ORDER Sivasubramanian, J. 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 I.A. No. 511 of 1986 under Order 22, Rule 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 Section 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 Section 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.
It is against this decision, the present appeal has been filed. 3. I find that both the reasons given by the learned District Judge for dismissing the petition, finding that the petition for impleading her as third appellant, are unsustainable. Simply because the appellant purchased the property during the pendency of the suit, it cannot be stated that she is not entitled to be added as a party to the appeal. She is entitled to come on record being a person entitled to an interest in one of the items of the suit properties. In so far as the present proceedings are concerned, the suit being one for partition, the suit is deemed to be pending till the final decree is passed. The learned Judge failed to note that it is a partition suit and the suit is supposed to be pending till the final decree is passed. In a partition suit, all the parties interested in the properties are necessary parties as otherwise, the rights between them cannot be worked out and there will not be finality in the matter of the partition of the properties. Even though appellant became a purchaser pendente lite, she is entitled to work out certain equities at the time of the passing of the final decree. If partition is effected without her presence, certainly her interest would be seriously affected. Being a purchaser she stepped into the shoes of her vendor, in so far as her right in the suit properties are concerned, and therefore she is entitled to protect her interest in the absence of her vendor. The reliance placed before this Court in Annapoomi Ammal v. Jayavelu Mudaliar (1974)2 M.L.J. 285 : 87 L.W.95, is not correct, as it does not apply to the facts of the present case. It was a case where a purchaser from a purchaser filed an application for impleading him as a party and the same was dismissed on the ground that Order 22, Rule 10, C.P.C. applies only to mere purchaser of the suit properties and not subsequent assignees. The observations made in the said case to the effect that the provisions of Order 22, Rule 10, C.P.C. cover only cases where the totality of the interest of a party to the suit is transferred to another person during the pendency of the proceedings, is also not applicable to the facts of the present case.
The observations made in the said case to the effect that the provisions of Order 22, Rule 10, C.P.C. cover only cases where the totality of the interest of a party to the suit is transferred to another person during the pendency of the proceedings, is also not applicable to the facts of the present case. If such a principle is applicable, we find that the deceased has parted with his entire interest in respect of half share of item 32 and therefore in so far as the said item is concerned, the deceased has not retained any interest at all. Therefore, the provisions of Order 22, Rule 10, C.P.C. would squarely apply to the facts of the present case. 4. In Desari Gowri Kumari (dead) v. Satyanarayana, 98 L.W.738 a Bench of this Court has considered the scope of Order 22 Rule 3, 4, and 10, C.P.C. and held that Order 22, Rule 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 Ahmed Khan v. Bashir Ahmad khan, and in Sarla Bala v. Nirmal Sunder 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 Order 22, Rule 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 Order 22, Rule 10, C.P.C. but under Section 146, C.P.C. which reads as follows: Section 146 : Save as otherwise provided by this Code, or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.
On the above said principles, there is no difficulty in holding that the petitioner is entitled to get herself impleaded as then third appellant in the appeal before the lower appellate court. 5. In the result, the appeal is allowed, the impugned order of the lower appellate court is set aside and the petition in I.A. No. 511 of 1986 in A.S. No. 22 of 1986 shall stand allowed. No costs.