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Judgment
Mohan, J.—This is a very simple application unduly complicated by unnecessary case-law. The first respondent in the appeal (V. Sivaram)
filed C.S. No. 102 of 1980 on the file of the High Court, which came to be dealt with by the City Civil Court, Madras as O.S. No. 2696 of 1981.
The suit was for declaration of the plaintiff''s title to the suit property and for a further direction to the defendants to put the plaintiff in possession of
the same and to pay the arrears of rent of Rs. 18,000 due to the plaintiff and mesne profits. That ended in a decree on contest. The decree is dated
5th September, 1983. Against the judgment and decree of the learned VI Additional Judge, City Civil Court, the appeal has come to be filed by
the first defendant, ''Sakunthala'', the widow of the brother of the plaintiff. Three days after the decree, the present third and fourth respondents, R.
Rathnavel Chettiar and R. Navaneethammal, purchased the property and they came to be impleaded as party respondents as per order of K.M.
Natarajan, J., The connected proceedings in this case are reported in Rathinavel Chettiar v. Sakunthala (1987) 100 L.W. 1011 (K.M. Natarajan,
J.) in C.M.P. No. 5008 of 1984. It is at this stage, the present application, C.M.P. No. 15941 of 1987, has been taken out praying to record the
memorandum of compromise filed by the petitioner (the plaintiff in the suit and the first respondent herein) and to allow the appeal and dismiss the
suit as not pressed.
Notice has been given to all the parties in the application, viz., the parties originally arrayed as well as the parties impleaded. Mr. V.S.
Subramanyan, learned counsel appearing for the appellant (Sakunthala) has no objection for the plaintiff withdrawing the suit and the memorandum
being recorded. It is the third and the fourth respondents, viz., the purchasers of the suit property pendente lite, who oppose this application
strenuously by filing a detailed counter-affidavit.
According to Mr. T.R. Mani, learned counsel appearing for the petitioner in the application (decree-holder), originally one and the same
Advocate appeared for the decree-holder as well as the purchasers. Later on, it had to be necessarily changed because there arose conflict of
interests. A copy of the affidavit, marked as Annexure ''A'' to the present application, was sent to the petitioner for his signature, wherein, in
paragraph 5 it was stated as follows: ""The purchasers of the said suit property who are respondents 3 and 4 in the above appeal are pressing me
to take necessary steps to dispose of the above appeal as they want possession from the appellant"". From this the petitioner got scent of the evil
intentions of the purchasers pendente lite and therefore, the behaviour of the third and the fourth respondents as if they were the real owners or the
property and their wanting the petitioner to sign the affidavit and papers, made the petitioner realise about the fraud perpetrated and intended to be
perpetrated on him. Thereafter, friends and well-wishers of the family intervened and wanted the petitioner to settle the matter instead of fighting his
brother''s widow who had no wherewithal to maintain herself and had none to look after her. It is under these circumstances, the memorandum has
been filed, and there can be no serious objection for the compromise being recorded. Learned counsel would further add that there cannot be any
serious objection for the plaintiff withdrawing the suit so long as the plaintiff does not ask for liberty to file a fresh suit, and this is one such case. If
really there is any right to be worked out as between the decree-holder and the third and fourth respondents, that could be agitated in a separate
suit, because, according to the petitioner decree-holder, the sale deed stated to have been executed by the petitioner were a scheme of the fraud
played upon the petitioner, without his having received any consideration whatever. Having regard to that position, notwithstanding the fact that
purchasers pendente lite respondents 3 and 4 have come to be impleaded, they cannot have any objection for the compromise being recorded, nor
will they have any locus standi to object to the same with regard to the plaintiff withdrawing the suit. Whatever are the rights of the purchaser,
could be agitated by means of separate proceedings. In support of this submission, learned counsel for the petitioner (decree-holder) cites Suraj
Pal Singh Vs. Sri Gharam Singh and Others, .
As we observed earlier, Mr. V.S. Subramanyan, learned counsel for the appellant, has no objection for the memorandum being recorded. Mr.
R.S. Venkatachari, learned counsel for the purchasers pendente lite (respondents 3 and 4)., would cite Veeraraghava Reddy v. Subba Reddy 37
M.L.J. 449 = 10 L.W. 281 (F.B.), and contend that whatever might have been the position of the purchasers pendente lite, in so far as by an
order of this Court they have come to be arrayed as respondents, to the prejudice of their rights no compromise can ever be entered into. If that
were to be allowed to be done, that will be mockery of justice. As a matter of fact, it is incorrect on the part of the petitioner to contend that no
consideration had passed under the sale deeds. To act upon the sale deeds, the petitioner had also directed the purchasers (respondents 3 and 4)
to collect the rents from the suit property. Now therefore, by way of a collusion, they cannot enter into a compromise and expect this Court to give
its blessings to that compromise. To the same effect is the decision in Basudeb Narayan Singh and Others Vs. Shesh Narayan Singh and Others,
No doubt, in Nanjammal v. Easwaramurthy4, a different note was struck. The position here is, in view of the order of K.M. Natarajao, J, in
C.M.P. No. 5008 of 1984, once the alienees have been impleaded as parties, their rights to have the litigation adjudicated upon would remain
intact. The view expressed in Nanjammal and Others Vs. Eswaramurthi Goundar by guardian and mother Karunai Ammal and Another, (at page
532), has not met with approval in the Andhra Pradesh High Court, as seen from C. Subbarayudu v. E. Brahamanandan AIR 1970 Andhra
Pradesh 211. Then, again, in Smt. Rani Bai v. Yadunandan Ram 1969-2, S.C.J. 794 ., the Supreme Court has categorically pointed out that
withdrawal of the suit should be examined with great caution. Therefore, having regard to the preponderant authorities, the petition cannot be
allowed and the petitioner cannot be permitted to enter into compromise to defeat the just rights of the alienees, more so, to the prejudice of their
rights.
Before we dwell upon the case-law, we would rather like to approach the matter on the first principle from the point of view of justice and
equity, at the same time, having regard to the weighty observations of the earlier law to which our attention has been drawn. What is it that is taking
place in this case? The plaintiff (decree-holder) wants to withdraw the suit notwithstanding a decree in his favour. According to him, he does not
want to fight his brothers widow. Thanks to the timely intervention of the elders, wisdom has dawned on the parties to enter into a compromise.
Hardly before the ink is dry on the decree, the decree-holder has sold away his right, title and interest in the property in favour of respondents 3
and 4, within three days of the decree, which, of course, would mean that respondents 3 and 4 are purchasers pendente lite Because of their
purchase, it necessitated the appellant to implead the purchasers pendente lite as parties to the appeal. Apart from the fact that it is wholly
unnecessary to implead them in the appeal because they take the property only subject to the decree, any execution taken out against the
judgment-debtor will benefit the purchasers pendente lite also. Be that so, after hard contest, they came to be impleaded by an order of this Court,
made by a learned Judge, K.M. Natarajan, J. Under these circumstances, the question is whether the flames of litigation are to be kept alive for the
purpose of rendering an adjudication on the rights stated to have been acquired by the purchasers. To look at the injustice part of the matter,
supposing, as in this case, the transferor does not stand by the sales, or if he contends, as is contended before us, that he had been defrauded into
entering into the sales under which he received no consideration whatever, is he, for the sin of having signed the documents of sale, to be prevented
from entering into a compromise in order that there could be amity in the joint family? Or, again, the matter may be looked at from another point of
view. Can a purchaser who, without payment of any consideration whatever, merely arm himself with the document of sale and contend that his
rights are defeated by the original parties entering into a compromise? All the cases cited, which we have carefully gone through, are cases in which
the transferor stood by the transfer or alienation. It was under those circumstances, the Courts took the view that the purchaser pendente lite
having come to be impleaded as a party, his rights cannot be affected or defeated by a collusion between the original parties so as to prejudice his
rights. Therefore, collusion or fraud came to be considered from the angle of the parties entering into a compromise to defeat the just rights of the
purchaser pendente lite. But here is a case where, at any rate, as is alleged before us, the transfer or states that he has been defrauded in entering
into the sales. In such a case, we are of the opinion that the fraud or collusion from the point of view of the purchaser pendente lite may not arise.
Equally, the plaintiff cannot be prevented from entering into a bona fide compromise merely because he has been defrauded into entering into a sale
of the suit property by the purchasers pendente lite. For instance, we may go to the sheet anchor on which Mr. R.S. Venkatachari relies, namely,
Veeraraghava Reddy v. Subba Reddy 10 L.W. 281 = 37 M.L.J. 449 (F.B.). He refers us to the observations of Seshagiri Iyer, J., at page 288
(reference to the report in the Law Weekly) wherein the learned Judge makes the following observations:-
It was not seriously disputed that if there was a private adjustment outside the Court which is not reported to it, that would not bind the purchaser
pendente lite, Therefore, what gives force to the adjustment is the sanction of the Court, and the question therefore resolves itself into this. Can a
court sanction a compromise so as to affect the rights of one of the parties before it although it may be a lawful agreement between the other
parties? My answer is in the negative. It was said that the finding that there was no fraud or collusion is conclusive against the rights of the 4th
respondent (alienee in that case). I am unable to follow this reasoning. If there was fraud or collusion even though the purchaser is not a party, he
can impeach the compromise in a fresh suit, and how is his position bettered by intervening at an earlier stage to protect his rights. Further, the
prejudice to the purchaser would not necessarily be consequent upon fraud or collusion. The transferor and the plaintiff may honestly believe that a
certain amount is due. They may not embark upon a complicated enquiry into the question of limitation. They may not desire to go behind what is
apparent on the fact of the record and may agree honestly to fix the amount that is payable by one party to the other. But the purchaser pendente
lite has a larger right. He can litigate the question whether the amount claimed in the suit was really due, whether it was barred by limitation and
whether it is a binding debt. Therefore, the mere fact that there had been no fraud or collusion does not settle the rights of the purchaser pendente
lite. There are observations in Ravi Charan v. Binwanath 20 Cal. L.J., 107, to the effect that the purchaser would be affected only if he does not
choose to make himself a party. Harudhur Chuckerbutty v. Pratap Narain Chowdhury 14 W.R. 401, is to the same effect. In 10 M.L.A. 476,
there are dicta at page 487 which very strongly support the view that the rights of a person who can and does intervene should not be affected by
any adjustment or agreement between the other parties. I am therefore of opinion that the compromise, although it may be binding upon the first
defendant, cannot affect the rights of the fourth respondent to claim a judicial decision on the question.
Again, learned counsel refers to the observations of Kumaraswami Sastri, J., at page 290, which run thus:--
When an alienee has been so added he gets all the rights of a party to a suit. I can see nothing in the Code which reduces him to a mere figure head
bound by all the acts of the original parties because his alienation was pending the suit. If, for example, his transferor remains ex parte, can it be
contended that he cannot let in evidence or prosecute or defend the suit because it has been held that an alienee pendente lite is bound by an ex
parte decree passed in the suit, 0. 23, R. 3 contemplates a compromise or adjustment between all the parties to the suit and it is difficult to see
how the Court can pass a decree on a compromise to which a party to the suit was not a party without such person''s consent unless it can be held
that a compromise as a compromise between the original parties is binding on an alienean pending suit. To do so would be to extend the doctrine
of lis pendens to an agreement between the original parties to a suit which may at some future date enable them to get a decree in terms thereof. I
can find no authority for doing so.
Here, it requires to be observed that in the case cited the alienor or transferor did not contend that he had been defrauded in entering into a sale to
the alienee, and that would be very clear from the narration of the facts of that case, found at page 282, which were as follows:--
Pending disposal of the appeal, two mortgages on the property in suit were given by the first defendant to the fourth respondent the present
appellant, in June and November 1914. Meanwhile, negotiations for a compromise had gone on between the first defendant and the plaintiff. The
fourth respondent had, however, in consequence of his acquisition of an interest in the suit properties, been made a party to the appeal......
In those circumstances, the question was whether the rights of the fourth respondent therein had come to be concluded by the first defendant''s
action or whether he was entitled to contest the appeal on its merits. It was this question which came, of course, before the Full Bench.
Then we go to Basudeb Narayan Singh and Others Vs. Shesh Narayan Singh and Others, Here again, as the facts make out, one Janaki Devi,
claiming to be the widow of Mahendra Narain Singh, filed a petition under O. 1, R. 10, Code of Civil Procedure, for being impleaded as a
defendant and it was allowed. In dealing with the right of a plaintiff to withdraw the suit, in paragraph 12 and 13 of the judgment, the Court
observed as follows:--
The principles which can be deduced out of the cases aforesaid are clearly the following:
(1) The plaintiff under sub-R. (1) of R. 1 of O. 23 of the Code, has a right to withdraw a suit at any stage; (2) that such a right of the plaintiff is
limited to the extent that it does not result in defeating a right which has already vested in a defendant, such a right may have become vested in the
defendant either on account of a compromise or a concession or a decree or an award or similar circumstances; (3) that in a partition suit every
defendant is virtually in the position of a plaintiff, his claim being founded on a claim similar to that of the plaintiff; and (4) that O. 23, R. 1, Sub-R.
(1) of the Code applies even to a partition suit, subject to the aforesaid limitation.
In this background of the law, the point arises as to whether the circumstances of the present case have created any vested right in the defendant
which should justify the refusal of the prayer of the plaintiff to withdraw the suit. From the facts stated earlier, it would appear that defendant
Parimala Devi claimed a share on the allegaties that she was a daughter. On this allegation she had a right to file a suit for partition independently.
She was allowed to join as an intervenor defendant. Thereafter she alleged waste of the properties by the other parties and accordingly, she
prayed for the appointment of a receiver. In this connection, the plaintiff gave an undertaking that they would not transfer any of the properties
during the pendency of the suit. The trial court first refused her prayer for appointment of receiver and granted her a maintenance. She, however
waived this right to maintenance and prayed for appointment of receiver so as to save the properly from waste and illegal transfers. The Court
appointed a receiver and thus the property could not be transferred legally by any of the parties to the suit.
The question arises whether these circumstances vested in this defendant a right which would justify the refusal of the prayer of the plaintiffs to
withdraw. It is true that under sub-R. (1) aforesaid, a plaintiff has a right to withdraw unconditionally, but after all, it is a rule of procedures and it is
well settled that procedure is to aid justice and not to defeat it. It is for this reason that Crump. J., said that there are wider considerations involved
in the matter and this dictum of Crump, J., was adopted by the Supreme Court in the case of R. Ramamurthi Iyer Vs. Raja V. Rajeswara Rao, .
Therefore, considerations of justice and equity have to be kept in view before granting the prayer of a plaintiff to withdraw from a suit. Now, what
would be the result if the plaintiff is allowed to withdraw from the present suit? The result will be the receiver will cease to exist, the property may
be wasted or transferred by the plaintiffs or/other parties; further, the defendant would be put to lose in as much as she waived the right of
maintenance on account of the grant of the right of receivership.
As seen from this ruling, it is clear that considerations of justice and equity have to be kept in view before granting the prayer (emphasis supplied).
In Nanjammal v. Easwaramurthy 67 L.W. 307 = (1954) 1 M.L.J. 530., Division Bench of this Court, after referring to the Full Bench case 10
L.W. 281 = 37 M.L.J., 449 (F.B.), to which we made a reference just now, held as follows: --
As alienation pendente lite is subject to the rule of lis pendens enacted in S. 52 of the Transfer of Property Act and the alienee, if he is not
impleaded as a party and does not object to any compromise behind his back between his alienor and the other party to the suit, would be heard
by the compromise reached between them, unless thereafter he could establish in a separate suit that the compromise was collusive and fraudulent.
But, if he has been added as a party to the litigation, he would be entitled to object to a decree being passed in terms of a compromise arrived at
between his alienor and the opposite party. It was therefore the duty of the Court to have decided whether the prayer of the appellants should or
should not be granted on the merits and the Court ought to have exercised its discretion under O. 22, R. 10, judicially........
O. 23, R. 3 requires that it must be proved to the satisfaction of the Court that the subject matter of the suit was adjusted wholly or in part by a
lawful agreement or compromise. There can be no proof of such compromise when the compromise reduced to writing is not produced into Court.
It is therefore wrong to hold that the mere existence of the compromise in the hands of a party would be sufficient to terminate the suit so as to
preclude the Court from exercising its jurisdiction under O. 22, R. 10.......
If the application to implead as a party was ordered on the date on which it was made, the appellants would be parties, and they would be entitled
in any application subsequently made for recording a compromise to oppose the compromise as intended to defeat their rights. Merely because the
Court took time to dispose of the application, the parties should not be made to suffer on that account and therefore, an application to implead as a
party merely to oppose the compromise could be entertained.
In considering this aspect, in C. Subbarayudu v. E. Brahmanandan AIR 1970 Andhra Pradesh, 211., the observations of a Division Bench, of
the Andhra Pradesh High Court, in paragraph 11 of its judgment (at page 215), clearly point out that the scope of O. 22, R. 10, C.P.C., is not
wide enough so as to permit a settle during the pendency of suit to apply to be impleaded as a party in the appeal; but, however, S. 146 may come
to the rescue. But we are not concerned with such a position.
In Smt. Rani Bat v. Yadunandan Ram 1969-2, S.C.J. 794., the head-note reads as follows:--
It cannot be disputed that the appellant who is the widow of a predeceased son of Janagi Devi was entitled to receive maintenance, so long as she
did not re-marry, out of the estate of her father-in-law. Although her claim for maintenance was not a charge upon the estate until it had been filed
and specifically charged thereupon, her right was not liable to be defeated except by transfer to a bona fide purchaser for value without notice of a
claim or even with notice of the claim unless the transfer was made with the intention of defeating her rights. The Courts in India have taken the
view that where a widow is in possession of a specific property for the purpose of her maintenance, a purchaser buying with notice other claim is
not entitled to possession of that property without first securing proper maintenance for her vide: Rachzor & others v. Shivavegappa 1894 ILR 18.
Bom. 679. .
After the enforcement of the Hindu Adoption and Maintenance Act, 1956, the right of a widowed daughter-in-law to maintenance is governed by
S. 19 of that Act which, however, could not be applicable In the present case, it is difficult to understand how the appellant could be deprived of
the possession of properties by a trespasser. Moreover, she was presumably in possession of these properties in lieu of her right of maintenance
and could not be deprived of them even by Jugli Bai (widow of the last male holder) without first securing proper maintenance of her daughter-in-
law-out of the aforesaid properties. If the finding of the trial Court was that respondent No. 1 was a mere trespasser, it is not possible to see how
Jugli Bai could effect a transfer of all her rights by merely filing a petition to the effect that she did not wish to prosecute the suit as a co-plaintiff.
The appellant had a possessory title and was entitled to restoration of possession in case it was found that respondent No. 1 had no right, title or
interest whatsoever and was a mere trespasser. The appellant was further entitled to remain in possession if she could establish that she had
entered into possession by virtue of her claim of right to maintenance until the person laying a claim to the estate of Jangi Jogi made some paper
arrangement for the payment of maintenance to her.
This does not help the appellant to decide the question as arising before us, since what has come up for decision before us is, the right of a plaintiff
to withdraw the suit, where the plaintiff alleges that he has been defrauded in entering into the sales in question. Therefore, we are of the considered
view that there cannot be any objection whatsoever for the plaintiff withdrawing the suit. However, we may make it very clear that the validity of
the sales executed by the petitioner-decree-holder in favour of Rathnavel Chettiar and Navaneethammal (respondents 3 and 4 herein) has not been
decided by us, because it is highly contentions--the alienees contending that consideration passed and the sales had been acted upon and the
alienees were allowed to collect the rents and so on, while the alienor says be did not see even the colour of the coin. Of course, the rights of both
these parties are left open to be decided in appropriate proceedings as they may be advised to initiate. This compromise will not have the effect of
adjudicating upon that question. All that the purchasers pendente lite would put forth, will mean that they must be heard before the compromise is
recorded. That is the reason why we heard them at length.
In the result, we record the memorandum of compromise filed by the petitioner (decree-holder). C.M.P. No. 15941 of 1987 is ordered
accordingly. The appeal is allowed and the suit is dismissed as not pressed. However, there will be no order as to costs.
October 28, 1987:--Soon after we pronounced the judgment in the appeal, Mr. R.S. Venkatachari, learned counsel for the third and fourth
respondents, made an oral application for grant of leave to appeal to the Supreme Court. We do not consider this is a fit case for granting leave,
having regard to the fact that we have only followed the principles deducible from the judicial pronouncements on which these respondents rely.