- (1.) Challenge in this appeal is to the judgment of a learned Single Judge of the Madras High Court in Second Appeal filed by the respondent No.1.
(2.) Background facts in a nutshell are as follows: On 12.2.1978 an agreement for sale was entered into between one Shahul Hameed and Arunchalam (father of the appellant). On 26.5.1978 Shahul Hameed sold the property to one Saraswathi Ammal who was not a party to the proceedings. On 3.2.1981 aforesaid Arunachalam instituted suit No.OS 528 of 1981 against Shahul Hameed for specific performance. Initially Saraswathi Ammal was not a party. On 13.7.1983 an application (I.A. No. 830 of 1983) was filed to implead Saraswathi Ammal as defendant. On 28.1.1984 Saraswathi Ammal sold the property to Anna Pushpam Ammal and Lalitha Ammal under two sale deeds. I.A. No. 830 of 1983 to implead Saraswathi Ammal was allowed on 16.4.1984. On 17.9.1984 plaint was amended showing Saraswathi Ammal as defendant. An ex-party decree was passed in OS No. 528 of 1981 on 11.7.1985. On 30.12.1985 Anna Pushpam Ammal sold the property to the respondent No.1. On 8.8.1986 Lalitha Ammal sold the property to respondent No.2. On 10.11.1987 Execution Petition was filed to execute the decree in the aforesaid OS No. 528 of 1981. On 11.1.1988, the Executing Court executed sale deed in favour of Arunachalam. On 23.3.1988 I.A. No. 640 of 1988 was filed by Saraswathi Ammal to condone the delay in seeking to set aside ex parte decree in the suit. On 21.7.1989 the said I.A. was dismissed as not pressed. On 29.7.1989 a second application was filed i.e. I.A. 987 of 1989 to set aside the ex parte decree. On 20.6.1990, the same was dismissed on merit. On 12.10.1992 Appeal (CMA 3 of 1991) filed by Saraswathi Ammal was dismissed. On 7.11.1994 Revision Petition i.e. CRP No. 3139 of 1994 was dismissed. On 12.12.1994 the suit O.S. No. 673 of 1994 was filed by the respondents for declaration of title and injunction. The same was decreed on 26.4.1996. An appeal filed by the appellant (AS 23 of 1999) was allowed on 24.9.1999. By the impugned judgment dated 3.1.2000 second appeal filed by the respondents was allowed. The High Court held that to a proceeding of this nature Order I Rule 10 (4&5) applied and held that Saraswathi Ammal had got absolute title when sale to Anna Pushpam Ammal was made to plaintiffs' vendors under Exhibit A2 and A7 who in terms sold the same to the plaintiffs. The subsequent transferees Anna Pushpam Ammal and Lalitha Ammal are not parties to the suit and the title vests with them and the plaintiffs also got absolute title. On the date when the ex-part decree was passed, Saraswathi Ammal did not have any right to the property. It was also held that Exh. A2 & A7 were not hit by the principles of lis pendens and Saraswathi Ammal was also able to convey the title to the vendors of the plaintiffs.
(3.) Learned counsel for the appellant submitted that once the application for bringing Saraswathi Ammal as party was allowed, the same became operative from the date of its filing and therefore, the sale by Saraswathi Ammal to Anna Pushpam Ammal and Lalitha Ammal under Ex. A2 to A7 did not convey any title. It was also submitted that the effect of Section 52 of the Transfer of Property Act 1882, (in short the 'Act') has also to be noted.;