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2009 Supreme(Mad) 3460
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
T.G. Ashok Kumar
Versus
Govindammal & Another
S.A.No.1141 of 2008, & M.P.No.1 of 2008
Decided On : 01-09-2009
For the Appellant:V. Raghavachari, Advocate.
For the Respondents:R1, M.R. Khapali, Advocate.
The main legal point established in the judgment is the application of Section 52 of the Transfer of Property Act and the doctrine of lis pendens in determining the rights of a purchaser pendente lite.
Headnote:
Lis Pendens - Property Rights - Section 52 of Transfer of Property Act - The court analyzed the application of Section 52 of the Transfer of Property Act, which states 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 is a party to the litigation. The court found that the plaintiff, being a purchaser pendente lite, was bound by the decree passed in the partition suit and could not ignore the previous proceedings on the ground of fraud. The court upheld the judgments of the lower courts, dismissing the plaintiff's claim and ruling that the doctrine of lis pendens was applicable.
Fact of the Case:
The plaintiff filed a suit for declaration of his right over a land and permanent injunction based on his title deed. The first defendant refuted the allegations, claiming that the suit property originally belonged to her father and that the plaintiff, being the alleged purchaser of the suit property pendente lite, cannot claim any independent right over the property.
Finding of the Court:
The court found that the plaintiff, being a purchaser pendente lite, was bound by the decree passed in the partition suit and could not ignore the previous proceedings on the ground of fraud. The court upheld the judgments of the lower courts, dismissing the plaintiff's claim and ruling that the doctrine of lis pendens was applicable.
Issues: The main issues revolved around the application of Section 52 of the Transfer of Property Act, the plaintiff's status as a purchaser pendente lite, and the binding effect of the previous partition proceedings on the plaintiff's claim.
Ratio Decidendi: The court held that the plaintiff, being a purchaser pendente lite, was bound by the decree passed in the partition suit and could not ignore the previous proceedings on the ground of fraud. The court upheld the judgments of the lower courts, dismissing the plaintiff's claim and ruling that the doctrine of lis pendens was applicable.
Final Decision: The Second Appeal was dismissed, and there was no order as to costs.
This 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.A10 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 int
