At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
A. Sankarasubramanian for Appellants. K. Srinivasan for Respondents.
1. Plaintiffs in O.S. No, 673 of 1994, on the file of Principal District Munsifs Court, Tuticorin are the appellants.
2. Suit filed by them was to declare their title over the schedule mentioned property and for a permanent prohibitory injunction restraining the defendant, his men, servants, agents, etc. from in any manner interfering with their peaceful possession and enjoyment of the schedule mentioned property, and for other incidental reliefs.
3. Material averments in the plaint could be summarised thus:—
Plaint property admittedly belonged to one Shahul Hameed, and he entered into an agreement for sale which the defendant in the suit on 12.2.1978. Defendant filed a suit for a decree for specific performance against Shahul Hameed on 20.7.1981. In that suit, Shahul Hameed alone was made a party initially. Long before the institution of the suit, Shahul Hameed had conveyed the property to one Saraswathi Ammal as per sale deed dated 26.6.1979. The same is marked as Ex. A-3. Saraswathi Ammal, in turn, sold the property to Anna Pushpam and Lalitha Ammal as per sale deed dated 28.1.1984. They are marked as Exs. A-2 and A-7 respectively. An na Pushpam and Lalitha Ammal sold the northern and southern property to plaintiffs on 30.12.1985 and 8.8.1986 respectively under Exs. A-6 and A-1. Plaintiffs claim absolute title and possession over the property. According to them, they are paying tax to Government, and are in absolute possession of the property ever since the date of the sale deeds. The reason for filing the suit was, the defendant was attempting to interfere with their possession and they gave a publication in the daily Thinathanthi” on 21.10.1994 to the effect that the defendant has no right over the schedule property and nobody should purchase the property from him. On 28.10.1994, plaintiffs received Caveat Petitions filed by defendant, and after receipt of the same, on enquiry, it was found that the defendant had filed O.S. No. 528 of 1981 against the original owner Shahul Hameed, for specific performance, on the basis of an agreement of sale dated 12.2.1978, whereby Shahul Hameed had agreed to convey the title for a total consideration of Rs. 5,000/-. It is the case of plaintiffs that on the date of the suit, Shahul Hameed was not having any right since he had already conveyed the property to Saraswathi Ammal on 26.5.1979. It could be seen that in O.S. No. 528 of 1981, defendant therein filed a petition on 28.1.1984 to implead Saraswathi Ammal also, and Saraswathi Ammal was impleaded on 16.4.1984. But, before she was impleaded, Saraswathi Ammal also sold the property to the vendors of Plaintiffs. There is a further allegation in the plaint that Saraswathi Ammal was not served with any summons, and only through substituted service, the suit was proceeded with, and she was also declared ex parte . An ex parte decree was also passed on 11.7.1985. It could be further seen that Saraswathi Ammal also filed an application to set aside the ex parte decree along with an application to condone the delay. That application was dismissed by the trial Court, and the matter was also taken to this Court in C.R.P. which also did not met with any success. According to the plaintiffs, they are not aware of the prior proceedings, and they have purchased the property bona fide and
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hey came to know about the suit only on the basis of the enquiry made subsequent to the caveat. According to plaintiffs, the decree in O.S. No. 528 of 1981 is not liable to be executed against them, nor their possession be interfered with since Shahul Hameed did not have any right when the suit was instituted, and Saraswathi Ammal also did not have any right over the property when she was impleaded. Plaintiffs' vendors and plaintiffs were not parties to the suit, and they are not entitled to get a declaration of their right over the property. 4. In the written statement filed by defendant, he has stated that he obtained a decree in O.S. No. 528 of 1981 on 11.3.1985 and he has also filed execution petition to have the sale deed executed through Court and the same was also obtained through Court on 10.11.1987. He is the absolute owner of the property. According to him, since the transactions in favour of Saraswathi Ammal and the subsequent purchases from Saraswathi Ammal are pending litigation, the same are hit by the principle of lis pendens, and plaintiffs are not entitled to any relief. He prayed for dismissal of the suit. He also said that the plaintiffs are not bona fide purchasers for value. 5. On the above pleadings, the trial Court took oral and documentary evidence. Exs. A-1 to A-19 were marked on the side of plaintiffs”, and Exs. B-1 to B-8 were marked on the side of defendent PWs. 1 and 2 were examined on the side of plaintiffs. Defendent got himself examined as D.W.I. 6. The trial Court, after evaluating the entire evidence, held that the plaintiff is entitled to a decree. It came to the conclusion that the transactions in favour of Saraswathi Ammal and in favour of plaintiffs' vendor are not hit by the principle of lis pendens, and the right of Shahul Hameed is now vested in the plaintiffs. It also held that the decree for specific performance is not binding on the plaintiffs, and the principle of lis pendens also will not apply. The trial Court further held that even though Saraswathi Ammal was additionally impleaded as a party to the suit, on that day she did not have any right, she having parted with the property before she was actually ordered to be impleaded and made a party to the suit. The suit was decreed. The matter was taken in appeal by the defendant as A.S. No. 23 of 1999, on the file of Additional District Judge, Tuticorin. The lower Appellate Court set aside the judgment of the trial Court and allowed the appeal. The suit was dismissed. The Lower Appellate Court held that the principle of lis pendens will apply and the plaintiffs are not entitled to any relief. It is against that judgment, plaintiffs have preferred this Second Appeal on the following substantial questions of law:— “1. Whether the principle of lis pendens will apply where a person is not a party to the suit? 2. Whether a person can be considered to be a party to the suit for the purpose of Sec. 52 of the Transfer of Property Act when an application to implead him only was filed? 3. Whether the defendant has acquired title to the suit property without his document being registered for want of sufficient stamps? 4. Whether the sale deed executed by a Court in pursuance of the decree for specific performance will confer any right without the sale deed being registered? and 5. Whether the plaintiffs are entitled to injunction in view of the sale deeds in their favour and in view of pattas and kist receipts against the defendants whose sale is not fully complete?” 7. Since caveat was entered by respondent/defendant, I heard the Second Appeal itself when it came up for admission, with consent of learned counsel on both sides. Both of them placed before me the documents which they wanted to rely on, and also the pleadings. 8. Out of the substantial questions of law extracted above, the main questions to be considered are, question Nos. 1, 2 and 5. 9. Heard learned counsel on both sides. 10. Admittedly, the property belonged to Shahul Hameed. It is also admitted that he entered into an agreement of sale with defendant on 20.12.1978. Shahul Hameed did not execute a sale deed in favour of defendant, and, on 26.5.1979, Saraswathi Ammal purchased the entire property from Shahul Hameed as evidenced by Exs. A-2 and A-7. An application for impleading Saraswathi Ammal was filed in I.A. 830 of 1983 on 13.7.1983, and the same was allowed by trial Court on 16.4.1984. But before she was actually ordered to be impleaded, Saraswathi Ammal sold the property to Anna Pushpam and Lalitha Ammal in respect of the northern and southern halves on 28.1.1984. On the date when she executed the sale deeds, the application for impleading was pending. Anna Pushpam and Lalitha Ammal, in turn, sold the property to plaintiffs on 30.12.1985 and 18.8.1996 respectively, as per Exs. A-6 and A-1. According to defendant, the transaction entered into by Saraswathi Ammal in favour of Anna Pushpam and Lalitha Ammal on 28.1.1984, evidenced by Exhibits A-2 and A-7 are hit by the principle of lis pendens. 11. It is further contended by defendant that plaintiffs who claim under Anna Pushpam and Lalitha Ammal are not, therefore, entitled to any right over the property. According to the defendant, the specific performance decree dated 11.7.1985 obtained by him gives him the right to take possession of the property. It is contended by defendant that he has taken the sale deed through Court and, therefore, he has got a better title than the plaintiffs. According to the defendant, the plaintiffs have no cause of action at all for instituting the suit and, therefore, they are not entitled to any relief. 12. For considering the scope of Section 52 of the Transfer of Property Act, it is better to extract that section, which reads thus:— “During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir Or established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceediing so as to affect the rights of any other party thereto under any decree or order which may be made there in except under the authority of the Court and on such terms as it may impose. Explanation:— For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.” 13. Before proceeding further, we have to look into Order 1, Rule 10, C.P.C. also which deals with addition of parties pending suit. Order 1, Rules 10(4) and (5) is relevant for our propose. It reads thus:— “Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant, shall be deemed to have begun only on the service of the summons.” As per the said provision, if the defendant is additionally impleaded, proceedings as against him shall be deemed to have begun only on the service of summons. But the same is subject to the provisions of Section 22 of the Limitation Act, 1877 (now replaced by Sec. 21 of the Indian Limitation Act, 1963). Section 21 of the Act deals with the effect of substituting or adding new plaintiff or defendant. Subsection (1) of Section 21 reads thus:— “Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party: Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.” 14. The scope of Section 21 of the Limitation Act, as amended, came up for consideration in the decision reported in (1993) 4 SCC 41 (Karuppaswamy and others v. C. Rama Murthy). In that case, Their Lordships considered the earlier law and also the amended provision, in paragraphs 3 and 4 of the judgment, and have held thus:— “Learned Counsel for the parties cited before us case-law bred in various High Courts of the Country on the subject of procedural law under the Civil Procedure Code as to whether a suit filed against a dead person is non est and whether that dead person impleaded could be substituted by his heirs and legal representatives or be added as parties to the suit. Having heard them and having pondered over the matter, we are of the opinion that those questions do not seriously arise, when we see the sweep of the relevant provision under the Act, governing the subject, unamended and amended. That provision under the Indian Limitation Act, 1908, was Sec. 22. which read as follows:— Effect of substitution or adding new plaintiff or defendant:— Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. (2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.' Now under the Limitation Act, 1963, it is Sec. 21 which reads as follows:— 21. Effect of substituting or adding new plaintiff or defendant:— (1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party: Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. (2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of the suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.' A comparative reading of the proviso to sub-section (1) shows that its addition has made all the difference. It is also clear that the proviso has appeared to permit correction of errors which have been committed due to a mistake made in good faith but only when the Court permits correction of such mistake. In that event, its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The proviso to sub-section (1) of Section 21 of the Act is obviously in line with the spirit and thought of some other provisions in part III of the Act such as Section 14 providing exclusion of time of proceeding bona fide in Court without jurisdiction, when computing the period of limitation for any suit, and Section 17 (1) providing a different period of limitation starting when discovering a fraud or mistake instead of the commission of fraud or mistake. While invoking the beneficient proviso to Sub-section (1) of Section 21 of the Act an averment that a misake was made in good faith by impleading a dead defendant in the suit should be made and the Court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith. The Court's satisfaction alone breaches life in the suit.”(emphasis supplied). 15. On a combined reading of Order 1, Rule 10(4) r/w. Section 21 of the Limitation Act, it is clear that as against the defendant, who has been additionally impleaded, he can be deemed to be a party only when he is actually impleaded as per orders of Court or if the Court is satisfied that the newly added defendant is not added due to a bona fide mistake, he must be deemed to have been made a party from an anterior date for which an order of Court is necessary. It is admitted by both sides that there was no order by Court directing impleadment of Saraswathi Ammal as a party prior to the date of the order, i.e., on 16.4.1984. Therefore, so far as Saraswathi Ammal is concerned, the suit was instituted only on 16.4.1984. Exs. A-2 and A-7 transactions were on 28.1.1984, at a time when Saraswathi Ammal was not a party to the suit. The lower Appellate Court has held that when such an application was pending on 13.7.1983, any transaction by Saraswathi Ammal will also be hit by the principle of lis pendens. The question is, how far that finding is correct. 16. In 21 L.W. 125 = AIR 1925 Madras 487 (Ammayya v. Narayana), a similar question came up for consideration. A learned Judge of this Court considered the scope of Sec. 22 of the old Limitation Act. The learned Judge posed a question, namely, whether the period of limitation ceases to run on the date when the application to bring a new party on record is made, or on the date when the party is so brought on record. After extracting Section 22 of the old Act, the learned Judge held thus:— “The language of the Section being clear that the suit shall be deemed to have been instituted when a person is made a party, can it be said that the limitation period ceases to run the moment an application is made? The mere fact that an application is made would not stop the running of the period of limitation. It is only when a new party is added to a pending suit, limitation will cease to run . It is urged by Mr. Seshachari, that, if he files a plaint within time, the mere fact that the defendant has not been served would not in anyway bar his right to sue. No doubt in the case of a plaint the period of limitation ceases to run on the date on which the plaint is filed. It is immaterial when the defendant is served. The defendant may evade service for a long time, or the Court or the office might cause delay in serving the summons on the defendant. The Limitation Act is quite clear on this point. In the case of a person already on record, the day on which the suit is filed, limitation ceases to run; but in the case of a person newly added as a party to a pending suit, Section 22(1) clearly says that the suit shall as regards him be deemed to have been instituted, only when he is so added. So, the mere application to add a party would not satisfy the requirements of S. 22(1). It is necessary, in order to prevent limitation from running against a new party, that he should be actually added as a party. Till he becomes a party to the suit, by an order of Court, it cannot be said that he is a party to the suit. I n the case of an ordinary plaint, if the plaint contains the names of the defendants, the moment the plaint is filed in Court the period of limitation ceases to run, because the plaintiff has done whatever is required of him to do. He has filed the plaint in Court and the Court has to do the needful according to law. It cannot be said that a suit is instituted, if the plaintiff, who wants to file it in Court, puts it into his drawer or keeps it in vakil's chambers. In the same manner, when a person is sought to be added as party, the person becomes a party only when he is actually brought on record as a party .” (Emphasis supplied) In the earlier portion of that judgment, the learned Judge has held that if an assignment is made by a person before he is brought on record, the provision of Order 22, Rule 10, C.P.C. will not apply. 17. In 58 L.W. 333 = A.I.R. 1945 Mad. 454 (Shanmugasundaram Pillai v. Parvathi Ammal and another), a learned Judge of this Court has held that ‘for the doctrine of lis pendens to apply, the right to specific moveable property must be directly in issue and the transfer must be by any party to the suit so as to affect the rights of any other party thereto’. 18. From the above decisions, it is clear that either by Order 1, Rule 10, C.P.C. or under Sec. 21 of the Limitation Act, 1963, Saraswathi Ammal can at the most be deemed to be a party only from 16.4.1984, and as against her, the suit must be deemed to have been instituted only on that date. She has sold her property on 28.1.1984 in favour of Anna Pushpam and Lalitha Ammal as Seen from Exs. A-2 and A-7. The question to be considered is, whether Sec. 52 of the Transfer of Property Act will apply to such cases. In AIR 1932 Patna 270 (Mt. Sheoratan Koer v. Kamta Prasad), similar question arose for consideration. In that case, a suit was filed by a prior mortgagee without making a subsequent mortgagee to a party. The subsequent mortgagee assigned all his rights in favour of plaintiff. But thereafter, the subsequent mortgagee was made a party in the earlier suit. The question was, whether the assignment in favour of plaintiff is hit by the principle of lis pendens. I have already extracted Section 52 of the Transfer of Property Act. It says of any transaction by a person who is not a party to the suit, is entered, the same will not affect the rights of any of the parties to the suit. An argument was taken before the Patna High Court that Section 52 of the Transfer of Property Act will have to be interpreted widely and liberally, in the sense that if a suit is pending in respect of the immovable property, any transaction will be hit by Section 52 of the Act. This argument was accepted by the Division Bench of the Patna High Court. Their Lordships held thus:— “Now so far as regards the rights of Sukhdeo himself are concerned, it is clear I think that they disappeared by reason of the Judgment and decree in the suit brought by the prior mortgagee, and it is contended that the same results would follow with regard to the rights of Sukhdeo's assignee, namely, the plaintiff. Mr. Husnain seeks to read the words of S. 52 of T.P. Act, “by any party” as being merely descriptive and having no reference to the time at which the transaction took place by the person who could be described as a party to the suit. It is contended that the doctrine of lis pendens as set out in S. 52 is wider than that of the English doctrine itself to this extent that under the present law of England the doctrine has no effect unless there is registration of the judgment under the Act of 1839. But the English law is stated by the Lord Chancellor in the case of Bellamy v. Sabine. He says in the course of his judgment: ‘It is scarcly correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation rights to the property in dispute, so as to prejudice the opposite party’. In my judgment, it is impossible to read the words in S. 52, T.P. Act, “by any party” in the way in which Mr. Husnain seeks to read them and it can have reference only to the date upon which the transaction which it is sought to assail actually took place. In October of 1921 it is obvious from the facts which I have stated that Sukhdeo was not a party to the suit. He was at liberty, therefore, to assign the property to the plaintiff which he did, and in my judgment the transaction is in no way affected by Section 52, T.P. Act . “ (Emphasis supplied) 19. A similar view was also taken by the Bombay High Court in the decision reported in AIR 1925 Bombay 176 (Bala Ramachandra Gandvavle v. Daulu Rama Kirratsingh). 20. In Mulla's ‘The Transfer of Property’ - Eighth Edition (1995), commenting on Section 52, the learned author has said as follows (at page 293): “ Any party: - These words are not merely descriptive, but refer to the time when the transaction takes place . Apuisne mortgagee who is not joined as a party in a prior mortgagee's suit is not a party and an assignment by him during the suit is not affected by lis pendens although the assignee is subsequently joined in the suit (emphasis added) 21. In AIR 1962 Mysore 189 (B.R. Rangaswamy v. Upparige Gowda), K.S. Hedge, J., as he then was, in paragraph 4 of the judgment, considered the scope of Section 52 of the Transfer of Property Act and held thus:— “It is contended by SriM.L. Venkatanarasimhiah, the learned counsel for the appellants that as soon as a pleading is amended, it relates back to the date of filing of the pleading. The said rule cannot be accepted as an absolute proposition of law. The rule embodied in S. 52 is a rule of expediency. That rule has been enacted with a view to protect the parties who are litigating in a Court in respect of certain immovable properties. Legal title acquired by third parties cannot be put to the risk of bein g defeated by parties to a pending suit, by amending their pleading and including the property purchased by such third parties. It is a settled principle of law that in order to attract the doctrine of lis pendens, the property in suit must be described with sufficient precision. If there is such misdescription of the property in suit must be described with sufficient precision. If there is such misdescription of the property as its identity cannot be established, the doctrine of lis pendens cannot apply. The Courts have consistently taken the view that if by a subsequent amendment certain property is included in a plaint and before that amendment had been made, the newly included property had already been purchased by a bona fide purchaser for value without notice of defect of title, the doctrine of lis pendens will have no application to such a case. 22. Learned counsel for appellant also brought to my notice an earlier decision of the a Division Bench of the Allahabad High Court reported in ILR 41 Allahabad 534 (Wall Bandi Bibi v. Tabeya Bibi) which is also a case regarding amendment to the plaint. Their Lordships said that if any new property is added by amendment, and if a property has already been sold or conveyed to any third person, the principle of lis pendens will not apply to that transaction. 23. Once I have held that the sale executed by Saraswathi Ammal is not hit by lis pendens , the further question to be considered is, whether the plaintiff has obtained valid title in view of the decree for specific performance in O.S. No. 528 of 1981 obtained by defendant. 24. The owner of the property Shahul Hameed sold the property to Saraswathi Ammal on 26.5.1979. On that date, the defendant had only an agreement of sale with him. The absolute right to enjoy the property remained with Shahul Hameed and he had a right to convey the same. When Shahul Hameed purchased the property, she also gets the absolute title. It is settled law that a subsequent purchaser will get absolute title to the property even though there is an agreement for sale in favour of another person. In 67 L.W. 945 = AIR 1954 S.C. 75 (Durga Pmsad v. Deep Chand), this question came up for consideration, and in paragraphs 40 to 42, it was held thus:— “ First, we reach the position that the title to the property has validly passed from the vendor and resides in the subsequent transferee. The sale to him is not void but only voidable at the option of the earlier “contractor”. As the title no longer rests in the vendor, it would be illogical from a conveyancing point of view to compel him to convey to the plaintiff unless steps are taken to re-vest the title in him either by cancellation of the subsequent sale or by reconveyance from the subsequent purch aser to him. We do not know of any case in which a reconveyance to the vendor was ordered, but Sulaiman, C J. adopted the other course in Kali Charan v. Janak Deo , AIR 1932 All. 694. He directed cancellation of the subsequent sale and conveyance to the plaintiff by the vendor in accordence with the contract of the sale of which the plaintiff sought specific performance. But t hough this sounds logical and objection to it is that it might bring in its train complications between the vendor and the subsequent purchaser . There may be covenants in the deed between them which it would be inequitable to disturb by cancellation of their deed. Accordingly, we do not think that is a desirable solution. We are not enamourned of the next alternative either, namely, conveyance by the subsequent purchaser alone to the plaintiff. It is true that would have the effect of vesting the title to the property in the plaintiff but it might be inequitable to compel the subsequent transferee to enter into terms and covenants in the vendor's agreement with the plaintiff to which he would never have agreed had he been a free agent; and if the original contract is varied by altering or omitting such terms the Court will be remaking the contract, a think it has no power to do; and in any case it will no longer be specifically enforcing the original contract but another and different one. “ In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff . This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin. A.I.R. 1931 Cal. 67 and appears to be the English practice “ (Emphasis supplied). The above said decision was followed by the Honourable Supreme Court in the decision reported in 95 L.W. 106 S.N. = AIR 1982 S.C. 818 ( Babulal v. M/s. Bazari Lai Kishori Lal ). 25. It is clear from the above decisions that Saraswalhi Ammal has got absolute title. But, before she was made a party, she also alienated the property to the plaintiffs' vendors under Exs. A-2 and A-7, who in turn sold the same to the plaintiffs. The subsequent transferees Anna Pushpam and Lalitha Ammal are not parties to the suit, and the title vests with them, and plaintiff is also getting absolute title. On the date when the ex parte decree was passed, Saraswathi Ammal did not have any right to the property. 26. Once it is held that Exs. A-2 and A-7 are not hit by the principles of lis pendens, and Saraswathi Ammal was also able to convey title to the predecessors, plaintiffs are entitled to succeed. 27. Learned Counsel for respondent submitted that on the basis of Explanation to Section 52 of the Transfer of Property Act, the validity of the transaction will have to be considered from the date of presentation of the plaint, and if so considered, the transactions under Exs. A-2 and A-7 are invalid. The suit was also instituted in 1981. It is well-known that Explanation cannot go beyond the provision of a Section. The presentation of the plaint referred to in the Explanation is regarding institution of a suit against the defendant who is a party. As against a person who has been additionally impleaded, there is no presentation of plaint as against him. In view of the provisions of Order 1, Rule 10(4) & (5) C.P.C., a suit can be deemed to have been instituted only on the date when the summons is served on him, but subject to the provisions of Section 21 of the Limitation Act. The presentation of the plaint stated in the Explanation denotes a proper presentation of the plaint with all necessary parties, who ought to have been added as defendants. If any necessary party is additionally impleaded, the suit as against him is must be deemed to have been presented and the litigation also commence only from the date when summons has been served and subject to the provisions of Sec. 21 of the Limitation Act. Learned counsel for respondent also relied on a Full Bench decision of the Kerala High Court reported in AIR 1959 Kerala 67 (Lakshmanan v. Kamal). On a reading of the said decision, I do not find that a question as the one posed in this case was raised at all in that case before the Kerala High Court. Their Lordships only considered as to what is the effect of a transaction hit by the principle of lis pendens. I answer question Nos. 1, 2, and 5 in favour of the appellants. Since I hold that plaintiffs have got good title, the question of considering substantial question Nos. 3 and 4 does not arise at all. 28. In the result, I set aside the judgment and decree of the lower Appellate Court and restore the judgment of the trial Court in O.S. No. 673 of 1994. There will be a decree as prayed for. The Second Appeal is allowed as indicated above, however, without any order as to costs. C.M.P. for injunction is closed.
"2000 (3) LW 487"