MARIRUDRAIAH & ORS.versusB. SAROJAMMA & ORS.

                         [2009] 5 S.C:R. 491


                     MARIRUDRAIAH & ORS.                            A
                                  v.
                      B. SAROJAMMA & ORS.
                  (Civil Appeal No. 2138 of 2009)

>                          APRIL 2, 2009
                                                                    B
      [DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA
                  AND P. SATHASIVAM, JJ.]

          Code of Civil Procedure, 1908 - lmpleadment of
    Pendente lite purchaser and direction to work out equity in his C
    favour - Propriety of - Suit for partition - Pendentelite
    purchase of a portion of suit property - lmpleadment of
    purchasers at appellate stage - Suit decreed as per terms of
    compromise - High Court at the instance of purchasers
    directing the trial court to work out equity in their favour by D
    allotting them the suit property and paying compensation to
    the vendor and the co-sharers who were not party to the sale-
    deed - Held: Propriety of impleadment order cannot be
    disturbed - However, direction to work out equity not
    sustainable - Purchasers were since impleaded during E ·
    pendency of final decree proceedings, all the issues
    relegated in pending final decree proceedings - Courts are
    not supposed to encourage pendentelite transactions and
    regularize such conduct by sharing equity in favour of such
    purchaser - Equity.                                             F

         In a suit for partition, preliminary decree was granted.
    The same was challenged in appeal. During pendency
    thereof, respondents 8 and 9 (pendentelite purchasers of
    suit item No. 9), were impleaded as respondents in the
    appeal. The issue in suit was closed by recording               G
    compromise between the parties before High Court
    whereby the parties agreed to the partition. Thereafter, on
    the application by the purchasers-respondents, High
    Court directed trial court to work out equity in favour of
                                   491                              H
                                                                        I
    492        SUPREME COURT REPORTS              (2009] 5 S. C.R.


A the purchasers by allotting them suit item No. 9 in their
  favour and to compensate the plaintiffs and other sharers
  who were not parties to the sale-deed in the final decree
  proceedings.

      In appeal to this court, the questions for                     ,
8
  consideration were: (1) whether High Court was justified
  in impleading the purchasers pendentelite as party
  respondents in the appeal, and (2) whether High Court
  was justified in issuing direction for allotment of suit item
C No. 9 in favour of purchasers and for payment of
  compensation to other sharers.

          Partly allowing the appeal, the Court

       HELD:1. In view of the fact that respondent-
D purchasers purchased item No.9 of the suit property from
  respondent No. 1 and others who are sharers, the order
  of the High Court impleading them as respondents in the
  proceedings cannot be disturbed. [Para 8] [495-G-H; 496-
    A]
E      2. However, direction for payment of compensation
  to the plaintiff and others and working out equity are set
  aside. When the purchasers approached the High Court
  for their impleadment and for directions, final decree
  proceeding was pending before the trial Court.
F Respondent-purchasers purchased item No.9 from the
  first respondent pendente lite. In fact, the courts are not
                                                                     " r -
  sups;,osed to encourage pendente lite transactions and
  regularize their conduct by showing equity in their
  favour. In such circumstances, it is proper to relegate all
G the issues in the final decree proceedings which is
  pending before the trial Court. [Paras 8 and 9] [496-C-E]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2138 of 2009.

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           MARIRUDRAIAH & ORS. v. 8. SAROJAMMA & ORS.               493


             From the Judgment & Order dated 15.06.2006 and the           A
         subsequent order dated 17.6.2006 of the High Court of
         Karnataka at Bangalore in Regular First Appeal No.207 of
         2003.

     >       Naveen R. Nath, Lalit Mohan Bhat, Hetu Arora and A           B
         Dashrath, for the Appellants.

             Krishna Mani, B. Vishwanath Bhandarkar, V.N.
         Raghupathy, M.N. Uma Shankar and B.S. Sharma for the
         Respondents.
                                                                          c
             The Judgment of the Court was delivered by

             P. SATHASIVAM, J. 1. Leave granted.

•            2. This appeal is directed against the final judgment and
     f
         orders dated 15.06.2006 and 17.06.2006 passed by the High         D
         Court of Karnataka at Bangalore in Regular First Appeal No.
         207 of 2003.

              3. Regular First Appeal No. 207 of 2003 was filed under
         Section 96 of the Civil Procedure Code before the High Court E
         of Karnataka against the judgment and decree dated
         25.10.2002 passed in O.S. No. 8252 of 1998 by the XXll
         Additional City Civil and Sessions Judge, Bangalore granting
         preliminary decree in a suit for partition and separate
--   ~   possession. In the said appeal, applicants-Suresh Salariya and F
         V. Mohammed Shaffiulla of Bangalore filed I.A. No. 4 of 2005
         seeking permission to bring them on record as additional ·
         respondents contending that they have purchased suit item
         No.9 from Smt. B. Sarojamma with the consent of other
         sharers, appellant Nos. 3, 4, 5 and 8 therein. In the absence of
                                                                            G
         any objection by the appellants, the High Court allowed the said
         application. It is further seen that the appellants and respondent
         Nos. 1 to 3 before the High Court filed a compromise petition
         and the same was signed by all the parties by their respective
         advocates. On 15.06.2006, all the parties to the compromise
                                                                            H
    494        SUPREME COURT REPORTS               [2009] 5 S.C.R.


A petition were present and admitted the execution of the same.
  They were identified by their advocates. According to the
  compromise, the parties have no objection to divide the suit
  schedule joint family properties under Section 6 of the Hindu
  Succession Act. In terms of the compromise, the appeal itself
                                                                             ~
B was disposed of. At that stage, counsel appearing for
  respondent Nos. 4 and 5 before the High Court, purchasers of
  item No. 9 submitted that since they purchased the suit item
  No.9 from appellant No.1, namely, B. Sarojamma with the
  consent of appellant Nos. 3, 4, 5 and 8, prayed that the suit item
c No. 9 may be allotted to the share of those persons and they
  may be directed to pay the value of the share of the remaining
  parties in respect of suit item No.9 is concerned. It was pointed
  out by the purchasers that considering the total number of
  shares to be divided among the parties, suit item No. 9 cannot
                                                                                 ,
  be divided by metes and bounds. However, the contesting                    •
D
  parties submitted that the said dispute has to be relegated to
  the final decree proceedings.

        4. Considering the submissions made, the High Court
    accepted the claim of the purchasers-impleaded Respondents
E   and directed the trial Court to work out equity in favour of the
    purchasers and compensate the plaintiffs and other sharers
    who are not parties to the sale deed in the final decree
    proceedings. With the said observation, the High Court

F
    dismissed the appeal on 15.06.2006.

       5. On 17.06.2006, at the request of the counsel for the
                                                                       \.-
                                                                                 -
  respondent Nos. 1 and 2 therein, the matter was listed for
  "being spoken to". Thereafter, the High Court, after hearing the
  learned counsel appearing for the respective parties, clarified
  the earlier order dated 15.06.2006 and observed that "since
G
  the purchasers have stepped into the shoes of the appellants,
  plaintiffs share has to be ascertained and while working out the
  equity, the share of the plaintiff in item No.9 shall be
  compensated in terms of money by considering the market
  value by the appellants who have sold the property to
H
  MARIRUDRAIAH & ORS. v. B. SAROJAMMA & ORS.                 495
             [P. SATHASIVAM, J.]
respondent Nos. 4 and 5." Though the said course was strongly        A
objected to by the contesting parties, the High Court declined
to modify the same and reiterated its earlier order dated
15.06.2006. Aggrieved by these orders, respondents therein
filed the above appeal.
                                                                     B
      6. We heard Mr. Naveen R. Nath, learned counsel for the
appellants and Mr. M.N. Krishna Mani, learned senior counsel
for the respondents.

    7. The questions which arise for consideration in this
appeal are:                                                          C

      (a)   Whether the High Court was justified in impleading
            the purchasers pendente lite as party respondents
            in the appeal?

      (b}   Whether High Court was justified in issuing              D
            direction for allotment of suit item No.9 in favour of
            the purchasers and compensation to be paid to the
            other sharers?

      8. Considering the limited issue raised, there is no need      E
to traverse all the factual details. Admittedly, after passing of
the preliminary decree, the subject-matter of the suit was
pending in the High Court as Regular First Appeal No. 207 of
2003 and the same was closed by recording the compromise
petition filed by the parties. An application for passing final      F
decree for actual apportionment among the sharers was filed
before the trial Court and the same is pending consideration
as on date. In view of the fact that B. Sarojamma and Others
sold item No.9 in favour of respondent Nos. 8 and 9 herein, they
filed I.A. No. 4 of 2005 in the First Appeal pending in the High     G
Court for impleading them as additional respondents. There is
no need to go into the question about their entitlement. In view
of the fact that they purchased item No.9 of the suit property
from B. Sarojamma and Others who are sharers, we are not
inclined to disturb the order of the High Court impleading them
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     496        SUPREME COURT REPORTS                [2009] 5 S.C.R.


A as respondents in the proceedings. However, as rightly pointed
   out by learned counsel for the appellants, we are more
   concerned about the positive direction of the High Court that
   in the final decree proceedings, the trial court has to work out
  the equity in favour of the purchasers and compensate the
B plaintiffs and other sharers who are not parties to the sale deed.
  As pointed out by learned counsel for the appellants, it is not
  in dispute that when the purchasers approached the High Court
  for their impleadment and for directions, final decree
  proceeding was pending before the trial Court. In fact, it was
C pointed out that pursuant to the application filed for passing final
  decree, a Commissioner was appointed for division of the suit
  properties by metes and bounds. It is relevant to point out that
  Respondent Nos. 8 and 9 herein purchased item No.9 from the
  first respondent herein pendente lite. In fact, the courts are not
  supposed to encourage pendente lite transactions and
0
  regularize their conduct by showing equity in their favour. In such
  circumstances, we are of the view that it is but proper to relegate
  all the issues in the final decree proceedings and in the case
  on hand, the same is pending before the trial Court.

E       9. In the light of the above discussion, we confirm the order
   of the High Court with regard to impleading the pendente lite
  purchasers (Respondent Nos. 8 and 9 herein) as parties to the
  proceedings, whereas other aspects, namely, direction for
  payment of compensation to the plaintiff and others and working
F out equity are set aside. However, all the parties are permitted
  to put-forth their claim by way of separate application before
  the trial Court in the final decree proceedings and it is for the
  trial Court to consider the claim/objection of the parties including
  equity and pass appropriate orders in accordance with law.
G
        10. To this extent, the impugned order of the High Court is
    modified and the appeal is allowed in part. No costs.
                                                                         r
    K.K.T.                                   Appeal partly allowed

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