MARAPPA GOUNDER Vs. CHENNIMALAI GOUNDER

JUDGEMENT

(1.) THE defendants 1 to 3 in O.S.No.282 of 1975, who suffered a decree in the court as well as in the first appellate court, are the appellants in the second appeal. Respondents 1 and 2 herein were the plaintiffs in the suit. Respondents 3 and 4 were defendants 4 and 5 in the suit. For the purpose of convenience, I will refer to the parties per their rank in the original suit.

(2.) THE suit was for declaring the plaintiffs title to l/3rd share in the suit property, partition and separate possession of the same, for directing the defendants to pay Rs.7,500 as mesne profits for three years prior to the suit and for future mesne profits.

(3.) BEFORE me in second appeal, the only point argued by Mr. S. Venkateswaran, appellants is that the sale deed Ex.A-4, dated 26.12.1966 having been executed during pendency of O.S.No.250 of 1966 was invalid, being hit by the doctrine of lis pendens. argument is that even though the suit was dismissed on 5.8.1970, on appeal, compromise decree the suit was decreed for specific performance as against the defendants 4 and 5 herein (Malla Naicker and Kuppa Naicker). The decree in A.S.No.706 of 1970 made on 12.2.1975. The contention therefore is that Sec.52 of the Transfer of Property cannot be avoided and the sale deed dated 26.12.1966 cannot be upheld. Sec.52 Transfer of Property Act reads as follows: 'During the pendency in any court having authority within the limits of India excluding State of Jammu and Kashmir or established beyond such limits by the Central Government any suit proceeding which is not collusive and in which any right to immovable property directly and specifically in question, the property cannot be transferred or otherwise with by any party to the suit or proceeding so as to affect the rights of any other thereto under any decree or order which may be made therein, except under the authority the court and on such terms as it may impose. 'The learned counsel for the appellants relies on the words that the property cannot transferred by any party to the suit so as to affect the rights of any other party thereto any decree or order which may be made therein. The contention therefore is that defendants 1 and 2 in O.S.No.250 of 1966 cannot transfer the property to the plaintiffs herein so affect the rights of the plaintiffs (Marappa Gounder) in that suit, who is the first defendant this suit and who ultimately obtained a decree in A.S.No.706 of 1970.