Alienation made of suit property during pendency of the suit not valid.

(S.Jagadeesan,J)

The appeal arises out of the final decree passed in Application No.1502 of 1994 in C.S.62 of 1982. The appellant, third party to the proceeding, has filed this appeal. The respondents 1 to 3 filed the suit for partition, claiming 3/8th share in the properties against the respondents 4 and 5. A preliminary decree was passed on 19.10.1990. Pending the suit the fourth respondent died. Consequently the respondents 1 to 3 are entitled for half share and the fifth respondent for the remaining half share in the suit properties.

2.The respondents 1 to 3 filed Application 1502 of 1994 for passing the final decree. Three Advocate-Commissioners were appointed at different point of time. 19.9.2000 was accepted and the learned Judge passed the final decree, allotting item Nos.1a, 3, 4, 6 and 8 of the plaint schedule property to the share of the respondents 1 to 3. By way of owelty to equalise the value of the share, the fifth respondent was directed to pay a sum of Rs.1,64,370/- to the respondents 1 to 3. Consequently Item Nos.1b, 2, 5 and 7 were allotted to the fifth respondent.

3.Since the disputed item in this appeal being Item No.6 of the plaint schedule alone, we do not propose to elaborate the facts in detail, as the same is unnecessary.

4.So far as 6th item is concerned, during the pendency of the suit, the 5th respondent sold the property to one K.C.S Nadar Memorial Education Improvement Committee on 3.1.1992. The appellant purchased the same on 3.12.1993 from K.C.S. Nadar Memorial Educational Improvement Committee.

5.The appellant herein filed Application No. 3211 of 1996 to implead himself as a party to the proceeding, as a purchaser pendente lite.

6.By order dated 21.1.1997 this court disposed of the application stating that the applicant being a purchaser pendente lite, he is not entitled for any claim for equity for the allotment of a particular item. But, however, the Advocate-Commissioner, during the allotment of the share in accordance with the preliminary decree, may consider the claim of the applicant for the allotment of item No.6 of plaint schedule property, if such allotment would not affect the shares of other parties to the proceeding. This court further made it clear that the said order dated 21.1.1997 will not enable the applicant to put forth his claim as of right of equity.

7.Now by virtue of the allotment made by the learned Judge, Item No.6 having been allotted to the share of the respondents 1 to 3/plaintiffs in the suit, the appellant has filed this appeal by way of one more round of litigation.

8.The learned counsel for the appellant vehemently contended that the appellant having invested huge amount on construction, the said Item No.6 of the plaint schedule can be allotted to him and the respondents can be allotted Item No.5 of the plaint schedule. The First Commissioner valued Item No.5 at Rs.18,14,540/-; whereas item No.6 is valued at Rs.18,12,262/-. On the basis of this valuation, the counsel for the appellant further contended that Item No.5 being more value, the respondents may not be prejudiced in taking that property. It was further submitted that the appellant is willing to pay a sum of Rs.1 lakh by way of owelty to the respondents and at least on that basis the respondents may be directed to take Item No.5 of the plaint schedule and give up Item No.6 to the appellant.

9.On the other hand, the learned counsel for the respondents contended that Item No.5 of the plaint schedule property is in occupation of the tenants and as such the respondents may not be in a position to get vacant possession inspite of getting the decree for partition. He further contended that the appellant being a purchaser from the transferee pendente lite, he is not entitled for any equity. Having purchaed the property pending the litigation, the appellant ought not to have put up any construction in the site and as such now having taken the risk by investing the money pending the litigation, it is not ope