JUDGMENT : This Second Appeal is filed challenging the judgment and decree in A.S.No.131 of 2014, which reversed the order passed in E.A.No.4943 of 2006 in E.P.No.1848 of 2003 in O.S.No.2888 of 1973. 2. One A.K.Balakrishna Pillai filed a suit for partition and separate possession of the suit properties in O.S.No.2888 of 1973 against A.C.Kannan Pillai and others. The case in the partition suit, in brief, is that A.K.Balakrishna Pillai is the son of A.C.Kannan Pillai, first defendant and brother of A.K.Vasudeva Pillai, second defendant. They constituted undivided joint Hindu family. First defendant was allotted properties through a partition deed dated 21.05.1940. The properties allotted in the partition were enjoyed jointly by the joint family members and by the joint efforts and out of joint family nucleus, 'B' schedule properties in the suit were purchased. Whole 'A' schedule properties were allotted in the partition dated 21.05.1940 and 'B' schedule properties were purchased from the income derived from the joint family properties and the joint efforts made by the joint family members. As a joint family member, plaintiff is entitled for 1/3 share and thus, he filed a suit for partition. That suit was dismissed. Against the dismissal, A.K.Balakrishna Pillai filed appeal in A.S.No.44 of 1982. In appeal, this court found appellant A.K.Balakrishna Pillai was entitled to 7/18 share in respect of items 5 to 8 of the plaint 'B' schedule properties. It appears that there is no further proceedings against the judgment in A.S.No.44 of 1982 and it has become final. A.K.Balakrishna Pillai filed final decree petition for enforcing the preliminary decree. The final decree was passed on 21.08.2003. In the final decree, parties were allotted respective shares as per Commissioner's report. To take possession of the property allotted in the final decree, A.K.Balakrishna Pillai filed Execution Petition in E.P.No.1848 of 2003. Bailiff visited the property to deliver possession. Respondent and others said to have obstructed taking delivery of possession. Therefore, A.K.Balakrishna Pillai filed E.A.No.4943 of 2006, under Order 21 Rule 97 CPC for the removal of obstructions created by obstructors. This petition was allowed by learned X Assistant Judge, City Civil Court, Chennai, on 06.03.2014. Against that order, one of the obstructors/purchaser pendente lite/first respondent filed appeal in A.S.No.131 of 2014. First appellate Court allowed the appeal and therefore, this Second Appeal by the legal heirs of A.K.Balakrishna Pillai. 3. This petition was allowed by learned X Assistant Judge, City Civil Court, Chennai, on 06.03.2014. Against that order, one of the obstructors/purchaser pendente lite/first respondent filed appeal in A.S.No.131 of 2014. First appellate Court allowed the appeal and therefore, this Second Appeal by the legal heirs of A.K.Balakrishna Pillai. 3. Learned counsel for the appellants submitted that except first respondent, other obstructors had delivered the property in their possession. First respondent is alone continued to obstruct the delivery of property. First respondent had purchased the properties from the persons, who had no right to sell the property. He is a pendente lite purchaser. First respondent's mother is one of the defendants in the suit and in the final decree proceedings. Knowing fully well that there are litigations pending, first respondent purchased the properties. The sale deeds in his favour on the basis of the settlement deed executed by A.C.Kannan Pillai are not valid for the reason that it was held in A.S.No.44 of 1982 that the settlement deed executed by A.C.Kannan Pillai is not legal. Therefore, vendors of first respondent had no right to sell the properties on the basis of the settlement deed executed by A.C.Kannan Pillai and thus, the sale in favour of the first respondent is not valid. Moreover, first respondent claims the portion in excess of the properties sold to him. In the final decree proceedings, properties had been allotted as per the preliminary decree to the parties to the proceedings. Contrary to the final decree, first respondent cannot claim any share in the properties. Therefore, the obstructions created by him is illegal and is liable to be removed. The executing Court rightly allowed the petition. However, the first appellate Court, without properly appreciating the factual background and legal position, wrongly allowed the appeal. Therefore, the Second Appeal. In support of his submission, he relied on the judgment reported in (2010) 14 SCC 370 (T.G.Ashok Kumar ..vs.. Govindammal and another) for the proposition that pendente lite purchaser's right is subject to the right of his owner. “10. The principle underlying Section 52 is clear. Therefore, the Second Appeal. In support of his submission, he relied on the judgment reported in (2010) 14 SCC 370 (T.G.Ashok Kumar ..vs.. Govindammal and another) for the proposition that pendente lite purchaser's right is subject to the right of his owner. “10. The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee's right and title are saved fully or partially.” 4. In response, learned counsel for the first respondent submitted that first respondent purchased the properties from co-sharers. Therefore, he cannot be considered as an obstructor, but he is a co-sharer. As per Order 21 Rule 15 CPC, he becomes a joint decree holder by virtue of his purchase from co-sharers. In response, learned counsel for the first respondent submitted that first respondent purchased the properties from co-sharers. Therefore, he cannot be considered as an obstructor, but he is a co-sharer. As per Order 21 Rule 15 CPC, he becomes a joint decree holder by virtue of his purchase from co-sharers. He filed an application for modification of final decree before the trial Court and that application was not taken up for consideration by the trial Court. It is informed that the application was misplaced in the Court and no reconstruction of the records for adjudication of his application for modification of final decree was taken up. The obstruction removal petition has to be tried as a suit, but no material points have been framed for consideration by the executing Court. Exs.R1 to R3 sale deeds, through which, he claims his title to the property are prior documents to Execution Petition in E.P.No.1848 of 2003. His vendors had undivided share in the properties, which he purchased. The proper cause open to the appellant is to file a suit for partition and not to file a petition for removal of obstruction. The finding of the executing Court that first respondent is an obstructor is not correct. All the legal heirs of A.K.Balakrishna Pillai have not been brought on record after his demise and therefore, the very maintainability of the Execution Petition is questionable. First respondent is in possession and enjoyment of the property from the date of his purchase. Unfortunately, he was not impleaded as a party to the final decree proceedings. His interest must be protected by adjustment in allotment of the share. Therefore, learned counsel for the first respondent submitted that first appellate Court has rightly considered the claim of the first respondent and allowed the Appeal by dismissing the obstruction removal petition. He prayed for confirming the judgment of the first appellate Court and for dismissal of this Second Appeal. In support of his submissions, he relied on the following judgments:- (i) Judgment reported in AIR 1973 SC 569 (Jayaram Mudaliar ..vs.. Ayyaswami and others) is relied for the proposition that Section 52 of Transfer of Property Act is not to defeat any just and equitable claim, but only to subject them to the authority of the Court, which is dealing with the property to which claims are put forward. Ayyaswami and others) is relied for the proposition that Section 52 of Transfer of Property Act is not to defeat any just and equitable claim, but only to subject them to the authority of the Court, which is dealing with the property to which claims are put forward. (ii) Judgment reported in AIR 2007 SC 1058 (Hardev Singh ..vs.. Gurmail Singh (dead) by LRs.) is relied for the proposition that Section 52 of Transfer of Property Act does not declare a pendente lite purchase by a party to the suit as void or illegal, but only make the pendente lite purchaser bound by the decision in the pending litigations. (ii) Judgment reported in AIR 1999 SC 1694 (Jagdish Dutt and others ..vs.. Dharam Pal and others) is relied for the proposition that the purchaser of undivided interest of a co-parcener in an immovable property cannot claim to be in joint possession of that property with all other co-parceners. (iv) Judgment reported in (2010) 14 SCC 370 (T.G.Ashok Kumar ..vs.. Govindammal and another) is relied for the proposition that if all the decree holders have not been impleaded in the execution proceedings, Execution Petition suffers from non-joinder and mis-joinder of parties. (v) Judgment reported in AIR 2022 SC 81 (Bangalore Development Authority ..vs.. N.Nanjappa and others) is relied with regard to the scope of Order 21 Rule 97 CPC enquiry. 5. The following substantial question of law was framed at the time of admitting the Second Appeal :- (1) Whether the lower appellate Court was right in reversing the judgment and decree of the trial Court on the ground that the trial Court has not considered the claim of the respondents raised in their obstruction petition viz., E.A.No.1848 of 2003. 6. Considered the rival submissions and perused the records. 7. The events flowing from the filing of the suit in O.S.No.2888 of 1973 till the disposal of the appeal in A.S.No.131 of 2014 have been briefly narrated above. As illustrated, the suit in O.S.No.2888 of 1973 had been filed for partition and separate possession. Though the suit was dismissed by the trial Court, in the first appeal in A.S.No.44 of 1982 the claim of the plaintiff in O.S.No.2888 of 1973 was allowed insofar as item Nos.5 to 8 of 'B' schedule properties in the plaint. The plaintiff A.K.Balakrishna Pillai was allotted 7/18 share. Though the suit was dismissed by the trial Court, in the first appeal in A.S.No.44 of 1982 the claim of the plaintiff in O.S.No.2888 of 1973 was allowed insofar as item Nos.5 to 8 of 'B' schedule properties in the plaint. The plaintiff A.K.Balakrishna Pillai was allotted 7/18 share. It is seen from the appeal judgment that the settlement deed executed by A.C.Kannan Pillai, through which settlees had sold the properties in favour of the first respondent, had not come into force. It was found that the properties are joint family properties and not the self-acquired properties of the settler. Thus, it was found that A.K.Balakrishna Pillai was entitled to 1/3 share, totally 7/18 share. This judgment has become final. We cannot reopen the correctness of the judgment in A.S.No.44 of 1982 now. Admittedly, first respondent purchased the properties through Exs.R1 to R3. The basis for execution of these sale deeds by the settlees is the settlement deed executed by A.C.Kannan Pillai in their favour. It was found in A.S.No.44 of 1982 that the settlement deed executed by A.C.Kannan Pillai had not come into force. Therefore, the claim of first respondent's right on the basis of Exs.R1 to R3 sale deeds is questionable. At best, he can claim right on the basis of these sale deeds only if a share in the property is allotted to his vendors. 8. In the final decree proceedings in I.A.No.2776 of 1993, an Advocate Commissioner was appointed. After inspecting the property with the help of Engineer, he filed a report along with plan. It is seen from the report that Advocate Commissioner has taken note of various aspects before suggesting the mode of division. As per the report, (i) plaintiff was allotted the following portions:- “Plaintiff may be allotted (i) the entire property of item 5 and 8 of the plaint schedule property bearing Door No.1 Devaki Ammal Street and Door No.12, Orphan School Road as shown in the Plan-II of an extent of 1075.32 sq.ft and 1890.6 sq.ft respectively. (ii) and also the portion G C L K J I H of an extent of 1739.4 sq.ft in plan-I, which are shown as Yellow marked portion.” (ii) Second defendant was allotted the following portions:- “Defendant-2 may be allotted the portion marked in Plan-I as A B M E F of an extent of 4640 sq.ft. (ii) and also the portion G C L K J I H of an extent of 1739.4 sq.ft in plan-I, which are shown as Yellow marked portion.” (ii) Second defendant was allotted the following portions:- “Defendant-2 may be allotted the portion marked in Plan-I as A B M E F of an extent of 4640 sq.ft. of entire item 7 of the plaint schedule of property bearing No.5 Devakai Ammal Street.” (iii) Legal Heirs of first defendant were allotted the following portions:- “LRs of Defendant-1 may be allotted the portion marked in Plan-I as B G H I J K L D E M of an extent of 2900.6 sq.ft, which is marked Grey Blue in the plan.” “It is submitted that as per preliminary decree, Defendant-2 has to be allotted 4761 sq.ft. But in view of the entire area as well as residential building in item 7 of the plaint schedule property bearing Door No.5 is allotted, this falls short of 121 sq.ft. But the above 110 sq.ft could not be meaningfully carred out of the remaining portion, that may be beneficially be enjoyed by Defendant-2 an extent 121 sq.ft. was not allotted. Moreover item-7 and 6 of the plaint schedule property is being divided by wall along B M E line. Since the pucca residential constructed portion is being allotted to him, taking ready market value the remaining 121 sq.ft is not allotted to him.” 9. The legal heirs of first defendant, namely, A.C. Kannan Pillai are together entitled only to 4/18 share. At best, first respondent can claim only this 4/18 share from the legal heirs of the first defendant A.C.Kannan Pillai. It is the contention of the appellants that first respondent is in possession of more than the extent of the property he claimed to have purchased. He cannot claim possession in excess of the property allotted to the legal heirs of first defendant A.C.Kannan Pillai. Appellants have no objection for the first respondent to be in possession of the property which was allotted to the legal heirs of the deceased A.C.Kannan Pillai in the final decree. But it is submitted that first respondent cannot claim the portion shown as 'CGLKJIH' to an extent of 1739.4 sq.ft. shown in yellow marked in the Commissioner's plan, allotted to the Appellants. 10. But it is submitted that first respondent cannot claim the portion shown as 'CGLKJIH' to an extent of 1739.4 sq.ft. shown in yellow marked in the Commissioner's plan, allotted to the Appellants. 10. From the judgments produced with regard to the right of pendente lite purchaser, it is clear that pendente lite purchase is not illegal perse. Pendente lite purchase is subject to the right of the vendor at the conclusion of the trial. It is seen from the judgment relied by the learned counsel for the appellants and also by the learned counsel for the first respondent reported in (2010) 14 SCC 370 (cited supra) that “if ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognised or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only with regard to that extent and the transfer with regard to the remaining portion of the transferred property, to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property.” 11. In the case before hand, the portion now claimed by the first respondent was allotted to the appellants in the final decree proceedings. First respondent is also claimed to have stake his claim to an extent more than he is entitled ie., more than 4/18 share allotted in final decree. Therefore, in the considered view of this Court, first respondent is not entitled to claim more than what he is entitled, especially the portion of the properties allotted to the appellants in the final decree proceedings. Though it is claimed by the first respondent that he filed application for modification of final decree and the application was misplaced in the Court, it is not known why first respondent has not taken any further steps to proceed with the matter. Therefore, it is not open for this Court to consider this aspect. 12. Though it is claimed by the first respondent that he filed application for modification of final decree and the application was misplaced in the Court, it is not known why first respondent has not taken any further steps to proceed with the matter. Therefore, it is not open for this Court to consider this aspect. 12. Learned counsel for the first respondent submitted that the description of property given in the execution petition is unidentifiable and therefore, it would be difficult to execute the warrant. However, perusal of the execution petition shows that the petitioner A.K.Balakrishna Pillai had also annexed the final decree order to identify the properties allotted to him. Thus, this court finds that there would be no difficulty in identifying the property sought to be delivered. Learned counsel for the first respondent relied on the judgment reported in AIR 2019 MP 67 (Sajjan Singh ..vs.. Kantabai and others) for the proposition that all the legal heirs of the deceased petitioner should be impleaded in the Execution Petition to succeed. However, in the case before hand, A.K.Balakrishna pillai filed execution petition. He had also filed a petition for removal of obstruction. Thereafter, he died and thus, appeal is filed by his legal heirs, namely, his daughter and wife. First Respondent is not able to produce any material to show that there are other legal heirs to the deceased A.K.Balakrishna pillai and they are omitted to be impleaded as legal representatives and therefore, the contention of the learned counsel for the first respondent that all the legal heirs of A.K.Balakrishna pillai are not impleaded cannot be entertained and in this view of the matter, the judgment relied by him, in the considered view of this Court, is not applicable to the facts and circumstances of the case. 13. It is seen that first respondent is obstructing delivery of the property in favour of the appellants illegally and therefore, removal of obstruction was rightly ordered by the trial Court. First appellate Court, without considering the rights of the parties, extent of their claim and legal position in proper perspective, wrongly allowed the appeal and therefore, the judgment of the first appellate Court is set aside and the order of the trial Court is restored. Thus, the substantial question of law is answered. 14. First appellate Court, without considering the rights of the parties, extent of their claim and legal position in proper perspective, wrongly allowed the appeal and therefore, the judgment of the first appellate Court is set aside and the order of the trial Court is restored. Thus, the substantial question of law is answered. 14. In the result, the judgment and decree of the first appellate Court in A.S.No.131 of 2014 dated 29.04.2015 is set aside and the order and decreetal order of the trial Court in E.A.No.4943 of 2006 in E.P.No.1848 of 2003 in O.S.No.2888 of 1973 dated 06.03.2014 is restored and this Second Appeal is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.