Point of law : Suit for partition - In the absence of any details given by the respondents/defendants, and subsequent purchasers may be proper parties and their presence is required only at the time of final decree proceedings and those persons can also be impleaded at the stage of the final decree to work out their remedies

JUDGMENT :

(Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, against the Fair and Decreetal order made in I.A.No.293 of 2016 in I.A.No.128 of 2010 in O.S.No.65 of 2010, dated 10.10.2017, on the file of the Subordinate Judge Court, At Mannargudi.)

1. This Civil Revision Petition arises out of the order passed by the Sub Court, Mannargudi in I.A.No.293 of 2016 in I.A.No.128 of 2010 in O.S.No.65 of 2010.

2. The brief facts necessary for disposal of this Revision are that the petitioner instituted the suit in O.S.No.98 of 2000, seeking partition and separate possession of her 9/32 share in the suit properties. Though on behalf of minor defendants 3 and 4 written statement was filed, the other defendants remained exparte. During trial, no witness was examined on the side of the defendants. A preliminary decree came to be passed on 14.12.2001. Thereafter, I.A.No.128 of 2010 was filed for passing Final Decree.

3. Pending Final Decree proceedings, the first respondent-Rajakumari filed the present Application in I.A.No.293 of 2016 under Order 1 Rule 10 of C.P.C to implead her as 10th defendant in the suit. It is her case that the first defendant-Chellamal became the absolute owner of the first item of the suit schedule property vide registered sale deed dated 28.11.1972, which was purchased out of her sreedhana amount from one Thiruvenkata Mudaliar. Subsequently, she conveyed the first item of the suit property measuring an extent of 7 acres 36 cents to one Duraisamy under a registered sale deed dated 25.06.2001. The first respondent purchased the property under registered sale deed dated 01.12.2011. Since then she has been in possession of the property.

4. It is the specific case of the petitioner that the suit schedule first item was the self acquired property of the first defendant-Chellammal. Since it was already sold, the property was not liable for partition. It is further stated that she had no knowledge about the suit proceedings and only in the 1st week of February 2016, she came to know the preliminary decree passed in the suit, and filed this petition to implead her as a party to the proceedings.

5. The application was resisted by the petitioner contending that the preliminary decree for partition was already passed in the suit as early as 14.12.2001. Since there was no appeal, the preliminary decree has become final and legally binding upon the parties. In the final decree proceedings, the correctness and validity of the preliminary decree cannot be gone into. The petitioner being the pendente lite purchaser is bound by the Decree and she need not be impleaded as a party to the proceedings. The learned Sub Judge, overruling the objections of the petitioner, allowed the application. Hence, the present Revision.

6. Mr.S.Thiruvenkataswamy, learned counsel appearing for the petitioner would argue that the first respondent herein is the lis pendens purchaser and when the first defendant remained exparte without whispering anything about the transaction, the present application filed by her purchaser ought to have been rejected by the trial Court holding that she was not a bona fide purchaser. It is next contended that the trial Court allowed the application relying upon the decision reported in Shakeela Begam Vs. Mohammed Yakkub (deceased) & others [2013 (5) LW 58], which is not applicable to the case on hand.

7. Per contra, Mr.S.Thirumavalavan, learned counsel appearing for the first respondent would argue that the first respondent is a bona fide purchaser of item No.1 of the suit property and she has been in possession and enjoyment of the same since 2011, but she was aware of the suit proceedings only in 2016 and immediately, she filed this application to implead her in the suit. According to the learned counsel, the subsequent purchaser of the suit property is a necessary and proper party to the suit proceedings. In this regard, he relies on the order passed by the Hon’ble Apex Court in 2007 (10) SC