Marirudraiah & Ors vs B.Sarojamma & Ors

1 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 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 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 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 was disposed of. At that stage,

counsel appearing for respondent Nos. 4 and 5 before the

2 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 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 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

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

dismissed the appeal on 15.06.2006.

3

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 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

respondent Nos. 4 and 5." Though the said course was

strongly 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.

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:

4

(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 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 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

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 Court for impleading them as additional respondents.

There is no need to go into the question about their

5 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 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 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 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 regularize their

6 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.

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 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.

10) To this extent, the impugned order of the High Court is

modified and the appeal is allowed in part. No costs.

..........................................J (Dr. ARIJIT PASAYAT)

7 ..........................................J. (LOKESHWAR SINGH PANTA)

...........................................J. (P. SATHASIVAM) NEW DELHI;

APRIL 02, 2009.

8