ORDER
V.V.S. Rao, J.
1. This application is filed by third party to appeal suit under Order I Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking to implead himself as Respondent No. 23 in AS.No. 78 of 1994. Before noticing the raiso d’Etre for the application, the background of appeal suit may be noticed as under.
2. Respondents 9 to 13 (hereafter called, the plaintiffs) and one another filed O.S. No. 456 of 1984 on the file of the Court of Principal Subordinate Judge, Ranga Reddy District, which was later transferred to the Court of District Judge, Ranga Reddy District, and renumbered as O.S.No. 9 of 1993, against Respondents 1 to 5 and their mother (hereafter called, the defendants) for partition and separate possession of the suit schedule properties which include agricultural lands and residential houses. The plaintiffs alleged that their paternal grand-mother Chandramma executed a Will dated 28.9.1978 (marked in the suit as Ex.A.1) bequeathing her half share in the suit schedule properties to the plaintiffs and that the release deed (marked as Ex.A.7) executed by Chandramma on 6.3.1969 in favour of mother of Defendants 2 to 6 is not out of free Will of Chandramma that it was obtained under undue influence and coercion and that the same does not divest Chandramma of her half share in the suit schedule properties. After conducting trial, the Trial Court decreed the suit of the plaintiffs directing partition of half share of the plaintiffs and further ordering a separate enquiry regarding mesne profits. Aggrieved by the judgment and preliminary decree dated 8.9.1993 the defendants filed A.S.No. 78 of 1994. During the pendency of the suit, first defendant Pentamma who is mother of Defendant Nos. 2 to 6 died and her two daughters were brought on record as Defendants 16 and 17 as legal representatives of Pentamma.
3. Be that at it is, the Trial Court on an appropriate application filed by the decree holders being I.A. No. 2241 of 1993 passed orders on 6.10.1998 determining the mesne profits payable by the judgment debtors to the decree holders. Aggrieved by the same both parties have filed civil revision petitions being CRP No. 5538 of 1998 (by plaintiffs) and C.R.P.No. 27 of 1999 (by defendants). These applications are also being heard along with A.S.No. 78 of 1994. At that stage, one Ramesh Chawla has filed present C.M.P. No. 14246 of 2004 seeking impleadment in the proceedings.
4. In support of the prayer for impleading, petitioner’s General Power of Attorney, Sri Subhash Chawla, filed an affidavit ensuing allegations. The petitioner purchased house bearing Nos. 14-23/5, 14-23/4 and 14-23/3 admeasuring 500 sq.yards from Respondent Nos. 23 and 24 herein (who are Respondent Nos. 16 and 17 in the appeal suit) and one K.Srinivas @ Srinivasa Rao, for sale consideration of Rs. 24,47,116/- (Rupees Twenty four lakhs forty seven thousand one hundred and sixteen only), that he is a bona fide purchaser of the said house including the site without the knowledge of the pendency of the appeal. It is also stated that before purchasing the property the petitioner obtained encumbrance certificate and their enquiry revealed that properties belong to Pentamma who got properties under Will from her father-in-law, and also by reason of release deed executed by her mother-in-law Chandramma. It is also further alleged that in the family settlement among sons of Pentamma the property purchased by petitioner was allotted to Respondent No. 23 and that there was family settlement between mother and two daughters whereunder 500 sq.yards purchased by the petitioner was gifted to the daughters that they obtained permission from Alwal Gram Panchayat and constructed mulgies in 1980. It is further alleged that when the petitioner was taking steps for construction Sri C. Balagopal, Advocate issued a registered notice informing about the pendency of A.S. No. 78 of 1994 and also communicating the orders of status quo passed by this Court in C.M.P.No. 21880 of 2002. Therefore, as a bona fide purchaser from co-owners, petitioner is proper and necessary party to the appeal. The petitioner has also annexed a Xerox copy of the sale deed under which petitioner purchased part of the suit schedule.
5. The present application is opposed both the plaintiffs as well as the defendants, who filed separate counter-affidavits. Respondent No. 9 herein filed a counter-affidavit on behalf of Respondents 9 to 13 asserting that the sale by K. Srinivas, P. Leela and Swaroopa in favour of petitioner herein is not binding on the respondents and that the alleged sale is hit by doctrine of lis pendens. The petitioner is not a bona fide purchaser as the sale took place on 9.8.2004 during the pendency of the appeal. The other allegations that Pentamma exclusively got the property from her father-in-law and mother-in-law, the allegations regarding family arrangement and the allegations of family settlement between Pentamma and her daughters etc., are all denied. It is further stated that during the pendency of the suit, the Trial Court passed order of injunction restraining the defendants from alienating the property or carrying on any construction on the suit property or from changing the nature of the property. The petitioner purchased the property in gross violation of the said orders and therefore the same is not only hit by Section 52 of the Transfer of Property Act, 1882 and is also violation of orders of injunction passed by the Trial Court as well as High Court. The petitioner is not entitled to be impleaded as party respondents to the appeal as he entered into illegal sale.
6. The fourth respondent in CM.P filed a counter-affidavit on behalf of Respondent Nos. 3 and 5 to 8 denying the petition allegations. It is further stated that the petitioner is not a bona fide purchaser and that he was set up by the plaintiffs and their father in collusion with Respondent Nos. 23 to 25. The petitioner, it is urged, is therefore not entitled to be impleaded as respondent in the appeal. It is alleged that petitioner is fully aware of the pendency of the appeal, and therefore he is not a bona fide purchaser.
7. Learned Counsel for the petitioner in this application Sri. A. Suryanarayana Murthy submits that in a suit for partition between co-sharers it is always permissible for the subsequent purchaser to implead in the lis provided such purchaser entered into sale transaction under bona fide belief that no litigation is pending and when such purchaser obtains permission of the Court. He would further contend that the equities in favour of bona fide purchaser can always be adjusted at the time of actual division by allotting the share earmarked for the vendors to the purchasers who are third parties to the suit In support of his submission he placed reliance on Peramanayakam v. Sivaraman, (FB) and a Division Bench of this Court in Pothuri Bogeswara Rao v. P. Venkata Rao, 1995 (2) APLJ 225(HC)(DB).
8. Per contra, Sri C. Bala Gopal, learned Counsel for Respondents 9 to 13/ plaintiffs submits that the sale or alienation in respect of suit property pending the proceedings before the Court cannot be recognized as such sale is hit by doctrine of lis pendens. He further adds that unless subsequent purchaser obtains necessary permission from the Court or unless he proves before the Court that he had no knowledge of pending proceedings, the subsequent purchaser cannot be considered as proper and necessary party to the proceedings. He placed reliance on Surjit Singh v. Harbans Singh, , Sarvinder Singh v. Dalip Singh, , Bakthavatsalam v. Anjapuli, 2001 AIHC 509 Mad. and Bibi Zubaida Khatoon v. Nabi Hassan Saheb, .
9. The only point that falls for consideration is whether the presence of the petitioner before this Court in the appeal is necessary to effectually and completely adjudicate upon and settle questions involved in the appeal suit.
10. There is no dispute nor controversy that all the persons who are claiming under the Will executed by Chandramma or their legal heirs are before this Court. There is also no dispute that all the persons who are claiming absolute right over the suit schedule properties by virtue of release deed executed by Chandramma or their legal heirs are before this Court as respondents. Even without the presence of the applicant herein, there would not be any ineffective or incomplete adjudication of the rights of the plaintiffs vis-a-vis defendants. Why, then the impleadment of applicant is necessary?
11. Sri A. Suryanarayana Murthy, learned Counsel for the applicant contends that if his client is impleaded as respondent to the appeal, he would as a party to the proceedings, be able to demonstrate on the basis of evidence on record that Chandramma relinquished all her rights in the property in favour of Pentamma through whom the vendors of his client got the property. In effect, the petitioner herein wants to support the case of respondents/ defendants in the suit. Indeed, the respondents/ defendants themselves opposed the impleadment of the petitioner in this appeal. Be that as it is, learned Counsel for the petitioner does not deny that his client purchased the property when the matter is pending before this Court in appeal. He only contends that the petitioner is a bona fide purchaser and therefore to work out equities his presence is necessary to these proceedings.
12. There is no dispute that when the suit was pending before the Trial Court, the plaintiffs obtained an order of injunction restraining the defendants from alienating or in any manner changing the nature of the suit schedule property/properties. This Court also on an application, being C.M.P. No. 21880 of 2002, moved by the appellants passed an order of status quo. Though Respondents 16 and 17 in appeal were described as not necessary parties, the same having regard to Section 52 of the Transfer of Property Act, is not much of significance. Further, an order of injunction or order of status quo is an order in rem and it operates not only against the defendants, but against the entire world and also derivative title holders. In such a situation, a person cannot be impleaded as defendant merely because such person would be incidentally effected by the judgment of the Trial Court or the Appellate Court. The purchaser of suit schedule property during the pendency of the suit or appeal, who purchased the property in contravention of Section 52 of the Transfer of Property Act cannot be impleaded as defendant. Further, a person who on his/her own volition purchased the property in contravention of the orders of the Court, cannot come before the Court and on grounds of equity seek impleadment. If such persons have any grievance against their vendors or desire to enforce the indemnity clause in the conveyance deed, they have to file separate suit against those vendors as and when the vendors got any share in the property. In case, the vendors are declared to be persons without any right to have a share in the property, the only remedy of the vendees during the pendency of the suit would be to sue the vendors for damages for conveying defective title. These principles are well settled.
13. In Surjit Singh v. Harbans Singh (supra), in a suit for partition between family members, a preliminary decree was passed. While the proceedings for final decree were pending, the Trial Court passed an order restraining the parties from alienating or transferring the suit properties. But, one of the parties assigned his right under preliminary decree in favour of wife of his Lawyer and others, whereupon assignees made an application seeking permission for their impleadment as parties to the suit. The Trial Court allowed the said application. The appeal as well as the revision by opposite parties were dismissed by the Appellate Court as well as High Court. Before the Supreme Court those who opposed the impleadment succeeded and the Supreme Court while allowing the appeal laid down as under:
In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court in these circumstances has the duty, as also the right, to treat the alienation / assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the Trial Court as parties to the suit, in disobedience of its orders.
14. In Sarvinder Singh v. Dalip Singh, (supra) the Supreme Court declared that any sale of suit property in contravention of Section 52 of the Transfer of Property Act would be hit by doctrine of lis pendens and therefore the alienees pendente lite cannot be impleaded in the suit. It is apt to quote the following passage from the judgment of the Supreme Court:
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.” It would, therefore, be clear that the defendants in the suit were prohibited by operating of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit.
15. In Bibi Zubaida Khatoon v. Nabi Hassan Saheb (supra), the Supreme Court after referring to Sarvinder Singh v. Dalip Singh (supra) upheld the order of the High Court of Patna rejecting revision petition under Section 115 of CPC upholding the order of the Trial Court refusing to implead the subsequent purchasers. The Supreme Court held:
It is not disputed that the present petitioner purchased the property during pendency of the suit and without seeking leave of the Court as required by Section 52 of the Transfer of Property Act. The petitioner being a transferee pendente lite without leave of the Court cannot, as of right, seek impleadment as a party in the suits which are long pending since 1983. It is true that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as party to enable him to protect his interest. But in instance case, the Trial Court has assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1983 and prima fade the action of the alienation does not appear to be bona fide. The Trial Court saw an attempt on the part of the petitioner to complicate and delay the pending suits.
16. Therefore, the applicant herein is neither necessary not proper party and cannot be impleaded in this appeal. The Full Bench decision of Madra High Court and the Division Bench decision of this Court relied on by the learned Counsel for the applicant do not lay down law different from the law as discussed above. The Full Bench of Madras High Court laid down that in case of alienation of undivided share either in whole or in certain specific item by coparcener of joint Hindu family, the right of alienee is to stand in this shoes of vendor and work out his rights in a suit for partition. Applying the same principle, the Division Bench of this Court allowed the appeal of a subsequent alienee who purchased the entire ‘A’ schedule property in a suit for partition among coparceners holding that an alienee enters the shoes of alienor and can maintain action at the stage of final decree or by way of separate suit. In the present case on hand if the applicant is allowed to join as contesting respondents, the same would delay the proceedings and certainly would prejudice the parties to the suit especially petitioner purchased the property without obtaining necessary sanction under Section 52 of the Transfer of Property Act.
17. In the result, for the above reasons, this application is misconceived and is accordingly dismissed without any order as to costs.