1. The first respondent in I.A. No. 206 of 1972 in O.S. No. 74 of 1971 on the file of the Subordinate Judge, Tiruvannamalai is the appellant.
2. The appellant originally instituted a suit on 24th June, 1968 for partition against her son, the first respondent herein on the file of the Court of the Subordinate Judge, Vellore. The said suit was transferred to the Court of the Subordinate Judge, Tiruvannamalai on 24th August, 1970. During the pendency of the suit and before it was transferred to the Court of the Subordinate Judge, Tiruvannamalai the first respondent alienated three items of the suit property in favour of one Poorani Ammal. On 28th June, 1971 a preliminary decree was passed in the partition suit. After the passing of the preliminary decree i.e., on 10th February, 1972 the said Poorani Animal sold the three items of property purchased by her from the first respondent to the second respondent. Thereafter the second respondent filed a petition I.A. No. 206 of 1972 praying that she may be impleaded as a party to the proceedings in the partition suit and that she should be given an opportunity to work out her equities. The application was opposed by the appellant as well as the first respondent. But, nevertheless, the learned Subordinate Judge allowed the petition and hence this appeal by the appellant.
3. Mr. V.N. Krishna Rao, learned Counsel for the appellant contends that on account of the second respondent being a transferee from Poorani Ammal who is not a party to the suit and Poorani Ammal herself having purchased the three items of properties from the first respondent during the pendency of the suit, the second respondent is not entitled to ask for being impleaded a party in the suit and that as such the learned Subordinate Judge should not have allowed the petition I.A. No. 206 of 1972. There is considerable force in the contention of Mr. Krishna Rao in this behalf. Firstly, it has to be seen that the sale of the three items of suit properties were effected by the first respondent in favour of Poorani Ammal during the pendency of the suit, and as such the transfer will be affected by Section 52 of the Transfer of Property Act. Apart from this, the sale in favour of the second respondent is subsequent to the passing of the preliminary decree. The second respondent would contend that by reason of Order 1, Rule 10 or Order 22, Rule 10, she is entitled to be made a party to the proceedings. This contention of the second respondent cannot be sustained. By no stretch of imagination, can the second respondent contend that her presence is absolutely necessary for an effective adjudication and settlement of all the questions involved in the suit. It is needless to say that the presence of parties has got to be determined with reference 11 the rights of the parties as they existed on the date of the filing of the suit. Admittedly, neither the second respondent nor her predecessor-in-title had. any interest in any item of the suit properties on the date the appellant filed the suit and as such there is no question of the presence of the second respondent or Poorani Ammal being necessary in the suit for a complete and final adjudication and settlement of their rights and claims. It is therefore clear that the second respondent cannot base her claim under Order 1, Rule 10, Civil Procedure Code, to be made a party to the suit. As regards Order 22, Rule 10 that will be equally inapplicable to the case of the second respondent because what is contemplated under Order 22, Rule 10 is a total assignment, creation or devolution of the entire interest of a party to the suit in favour of the party who wishes to bring himself on record as a party to the pending proceedings. A conspectus of all the rules in Order 22 will show that the order predominantly deals with cases where there is change of status due to the totality of the interest of a party in pending suit passing on to another person or totally abating under certain circumstances. The provisions contained in Rule 10 of the order are not meant to cover cases where only a fraction of the interest and not the totality of the interest of a party to the suit is transferred to another person during the pendency of the proceedings. The Privy Council has succinctly enunciated the scope of Order 22, Rule 10 in Maharaja Sir Mahindra Chandra Nandi v. Ram Lal Bhagat (1922) I.L.R. 1 Pat. 581 as follows:
The order (Order 22, Civil Procedure Code) contemplates cases of devolution of interest from some original party to the suit, whether plaintiff or defendant, upon someone else. The more ordinary cases are death, marriage, insolvency, and then come the general provisions of Rule 10 for all other cases. But, they are all cases of devolution. There is, it should be noted in this rule, a significant change of language from that used in the earlier Code, where it is stated in Section 372, as follows: 'In other cases of assignment, creation or devolution of any interest pending the suit, the suit may, with the leave of the Court, given either with the consent of all parties or after service of notice in writing upon them, and hearing their objections, if any, be continued by or against the person to whom such interest has come either in addition to or in substitution for the person from whom it has passed, as the case may require '. The words ' in addition to ' in the earlier Code have disappeared.
4. Apart from this, there is yet another valid reason for upholding the contention of the appellant that the second respondent is not entitled to be impleaded as party in the partition suit filed by the appellant. As has been already stated above, the second respondent was not directly a transferee from the first respondent but only a transferee from the vendee of the first respondent, and on account of there being no nexus between the second respondent and the first respondent, the second respondent cannot validly contend that she has acquired interest in the property during the pendency of the suit and as such, is entitled to be made a party. In Kutti Amma v. Karunawan 87 I.C. 4.02 : A.I.R. 1925 Mad. 1166 Wallace, J., has held that " The words assignment and creation indicate that it is the person suing that assigns and creates the interest which enables the assignee to continue the suit." In Ghampalal v. Sonabai I.L.R. 46 Nag. 43 it has been held that " A person who comes forward claiming as assignee must derive his right directly from the party to the suit or proceeding and not through an intermediary." It is therefore clear that on both the contentions urged by Mr. Krishna Rao, learned Counsel for the appellant, the order of the learned Subordinate Judge must be held clearly unsustainable.
5. Learned Counsel for the second respondent, however contends that the authorities quoted by the learned Subordinate Judge in his order lend support to the case of the second respondent and that as such the order should not be set aside. It is his further contention that the second respondent is merely seeking recognition from the Court to be made a party in the suit and that the second respondent is not agitating in this petition her equitable rights as a transferee and therefore the circumstances. under which the second respondent purchased the items of property viz., after the passing of the preliminary decree need not be taken into consideration in these proceedings. I am afraid, that the contentions of the learned Counsel for the second respondent cannot prevail. All the authorities relied on by the learned Subordinate Judge in his order are clearly inapplicable to the facts of this case. Jadunath v. Parameswar 67 I.A. 11 : (1940) 1 M.L.J. 97 : A.I.R. 1940 P.C. 11, the first case relied or by the learned Subordinate Judge related to a set of mortgagee decree-holders who raised certain contentions against the final decree proceedings and which contentions were upheld by the Privy Council. Those mortgage decree-holders had been made parties to the suit soon after a preliminary decree was passed in the partition suit, and the principal controversy was whether those decree-holders were bound by the terms of the preliminary decree which was passed prior to their being brought on record. It was in that conspectus the Privy Council held that a partition suit in which a preliminary decree had been passed was still a pending suit and therefore the rights of parties who are added after the preliminary decree, had to be adjusted at the time of the final decree. I fail to see how this decision can avail the second respondent when her application is not for adjustment of rights but for being impleaded as a party to the suit to which relief she will not be entitled to either under Order 1, Rule 10 or Order 22, Rule 10, Civil Procedure Code. The second case relied on by the learned Subordinate Judge viz., Ramaswami Chettiar v. Vellayappa Chettiar (1931) 60 M.L.J. 229 : A.I.R. 1931 Mad. 357 relates to an entirely different set of facts. That was a case where certain third parties alleged that there were large sums of trust funds which had to be accounted for by the members of a joint family and therefore prayed for being impleaded in the partition suit under Order 1, Rule 10 (2), Civil Procedure Code. Though the application was made after a preliminary decree had been passed and a Commissioner had been appointed to take account, Eddy, J., allowed the application of the third parties on the ground that if after accounts were taken the Commissioner found that there was excess funds the same had to be dealt with by Court and that in those circumstances the application of third parties for being impleaded in the suit had to be allowed. As I have already stated, the right which the second respondent wants to agitate after being made a party to the suit does not at all arise for consideration in the partition suit and especially as no such question existed for consideration when the suit was filed. For the foregoing reasons, the order of the learned Subordinate Judge cannot be held a legally sustainable order. Consequently, the appeal succeeds and is allowed with costs.