KALANJIAMMAL Vs. PONMUDI MINOR

JUDGEMENT

(1.) THIS appeal is directed against the order passed in I.A.NO.511 of 1986 in A.S.NO.22 of 1986 on the file of the District Judge of South Arcot, Cuddalore.

(2.) THE respondents 1 and 2 herein as plaintiffs filed a suit in O.S.NO.220 of 1982 on the file of the Subordinate Judge Cuddalore, for partition and separate possession of the suit properties against one Pavadai Padayachi and the 4th respondent herein. THE first respondent is the son of one Duraikannu Padayachi, who is the son of the said Pavadai Padayachi. After the death of the said Duraikannu Padayachi, the plaintiffs filed the present suit for partition, on the ground that all the suit properties are joint family properties. THE deceased Pavadai Padayachi as the first defendant, did not admit the status of the plaintiffs 1 and 2 as the son and wife of late Duraikannu Padayachi. He further claimed that the properties are their self-acquired properties. During the pendency of the said suit, the southern half share in item 32 of the plaint schedule properties was sold to the appellant herein by defendants 1 and 2 on 9-8-1984, for valid consideration. THE suit was decreed for partition and a preliminary decree was passed on 30.7.1985. As against the said decision, defendants 1 and 2 preferred the appeal in A.S.No.22 of 1986. During the pendency of the appeal, first defendant-first appellant died and the second defendant-second appellant was recorded as his legal representative. THEreafter the appellant herein filed a petition in IA.No.511 of 1986 under 0.22, R.2, C.P.C.to implead her as the third appellant in the appeal. It was resisted by the respondents 1 and 2, on the ground that the sale is hit by S.52 of the Transfer of Property Act, and she is not entitled to be added as a party to the appeal. THE learned District Judge accepting the contentions of respondents 1 and 2 herein, dismissed the petition holding that the sale is hit by S.52 of the Transfer of Property Act, and that the appellant herein being only transferee from the deceased, she is not entitled to be added as a party. It is against this decision, the present appeal has been filed.

(3.) IN Desari Gowri Kumari (dead) v. Satyanarayana, 98 L.W.738 a Bench of this Court has considered the scope of O.22 Rr.3,4, and 10, C.P.C. and held that 0.22, R.10, C.P.C. can be invoked by the purchaser on whom the interest of one of the defendants has devolved, to come on record to continue the suit or proceeding and that there is no time limit to make an application under the said provision. The facts involved in the said case are similar to one with which we are concerned in this case. The Bench followed the decisions of the Supreme Court reported in Ghafoor AhmedKhan v.Bashir Ahmadkhan, A.I.R. 1983S.C. 123. andin Sarla Bala .Nirmal Sunder, (1958)2 M.L.J. (S.C.)99: (1959)2 An.W.R. (S.C.)99: 1958 S.C.J. 743: 1958 S.C.R. 287: A.I.R. 1958 S.C. 394. wherein the Supreme Court upheld the contention, that in a case where transfer has taken place during the pendency of the case, the application under 0.22, R.10, C.P.C. must be filed during the pendency of the suit and not at the appellate stage. It was further held that nevertheless the proceedings can be continued at the appellate stage by the transferee though not under 0.22, R.10, C.P.C. but under S.146, C.P.C. which reads as follows: