Judgment 1. Admit 2. The substantial Question of law framed for a decision in R.S.A. No. 962 of 2012 are: I. Whether a transfer of immovable property which is directly and specifically in question in the appeal, made after the time prescribed to apply for re-admission of the appeal which was dismissed for default expired, and before the appeal was re-admitted after condoning the delay is hit by Sec. 52 of the Transfer of Property Act( for short, “ the TP Act”)? II. Whether the appellant, in view of assignment deed dated 23.02.2010 in her favor has acquired title and possession of that portion of item No. 3 covered by the said assignment deed? 3. The following substantial questions of law are framed in R.S.A. No. 1435 of 2012 (filed by the 1st respondent in R.S.A. No. 962 of 2012) I. Whether second appellate court has power to consider the Will produced and mould relief accordingly to do complete justice to the parties to the proceedings? II. Whether second appellate court has power to receive the document in the party to a proceedings is prevented from claiming relief on the basis of the said document which was not within his knowledge before disposal of proceeding in the court below and act upon the same on production of such document in the appellate stage especially when the legal effect of such document will come into operation only on death of the executants of such document who is admittedly one of the parties to such litigation before the courts below? 4. These appeals are drawn from the judgment and decree of learned Sub Judge, Irinjalakuda in A.S. No. 318 of 2013. That appeal arose from the judgment and decree of learned Munsiff, Irinjalakuda in O.S. No. 3 of 1996. Parties are referred as appellants and respondents as in R.S.A. Nos.962 of 2012. 5. 1st respondent in R.S.A. No. 962 of 2012 (who is the appellant in R.S.A. No. 1435 of 2012) along with the deceased 1st plaintiff filed O.S. No.3 of 1996 concerning three items of properties. They claimed that item No. 1 of the plaint schedule belonged to the 1st respondent and the deceased 1st plaintiff as per Ext.A2 while item No.2 belonged to the 1st respondent as per Ext.A3. They claimed that item No. 1 of the plaint schedule belonged to the 1st respondent and the deceased 1st plaintiff as per Ext.A2 while item No.2 belonged to the 1st respondent as per Ext.A3. The further claim is that item No. 3 was purchased by the 1st respondent in the name of the deceased 1st plaintiff as per Ext.A1, in the year 1963. 1st respondent claimed that later, he purchased item No.3 from the deceased 1st plaintiff as per Ext.A4, assignment deed dated 12.04.1994. The deceased defendant being brother of the 1st respondent in R.S. A. No. 962 of 2012 was permitted to occupy the building in item No. 1 but, even after permission was withdraw, he did not vacate. Hence 1st respondent and the deceased 1st respondent and the deceased 1st plaintiff prayed for a decree for mandatory injection to direct the deceased defendant vacate the building in item no.1, for a declaration that 1st respondents has title and possession of item Nos. 1 to 3 and for injection to restrain the deceased defended causing obstruction to the 1st respondent and the deseased1st plaintiff exercising their right and possession over item Nos. 1 to 3. 6. The deceased defendant contended that 1st respondent or the deceased 1st plaintiff has no right, title, interest or possession of item Nos. 1 to 3. He claimed that he is in adverse possession of item Nos. 1 to 3 and item No.1 and by such adverse possession for more than 12 years. Has perfected title over it. 7. Trial court found that the deceased defendant is in adverse possession of item Nos. 1 to 3 and consequently refused to grant any relief. The 1st respondent in R.S. A. No. 962 of 2012 and the deceased 1st plaintiff filed A.S. No. 318 of 2003 8. During the pendency of that appeal, 1st plaintiff died and thereon, her legal representatives were imp leaded. The defendant died, bachelor and intestate. No question of impalement of legal representatives arose since the parties on record are his legal representatives. 9. A.S. No. 318 of 2003 was dismissed for default on 11.08.2003. On 22.03.2010, appellant in R.S.A. No. 962 of 2012 purchased a portion of item No.3 of the plaintiff schedule from the deceased defendant, according to her for being used as a way and which she was in possession and enjoyment even prior to the purchase on 22.03.2010. 9. A.S. No. 318 of 2003 was dismissed for default on 11.08.2003. On 22.03.2010, appellant in R.S.A. No. 962 of 2012 purchased a portion of item No.3 of the plaintiff schedule from the deceased defendant, according to her for being used as a way and which she was in possession and enjoyment even prior to the purchase on 22.03.2010. On 18.05.2010, on the application of the 1st respondent in R.S.A. No. 962 of 2012, A.S. No. 318 of 2003 was readmitted to the file after condoling the delay. 10. Learning about pendency of that appeal, appellant in R.S.A. No. 962 of 2012 got herself imp leaded as additional 5th respondent. 11. The first appellate court by the impugned judgment and decree upheld title of the 1st respondent in R.S. A. No. 962 of 2012 over item Nos. 2 and 3 and allowed those items to be recovered. So far as item No.1 is concerned, first appellate court took the view that consequent to the death of the 1st plaintiff, 1st respondent in R.S.A. No. 962 of 2012 along with the deceased defendant and respondents 2 to 4 is a Co-owner and hence prayer for recovery of item No.1 was disallowed observing that remedy of the 1st respondent in R.S.A. No. 962 of 2012 was to seek partition of item No.1 12. Additional 5th respondent in A.S. No. 318 of 2003, aggrieved by the finding regarding item No.3 of the plaint schedule has preferred R.S.A No. 962 of 2012 while the 1st respondent 2nd plaintiff, aggrieved by the finding of the first appellate court regarding item No.1 has preferred R.S.A. No. 1435 of 2012. There, it is contended by the 1st respondent (appellant in R.S.A. No. 1435 of 2012) that through belatedly he has traced Will No. 37 of 1994 dated 12.04.1994 executed by the deceased 1st plaintiff bequeathing her half share in item No. 1 to him and hence by virtue of that Will, he has become the absolute owner in possession of Item No.1. 13. 13. Learned Senior Advocate for the appellant in R.S.A. No. 962 of 2012 contends that the appellant is a purchaser of a portion of item No.3 from the deceased defendant but the rule of lis pendens under Sec. 52 of the TP Act would not apply since at the time the appellant purchased that portion of item No.3 from the deceased defendant, A.S. No. 318 of 2003 was not ‘Pending’. It is pointed out that the appeal was dismissed for default on 11.08.2003, no steps were taken by the 1st respondent or the deceased 1st plaintiff for readmission of that appeal within the time prescribed by the Limitation Act, 1963 (For short, “the Act”) appellant purchased a portion of item No. 3 on 22.03.2010 and the appeal was readmitted only on 18.05.2010 after condoning the delay. Hence it could not be said that at the time appellant purchased a portion of item No.3 on from the deceased defendant, the lis was ‘pending’ so as to under section.52 of the T.P. Act. It is pointed out that the first appellate Court has not said anything above the purchase made by the appellant as above and whether it is hit by Section.52 of the T.P. Act. In the circumstance, the first appellate court was not wrighten in upholding title claimed by the 1st Respondent over the entire item No.3 overlooking the assignment in favour of the appellant. 14. Learned counsel for the 1st respondent (appellant in R.S.A. No. 1435 of 2012) would contend that since the first appellate court has not considered the question whether Sec. 52 of the TP Act is applicable, that question need not be decided in the second appeal and that the appropriate course is to leave that question to be decided by the trial court. It is also contended that as the delay in seeking re-admission of A.S. No. 318 of 2003 was condoned, it must be deemed that the appellant purchased portion of item No.3 when that appeal was pending. Hence the assignment is hit by Sec. 52 of the TP Act. 15. It is also contended that as the delay in seeking re-admission of A.S. No. 318 of 2003 was condoned, it must be deemed that the appellant purchased portion of item No.3 when that appeal was pending. Hence the assignment is hit by Sec. 52 of the TP Act. 15. It is further contended by the learned counsel so far as R.S.A. No 1435 of 2012 is concerned, that through after dismissal of A.S. No. 318 of 2003, 1st respondent (appellant in R.S.A. No 1435 of 2012) has traced out Will No.37 of 1994 as per which the deceased 1st plaintiff has bequeathed her half share in term No. 1 to the 1st respondent. Hence by virtue of that will, other legal representatives of deceased 1st plaintiff have no right over item No. 1. Learned counsel requested that the matter may be remitted ti the trial court for fresh decision so far as item No. 1 is concerned, in view of the said Will giving opportunity to the 1st respondent to amend the pliant and seek relief with reference to the said Will as well. 16. As it stands, there is no challenge to the judgment and decree of the first appellate court concerning item No.2 Challenge is to the finding of the first appellate court concerning Item No.1 (in R.S.A. No. 1435 of 2012) and to that portion of Item No.3 claimed to be purchased by the appellant in R.S.A. No. 962 of 2012. 17. True that the first appellate court has not adverted to the question whether Sec. 52 of the TP Act is applicable to the purchased of a portion of item No.3 made by the appellant in R.S.A. No. 962 of 2012. But that question has arisen for a decision in the second appeal and a substantial question of law is also framed accordingly. Hence I proceed to decide that question in these second appeals rather than leaving it to be decided by the trial court. 18. “Pendent elite nihil innovetur –during a litigation nothing new shall be introduced. This rule concerning transfer/otherwise dealing with immovable property which is directly and specially in question in a pending suit is recognized by the Indian Law under Sec. 52 of the TP Act. 19. The rule regarding lis pendens was enunciated in England in the Lis Pendens Act, 1867(30& 31 victoria, 1867). This rule concerning transfer/otherwise dealing with immovable property which is directly and specially in question in a pending suit is recognized by the Indian Law under Sec. 52 of the TP Act. 19. The rule regarding lis pendens was enunciated in England in the Lis Pendens Act, 1867(30& 31 victoria, 1867). The said Act was replaced by the Land Charges Act, 1925 (England). As per Sec.2(1) of the Land Charges Act, a pending action, that is to say any action, information or proceeding pending in court relating to land or any interst in or charge on land, and a petition in bankruptcy actions. Sub-sec (2) said that subject to general rules, every application to register a pending action shall contain particulars referred to therein. Sec 3(1) of the said Act said that a pending action shall not bing a purchaser without express notice thereof unless it is for the time being registered pursuant to that part of the Act subject to the provisions therein. 20. Sec. 52 of the TP Act as it stood before the Amending Act, 1929 was as under: “During the active prosecution in any court having authority in British India, or established beyond the limits of British India by the Governor- General in Council of a contentious suit or proceedings in which any right to immovable property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to decree or order which may be made therein, except under the authority of the court and on such as it may impose”. 21. The expression “active prosecution” was probably suggested by Lord Bacon’s Order in Tothill’s Chancery Reports, page 45 which was as under: “But where he comes in pendent lite and while the suit is in full prosecution and without any color of allowance or privity of the court, then regularly the decree bindeth.” Lord Lyndhurst, in Kinsman v. Kinsman ((1830) I R & M 617) said. “Without going so far as to say with Lord Bacon that there must be a constant and vigorous prosecution of the suit, still something should be done to keep it alive and in activity.” In Dinonath v. Shama Bibi ((1901) 28 cal, 232), it was held, “The rule was not applied to a case where there was delay in filing an appeal which indicated that the suit was not actively prosecuted.” 22. In Krishnappa v. Sivappa ((1907) 31 Bomb. 393), Jenkins, C.J. took note of the provisions of the Lis Penens Act, 1867, replaced by the Land Charges Act, 1925 which required the pending lis concerning the properties to be registers and it was suggested that a similar amendment is required to be made to Sec. 52 of the TP Act as well to avoid bonafide purchasers, unaware of pendency of the suit being covered by Sec.52 of the TP Act. Based on the recommendation in Krishnappa V. Sivarappa, Sec.52 of the TP Act was amended in Bombay by the Bomaby Act, 4 of 1939. This Court held in Syam Kumar V. Jyapalan Nair (2012 (2) KLT 191 that such amendment is required in the State of Kerala as well. Such amendment would protect bonafide purchasers as they could ascertain from the Register whether any lis is pending with regard to the property concerned. As things stand now, whether or not he is a bonafide purchaser with or without notice of the pending litigation, if the purchase is made pending the suit, it will be hit by Sec. 52 of the TP Act. 23. By the Amending Act, 1929, tremendous change was brought to Sec. 52 of the TP Act as it stood prior to the said amendment. The word “active prosecution” occurring in Sec.52 of the TP Act (prior to the Amending Act) is substituted with the word “ pendency” and the “ contentious”, with the word “any”. After the words, “suit or proceeding” where they occur, the words “which is not collusive” s inserted. Also, an explanation is added to Sec.52 of the TP Act by the Amending Act. After the words, “suit or proceeding” where they occur, the words “which is not collusive” s inserted. Also, an explanation is added to Sec.52 of the TP Act by the Amending Act. As amended in the year, 1929, Sec.52 of the TP Act states as under: “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 to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, expect under the authority of the Court and on such terms as it may impose. Explantaion:- For the Purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceedings in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. Therefore, it is not necessary that to apply Sec. 52 of the TP Act, the pending proceeding should have been under “active prosecution”. Still, the question arises whether a transfer was made or, the property which is specifically and directly in issue was dealth with during ‘Pendency’ of the lis.” 24. The expression “pending matter” came up for consideration before jessel M.R., in Re Clagett’s Estate, Foredham v. Clagett((1881-82) 20 Chancery Division 637). Learned judge observed at page 653: “………. What is the meaning of the word pending”? In my opinion, it includes every insolvency in which any proceedings can by any possibility be taken. That I think is the meaning of the word “pending”. Where the insolvent is dead and all the estate is gone it is not pending, but as long as he is alive the matter is pending in that sense. In my opinion, it includes every insolvency in which any proceedings can by any possibility be taken. That I think is the meaning of the word “pending”. Where the insolvent is dead and all the estate is gone it is not pending, but as long as he is alive the matter is pending in that sense. A cause is said to be pending in a court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending. “Pending” does not mean that it has been tried……. 25. I have referred to Dinonath v. Shama Bibi(supra) Where the rule was not applied to a cases as there was delay in filing an appeal which indicated that the suit was not actively prosecuted but, that decision may have no direct application to the question involved here since it concerned Sec.52 of the TP Act as it stodd before the Amending Act, 1929 When the expression “active prosecution” was available. In Kinsman v. Kinsman (Russel and Mylne’s Reports, Vol. l, page 617) it is held: “In order to constitute litis pedentia there must be a continuance of litis contestation: and without going so far as to say with Lord Bacon, that there must be a constant and vigorous prosecution of the suites, still something to be shoud be done keep with it alive and in activity………How many years had elapsed after that decree (for an account) had been pronounced? Upwords of a quarter of a century: and matters might have gone on for a century longer, because nobady had any motive to interfere. If the supplemental bill were considered as growing out of the former suit, that mignt, in a certain sense, be held to be, and perhaps His Honour had so held it, a continuance and prosecution of the original cause: but it would be an abuse of the plain meaning of the terms lis pendens to apply it to a case like the present, where the supplemental bill was not filed, till after the sale had taken place” In Venkatesh Govind v. Maruti ( ILR 1888 (12) Bombay 217), through concerning Sec. 52 of the TP Act as it stood prior to the Amending Act, 1929 (already referred supra), ‘A’ created a mortage in 1864 and the suit was filed in the year, 1869 against ‘A’. A decree was passed on 29.11.1869 which ordered payment of a ceratin amount “on the liability of the land in the plaint mentioned” No steps were taken by the plaintiff to execute the decree for seven years. ‘A’ sold the property on 18.08.1876. Plaintiff sued for a declaration that the land was liable to be sold in execution of the decree dated 29.11.1869. True, at a time when the expression “active prosecution” was available in Sec.52 of the TP Act, It was held that there was no lis pendens as litis contestation had ceased. 26. Reference has to be made to the decision in Krishnaji Pandharinath v. Anusaya ( AIR 1959 Bomaby 475). There, Explanation to Sec. 52 of the Act as to how long the lis could be said to be pending was considered. It is stated that the explanation makes it abundantly clear that the lis continues so long as final decree or order has not been obtained and complete satisfaction thereof has not been rendered or such satisfaction or discharge becomes unobtainable by reason of the expiration of any period of limitation for the execution thereof. If after dismissal of a suit and before an appeal is presented the lis continues so as to prevent the defendant from transferring the Property to the prejudice of the plaintiff, there is no reason for holding that between the date of dismissal of the suit under Order IX, Rule 8 of the Code of Civil Procedure (for short, “the Code”) and the date of its restoration, the lis does not continue. In that case, the suit was filed on 14.02.1950 and it was dismissed for non-payment of process fee on 15.07.1952. Defendant sold the property on 17.07.1952. Application for restoration of the suit was filed on 29.07.1952 and the suit was restored to file. Thus, if the transfer was made within the time plaintiff could have as of right brought an application for restoration of the suit which was dismissed for non-payment of process fee, such transfer is hit by Sec.52 of the TP Act since it could be said that the transfer was made during the pendency of the lis. 27. In Jagan Singh (dead) through Lrs. V. Dhanwanti and Another ( (2012) 2 SCC 628 ), transfer was effected after dismissal of the suit and before the time prescribed for filing the appeal expired. 27. In Jagan Singh (dead) through Lrs. V. Dhanwanti and Another ( (2012) 2 SCC 628 ), transfer was effected after dismissal of the suit and before the time prescribed for filing the appeal expired. It was held that the lis could be deemed to be pending during the time provided for filing the appeal and that the transaction entered into by the defendant during the period within which plaintiff could have brought and appeal against dismissal of the suit will also be hit by Sec.52 of the TP Act. 28. The above two decisions are rendered on the reasoning that if the property which is specifically and directly in issue in the suit is transferred (or otherwise dealt with) during the time plaintiff could have done some act as of right either to re-admit the suit (or appeal) dismissed for default or challenge dismissal of the suit in appeal, then, the time during which plaintiff could have initiated such action as of right could also be treated as the time during which the lis was pending. That view is in tune with what Jessal M.R., has pointed out in Re Clagett’s Estate, Foredham v. Clagett (supra). Hence if within the time prescribed it was possible for the plaintiff either to resurrect the suit or the appeal dismissed for default or, challenge dismissal of the suit in an appeal, then, the period during which plaintiff could have initiated such action as of right under the law should also be treated as the time during which the lis was pending. The rule of lis pendens is based on equity and public policy that successive transfer of property or otherwise dealing with it during pendency of the suit shall not be to the disadvantage of the plaintiff. He is not required to proceed against such transferees in succession in which case there would not be any end for litigation. It is therefore that the doctrine of lis pendens is provided under Sec.52 of the TP Act binding a transferee with or without notice of the pending suit with the ultimate result of the suit. The Act prescribes time limit for filing an application for restoration of the suit or for re-admission of the appeal dismissed for default or for filing an appeal against dismissal of the suit. The Act prescribes time limit for filing an application for restoration of the suit or for re-admission of the appeal dismissed for default or for filing an appeal against dismissal of the suit. But, what is the effect on a transfer made after the time prescribed by the Act as aforesaid? 29. The doctrine of limitation (and prescription) embodies in the Act is based upon two broad consideration – (i) there is a presumption that a right not exercised for a long time is non-existant; (ii), it is necessary that title to the property and matters of right in general should not be in a state of constant uncertainty, doubt and suspense. The object of the law of limitation is to prevent deprivation or disturbance and what may have been acquired in equity and justice by long enjoyment and what may have been lost by the party’s own inaction, negligence or laches. (see Rajendar Singh and others v. Santa Singh and others (Air 1973 SC 2573 at page 2542). In Tara Nath Chakravarti and others v. Iswar Chandra Das Sarkar((1911) 11 Ind. Case 164) it is held that the law of limitation is very necessary, Otherwise no person could remain certain that he would not be dragged before the courts to answer for a debt allegedly incurred by some earlier ancestor of his. In R.B. Policies at Lloyd’s v. Butler ((1949) 2 All. E.R. 226 at page 230), quoting Best, C.J. in A Court v. Cross(3 Bing.332) it is held that “long dormant claims have often more of cruelty than of justice in them”. The Public policy behind the law of limitation is, “Ne lites immortals essent dum litigantes mortals Sunt” (Let not strife be immortal, while those who strive are mortal) and, “Interest reipublicaeut sit finis litium” (interest of the State requires that there should be an end to litigation). It is because of the above public policy that the Act prescribes time limit to make an application for restoration of a suit or re-admission of an appeal which was dismissed for default or to prefer an appeal from the dismissal of the suit. 30. No doubt, Sec.5 of the Act empowers the court to condone the delay on sufficient cause being shown. Sec.5 of the Act does not confer any right (with any corresponding duty on the court or the opposite party) on any party. 30. No doubt, Sec.5 of the Act empowers the court to condone the delay on sufficient cause being shown. Sec.5 of the Act does not confer any right (with any corresponding duty on the court or the opposite party) on any party. It only gives a privilege, i.e. A liberty without any corresponding duty on the court or the opposite party for a party for a party to request the court to condone the delay on showing sufficient cause as is clear from the wordings of Sec.5 of the Act that if sufficient cause is shown for the delay, the “appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period.” Even if sufficient cause is shown, it is not automatic that the delay would be condoned since the court has the discretion to condone the delay or not (see Ramlal and others V. Rewa Coalfields Ltd.- AIR 1962 SC 361 ). Extension of time (after the period prescribed by the Act has expired) is a matter of concession or indulgence by the court to the applicant and could not be claimed as a matter of absolute right. To admit a proceeding (by condoning the delay) is merely to entertain it and not dismiss it as barred by limitation. An order condoning the delay does not make the proceeding which is thus admitted as ‘pending’ during the period of delay. 31. Would the rule of lis pendens apply to a case where no action was taken either to re-admit the suit or appeal which was dismissed for default or to challenge the judgment and decree by way of an appeal within the time prescribed by the Act? In this case, A.S.No.318 of 2003 was dismissed for default on 11.08.2003. The Period prescribed by the Act for filing a application to re-admit the appeal is 30 days from the date of dismissal. The appellant in R.S.A.No.962 of 2012 purchased a portion of item No.3 from the deceased defendant on 22.03.2010. The appeal which was dismissed for default on 11.08.2003 was re-admitted on 18.05.2010 after condoning the delay. It was after the time prescribed by the Act for applying for re-admission of the appeal expired that the 1st respondents applied for and obtained a re-admission of the appeal. 32. The appeal which was dismissed for default on 11.08.2003 was re-admitted on 18.05.2010 after condoning the delay. It was after the time prescribed by the Act for applying for re-admission of the appeal expired that the 1st respondents applied for and obtained a re-admission of the appeal. 32. On the expiry of the time prescribed by the act to apply for re-admission of the appeal, 1st respondent lost the “right” to request the appellate court to re-admit the appeal. What then remained with him was only a privilege to make an application under Sec.5 of the Act and request the court to exercise its discretionary power to condone the delay in filing the application to re-admit the appeal. In case he was able to show sufficient cause, then it was a discretionary power vested with the appellate court to condone the delay or not. As aforesaid, it was only a matter of concession or indulgence to the 1st respondent in the matter of condonation of delay and entertaining the application for re-admission of the appeal. But, during the period after expiry of the period of limitation prescribed by the Act for applying for re-admission of A.S.No.318 of 2003 and till the appeal was re-admitted, it cannot be said that the appeal was ‘pending’. 33. The decisions in Krishnaji Pandharinath v. Anusaya and Jagan Singh (dead) through Lrs. V. Dhanwanti and another (supra) true, only say that the lis could be deemed to be pending during the time within which the plaintiff could, as a matter of right request for restoration of the suit (or, the appellant could as a matter of right prefer an appeal or seek its re-admission) When it is said that during such time also t he lis could be deemed to be pending, it indirectly meant that thereafter, i.e.., after the prescribed period has expired and till the suit/appeal is re-admitted or the appeal is preferred after condoning the delay, the lis could not be said to be ‘pending’. 34. Principles of equity and public policy also persuades me to hold so. If such a view is not taken, it will be against public policy and equity based on which Sec.52 is incorporated in the TP Act. 34. Principles of equity and public policy also persuades me to hold so. If such a view is not taken, it will be against public policy and equity based on which Sec.52 is incorporated in the TP Act. For, it is open to a person to file even a frivolous suit concerning the immovable property of another and by his inaction, negligence or willful act cause the suit/appeal to be dismissed for default. He may not seek re-admission of the suit/appeal dismissed for default or prefer an appeal for any number of years. Defendant in the suit/appeal will not be able to dispose of his property or otherwise deal with it, certain of his title. A third party who is aware of dismissal of the suit/appeal for default and the possibility of the same being re-admitted or an appeal being filed at any distant time after the time prescribed by the Act for the purpose has expired, may not venture to take the risk and purchase the property. In short, the defendant who may be the title holder of the property will in effect stand precluded from disposing his property for any number of years to come. That is not the public policy or equity behind Sec.52 of TP Act. Viewed in that line also, I am inclined to take the view I have stated above. 35. Hence I have to hold that when the time prescribed by the Act for filing an application for restoration of the suit/appeal dismissed for default or for preferring an appeal has expired, then during the time thereafter and until the suit/appeal is readmitted or an appeal is admitted after condoning the delay, the lis cannot be said to be ‘pending’ so that any transaction entered into in the meantime is hit by Sec.52 of the Act. Hence the purchase made by the appellant on 22.03.2010 (the appeal having been dismissed for default on 11.08.2003, the time for filing an application for its readmission having expired after 30 days from 11-08-2003 and the appeal having been re-admitted after condoning the delay only on 18.05.2010) is not hit by Sec.52 of the TP Act. “Vigilantibus non dormientibus, Jura Subveniunt” (The law assists those who are vigilant, not those who sleep over their rights) 36. “Vigilantibus non dormientibus, Jura Subveniunt” (The law assists those who are vigilant, not those who sleep over their rights) 36. A question would then arise, in what way a transfer made after the period prescribed by the Act has expired and before the suit/appeal dismissed for default is re-admitted or the appeal is admitted after condoning the delay could be challenged? The answer is that such transfer has to be challenged in the same way title of the transferor is challenged by impleading the transferee as well in the suit/appeal. 37. The next question is whether 1st respondent (Appellant in R.S.A.No.1435 of 2012) could succeed based on Will No.37 of 1994 dated 12.04.1994 which even according to the 1st respondent (appellant in R.S.A.No.1435 of 2012) was traced only after the first appellate court decided A.S.No.318 of 2003? 38. Learned Counsel submits that as per the said Will (allegedly) executed and registered by the deceased 1st plaintiff, her half right in item No.1 is bequeathed in favour of the 1st respondent (appellant in R.S.A.No.1435 of 2012) and hence none of the respondents 2 to 4 (being also legal heirs of the 1st plaintiff) could lay hands on any petition of item No.1. 1st respondent has produced a copy of the said Will. True that the said Will comes into the picture only after disposal of A.S.No.318 of 2003. But, having regard to the claim being made by the 1st respondent (appellant in R.S.A. No. 1435 of 2012), I consider it appropriate that the trial court goes into the question of due execution and attestation of that Will rather than relegating the parties to another litigation to decide upon the due execution and attestation of that Will. Hence I consider it approproate that the suit to the extent it concerned item No.1 of the plaint schedule is also remitted to the trial court for fresh decision. 39. As I said at the beginning, there is no challenge to the judgment and decree of the first appellate court concerning item No.2. Judgment and decree of the first appellate court to that extent has to stand. 40. Since the appellant in R.S.A.No.962 of 2012 and respondents 2 to 4 are impleaded as additional respondents in the appeal, it is made clear that the impleadment will ensure to the suit also. Judgment and decree of the first appellate court to that extent has to stand. 40. Since the appellant in R.S.A.No.962 of 2012 and respondents 2 to 4 are impleaded as additional respondents in the appeal, it is made clear that the impleadment will ensure to the suit also. 1st respondent in R.S.A.No.962 of 2012 (2nd plaintiff in the suit) may move appropriate application in the trial court for amendment of the cause title and if necessary, body of the plaint consequent to such impleadment. It will be open to the 1st respondent (2nd plaintiff) to seek amendment of the plaint claiming right over item No.1 as per the Will in question. Needless to say that in case learned Munsiff after hearing both sides allows the application for amendment, contesting defendants will have the opportunity to file written statement in answer to the amended plaint. 41. I also make it clear that title claimed by the appellant in R.S.A.No.962 of 2012 being under the deceased defendant would depend on the right claimed by the deceased defendant and as may be found by the trial court. If, apart from the claim of title, the appellant has any other claim over that portion of item No.3, that claim could also be agitated in the trial court. It is open to her to file written statement raising appropriate defence as provided under the law. 42. The substatntial questions of law framed are answered as above. Resultantly. I. R.S.A.No.962 of 2012 The second appeal is allowed. Judgment and decree of learned Sub Judge, irinjalakuda in A.S.No.318 of 2003 to the extent it concerns item No.3 of the plaint schedule are set aside and the suit is remitted to the trial court for fresh decision concerning the calim made by the deceased 1st defendant and the claim made by the appellant in R.S.A.No.962 of 2012 as regards item No.3 and the portion of property claimed to be purchased by the appellant from the deceased 1st defendant. II. R.S.A.No.1435 of 2012 i. The second appeal is allowed. II. R.S.A.No.1435 of 2012 i. The second appeal is allowed. Judgment and decree of learned Sub Judge, Irinjalakuda in A.S.No.318 of 2003 to the extent it concerns item No.1 of the plaint schedule is set aside and the suit is remitted to the trial court for fresh decision on title and possession claimed by the appellant (2nd plaintiff in the suit) over item No.1 by virtue of Ext.A2 and Will No.37 of 1994 relied on by the appellant/2nd plaintiff. ii. It is made clear that it is open to the 1st respondent in R.S.A.No.962 of 2012 (appellant/2nd plaintiff in R.S.A. No.1435 of 2012) to seek formal amendment of the plaint consequent to the impleadment of appellant and respondents 2 to 4 in R.S.A.No.962 of 2012. iii. It is also open to the appellant/2nd plaintiff in R.S.A.No.1435 of 2012 to seek amendment of plaint claiming exclusive right over item No.1 based on Will No.37 of 1994 and in case any such application is preferred, the trial court shall decide that application after hearing the contesting defendants as well. iv. In case any such amendment is allowed, needless to say that the contesting defendants will get opportunity to file additional written statement to the amended plaint. III. It is specifically made clear that this Court has not interfered with the judgment and decree of learned Sub Judge, Irinjaladuda in A.S.No.318 of 2003 to the extent it concerns item No.2 of the plaint schedule. Iv. Trial court is directed to expedite the trial and disposal of the suit. V. Parties shall appear in the trial court on 25.02.2013. Registry shall send a copy of the decision is Syam Kumar v. Jayapalan Nair (2012 (2) KLT 191) to the Chief Secretary, Government of Kerala for necessary action. All pending interlocutory applications will stand dismissed.