Allowed

Lebaka Vijaya Bhaskar Reddy, v. Ambavaram Narayanamma

Telangana HC30 Aug 2013CRP/891/2011

Case brief

AI extract

What is this about?

This revision allowed the petitioner to be impleaded as a necessary party in a partition suit after the trial court rejected the application. The High Court set aside the rejection, ordering the trial court to allow impleadment under Section 52 of the Transfer of Property Act and Order 1 Rule 10 CPC to safeguard the rights of the purchaser pending litigation.

What did the court decide?

The impugned order rejecting impleadment was set aside, and the petitioner was directed to be impleaded in the suit O.S.No.38 of 2006.

Lebaka Vijaya Bhaskar Reddy, Vs Ambavaram Narayanamma — Property and Title | Telangana HC (2013)

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*** THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR**

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+ CIVIL REVISION PETITION No.891 of 2011

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% Dated 18.04.2013

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# Lebaka Vijaya Bhaskar Reddy, S/o. Late Yella Reddy, aged about 39 years, Occ: Business, R/o.D.No.1/299, Maruthi Naagar, Kadapa, YSR Kadapa District.

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... PETITIONER

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VERSUS

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$ Ambavaram Narayanamma, W/o. Late Lakshumaiah, aged about 75 years, Occ: Household affairs, R/o. Patha Kadapa Village, Kadapa, Kadapa District and others.

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...RESPONDENTS

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! Counsel for the Petitioner: MR. S.V. MUNI REDDY

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^ Counsel for the Respondents: MR. R. PRASAD – R20 TO R25

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MR. V. RAMAKRISHNA REDDY –

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R9 TO R13

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MR. V.R. REDDY KOVVURI – R28 & R29

<GIST:

>HEAD NOTE:

? Cases referred

1. 2012 AIR SCW 4248

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2. AIR 1973 SC 569

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3. AIR 2003 SC 267

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4. 2011 (4) ALD 43 (SC)

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5. 2013 (30 ALD 715

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6. (2013) 5 SCC 397

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7. (2007) 10 SCC 719

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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FRIDAY, THE THIRTEITH DAY OF AUGUST TWO THOUSAND AND THIRTEEN

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PRESENT

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THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR

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CIVIL REVISION PETITION No.891 of 2011

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BETWEEN

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Lebaka Vijaya Bhaskar Reddy.

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... PETITIONER

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AND

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Amabavaram Narayanamma and others.

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...RESPONDENTS

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Counsel for the Petitioner: MR. S.V. MUNI REDDY

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The Court made the following:

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ORDER:

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This revision is preferred by the proposed party, who sought impleadment in a suit, being O.S.No.38 of 2006, for partition, as defendant No.24 vide I.A.No.1161 of 2010, which was rejected by the Court below, under order dated 17.02.2011, on the ground that the transaction in his favour is hit by lis pendens and his interest is already covered by the stand taken by vendor, hence, he is not a necessary party to the suit. That order is questioned in this revision.

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2. I have heard Mr. S.V. Muni Reddy, learned counsel for the petitioner and Mr. R. Prasad, learned counsel for respondents 20 to 25 and other learned counsel representing other respondents.

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3. The necessary facts are that respondents 1 to 8 herein are the plaintiffs in the aforesaid suit for partition and the other contesting defendants with whom the plaintiffs claim equal share. Some of the purchasers from the parties are already impleaded in the suit,

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as defendants 1 to 22. The petitioner herein claims that he purchased Ac.0.60 cents of land in Sy.No.908/1A/2A/1 on 26.09.2007 from one Salam Bala Subba Reddy. It is stated in the affidavit that the father of the petitioner’s vendor had earlier purchased the suit land on 18.11.1963 from Ambavaram Akaiah, who was the ancestor of the plaintiffs and defendants. Petitioner, therefore, seeks impleadment in the suit as defendant No.24 in the suit.

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4. The aforesaid application was contested by respondent No.25, who is defendant No.17 in the suit, primarily, on the ground that Ambavaram Akaiah, from whom the petitioner is tracing title, himself had no title, except for Ac.1.50 cents in Sy.No.908/1. It was stated that he had sold Ac.0.50 cents to one Sanapureddy Pedda Konda Reddy in 1959 and the Government had acquired Ac.0.50 cents and the remaining extent of Ac.0.50 cents was in possession and enjoyment of Ambavaram Rama Krishna Reddy, who constructed a residential house in a portion and the remaining portion is used as hayrick yard and as such, no land is left with the Ambavaram family to be sold to the father of the petitioner’s vendor. The application for impleadment was, therefore, opposed.

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5. Learned counsel for the petitioner, firstly, points out that the assessment of the Court below that the vendor of the petitioner is on record is factually incorrect and secondly, the reasoning of the Court below that merely because the petitioner’s transfer is hit by lis pendens, he is not entitle to be impleaded is also erroneous.

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6. Per contra, Mr. R. Prasad, learned counsel for the respondents 20 to 25, submitted that the very claim of the petitioner to any part of Sy.No.908/1 itself is doubtful in view of lack of title of Ambavaram Akaiah, through whom the petitioner traces title. He also submitted that the suit is still pending and preliminary decree is yet to be passed. The impleadment of unconcerned parties, at this stage, would unnecessarily protract and delay the disposal of the suit and as such, the petitioner’s application was rightly rejected. Alternatively,

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the learned counsel submits that if at all the petitioner feels that any equities need to be worked out on the basis of title claimed by him, the petitioner’s application in final decree proceedings may be considered at later stage.

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7. Learned counsel for the petitioner placed reliance upon a decision of

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the Supreme Court in A. NAWAB JOHN v. V.N. SUBRAMANIYAM^[1] in support of the proposition that application for impleadment by pendente lite purchaser should normally be allowed or considered liberally.

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8. Mr. R. Prasad, learned counsel for respondents 20 to 25, on the other hand, placed reliance upon a decision of the Supreme Court in JAYARAM

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[2] MUDALIAR v. AYYASWAM I which interpreted the principles behind the concept of pendente lite purchaser under Section 52 of the Transfer of Property Act and the said provision is not to be used to defeat the just and equitable claim, but the Court may bind the said purchaser by their own acts. Another decision of the Supreme Court in VENKATRAO ANANTDEO

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[3] JOSHI v. SAU. MALATIBA I is also relied upon, which, however, does not appear to be relevant. Another decision of the Supreme Court in T.G.

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ASHOK KUMAR v. GOVINDAMMA L^[4] is relied upon where the Supreme Court considered Section 52 of the Transfer of Property Act and held that subsequent transfer does not affect the right of the parties to the suit but while making division equities can be accepted provided they do not cause

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loss, hardship or inconvenience to other parties. A judgment of the learned single Judge of this Court in SATHRASALA NARSIMHULU v. B. GEETA

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[5] KUMAR is also relied upon where the transfer pending suit was not under the authority of the Court and as such, held prohibited by Section 52 of the Transfer of Property Act.

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9. I have considered the rival contention. It has also been brought to the notice of this Court by the learned counsel for the petitioner that similar application by pendente lite purchasers such as I.A.No.811 of 2007 etc. was allowed by the Court below and the said purchasers were impleaded as defendants 11 to 14. Similarly, another purchaser seeking impleadment, as defendant No.22, was also ordered to be impleaded by the Court below in I.A.No.1051 of 2008.

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10. It is not in dispute that the petitioner is a pendente lite purchaser and the Supreme Court in A. NAWAB JOHN’s case

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(1 supra) elaborately considered jurisprudential background of the doctrine of lis pendens and its statutory interpretation under Section 52 of the Transfer of Property Act. The relevant portion, necessary for our purpose, is extracted hereunder:

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“16. This Court in Jayaram Mudaliar v. Ayyaswami and Others, (1972) 2 SCC 200 (paras 42 to 44) quoted with approval a passage from the Commentaries on the Laws of Scotland, by Bell, which explains the doctrine of lis pendens:

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“43. ???? Bell, in his commentaries on the Laws of Scotland, said that it was grounded on the maxim: “Pendent elite nibil innovandum”. He observed:

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“It is a general rule which seems to have been recognised

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in all regular systems of jurisprudence, that during the pendence of an action, of which the object is to vest the property or obtain the possession of real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by the claims which shall ultimately

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be pronounced.”

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xxx

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“………..that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant’s alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject to be defeated by the some course of proceeding.”

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Belkamy v. Subina (1857) De. GEJ 566 at 588. Quoted with approval by this Court in Vinod Seth v. Devinder Bajaj (2010)8 SCC 1.

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17. It is settled legal position that the effect of Section 52 is not to render transfers affected 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 and obligations of his vendor as may be eventually determined by the Court.

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“The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court.”

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xxx

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19. This Court on more than one occasion held that when a pendente lite purchaser seeks to implead himself as a party - defendant to the suit, such application should be liberally considered. This Court also held in Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and Another, AIR 1958 SC 394, that, “justice requires”, a pendente lite purchaser “should be given an opportunity to protect his rights”. It was a case,

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where the property in dispute had been mortgaged by one of the respondents to another respondent. The mortgagee filed a suit, obtained a decree and ‘commenced proceedings for sale of the mortgaged property’. The appellant Saila Bala, who purchased the property from the judgment-debtor subsequent to the decree sought to implead herself in the execution proceedings and resist the execution. That application was opposed on various counts. This Court opined that Saila Bala was entitled (under Section 146 of the C.P.C.) to be brought on record to defend her interest because, as a purchaser pendent elite, she would be bound by the decree against her vendor. There is some divergence of opinion regarding the question, whether a pendent elite purchaser is entitled, as a matter of right, to get impleaded in the suit, this Court in (2005) 11 SCC 403, held that :

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“Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject- matter of the suit is substantial and not just peripheral. A transferee pendent elite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendent elite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendent elite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-ininterest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.”

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[Emphasis supplied]

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The preponderance of opinion of this Court is that a pendente lite purchaser’s application for impleadment should normally be allowed or “considered liberally”.

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11. Similar question was also considered by the Supreme Court in THONSON PRESS (INDIA) LTD. v. NANAK BUILDERS & INVESTORS

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[6] (P) LTD . . The following passages from the said decision are relevant, which are extracted hereunder:

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“26. … 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.

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27. Discussing the principles of lis pendens, the Privy Council in the case of Gouri Dutt Maharaj v. Sukur Mohammed & Ors. AIR (35) 1948, observed as under:

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“…The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment and in the view of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact that the agreement of 8.6.1932, had not been registered.”

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28. In Kedar Nath Lal v. Ganesh Ram [AIR 1970 SC 1717] this Court referred the earlier decision in Samarendra Nath Sinha v. Krishna Kumar Nag (1967 (2) SCR 18) and observed:

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“17… ‘16. …The purchaser pendente lite under this

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doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so it must bind the person driving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder vs. Monohar 15 I.A. 97 where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well-established that the principle of lis pendens applies to such alienations. (See Nilkant v. Suresh Chander Mullick [(1884-85) 12 IA171 and Moti Lal v. Karrab-ul-Din [(1896-970 24 IA170]) (Samarendra Nath Case AIR 1967 Sc 1440).”

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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 which 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.

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31. From the bare reading of the aforesaid provision, it is manifest that sub-rule (2) of Rule 10 gives a wider discretion to the Court to meet every case or defect of a party and to proceed with a person who is a either necessary party or a proper party whose presence in the Court is essential for effective determination of the issues involved in the suit.”

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12. Apart from the latest decisions, referred to above, it is also necessary to take note of a direct decision of the Supreme Court in DHANALAKSHMI

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[7] v. P. MOHAN wherein also a pendente lite purchaser sought impleadment and the said application having been found sustainable, the Supreme Court not only directed his impleadment but also set aside the preliminary decree, as the same was passed in the absence of the proposed party. The following passage from the said decision is relevant and extracted

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hereunder:

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“…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 & 6. It is not in dispute that the first respondent P. Mohan has got an undivided share in the said suit property. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent herein in the suit or proceeding will not affect his right in the suit property by enforcing a partition. Admittedly, the appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the appellants are necessary and proper parties to the suit, which is now pending before the Trial Court. We also make it clear that we are not concerned with the other suit filed by the mortgagee in these proceedings.

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5. We, therefore, set aside the order passed by the High Court; and order the application for impleadment filed by the appellants herein and array them as party defendants Nos. 7, 8 & 9 in the Suit. The appellants will now be at liberty to file the written statements in the pending suit. In view of the order now passed by this Court, the preliminary decree passed by the Trial Court in the absence of the appellants cannot stand. We, therefore, set aside the preliminary decree and restore the suit to its original number and direct the Trial Court to dispose of the same on merits and affording opportunity to the appellants to file a written statement and after framing the necessary issues. The Trial Court is directed to dispose of this suit within six months from today.”

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13. In view of the preponderance of the legal position laid down by the Supreme Court, as above, the petitioner’s case for impleadment deserves to be considered and order impugned rejecting the said application is liable to be set aside, as it is opposed to the principle, as above and is based on factually incorrect premise that the petitioner’s vendor was a party to the suit.

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14. So far as the contentions of Mr. R. Prasad regarding,

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prima facie, title of the petitioner is concerned, no conclusion in that aspect can be recorded, at this stage and though the contention,

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prima facie, looks formidable, since the suit is yet to be tried and adjudicated by the trial Court, whether the petitioner’s predecessor in interest had any valid and subsisting title or not is a matter, which would fall for consideration in the suit. At this stage, therefore,

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it would not be appropriate to record any finding in that regard.

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Consequently, therefore, the civil revision petition is allowed setting aside the impugned order. The petitioner shall stand appropriately impleaded in the suit and thereafter, shall be given an opportunity to file a written statement and thereafter, the trial Court shall proceed with the suit in accordance with law, expeditiously.

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As a sequel, the miscellaneous applications, if any, shall stand disposed of as infructuous. There shall be no order as to costs.

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_____________________ VILAS V. AFZULPURKAR, J

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August 30^th , 2013 DSK

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[1] 2012 AIR SCW 4248

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