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2007 DIGILAW 2099 (MAD)

K. Shanthi & Others v. P. Sukumaran & Others

2007-07-10

V.RAMASUBRAMANIAN

body2007
Judgment : V. Ramasubramanian, J. This is an application taken out by the defendants 1 to 3 in the suit seeking dismissal of the suit as against them. 2. Heard Mr. G.R. Lakshmanan, learned counsel appearing for the applicants/defen-dants 1 to 3 and Mr. V. Raghavachari, learned counsel appearing for the respondent/plaintiff. 3. The respondent/plaintiff has filed the suit C.S.No.818 of 2005, seeking a declaration that she is the absolute owner of the plaint ‘B schedule property and for a consequential permanent injunction restraining the applicants herein as well as the other defendants from interfering with her possession and enjoyment of the plaint B schedule property. 4. The case of the respondent/plaintiff in the suit is as follows: (a) The suit A schedule property is stated to be a house property with the land measuring an extent of 2076 Sq.ft. at No.130, Solaiappan Street, Old Washermanpet, Chennai 21. The suit B schedule property is stated to be a part of the A schedule property and its door number is given as 130/1, with the land measuring an extent of 1126 sq.ft. .(b) The suit A schedule property belonged to one A.Munusamy Mudaliar, he having purchased the same under a Sale Deed dated 26. 1920, registered as document No. 2079 of 1920. .(c) The said Munusamy Mudaliar executed a Deed of Settlement dated 12. 1924, reserving a life interest for himself and bequeathing a life interest in favour of his son Manickasamy Mudaliar and daughter-in-law Munirathnammal. After the life time of the son and the daughter-in-law, the property was to be taken absolutely by the male heirs of Manickasamy Mudaliar or by the female heirs in the absence of male heirs. .(d) Manickasamy Mudaliar had two sons by name P.M. Palanibabu and P.M. Palanivelu. After the death of Munusamy Mudaliar and his son Manickasamy Mudaliar, the life estate holder Munirathnammal surrendered her life interest in favour of her sons, by a Deed of Release dated 24. 1981, registered as document No.1024 of 1981. (e) However. P.M. Palanivelu conveyed his half undivided share in the property in favour of his mother Munirathnammal under a Deed of Settlement dated 16. 1981. Consequently, P.M. Palanibabu and Munirathnammal became the absolute owners of suit A schedule property. .(f) P.M. Palanivelu died on 7. 1981, registered as document No.1024 of 1981. (e) However. P.M. Palanivelu conveyed his half undivided share in the property in favour of his mother Munirathnammal under a Deed of Settlement dated 16. 1981. Consequently, P.M. Palanibabu and Munirathnammal became the absolute owners of suit A schedule property. .(f) P.M. Palanivelu died on 7. 1981 and thereafter Munirathnammal and P.M. Palanibabu sold the suit B schedule property in favour of one K. Meenakshi by a Sale Deed dated 14. 1983. The said K. Meenakshi sold the suit B schedule property in favour of the plaintiff under a Sale Deed dated 111. 2004. According to the plaintiff a mortgage was subsisting on the date of his purchase and the same was cleared on 12. 2004. .(g) However, the plaintiff was sought to be dispossessed in execution of a final decree for partition passed in C.S.No.62 of 1982, at the instance of the sons of P.M. Palanivelu, who are the applicants herein and defendants 1 to 3 in the suit. Therefore, contending that C.S.No.62 of 1982 was a collusive suit and that the decree had been obtained therein by perpetrating fraud, the plaintiff has come up with the present suit for a declaration of her title to suit ‘B’ schedule property and for the consequential decree of permanent injunction. 5. Contending that the respondent/plaintiff is a pendente lite purchaser of suit ‘B’ schedule property from another pendente lite purchaser by name K.Meenakshi Ammal and that the vendor of the respondent/plaintiff herself lost the battle in an attempt to assail the decree for partition and that therefore the present suit is not maintainable in law, the applicants/defendants 1 to 3 have come up with the present application for dismissing the suit as against them. .6. As seen from the narration of facts contained in the plaint itself, the suit ‘A’ schedule property belonged originally to Munusamy Mudaliar. By a Settlement Deed dated 12. 1994, the said Munusamy Mudaliar reserved a life interest for himself and conveyed another life interest in favour of his son and daughter-in-law. As per the Settlement Deed, the vested remainder was to go to the grand children, P.M. Palanibabu and P.M. Palanivelu. By a Settlement Deed dated 12. 1994, the said Munusamy Mudaliar reserved a life interest for himself and conveyed another life interest in favour of his son and daughter-in-law. As per the Settlement Deed, the vested remainder was to go to the grand children, P.M. Palanibabu and P.M. Palanivelu. The case of the plaintiff is that after the death of the original owner Munusamy Mudaliar and his son Manickasamy Mudaliar, the life estate holder Munirathnammal surrendered her life interest in favour of her two sons P.M. Palanibabu and Palanivelu and that thereafter, P.M. Palanivelu settled his half share in favour of his mother by a Deed of Settlement dated 16. 1981. Therefore, according to the plaintiff, P.M. Palanivelu ceased to have any right, title or interest in the suit ‘A schedule property with effect from 16. 1981, the date of execution of the Settlement Deed. Consequently, the property did not form part of his estate, when P.M. Palanivelu died on 7. 1981. It is on the said premise that the vendor of the plaintiff purchased the suit ‘B’ schedule property from Munirathnammal and Palanibabu even during the pendency of the litigation C.S. No. 62 of 1982 and the plaintiff herself got the property from K. Meenakshi under a Sale Deed dated 111. 2004. 7. The suit for partition C.S.No.62 of 1982 was instituted by the applicants/defendants 1 to 3 for partition and separate possession of their 3/8 share in several properties, including the suit ‘A schedule property. Pending suit, the applicants herein filed an application for appointment of Receiver in A.No.460 of 1982. After notice was served in the said application, the fourth defendant in the present suit, P.M. Palanibabu and his mother Munirathnammal sold the properties. Therefore the application for appointment of Receiver A.No.460 of 1982 was dismissed with liberty to the applicants herein to seek a direction to the fourth defendant and his mother to deposit the sale consideration. Accordingly, the applicants herein took out an application in A.No.4653 of 1984, seeking a direction to the fourth defendant in the present suit and his mother, to deposit a sum of Rs.2,10,000/-. By an order dated 12. 1986, passed in A.No.4653 of 1984, P.M. Palanibabu and his mother Munirathnammal were directed to deposit a sum of Rs.22,000/- representing the share of the sale consideration of the applicants herein. By an order dated 12. 1986, passed in A.No.4653 of 1984, P.M. Palanibabu and his mother Munirathnammal were directed to deposit a sum of Rs.22,000/- representing the share of the sale consideration of the applicants herein. But P.M. Palanibabu and his mother Munirathnammal did not comply with the said order, forcing the applicants herein to file an application in A.No.5807 of 1986 for striking off the defence of P.M. Palanibabu and Munirathnammal to the suit for partition. .8. The application A.No.5807 of 1986 came up for hearing on 30.6.1989. Despite a lapse of three years from the date on which the order was passed in A.No.4653 of 1984, directing the deposit of the amount. Justice M. SRINIVASAN (as he then was) gave an opportunity to P.M. Palanibabu and his mother to deposit the amount at least before 7. 1989. On 7. 1989, P.M. Palanibabu and his mother prayed for further time and the application A.No.5807 of 1986 as adjourned to 17. 1989 to give them one more opportunity. But they did not deposit the amount either as per the original order dated 12. 1986 or as per the order of Mr. Justice M. SRINIVASAN (as he then was) dated 30.6.1989. Therefore, the application for striking off the defence A.No.5807 of 1986 was allowed and their defence to the partition suit was struck off. 9. Thereafter a preliminary decree was passed in the partition suit C.S.No.62 of 1982 on 110. 1990, declaring the right of the applicants herein to 3/8 share in all the suit schedule properties and also directing the appointment of an Advocate Commissioner to divide the property set out in the schedule. 10. Subsequently, an application was taken out by the applicants herein in A.No.1502 of 1994 for a final decree. By that time, Munirathnammal died, resulting in the share of the applicants herein getting enlarged from 3/8 to 4/8 share. In the final decree application, three Advocate Commissioners were appointed one after another. .11. Considering the report of the third advocate Commissioner and the objections to the same filed by the parties, this Court passed a final decree in A.No.1502 of 1994 in C.S.No.62 of 1982 on 112. 2000. In the final decree application, three Advocate Commissioners were appointed one after another. .11. Considering the report of the third advocate Commissioner and the objections to the same filed by the parties, this Court passed a final decree in A.No.1502 of 1994 in C.S.No.62 of 1982 on 112. 2000. In paragraph-17 of the judgment passed in the final decree application, this Court took note of the sale made by Munirathnammal and P.M. Palanibabu in favour of the respondent/plaintiff, of the suit B schedule property, but held the same to be not binding on the applicants herein. The relevant portion of paragraph-17 of the judgment in A.No.1502 of 1994 reads as follows: ."The alienations already made are not binding on the plaintiffs and the present persons in occupation of the property are not entitled to continue in possession and the plaintiffs are also entitled to get the possession. The property at No. 130, Solaiappan Street, was sold pendente lite in 1983 to one K. Meenakshi Ammal......" .12. It is also relevant to point out here that the suit for partition C.S. No. 62 of 1982 related to several other properties apart from the present in suit schedule property also. The purchaser of Item No. 6 of the suit schedule properties (in C.S.No.62 of 1982) by name G. Krishnamurthy, put up a stiff resistance in the final decree application A.No.1502 of 1994, to the said item being allotted to any one other than his vendors. He also pleaded equity on the basis of the improvements made by him to the property. After a hot contest, all the contentions of Mr. G. Krishnamurthy in respect of Item No.6 of the suit schedule properties in C.S.No.62 of 1982 were rejected and the said item of property was also allotted in the final decree to the applicants herein. Though the said Item No.6 of the suit property in C.S. No.62 of 1982, has nothing to do with the present suit, the developments relating thereto are taken note for the purpose of considering the question as to whether the entire proceedings in C.S.No.62 of 1982 were vitiated by fraud and collusion. 13. In pursuance of the final decree passed on 112. 2000, the applicants herein filed an Execution Petition in EP.No.153 of 2001. The vendor of the respondent/plaintiff viz., K. Meenakshi was served with notice in the said execution proceedings. 13. In pursuance of the final decree passed on 112. 2000, the applicants herein filed an Execution Petition in EP.No.153 of 2001. The vendor of the respondent/plaintiff viz., K. Meenakshi was served with notice in the said execution proceedings. Thereafter K. Meenakshi took out an application in A.No.5620 of 2003 praying for a declaration that the decree in C.S.No.62 of 1982 is in executable. The said application was filed under Section 47 C.P.C. Hut the learned Master of this Court dismissed the said application by an order dated 16. 2004. 14. Simultaneously, the said Meenakshi (the vendor of the respondent/plaintiff herein) took out an application in A.No.3515 of 2004 for impleading herself as a party to the suit C.S.No.62 of 1982. It was dismissed on 13. 2005. As a matter of fact, it is not known as to how the plaintiffs vendor filed an application for impleadment, after four years of the passing of the final decree in the suit. 15. Aggrieved by the order passed by the learned Master in A.No.5620 of 2003 under Section 47 C.P.C. in E.P.No.153 of 2001, the vendor of the present plaintiff K. Meenakshi filed an appeal along with a stay application in A.Nos.2321 and 2322 of 2004. Both these applications were dismissed for default on 20.6.2005. 16. Thereafter, this Court ordered delivery of possession on 27. 2005 in E.P.No.153 of 2001 of the suit ‘A’ schedule property. Finding resistance from the respondent herein, the applicants herein took out an application in A.No.3978 of 2005, seeking police protection and the same was also ordered by the learned Master. But a contusion was created on the basis of the new door number assigned by the Corporation, forcing the applicants to take out an application for amendment of the schedule so as to include the new door number. The said application A.No.4123 of 2005 was also ordered by the learned Master on 19. 2005. 17. In the meantime, the respondent/plaintiff filed the present suit C.S.No.818 of 2005 on 19. 2005. Along with the suit, the respondent also moved an application in O.A.No.899 of 2005, seeking an interim order of in junction restraining the defendants in the suit (including the applicants herein) from interfering with or trying to dispossess her peaceful possession and enjoyment of the suit ‘B schedule property. 2005. Along with the suit, the respondent also moved an application in O.A.No.899 of 2005, seeking an interim order of in junction restraining the defendants in the suit (including the applicants herein) from interfering with or trying to dispossess her peaceful possession and enjoyment of the suit ‘B schedule property. But by the time the application for injunction was moved, delivery of the suit ‘B’ schedule property was effected, in pursuance of the orders passed in E.P.No.153 of 2001. To be precise, the applicants/defendants 1 to 3 took delivery of possession of the suit ‘B schedule property on 19. 2005. Therefore, when the application for injunction O.A.No.899 of 2005 in the present suit C.S.No.818 of 2005 came up for hearing on 11. 2005, the counsel for the respondent submitted that the application for injunction had become infructnous. Consequently, the application for injunction was dismissed on 11. 2005 as having become infructuous (interestingly, the application for injunction was moved on behalf of the respondent/plaintiff by a counsel by name Mr. G. Krishnamurthy. It is not known whether this Mr. G. Krishnamurthy was also the purchaser of Item No. 6 of the suit schedule properties in the partition suit C.S. No. 62 of 1982, whose plea for equity was rejected in the final decree proceedings after a serious contest). 18. The respondent/plaintiff purchased the suit ‘B schedule property from K. Meenakshi under the Sale Deed dated 18.1 1.2004. Even by her own admission, she was dispossessed on 19. 2005 and her application for injunction O.A.No.899 of 2005 in the present suit C.S.No.818 of 2005 came up For hearing on 11. 2005. But after the application for injunction taken out by the respondent/plaintiff was dismissed as infructuous, on 11. 2005, the respondent took out an application in A.No.4876 of 2005 for redelivery in the execution proeeedings E.P.No.153 of 2001 in C.S.No.62 of 1982. The said application was dismissed by the learned Master on 211. 2005 and it attained finality. Thereafter, the applicants have come up with the present application, seeking the dismissal of the suit on the ground that the present suit is not maintainable in law, as the respondent/plaintiff is only a pendente lite purchaser from another pendente lite purchaser and that therefore she cannot get a better title than what her predecessors had. 19. Mr. Thereafter, the applicants have come up with the present application, seeking the dismissal of the suit on the ground that the present suit is not maintainable in law, as the respondent/plaintiff is only a pendente lite purchaser from another pendente lite purchaser and that therefore she cannot get a better title than what her predecessors had. 19. Mr. V. Raghavachari, learned counsel for the respondent/plaintiff contended- .(a) that the entire proceedings in C.S. No.62 of 1982 were vitiated by fraud and collusion between the applicants herein (who were the plaintiffs in C.S.No.62 of 1982) and their grandmother and paternal uncle (Palanibabu and Munirathnammal) who were the defendants in the said suit; .(b) that the doctrine of lis pendens under Section 52 of the Transfer of Property Act, is not attracted in the case of a collusive action and hence the present suit is maintainable de hors the previous suit; and .(c) that the prayer for dismissal of the suit as against a few of the defendants is not maintainable in law. 20. Thus, it is seen that the respondent/plaintiff seeks to sustain her claim in the present suit solely on the basis of an allegation of fraud and collusion in the previous proceedings C.S. No. 62 of 1982. If the applicants herein had actually secured a decree in the previous proceedings by perpetrating a fraud, those proceedings are undoubtedly vitiated and cannot be held against the respondent/plaintiff irrespective of whether she is a pendente lite purchaser or not. Right from S.P. Chengalvaraya Naidu v. Jagannath AIR 1994 SC 853 : (1994) 1 SCC 1 , upto Hamza Haji v. State of Kerala (2007) 2 MLJ 304 : AIR 2006 SC 3028 : (2006) 7 SCC 416, tbe Supreme Court has repeatedly held that a judgment or decree obtained by playing fraud on the Court is a nullity and non-est in the eyes of law. I do not think, it is necessary to discuss all the decisions cited by the learned counsel for the respondent/plaintiff to accept this well established principle of law. Therefore, what is necessary in this case is just to find out if there is any prima facie case of fraud made out by the respondent/plaintiff so as to allow the present suit to proceed for trial and adjudication. 21. Therefore, what is necessary in this case is just to find out if there is any prima facie case of fraud made out by the respondent/plaintiff so as to allow the present suit to proceed for trial and adjudication. 21. Whenever a fresh suit is instituted on the basis that previous proceedings were vitiated by fraud, it is necessary for the plaintiff to give details of the fraud alleged. Order VI Rule 4 C.P.C. makes it clear that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, particulars beyond what is provided in the forms of Appendix ‘A’ should be furnished as exemplified. Keeping the said provision in mind, if the plaint in the present case is scrutinised, it could be seen that the previous proceedings are assailed on the ground of fraud and collusion due to certain facts. 22. To put it in a nutshell, the respondent/plaintiff assails the entire proeeedings in C.S.No.62 of 1982 as fraudulent and collusive on the following grounds viz., (a) that the direction issued in A.No.4653 of 1983 for the deposit of Rs.22,000/- was not complied with by P.M. Palanibabu and Munirathnammal, the predecessors in title of the respondents vendor; (b) that the application to strike off the defence of Munirathnammal and P.M. Palanibabu in C.S.No.62 of 1982 was allowed uncontested; (c) that there was no contest in the final decree proceedings, with Munirathnammal passing away during the pendency of the proceedings; (d) that the respondent/plaintiffs vendor was not made a party to the proecedings in C.S.No.62 of 1982, despite the report of the Advocate Commissioners pointing out her possession of the property; and (e) that another portion of the property of an extent of 950 sq.ft., sold by the predecessors in title to one Muthu Pillai, still remains untouched, indicating collusion on the part of the parties. 23. Taking up the first aspect of fraud pleaded by the respondent/plaintiff viz., the failure of P.M. Palanibabu and Munirathnammal to deposit Rs.22,000/- as ordered by this Court in Application A.No.4653 of 1984, it is seen that the suit for partition was instituted in the year 1982. Pending suit, the applicants herein sought appointment of a Receiver in A.No.460 of 1982. Notice was ordered in the said application to Munirathnammal and P.M. Palanibabu. Pending suit, the applicants herein sought appointment of a Receiver in A.No.460 of 1982. Notice was ordered in the said application to Munirathnammal and P.M. Palanibabu. After receipt of notice in the application for appointment of a Receiver, Munirathnammal and P.M. Palanibabu sold suit ‘B schedule property to K. Meenakshi by a Sale Deed dated 14. 1983. Consequently, the application for appointment of a Receiver in A.No.460 of 1982 was dismissed as infructuous, giving liberty to the applicants herein, to seek a direction for the deposit of the sale consideration into Court. Therefore, the applicants herein took out A.No.4653 of 1984 for a direction to Munirathnammal and P.M. Palanibabu to deposit the entire sale consideration of Rs.2,10,000/- into Court, contending that was the actual sale consideration. But the Sale Deed disclosed only a sale consideration of Rs.65,000/-. Therefore this Court did not go into the question of actual sale consideration passed on between K. Meenakshi and her vendors, at the stage of the interlocutory application. Under such circumstances, Application A.No.4653 of 1984 was disposed of directing the Munirathnammal and P.M. Palanibabu to deposit just a sum of Rs.22,000/-. The order for deposit of Rs.22,000/- was passed on 12. 1986. Sinee they did not deposit the money, an application was taken out in A.No.5807 of 1986 for striking off the defence of Munirathnammal and P.M. Palanibabu in the suit. A counter was filed in the said application, by P.M. Palanibabu and his mother in October, 1986. When the application came up for hearing after three years, this Court passed an order an 30.6.1989, granting time till 7. 1989 for the deposit of the amount and extended the time further till 17. 1989. Since the deposit was not made, the application A.No.5807 of 1986 was allowed, striking off the defence of the defendants in the suit on 17. 1989. 24. Thus, it is seen that the respondent/plaintiffs vendor K. Meenakshi purchased the property pendente lite. The sale was actually made on 14. 1983 after the defendants in C.S.No.62 of 1982 received notice in the application for appointment of Receiver A.No.460 of 1982. 1989. 24. Thus, it is seen that the respondent/plaintiffs vendor K. Meenakshi purchased the property pendente lite. The sale was actually made on 14. 1983 after the defendants in C.S.No.62 of 1982 received notice in the application for appointment of Receiver A.No.460 of 1982. The order passed in A.No.4653 of 1984 for deposit of Rs.22,000/-was not intended to work out equities (which could be (done only in the final decree proceedings) but intended to deprive the defendants in the suit of an unlawful gain and an unjust enrichment that they made to themselves at the cost of the applicants herein. Even if the defendants in C.S.No.62 of 1982 had deposited Rs.22,000/- as per the order passed in Application No.4653 of 1984, it would not have made any difference to the final determination of the right of the applicants to have partition. To put it differently, the defendants in C.S.No.62 of 1982 (predecessors in title of the vendor of the respondent/plaintiff) actually acted in a manner prejudicial to the interest of the applicants herein. The sale made by P.M. Palanibabu and Munirathnammal in favour of K. Meenakshi (vendor of the respondent/plaintiff), was with a view to defeat, delay and frustrate the attempt of the applicants herein to have a partition. The failure of the defendants in C.S.No.62 of 1982 to comply with the order for deposit of an amount, was only with a view to frustrate all the rights of the applicants herein in the suit for partition. While so, I am unable to appreciate as to how the failure of the defendants in C.S.No.62 of 1982 to deposit the amount ordered in A.No.4653 of 1984, could be construed as an act of fraud and collusion. Their failure to deposit the amount does not amount to fraud and collusion, for two reasons viz., (a) that it was intended to defeat and delay the rights of the applicants herein to enjoy the fruits of any decree even if passed in the partition suit; and (b) that at any rate, the compliance of the condition for deposit of the amount, would not have altered the course of the events in C.S.No.62 of 1982. Therefore, it is ridiculous to contend that the defendants in C.S.No.62 of 1982 acted in collusion with the plaintiffs in C.S.No.62 of 1982 (the applicants herein), when the admitted facts show that they acted in such a manner, so as to defeat and frustrate their rights. 25. Coming to the second aspect of fraud, the contention of Mr. V. Raghavachari, learned counsel for the respondent/plaintiff is that the defendants in C.S.No.62 of 1982 allowed their defence to be struck off in the suit, without contesting the same. But such a contention is wholly unjustified and uncharitable, both to the defendants in C.S.No.62 of 1982 and also to the learned Judge, who passed the order in A.No.5807 of 1986 striking off the defence. It is seen from the order dated 17. 1989 passed in A.No.5807 of 1986 by Mr. Justice M. SRINIVASAN (as he then was) that the defendants in C.S.No.62 of 1982 contested the application to strike off the defence, with force and vehemance. ln paragraph-4 of the order, the learned Judge rocorded the submission of the learned counsel for the defendants in the Suit to the effect that there is no provision of law to strike off the defence in a suit, for disobedience. The learned Judge also recorded a submission of the learned counsel for the defendants in C.S.No.62 of 1982 that the only remedy for disobedience of an order of Court was to punish the contemnor and not to strike off his defence to the suit. In paragraphs-6 and 7 of the said order, the learned Judge also considered the decisions relied upon by the learned counsel for the defendants in C.S.No.62 of 1982 in support of his contention that their defence could not be struck off for any disobedience of any order. Thus, the application to strike off the defence A.No.5807 of 1986, was seriously contested by the defendants in C.S.No.62 of 1982 and it was disposed of on merits. Hence the second aspect of fraud alleged in the plaint, as though their predecessors in title allowed the application to go uncontested, is wholly misconceived and frivolous. 26. The third aspect of fraud alleged in the plaint is that there was no contest in the final decree application and that despite the death of Munirathnammal during the pendency of the final decree proceedings, she was also allotted a share. But the said contention is also unsustainable. 26. The third aspect of fraud alleged in the plaint is that there was no contest in the final decree application and that despite the death of Munirathnammal during the pendency of the final decree proceedings, she was also allotted a share. But the said contention is also unsustainable. It is seen from the judgment dated 112. 2000 passed in the final decree application A.No.1502 of 1994 that three Advocate Commissioners were appointed in the final decree proceedings. Objections were filed to the reports of the first and second advocate Commissioners by one G. Krishnamurthy in respect of item No. 6 of the suit sehedule properties in C.S.No.62 of 1982 (it is not known whether it is the same G. Krishnamurthy, who appeared as a counsel for the present respondent/plaintiff at the time when the application for injunction O.A.No.899 of 2005 was taken up). By an elaborate judgment, Mr. Justice A. RAMAMURTHI (as he then was) went into every minute detail and apportioned the properties. In paragraph-17 of the judgment, a portion of which I have already extracted in an earlier paragraph, the learned Judge took note of the sale in favour of K. Meenakshi, the vendor of the respondent/plaintiff herein and held all alienations to be not binding on the appllicants herein (who were the plaintiffs in that suit). Therefore, the judgment in the final decree proceedings is one passed on the merits, after considering the report of the third Advocate Commissioner. Merely because the first defendant Munirathnammal had died and merely because the second defendant P.M.Palanibabu remained absent in the final decree proceedings, the judgment delivered in the final decree application cannot be said to have been obtained by fraud and collusion, especially when the learned Judge considered the reports of the Advocate Commissioner in detail and made the allotments. 27. Mr. V. Raghavachari, learned counsel for the respondent/plaintiff contended in this regard that there was an abandonment of the proceedings by the predecessors in title of the respondent/plaintiff. It is his contention that a decree passed in a suit abandoned by a person, cannot affect the title of the purchaser pendente lite. In support of his said contention, learned counsel relied upon a judgment of Division Bench of this Court in Annammal v. Challakutti (1963) 1 MLJ 154 : AIR 1963 Mad. 300 . It is his contention that a decree passed in a suit abandoned by a person, cannot affect the title of the purchaser pendente lite. In support of his said contention, learned counsel relied upon a judgment of Division Bench of this Court in Annammal v. Challakutti (1963) 1 MLJ 154 : AIR 1963 Mad. 300 . It was held by the Division Bench of this Court in the said decision as follows: "An abandonment of a suit cannot be said to be the normal way of its termination or one honestly brought about, even though it may not be the result of collusion.” It was further held therein that "an abandoned suit is very much like a collusive one which is statutorily excepted from the operation of the rule of lis pendens and thata collusise suit is not regarded under the provisions of the Section as a suit at all, but a mere sham fight between two parties ranged on opposite sides". 28. The aforesaid Division Bench judgment arose out of a question under Section 52 the "Transfer of Property Act. The doctrine lis pendens found in Section 52 of the Transport Property Act, is made in applicable to a collusive action, even by the very Section. Section 52 of the Transfer of Property Act, reads as follows: "52. Transfer of property pending suit relating thereto. During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose." 29. After analysing the true import of Section 52, the Division Bench held in the aforesaid decision that the Section not only excludes collusive actions, but also the actions which are abandoned halfway through, even if sueh abandonment is not as a result of collusion. After analysing the true import of Section 52, the Division Bench held in the aforesaid decision that the Section not only excludes collusive actions, but also the actions which are abandoned halfway through, even if sueh abandonment is not as a result of collusion. But unfortunately, for the respondent/plaintiff the Division Bench made a distinction in the said decision between a suit abandoned by the plaintiff resulting in a decree of dismissal and a suit which results an a compromise decree or ex parte decree. This is clear from the law laid down in paragraph-4 of the said decision, the relevant portion of which reads as follows: "The true effect of an abandonment will be that the question regarding the right to the subject matter of the suit had ceased to exist, and, essentially speaking, the suit also should he deemed to be not existing from the date of such abandonment. This will not be so in the case of a compromise decree or one which is obtained exparte. In all those case, right upto the time of final determination, the question regarding the title to the property would subsist. In the case of an abandonment, the question is withdrawn from adjudication. In effect, an abandoned suit should be deemed to be non-exist, at any rate, from the date of abandonment." 30. As a matter of fact, in the last paragraph of the said judgment, the Division Bench have a lucid interpretation to the applicability of Section 52 as follows: "It must be remembered that a purchaser pendente lite cannot as of rights come on record in the suit and then protect his title. Order 22 Rule 10 C.P.C., only confers on the Court a discretionary jurisdiction to implead a purchaser pendente lite. When the purchaser cannot therefore come and protect his interests as of right, it is but just that the rule enacted in Section 52 should be strictly interpreted. From what we have stated above, it will be clear that, where a plaintiff in a suit abandons his claim, the result of the suit will not operate as lis pendens against any purchaser pendente lite of the suit property. From what we have stated above, it will be clear that, where a plaintiff in a suit abandons his claim, the result of the suit will not operate as lis pendens against any purchaser pendente lite of the suit property. But the same rule will not apply to the case where the defendant abandons his defence, for, in such a case, there shall be ex parte evidence on the side of the plaintiff to support any decree that might ultimately he passed in the case. The disposal of the suit in such a case will not therefore be the result of with drawing the question for decision from the Court, but of obtaining one from it," 31. Therefore, the decree passed in C.S.No.62 of 1982 cannot, by any stretch of imagination, be taken to be a decree born out of abandonment of any claim. The defendants in C.S.No.62 of 1982 deliberately sold the property pendente lite. They disobeyed the order, directing them to deposit a portion of the sale proceeds. Consequently, their defence in the suit was struck off after a hot contest. Ultimately, a preliminary decree was passed on 110. 1990. Thus, there was no abandonment by the defendants in C.S.No.62 of 1982 at the stage of preliminary decree. Even at the stage of final decree proceeding, the non participation of the defendants cannot be taken to be an abandonment, since this Court appointed three Advocate Commissioners and passed a detailed judgment, taking note of the alienations as well as improvements made pendente lite. Therefore, the preliminary decree as well as the final decree passed in C.S.No.62 of 1982 were not vitiated either by fraud or by collusion or even by abandonment. While the preliminary decree was one passed after the defence of the defendants was struck of the final decree was one passed on merits like an ex parte decree in so far as the defendants therein were concerned. Hence, the decision of the Division Bench relied upon by Mr. V. Raghavachari, learned counsel for the respondent/plaintiff is only of assistance to the applicants here in and not to the respondent/plaintiff. .32. The fourth aspect of fraud pleaded in the plaint is that the plaintiffs vendor K. Meenakshi was not made a party to the proceedings in C.S.No.62 of 1982. I do not know how the non-impleadment of a purchaser pendente lite would amount to fraud or collusion. .32. The fourth aspect of fraud pleaded in the plaint is that the plaintiffs vendor K. Meenakshi was not made a party to the proceedings in C.S.No.62 of 1982. I do not know how the non-impleadment of a purchaser pendente lite would amount to fraud or collusion. As a matter of fact, the sale by P.M. Palanibabu and Munirathnammal (defendants in C.S.No.62 of 1982) in favour of K. Meenakshi, was fraudulent since the sale took place after service of notice in the application for appointment of Receiver in A.No.460 of 1982. The respondent/plaintiffs vendor K. Meenakshi filed an application under Section 47 C.P.C., to declare E.P.No.153 of 2001 as in executable. The said application A.No.5620 of 2003 was dismissed by the learned Master. As against the order of the Master, K. Meenakshi filed two applications in A.Nos.2321 and 2322 of 2004. Both the applications were dismissed for non-prosecution, by this Court on 20.6.2005. The vendor of the respondent/plaintiif (K. Meenakshi) also filed an impleading application in A.No.3515 of 2004, but the same was also dismissed on 13. 2005. As seen from the dates, the said K. Meenakshi (vendor of the respondent/plaintiff) sold the suit ‘B schedule property to the respondent/plalntiff on 111. 2004. It is only thereafter, that her application for impleading A.No.3515 of 2004 was dismissed on 13. 2005 and her appeals against the order of the Master A.Nos.2321 and 2322 of 2004 were dismissed on 20.6.2005. 33. Interestingly, the delivery of possession of the property was effected to the applicants herein on 9. 2005. The delivery was effected alter the respondent/plaintiff obstructed the execution, forcing the applicants herein to obtain orders for police protection. In view ofthe delivery effected on 9. 2005, the respondent/plaintiff submitted to this Court in O.A.No.899 of 2005 on 11. 2005 that her application for injunction had become infiructuous. But in a parallel proceeding, the respondent/plaintiff moved an application for re-delivery of the property before the learned Master in A.No.4876 of 2005 in E.P.No.153 of 2001. The said application was dismissed on 211. 2005. Thus, the respondent/plaintiff has come up with the present suitonly after her vendor lost her applieation under Section 47 C.P.C. and failed to prosecute the appeal against the said order. The said application was dismissed on 211. 2005. Thus, the respondent/plaintiff has come up with the present suitonly after her vendor lost her applieation under Section 47 C.P.C. and failed to prosecute the appeal against the said order. The non-impleadment of the sendor of the respondent/plaintiff also would not have made any difference since this Court was made aware of such alienation pendente lite, even in the year 1984 and this Court held the alienations to be void. .34. To cap it all, the said K. Meenakshi, the vendor of the respondent/plaintiff filed a document before the learned Master along with her application under Section 47 C.P.C. The said document is dated 111. 2004 and it is titled as "deed of Consent". In the said Deed of Consent, which was taken note of by the learned Master, in his order dated 211. 2005 in A.No.4876 of 2005, the respondent/plaintiff has categorically stated that she was aware of all pending proceedings and that she would take care of all tfie proeeedings. Thus, the respondent/plaintiff has apparently purchased the property knowing fully well about the pendency of the litigation. It is not open to a person like the respondent/plaintiff, who takes a calculated risk by buying a property under litigation, to come and contend that she can ignore the earlier litigation as being vitiated by fraud and collusion. It is a fundamental principle that no one can confer a better title than what he himself had (nemo dat quod non habet). The vendor of the respondent/plaintiff, who was herself a pendente lite purchaser and who lost her application under Section 47 C.P.C., only on 16. 2004 could not have conferred any right or title upon the respondent/plaintiff on 111. 2004. A person who buys a property, knowing fully well about he pendency of litigation, cannot come and contend that the proceedings were vitiated by fraud and collusion. As seen from the order of the learned Master, the Advocate Commissioners appointed in the final decree proceedings, measured the property in 1996 itself and submitted reports. Till the year 2003, the aforesaid K. Meenakshi, the vendor of the respondent/plaintiff did not raise her little finger. She chose to sell the property on 111. 2004 to the respondent after losing her application under Section 47 C.P.C., on 16. 2004. Till the year 2003, the aforesaid K. Meenakshi, the vendor of the respondent/plaintiff did not raise her little finger. She chose to sell the property on 111. 2004 to the respondent after losing her application under Section 47 C.P.C., on 16. 2004. Therefore, the respondent/plaintiff has no right to assail the earlier proceedings as being vitiated by fraud and collusion. 35. The fifth and the last aspect of fraud pleaded by the respondent/plaintiff is that another portion of suit ‘A schedule property, measuring an extent 950 sq.ft, sold by the predecessors in title to one Muthu Pillai, still remains untouched, indicating collusion on The part of the parties. I do not know how such a fact would constitute a fraud or collusion on the part of the plaintiffs and defendants in the presious proceedings C.S.No.62 of 1982. Even if it is presumed that the applicants herein have not executed the final decree against the said Muthu Pillai, it does not mean that the applicants case given up their right. The final decree was passed only on 112. 2000 and the applicants have five more years available for them to execute the decree as against the said Muthu Pillai. Therefore, the last aspect of fraud pleaded by the respondent/plaintiff in the suit is to be stated only to be rejected. .36. As stated in paragraphs-21 and 22 above, when previous proceedings before Court are assailed as vitiated by fraud and collusion, it is incumbent upon the plaintiff to plead necessary facts to show how a fraud had been perpetrated. In this case, the respon-dent/plaintiff has pleaded that the entire proceedings in C.S.No.62 of 1982 were vitiated by fraud and collusion, on the basis of five aspects narrated in paragraph-22 above. But all those five aspects, even on admitted facts and admitted documents, do not make out a case of fraud or collusion. As seen above, the suit for partition initiated by the applicants herein is now 25 years old. In order to defeat and delay their rights, the defendants in C.S.No.62 of 1982 sold all the properties, including the presetrt suit sehedule property, during the pendency of the proceedings in 1984, to the respondent/plaintiffs vendor. The respondent/plaintiff herself purchased the property after the final decree and after the dismissal of her vendors application under Section 47 C.P.C., in the execution proceedings. The respondent/plaintiff herself purchased the property after the final decree and after the dismissal of her vendors application under Section 47 C.P.C., in the execution proceedings. Thus, the respondent/plaintiff is the purchaser of a property in respect of which a preliminary decree was passed on 110. 1990 and a Final decree was passed on 112. 2000 and execution laid in 2001. As a person who has purchased the property after a preliminary decree and a final decree and that too from a pendente lite purchaser, the respondent/plaintiff cannot be heard to assail the previous proceedings as being vitiated by fraud and collusion. As stated above, the suit for partition was filed in 1982; the respondent/plaintiffs vendor purchased the property pendente lite in 1983; the preliminary decree was passed on 110. 1990; the final decree was passed on 112. 2000; the Execution Petition was filed in 2001; the application filed under Section 47 C.P.C., by the respondent/plaintiffs vendor for declaring the decree as inexecutable, was dismissed by the learned Master on 16. 2004; and the respondent/plaintiff purchased the property alter all this was over, on 111. 2004. Therefore, the present suit is nothing but an abuse of the process of law and this Court cannot be a party to the same being allowed to remain on the Suit Register, so as to prolong a litigation which is already 25 years old (from 1982 till date). .37. Moreover, the conduct of the respondent/plaintiff also appears to be a contumacious. In E.P.No.153 of 2001, the learned Master ordered delivery by 9. 2005. Even according to the respondent/plaintiff delivery was effected on 19. 2005. Therefore, when the respondents application for injunction O.A.No.899 of 2005 in C.S. No. 818 of 2005 came np for the first time before Court on 11. 2005, the learned counsel for the respondent/plaintiff conceded that the application for injunction had become infructuous. Hence, the application for injunction was dismissed on 11. 2005. Thereafter, the respondent herself took out an application in A.No.4876 of 2005 before the learned Master in E.P.No.153 of 2001, seeking re-delivery on the same ground that the decree was not executable and that it was a collusive and fraudulent decree. But the application for redelivery of possession, taken out by the respondent/plaintiff was dismissed by the learned Master on 211. 2005. Thus, the records of this Court show that the respondent/plaintiff was dispossessed by a legal process. But the application for redelivery of possession, taken out by the respondent/plaintiff was dismissed by the learned Master on 211. 2005. Thus, the records of this Court show that the respondent/plaintiff was dispossessed by a legal process. But unfortunately, the respondent appears to have taken the law into her own hands and again gained possession of the propery. This fact is borne out by the counter-affidavit filed by the respondent/plaintiff in the present application A.No.1179 of 2006. In paragraph-2 of the counter-affidavit in the present application, the respondent/plainliff has stated that she is in occupation of the property. In paragraph-7 of the counter-affidavit, the respondent/plaintiff has stated that "even today I am in occupation of the property". This counter-affidavit has been sworn to by the respondent/plaintiff on 17. 2006, alter she was dispossessed on 19. 2005 and after her application for redelivery of possession was dismissed by the learned Master on 211. 2005. Therefore, if the respondent is actually in possession of the property today, it is in violation of Court orders. If she is not in possession of the property, then her statement in the counter-affidavit is a blatant lie. In either case, she is liable to be punished. .38. The last contention of Mr. V. Raghavachari, learned counsel for the respon-dent/plaintiff is that there cannot be a partial dismissal of the suit. As seen from the plaint, the respondent/plaintiff has impleaded not only the applicants herein but also her vendor K. Meenakshi Ammal and her vendors vendor P.M. Palanibabu as well as a few others. The applicants herein are defendants 1 to 3 in the suit. The applicants herein have a conflict of interest with the respondents vendor K. Meenakshi as well as the respondents vendors P.M. Palanibabu, who is the fourth defendant in the suit. Therefore, the applicants case confined their prayer in the present application only to a dismissal of the suit as against them. The applicants cannot seek dismissal of the suit as against the other defendants also, when they do not have a commonality of interest the other defendants, but have a conflict of interest with the other defendants. Hence, it cannot be contended that the applicants are seeking a partial dismissal of the suit. They are actually seeking a total dismissal of the suit insofar as they are concerned. Hence, it cannot be contended that the applicants are seeking a partial dismissal of the suit. They are actually seeking a total dismissal of the suit insofar as they are concerned. The respondent/plaintiff may well have other remedies open to her against her vendor K. Meenakshi, who is the fifth defendant in the suit and her vendors vendor P.M. Palanibabu, who is the fourth defendant in the suit. The respondent may like to seek appropriate remedies against her vendor, even after the dismissal of the suit as against the applicants herein. lt is only under such circumstances, that the applicants seek the dismissal of the suit insofar as they are concerned. Going by the nature of the pleadings made by the respondent/plaintiff in the suit, the respondent may even allege collusion against the applicants, if the applicants seek a dismissal of the suit not only against them but also against all the other defendants. Therefore, the contention of the learned counsel for the respondent/plaintiff that there cannot be a partial dismissal of the suit, cannot hold good in the present case. 39. In view of the above, I hold that the present suit is nothing but an abuse of the process of law and a sharp practice and that therefore the suit is liable to he dismissed as against the applicants herein. The law is well settled that the Court has a duty to throw out a vexatious and meritless suit. It was spelt out very lucidly in the words of Justice V.R. KRISHNA IYER (as he then was), in T. Arivandandam v. T.V. Satyapal and Another ATR 1977 SC 2421 : (1977) 4 SCC 467 ) in the following words: "The learned Munsif must remember that if on a meaningful—no formal—reading of the plaint, it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11 C.P.C., taking care to see that the ground mentioned therein is fulfilled". The Supreme Conrt held further in the said case that "if clever drafting has created an illusion of a cause of action, nip it in the bud at the first hearing." Interestingly, the case before then Supreme Court in the aforesaid decision was also one in which an eviction order passed against the father was challenged on the same grounds of fraud and collusion by the son. The litigation was described by the Supreme Court as "a sharp practice or legal leger demain, which stultifies the Court process and makes a decree with judicial seals brutum fulmen." Therefore, the Supreme Court held that "the long arm of the law must throttle such litigative caricatures if the confidence and credibility of the community in the judicature is to survive.” 40. The law laid down in the aforesaid decision was followed by the Supreme Court in I.T.C. Limited v. Debts Recovery Appellate Tribunal AIR 1998 SC 634 : ( 1998 (2) SCC 70 ), wherein it was held in paragraph-16 as follows: "The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 C.P.C. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint " 41. Therefore, the application deserves to be allowed and the suit liable to be dismissed as against the applicants herein. Under normal circumstances, I would have just allowed the application and dismissed the suit, beaving it to the parties to bear their respective costs. But in this case, it is seen that the applicants herein, who filed the suit for partition in the year 1982, succeeded in getting a preliminary decree in the year 1990 and a final decree in the year 2000 and got the delivery of possession effected through the Bailiff with police protection on 19. 2005 in the execution proceedings, after 23 years of the commencement of the litigation. The respondent herein admitted this before this Court when her application for injunction O.A.No.899 of 2005 came up for hearing on 11. 2005 and reported that the application for injunction had become intrucfuous. 2005 in the execution proceedings, after 23 years of the commencement of the litigation. The respondent herein admitted this before this Court when her application for injunction O.A.No.899 of 2005 came up for hearing on 11. 2005 and reported that the application for injunction had become intrucfuous. Subsequently, she made an attempt to get back delivery of possession by filing an application before the learned Master for re-delivery ofpossession, but the same was also dismissed on 211. 2005. Thereafter, the respondent/plaintiff has taken possession of the property (I do not know by what means) and had the audacity to swear to the counter-affidavit on 17. 2006 that she is in possession of the property. Therefore, I am constrained to dismiss the suit with costs. Accordingly, this application is allowed and the suit C.S.No.818 of 2005 is dismissed as against the applicants herein with costs and the respondent shall restore possession back to the applicants. Application allowed.