V.PERIYAKARUPPIAH, J.
This petition filed by third party/petitioner seeking to implead himself as the 2nd appellant in the appeal in order to prosecute the appeal along with the 1st respondent/defendant/appellant.
2. The case of the petitioner in brief would be as follows:
2(a). The land comprised in Survey No.260/2, 261/1 and 261/2 measuring about 1.26 acres belong to Poorani Ammal the 1st respondent in the miscellaneous petition. He purchased the property on 27.02.2008 for a sum of Rs.1,61,000/-. The 1st respondent has entered into an agreement for sale with the 2nd respondent in respect of the lands mentioned above on 10.03.2005 for a sum of Rs.6,51,000/-. On 23.08.2006, the 2nd respondent instituted a suit against the 1st respondent in the District court at Cuddalore for specific performance in O.S.No.59 of 2006. The stand of the 1st respondent is that for obtaining loan the 2nd respondent's agent obtained the signature of the 1st respondent in blank stamp papers and it was used for agreement of sale when the 1st respondent was ready and willing to pay the debt amount. The Trial court decreed the suit on 13.11.2008 against this decree the 1st respondent has preferred the appeal in A.S.No.147 of 2009.
2(b). Petitioner purchased the property as the 1st respondent was direly in need of money to get her daughter marriage. From the date of purchase the petitioner is in possession and enjoyment of the aforesaid property and holding the title as on date as the 1st respondent sold the property. To safeguard the petitioner the 1st respondent has filed the appeal against the decree of the trial court. As the petitioner is the person holding title to the property and in actual possession and enjoyment, he should be impleaded as 2nd appellant in A.S.No.147 of 2009 and should be given an opportunity to join the 1st respondent in prosecuting the appeal. If he is not added as an appellant in the above appeal he will be put to great prejudice and hardship will be caused to him.
3. The contentions of the 2nd respondent would be as follows:
3(a). The petitioner has purchased the property on 27.02.2008 for Rs.1,61,000/- pending the suit. Therefore, the sale is valid only subject to the result of the suit. This suit is for a specific performance and hence the suit having been decreed, there is no title left in the 1st respondent to convey the petitioner. Therefore, the petitioner has no title to the property. 2nd respondent apprehended sale by the defendant and filed application in I.A.No.21/2008 for interim injunction restraining alienation, in the lower court itself. But the 1st respondent filed a counter with false contents that she would not sell the property. Therefore, the application was not pressed. Ignoring the agreement for Rs.6,51,200/- the property has now been sold to the petitioner. The suit was decided on 13.11.2008. If at all, it is the petitioner who should have filed appeal since he would be affected party, instead, 1st respondent alone filed an appeal on certified copy, whileso, he cannot file an appeal by coming to record later. He has no right to do so. An appeal would be barred. If so, an application to implead will also be barred. Interim stay was obtained without reference to the caveat. The petitioner, apart from having no 'locus standi' since he had neither applied for copies, nor had come within 60 days of judgment to file appeal with permission. The 2nd respondent further states that the petition filed by the third party petitioner has therefore to be dismissed.
4. On a careful perusal of the papers filed by parties and the records in the appeal and after hearing the arguments of both sides, I could see the following question emanated for consideration in this application.
1. Whether the applicant is a necessary party for being impleaded as 2nd appellant in the appeal ?
The learned counsel for the applicant would submit in his argument that the 1st respondent had filed the suit for specific performance and the suit was decreed by the lower court against which the 1st respondent had preferred the present appeal in A.S.No.147 of 2009. He would further submit in his argument that the applicant had purchased the property from the 1st respondent who was direly in need of money to get her daughter married and from the date of such purchase, the applicant was in possession and enjoyment of the aforesaid land holding the title as on date. Therefore, he would submit in his argument that the applicant is much interested in safeguarding his property as well as his interest in the suit property. He would further submit in his argument that the decree passed by the lower court without impleading him is not binding upon him and therefore he want to implead himself as the 2nd appellant along with the 1st respondent/ appellant in this appeal in order to raise his contentions and to safeguard his property. Therefore the applicant is a necessary party in this appeal. In support of his case, he would put forth a judgment of our Apex court reported in 1994 STPL (LE) 19780 SC between (ANIL KUMAR SINGH vs. SHIVNATH MISHRA ALIAS GADASA GURU).
5. He would further submit that the applicant who has got some semblance of right over the suit property is necessary party as per aforesaid judgment of our Apex court. He would again cite a judgment of our Apex court in between (KASTURI vs. IYYAMPERUMAL AND OTHERS) reported in (2005) 6 SCC 733 for the proposition that the impleadment of party should be ordered on the said question of two tests made therein. Accordingly the person who has got a right to some relief against such party in respect of controversies involved in the proceedings and secondly no effective decree can be passed in the absence of such party. He would submit further in his argument that the applicant's case is covered under those two tests and therefore he is necessary party.
6. He would also cite yet another judgment of our Apex court in between (SUMTIBAI & OTHERS vs. PARAS FINANCE CO. MANKAWAR W/O PARASMAL CHORDIA (D) & ORS.) reported in AIR 2007 SC 3166 to the proposition that in a suit for specific performance, a third party can be impleaded if he is able to show a fair semblance of title or interest and therefore he can certainly file an application for impleadment. Therefore he would request the court that the applicant be held as a necessary party to the appeal and thus the petition filed by him for impleadment may be allowed.
7. Learned counsel for the 1st respondent/appellant would submit in his argument that the property was sold by him during the pendency of the litigation in between parties to the applicant and the applicant who is likely to be affected by the portion of the decree and grievance over the decree passed by the lower court, he is entitled to prefer the appeal and therefore he may be impleaded as a necessary party. He would also draw the attention of the court to a judgment of Patna High Court reported in AIR (34) 1947 PATNA 477 in between (SHEOKUMAR TEWARI AND ANOTHER vs. CENTRAL CO-OPERATIVE BANK, DINAPUR AND OTHERS) in support of his case. He would also draw the attention of the court to a judgment of Calcutta High Court reported in AIR 1915 CALCUTTA 103 in between (RAI CHARAN MANDAL AND ANOTHER vs. BISWANATH MANDAL AND OTHERS) for the proposition that subsequent events and the changes can be recognised in exceptional cases in order to render justice to parties. Therefore he would submit in his argument that he has no objection for impleading the applicant as the 2nd appellant in the appeal.
8. The learned counsel for the 2nd respondent would submit that the applicant had colluded with the 1st respondent/ appellant and fraudulently brought the sale deed with a view to defeat the right of the 2nd respondent. He would further submit that the said purchase was only for Rs.1,61,000/- whereas the 2nd respondent had agreed to purchase the said property for a sum of Rs.6,51,200/-. He would further submit in his argument that the applicant has not come to court with clean hands and he is not entitled for any relief as sought for. Moreover the said property was purchased during the pendency of the suit on 27.02.2008 and the applicant being a purchaser 'pendente lite' is not at all entitled to any relief, much less the impleadment in the appeal. He would further submit in his argument that the applicant did not apply before the lower court when the case was pending before the lower court for impleadment and he had applied before the appellate court in order to delay and defeat the proceedings in the appeal. He would further submit in his argument that the injunction ordered before the lower court in I.A.No.21 of 2008 was defeated and in utter disobedience, the 1st respondent had sold the property in order to defeat the rights of the 2nd respondent, if possible. He would draw the attention of the court to a judgment of this court made in between (V.K. ELAYALWAR vs. N. GOVINDARAJULU & OTHERS) reported in 1993 (2) LW 430 to the effect that the parties who purchased the properties even movable properties cannot be considered as bonafide purchaser when they have no knowledge of the pending proceedings. He would also quote the judgment that the lispendens would apply to those cases and such transfer cannot be considered as a bonafide transfer. He would again refer a judgment of this court reported in 2000 (1) MLJ 349 to the proposition that the purchaser of property 'pendente lite' cannot contend that he is the bonafide purchaser for value without notice or to say that he was not aware of the proceedings and had no notice of the pendency of the proceedings. He would again submit in his argument that the 1st respondent who was dare enough to sell the property during the existence of the injunction order against him cannot plead that the applicant had purchased the property without knowing the proceedings of the court. He would further submit in his argument that the subsequent purchase during the 'pendente lite' is not necessary or proper party to the suit as per the judgment of our Apex court reported in 1996 5 SCC 539 in between (SARVINDER SINGH VS. DALIP SINGH AND OTHERS). He would further submit in his argument that similar view was taken in yet another judgment of Apex court made in (2007) 6 MLJ 1757 (SC) in between (SUNIL GUPTA vs. KIRAN GIRHOTRA AND OTHERS). He would also submit in his argument that the applicant who has not chosen to file an application before the lower court during the said period, as he is stated to have purchased the suit property had not applied during the pendency of the suit, but had come forward with this application in the appellate stage, is not permissible in law as per the judgment of our Apex court in AIR 1976 SC 2538 in between the (THE STATE OF KERALA vs. THE GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS). For the similar proposition of law he would also draw the attention of the court to a judgment of the Apex court made in (NARAYAN BHAGWANTRAO GOSAVI BALAJ vs. GOPAL VINAYAK GOSAV & OTHERS) reported in AIR 1960 SC 100. He would again submit in his argument that the applicant who is claiming to be the purchaser during the pendency of the suit has no right in the suit or in the appeal as it was denied by the Apex court of India in the judgment made in between (DHANNA SINGH & OTHERS vs. BALJINDER KAUR & OTHERS) as reported in AIR 1997 SC 3720. Therefore, he would submit that when the applicant has no right to participate in the trial or leading in evidence nothing survives at the stage of the appeal since the 1st respondent/appellant had already preferred appeal and there is no necessity for the applicant herein to be impleaded as a necessary party to the appeal. He would also submit in his argument that the impleadment even if ordered the party will be deemed to have been impleaded from the date of the impleadment and the suit claimed as against him can be considered as barred under the law of limitation and therefore no necessity for the applicant being impleaded as a necessary party. The applicant being a subsequent purchaser admittedly during the pendency of the suit has no right nor any grievance over the decree, since his rights were to be decided only on the date of the suit and not thereafter. He would also submit that the doctrine of 'lispendens' would certainly operate and apart from that the injunction order passed by the lower court was flouted by the 1st respondent with the active collusion with the applicant and fraud has been committed against the order of the court and therefore the relief sought for by the applicant cannot be ordered. Therefore the application filed by him for impleadment has to be dismissed.
9. I have given anxious thoughts to arguments advanced on either side. The applicant is a third party, he has filed this application for impleadment of himself as 2nd appellant along with the appellant/1st respondent who has filed the appeal. The case of the applicant would be that he had purchased the property from the 1st respondent during the pendency of the suit and now he is in possession and enjoyment of the property and his right accrued under the said sale deed has to be protected and therefore he may be impleaded as necessary party. The 1st respondent /appellant has virtually supported the impleadment of the applicant in this appeal.
10. The learned counsel for the applicant has submitted a judgment of Hon'ble Apex court reported in 1995 (3) SCC 147 in support of his case. For a similar view he has also cited the judgment of our Apex court reported in 2005 (6) SCC 733 in which the following guidelines has been laid down. It would run thus:
"Two tests are to be satisfied for determining the question who is a necessary party. Tests are (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. In a suit for specific performance the first test can be formulated in the following manner, that is, to determine whether a party is necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract for sale."
Similarly he had also cite a judgment of Hon'ble Apex court reported in AIR 2007 SC 3166 to the proposition of impleadment of parties when any semblance of title or interest has been noticed. The relevant passage would run as follows:
"Impleadment of party- Suit for specific performance- Whenever a suit for specific performance is filed by A against B, a third party C can be impleaded in that suit If C show a fair semblance of title or interest he can certainly file an application for impleadment. To take contrary view would lead to multiplicity of proceedings then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute."
11. A careful perusal of the aforesaid judgments cited by the learned counsel for the applicant, we could see that the impleadment of parties should be gone into when there is some semblance of title or right over the properties. The two tests as laid down by the Hon'ble Apex court would go to show that there must be a right to some relief against such party in respect of the controversies involved in the proceedings and secondly no effective decree could be passed in the absence of such a party. Now the point for consideration is whether the applicant has satisfied both the tests for impleading him as the 2nd appellant.
12. Actually, the learned counsel for the 1st respondent/appellant who had stated no objection for impleadment of the applicant as 2nd appellant since he had sold the suit property during the pendency of the suit. In this circumstance, we have to see whether any semblance of right or title will accrue due to the sale of the schedule mentioned property by the 1st respondent/appellant in favour of the applicant. Admittedly, the said property was sold by the 1st respondent to the applicant on 27.02.2008, which was during the pendency of the suit. The suit was filed by the 2nd respondent before the lower court in the year 2006 and it was decreed in favour of the 2nd respondent on 30.11.2008. Admittedly, the purchase made in between the 1st respondent and the applicant was during the pendency of the suit before the lower court. It is also not disputed that an interim injunction was granted against the 1st respondent in I.A.No.21/2008 restraining him not to alienate the suit property during the pendency of the suit. In these circumstances, the sale said to have been made by the 1st respondent in favour of the applicant was in utter disobedience of the injunction order passed by the lower court. More over the said transaction was made during the pendency of the suit. The 1st respondent had full knowledge about the pendency of the suit and had sold the property in favour of the applicant during the pendency of the suit before the lower court. In these circumstances
Section 52 of T.P.Act is a clear bar. The judgment of Hon'ble Apex court made in (DHANNA SINGH & OTHERS vs. BALJINDER KAUR & OTHERS) reported in AIR 1997 SC 3720 is relevant in this aspect. Accordingly, it has been laid down as follows:
" 5. The undisputed fact is that in the plaint the plaintiff-respondent had already sought for a reliefs of injunction of alienation, yet the alienation came to be made. Apart from the doctrine of lis pendense under
Section 52 of the T.P.Act, the subsequent purchaser does not get any right to lead to any evidence, as he stepped into the shoes of the first defendant, who had given up the right to lead evidence. In view of these circumstances, he does not get any right to lead any evidence."
According to the said judgment when there was an injunction order any alienation has been made in violation of the said order, certainly the said transfer was affected by the doctrine of 'lispendens' also. It has been categorically laid down by yet another judgment of Hon'ble Apex court reported in between (SARVINDER SINGH V. DALIP SINGH AND OTHERS) reported in (1996) 5 SCC 539 as follows:
" 5. Having regard to the respective contentions, the question that arises for consideration is whether the respondents are necessary or proper parties to the suit? It cannot be disputed that the foundation for the exclusive right, title and interest in the property, the subject matter of the suit, is founded upon the registered Will executed by Hira Devi, the mother of the appellant as on 26.05.1952. The trial court noted that in a suit filed on a previous occasion by the appellant, the will was propounded as basis for an exclusive right, title and interest in the said property. He impleaded Rajender Kaur, one of the daughters of Hira Devi, to the suit along with two other sisters and the suit came to be decreed by the trial court on 29.03.1974. The decree became final. In view of those facts, the necessary conclusion that can be deduced is that the foundation for the relief of declaration in the second suit is the registered will executed by Hira Devi in favour of the appellant on 26.05.1952. The respondents indisputably cannot challenge the legality or the validity of the will executed and registered by Hira Devi on 26.05.1952. though it may be open to the legal heirs of Rajender Kaur, who was a party to the earlier suit, to resist the claim on any legally available or tenable grounds, those grounds are not available to the respondents. Under those circumstances, the respondents cannot, by any stretch of imagination, be said to be either necessary or proper parties to the suit. A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon the disputes. In either case the respondents cannot be said to be either necessary or proper parties to the suit in which the primary relief was found on the basis of the registered will executed by the appellant's mother, Smt Hira Devi. Moreover, admittedly the respondents claimed right, title and interest pursuant to the registered sale deeds said to have been executed by the defendants-heirs of Rajender Kaur on 02.12.1991 and 12.12.1991, pending suit.
6.
Section 52 of the Transfer of Property Act envisages that:
"During the pendency in any court having authority within the limits of India.... 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. According to judgment of Hon'ble Apex court reported in AIR 1976 SC 2538 in between (STATE OF KERALA Vs. THE GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS), We could see that a person who had not elected to be impleaded in lower court cannot be impleaded in the appellate stage. The relevant passage would be as follows:
" 11. Submission has also been made on behalf of the appellant that the high Court should have allowed the appellant to amend the plaint. We agree with the High Court that the present is not an appropriate case in which permission to amend the plaint should have been granted."
Similarly the definition of purchaser 'pendent lite' and the necessity to implead him has been discussed in the judgment of Hon'ble Apex court reported in (2007) 6 MLJ 1757 (SC) in between (SUNIL GUPTA vs. KIRAN GIRHOTRA AND OTHERS). The relevant passage would run as follows:
" 13. A transferee of a property during the pendency of a proceeding is not a necessary party. Citations are necessary to be made to only of those who, inter alia, claim through or under the will or deny or dispute the execution thereof.
14. The High Court in its impugned judgment has noticed that the attesting witnesses of the will had already been examined. If the appellant herein is impleaded as a party, the clock would be put back. Before the High court as also before us, arguments have been advanced in regard to conduct of the appellant as also the fact that they are only speculators who had purchased litigated properties. But we may not go thereinto.
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20. Even otherwise ordinarily a transfependent lite without leave of the court can be impleaded as a party. (See BIBI ZUBA KHATOON v. NABI HASSAM SAHEB AND ANOTHER, AIR 2004 SC 173:(2004) 1 SCC 191).
As per the aforesaid dictum laid down by Hon'ble Apex court, we could see that a transferee of a property during the pendency of the proceeding is not a necessary party to the said proceedings. According to the judgments laid down supra, this court could see that the purchaser 'pendente lite' is not necessary party as he has not completed the two tests laid down in the judgment of Hon'ble Apex court cited by the learned counsel for the applicant. The presence of subsequent purchaser during the pendency of the suit was considered as not a necessary party because he had collusively purchased the property during the pendency of the suit and without the authority of the court. Admittedly, the applicant did not apply for permission or authority of the court for buying the said property. Per contra, he had purchased the said property in violation of the injunction order passed by the lower court. Therefore the rights accrued through the said document to the applicant need not be considered in this suit. Therefore, the right accrued to the applicant cannot be considered as semblance of any right or title over the said property and it cannot be considered as a right against the parties to the appeal as per the dictum of our Apex court. In these circumstances, it could be seen that the 1st respondent had collusively created the document for a lesser price when a larger price has been contracted in between the 1st respondent and the 2nd respondent by virtue of the suit agreement. It is clear that there was no bonafide on the part of the applicant in getting the sale deed from the 1st respondent. Therefore the judgments of the Apex court as cited supra by the learned counsel for the applicant are not applicable to the present case. Moreover the judgment of the Patna High court as well as the Calcutta High court as cited by the learned counsel for the 1st respondent are also not suitable to the facts and circumstances of the present case. Since the transaction had by the 1st respondent with the applicant during the pendency of the suit was hit by the doctrine of 'lispendens' as well as in violation of the injunction order passed by the lower court regarding the alienation of the properties during the pendency of the suit, I could find that the applicant is not a necessary party to be impleaded in the appeal.
14. The option of passing an order of impleadment is purely discretionary and the applicant knowing fullwell about the pendency of the proceedings, had obtained sale deed and he had not chosen to implead himself before the lower court as one of the parties to the suit. If for any reason the applicant is ordered to be impleaded in this appeal, it would prolong the proceedings and it would encourage disobedience of lawfully passed injunction order of courts. Therefore, this court is not inclined to order the impleadment of applicant as a necessary party in the appeal. Accordingly the petition is dismissed with costs.
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