed on 29.03.2011 by the petitioner under Order 1 Rule 10 stands allowed. Learned trial court would accordingly proceed in the matter in accordance with law. This application is allowed. As the matter has been lingering since quite sometime, learned trial court would be well advised to expedite the same in accordance with law. S.Sb/- (Jyoti Saran, J)