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In some High Courts, there is no rule of the Court laying down that the application should be oral and made immediately after the judgment has been delivered. Ratio |
It is, however, evident that a rule such as Rule 28 of Order IV the Madras High Court is most useful and necessary particularly when a period of thirty days only for filing an appeal has been prescribed in 1963. Ratio |
The Judge pronouncing the judgment can decide then and there, in the presence of parties or their counsel, whether the case calls for a certificate. Ratio |
In a suitable case, where a party is able to prove that it was prevented due to some cause beyond its control from asking for leave at the proper time, the Judge concerned may condone non compliance 144 by a party with Rule 28, Order IV, of the Madras High Court, or extend time by applying Section 5 of the . Ratio |
This salutary rule could not, therefore, be held to be ultra vires or invalid. Ratio |
There is, however, another answer to the preliminary objec tion. Ratio |
It was contended that the case before us is covered by what was laid down by this Court in Penu Balakrishna Iyer 's case (Supra) when it said (at page 53) ". we do not think it would be possible to lay down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters Paten... |
Having regard to the wide scope of the powers conferred on this Court under article 136, it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. Ratio |
The question as to whether the jurisdiction of this Court under article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case". Ratio |
In that particular case, this Court had actually heard and allowed the appeal by Special leave because it held that there was no general inflexible rule that special leave should be refused where the appellant has not exhausted his rights by asking for a certificate of fitness of a case and because that case called for... |
It is urged before us that the appellant had done whatever he possibly could, in the circumstances of the case, to apply for and obtain a certificate of fitness after going through the judgment of the High Court, so that the rule that alternative modes of redress should be exhausted before coming to this Court had been... |
In the case before us, although the appellant was not shown to have attempted any explanation of failure to apply for the certificate at the proper time, yet, +,he special leave petition having been granted, and the case having passed, without objection, beyond the stage of interim orders and printing of the records, w... |
The merits may now be considered. Ratio |
The challenge on the ground of lis pendens, which had been accepted by the Courts in Madras, right up to the High Court, was directed against two kinds of sales : firstly,% there was the ostensibly voluntary sale of 7 7 1958 under a sale deed by the defendant Munisami Mudaliar and his major son Subramanian Mudaliar and... |
The words "due to" must in the context, be read as "due from" ' because "falsa demostration non nocet". Ratio |
The deed of the voluntary sale for Rs. 10,5001/ showed that Rs. 7375.11 Ans were to be set off against the money due on a. decree obtained by the purchaser against the sellers in original suit 2/56 of the Vellore Sub Court , Rs. 538.5 Ans.were left to liquidate the amount due for principal and interest due to the purch... |
It may be mentioned here that, on 17 1 1944, Munisami had executed a mortgage of some of the property in Schedule 'B ' of the plaint for Rs. 7,500/ in favour of Kannayiram, and he had executed a second mortgage in respect of one item of property of Schedule 'B ' in favour of Patta Mal, who had assigned his rights to T.... |
A third mortgage of the first item of Schedule 'B ' properties was executed on 27 5 1952 by Munisami, in favour of the appellant Jayaram, was said to be necessitated by the need to pay arrears of Rs. 3,000/ incometax and for discharging a debt and a promote in favour of a man called Mudali. FAC |
In 1955, an original suit No. 124/1955 had been filed by T. Pillai who had obtained orders for the sale of the first item of Schedule 'B ' properties shown in the plaint. FAC |
The original suit No. 2 of 1956 had been filed for principal and interest due on 27 5 1952 to the appellant who had obtained an attachment on 5 1 1956 of some schedule 'B ' properties. FAC |
The appellant had obtained a preliminary decree on 25 1 1956 in his suit and a final decree on 14 9 1957. FAC |
All these events had taken Place before the institution of the partition suit on 23 6 1968. FAC |
But, the voluntary sale to satisfy decretal amounts was executed after this date. FAC |
The second sale was an involuntary sale for realisation of dues under the provisions of section 7 of the Land Improvement Loans Act 19 of 1883 which could be realised as arrears of land revenue. FAC |
There was nothing in the sale certificate to show that the due for 146 which properties were sold were of anyone other than Munisami individually. FAC |
On the facts stated above, the appellant Jayaram claims that both kinds of sales were outside the purview of the doctrine of lis pendens inasmuch as both the sales were for the discharge of preexisting liabilities of the Hindu joint family of which Munisami was the karta. FAC |
The liabilities incurred by Munisami, it was submitted, as karta of the family, had to be met, in any case, out of the properties which were the subject matter of the partition suit. FAC |
It was urged that where properties are liable to be sold for, pay ment of such debts as have to be discharged by the whole family, ,only those properties would be available for partition in the pending suit which are left after taking away the properties sold for meeting the pre existing liabilities of the joint family... |
In the case of the sale for discharging dues under the Land Improvement Loans Act it was also contended that they obtained priority .,over other claims, and, for this additional reason, fell outside, the scope of the principle of lis pendens. FAC |
The defendant respondent Munisami and the defendant appellant Jayaram had both pleaded that the properties in suit were acquired by Munisami with his own funds obtained by separate business in partnership with a stranger and that Ayyaswami, plaintiff, had no share in these properties. FAC |
The plaintiff respondent 's case was that although the properties were joint, the liabilities sought to be created and alienations made by Munisami were fraudulent and not for any legal necessity, and, therefore, not binding on the family. ' The Trial Court had found that the properties given in Schedule 'B ' were join... |
This finding was affirmed by the first Appellate Court and was not touched in the High Court. FAC |
It did not follow from this finding that all dealings of Munisami with joint family properties, on the wrong assumption that he was entitled to alienate them as owner and not as karta, would automatically become binding on the joint family. Ratio |
A karta is only authorised to make alienations on behalf of the whole family where these are supported by legal necessity. Ratio |
It was no party 's case that the alienations were made on behalf of, and, therefore, were legally binding on the joint family of which plaintiff respondent Ayyaswami was a member., The Trial Court recorded a finding on which the learned Counsel for the appellant relies strongly : "There is over whelming documentary and... |
" 147 It may be mentioned here that the 12th Defendant is no other than, the appellant Jayaram Mudaliar, the son in law of defendant respondent Munisami Mudaliar, who had purchased the properties covered by both the impugned sales. Ratio |
The plea of the plaintiff respondent Ayyaswami that the sales in favour of Jayaram, the 12th defendant appellant, were fraudulent and fictitious and the trial Court 's decree for the partition included the, properties covered by the two impugned sales evidenced by exhibit B.7 and B.5 1, yet, the Commissioner who was to... |
This implied that the liabilities created by the decrees for whose satisfaction the sale deed dated 7 7 58 (Exhibit B 7) was executed and the revenue sale of 16 3 1960 for loans under an agreement were treated as the separate liabilities of the defendant Munisami and not those of the joint family. Ratio |
The Trial Court as well as the First Appellate Court had also rejected the plea that the revenue sale of 16 3 1960 to satisfy pre existing liabilities of Munisami had any priority over the rights of the plaintiff respondent may get in the partition suit. Ratio |
The result was that the partition suit was decreed subject to a direction for the allotment of the Properties covered by Exhibit B. 7 and B. 51 so that the purchaser may retain these properties if they were allotted to Munisami. Ratio |
The High Court of Madras had described the sale of 7 7 1958 as a "voluntary alienation", and, thereby, placed it on a footing different from an involuntary sale in execution of a decree in a mortgage suit. Ratio |
The obligations incurred before the sale of 7 7 1958, by reason of the decrees in the mortgaged suits, were not on this view, liabilities which could be equated with either transfers prior to the institution of the partition suit or with sales in execution of mortgage decrees which are involuntary. Ratio |
So far as the revenue sale was concerned, the High Court, after setting out the terms of Section 7 of the Land Improvement Loans Act 19 of 1883, held that only that land sold was to be excluded from the purview of the principle of lis pendens for the improvement of which some loan was taken. Ratio |
This meant that only that part of the loan was treated as a liability of the joint family as could be said to be taken for the joint land. Ratio |
It, therefore, modified the decrees of the Courts below by giving a direction that further evidence should be taken before passing a final decree to show what land could be thus excluded from partition. Ratio |
The plaintiff appellant has relied upon certain authorities laying down that the doctrine of lis pendens is not to be extended to cover involuntary sales in execution of a decree in a mortgage suit where the mortgage was, prior to the institution of the suit in which 148 the plea of lis pendens is taken, because the ri... |
They are: Chinnaswami Paddayachi vs Darmalinga Paddyachi(1) Gulam Rasool Sahib vs Hamida Bibi(2 ) , Baldeo Das Bajoria & Ors.vs Sarojini Dasi & Ors.,(3) Har Prashad Lal vs Dalmardan Singh(4). ARG |
Reliance was also placed on the principle laid down in Sityam Lal & Anr vs Sohan Lal & Ors.,(5) to contend that, since Section 52 of the Transfer of Property Act does not protect transferors, a transfer on behalf of the whole joint Hindu family would be outside the purview of the principle in a partition suit. ARG |
The contention advanced on the strength of the last mentioned case erroneously assumes that the impugned sales were on behalf of the joint family. ARG |
Learned Counsel for the plaintiff respondent has, in reply, drawn our attention to the following observations of Sulaiman, Ag.C.J., expressing the majority opinion in Ram Sanehi Lal & Anr.vs Janki Prasad & Ors.(6) (FB) : "the language of section 52 has been held to be applicable not only to private transfers but also t... |
section 2 (d) does not make section 52 inapplicable to Ch. 4, which deals with mortgages. ARG |
This is now well settled : vide Radhama 'dhub Holdar vs Manohar Mukerji (A) and Moti Lal vs Kharrabuldin (B) followed in numerous cases out of which mention may be made of Sukhadeo Prasad V. Jamna (C) ". ARG |
But, as we have no actual sale in execution of a mortgage decree, this question need not be decided here. Ratio |
Another decision to which our attention was drawn was : Maulabax vs Sardarmal & Anr. ARG |
The suggestion made on behalf of the appellant, that attach ment of some schedule 'B ' property before judgment in the purchaser 's mortgage suit could remove it from the ambit of lis pendens, is quit, , unacceptable. ARG |
A contention of this kind was, repelled, in K. N. Lal vs Ganeshi Ram, (8) by this Court as clearly of no avail against the embargo imposed by Section 52 of the Transfer of Property Act. Ratio |
(1) AIR 1932 Madras 566. PRE |
(3) AIR 1929 Calcutta 697. PRE |
(5) AIR 1928 All. PRE |
(7) AIR 1952 Nag. PRE |
341, (2) AIR 1950 Madras 189. PRE |
(4) ILR 32 Calcutta 891. PRE |
(6) AIR 1931 All. PRE |
P. 466 @ 480. PRE |
(8) ; at 21 149 The High Court had rightly distinguished cases cited on behalf of the appellant before it by holding that exemption from the scope of As pendens cannot be extended to voluntary sales in any case. Ratio |
Obviously, its view was that, even where a voluntary sale takes place in order to satisfy the decretal amount in a mortgage suit, the result of such a sale was not the same as that of an involuntary sale in the course of execution proceedings where land is sold to satisfy the decree on the strength of a mortgage which ... |
The High Court had observed that, as regards the satisfaction of the mortgage decree in his favour, which was part of the consideration for the sale of 7 7 1958, the appellant purchaser decree holder could get the benefit of Section 14 and still execute his decree if it remained unsatisfied due to failure of considerat... |
An examination of the sale deed of 7 7 1958 discloses that it is not confined to the satisfaction of the decretal amounts. Ratio |
Other items are also found in it. Ratio |
The sale deed does not purport to be on behalf of the Hindu joint family of which Ayyaswami the plaintiff and Munisami Defendant No. 1 could be said to be members. Ratio |
It no doubt mentions the sons of Munisami Mudaliar but not Ayyaswami, plaintiff, among the sellers. Ratio |
As already indicated, Munisami, Defendant Respondent, as well as Jayaram Defendant Appellant, having denied that the, properties in dispute were joint, could not take up the position that the sales were binding on the whole family. Ratio |
Therefore, we are unable to hold that the assumption of the Madras High Court that the voluntary sale could not bind the whole family, of which Munisami was the karta, was incorrect. Ratio |
Learned Counsel for the appellant had also relied on Bishan Singh vs Khazan Singh.(1) That was a case in which, before the deposit of money by the pre emptors in a suit to enforce their rights to pre emption, the vendee had sold his rights to the appellant who had an equal right of pre emption. ARG |
It was held there that the claim for pre emption could be defeated by such a device which fell outside the purview of the principle of lis pendens. Ratio |
We think that this decision turns Upon its own facts and on the nature of the right of pre emption which, as was observed there, is a weak right. Ratio |
This Court had held that this weak right could be defeated by a sale which a vendee is compelled to make for the purpose of defeating the 'night, provided the purchaser 's superior or equal right to Pre emption had not been barred by limitation. Ratio |
On the question considered there the view of the East Punjab High Court in Wazir Ali Khan vs Zahir Ahmad Khan(2) was preferred ,to the view of the Allahabad High Court in Kundan Lal vs Amar (1) ; (2) A.T.R. 1949 East Punj.150 Singh.(1) The observations made by this Court with regard to the doctrine of lis pendens when ... |
It has to be remembered that a technical rule of the law of preemption is that the preemptor, to succeed in his suit, must continue to possess the right to preempt until the decree for possession is passed in his favour. Ratio |
As regards the revenue sale of 16 3 1960 (Exhibit 0.51) we find that the, sale certificate is even less informative than the voluntary sale deed considered above. Ratio |
Nevertheless, the view taken by: the Madras High Court was that any land for to improvement of which loan is shown to have been taken by Munisami Mudaliar would be excluded from the purview of the doctrine of lis pendens. Ratio |
It is, however, urged that the High Court had given effect to clause, (c) of Section 7 of the Land improvement Loans Act of 1883, but had overlooked clause (a). Ratio |
1 Here, the relevant part of Section 7, sub section(1) of this Apt may be, set out. Ratio |
It reads as follows "7.Recovery of loans. (1) Subject to such rules as may be made under Section 10, all loans granted under this Act, all interest (if any) chargeable thereon, and 'Costs (if any) incurred in making the same shall, when they become be ' recoverable by the, Collector in all or any of the following modes... |
" Reliance was also placed on Sec.42 of the Madras Revenue Recovery Act of 1864 which reads as follows: "All lands brought: to sale on account of arrears of revenue shall be sold free of all incumbrances, and if any balance shall remain after liquidating the arrears with interest and the expences of attachment and sale... |
" It will be seen that the assumption that the dues could be realised as arrears of land revenue would only apply to the interest of the borrower so far as clause (7) (1) (a) ls concerned. Ratio |
The proviso enacts that even recoveries falling under Sec 7 ( 1 ) (c) do not affect prior interests of, persons other than the borrower or of the party which consents to certain loans. Ratio |
In the case before us, the borrower had himself taken up the case that the loan was taken by him individually for the purpose of purchasing a pumping set installed on the land. Ratio |
It did not, therefore, follow that this liability was incurred on behalf of the joint family unless it amounted to an unprovement of the joint land. Ratio |
Every transaction of Munisami or in respect of joint property in his possession could not affect rights of other members. Ratio |
It was for this reason that Section 7 (1) (a) was not specifically applied by the High Court,. Ratio |
But, at the same time, the direction that the properties sold should, so far as possible, be allotted to Munisami meant that the purchaser could enforce his rights to them if they came to the share of Munisami. Ratio |
The question of paramount claims or rights of the Government for the realisation of its taxes or of dues which are equated with taxes was also raised on behalf of the appellant on the strength of Builders Supply Corporation vs The Union of India(1) In that case, the origin of the paramount right of the State to realise... |
Apart of the fact that there is no claim by, the State before us, we may observe that, where a statutory provision is relied upon for recovery of dues, the effect of it must be confined to what the statute en acts. Ratio |
Even under the English law, the terms of the statute displace any claim based on prerogatives of the Crown (1) 152 vide Attorney General v. De Keyser 's Royal hotel Ltd. (1) And, in no case, can the,claim whatever its basis, justify a sale of that property which doesnot belong to the person against whom the claim exist... |
As already observed a claim under Section7(1)(a) of the Land Improvement Loans Act of 1883 could only be made from the borrower. Ratio |
This meat that, unless it was proved that Munisami, in taking a loan under the Act, was acting as the, karta of the, joint Hindu family of which Ayyaswamy was a member, recovery of arrears could only be made from Munisami 's share in the, 1and. Ratio |
That this could be done was, in our opinion implied in the direction that the properties sold should, so far as possible, be allotted to the share of Munisami. Ratio |
As some argument has been advanced on the supposed in applicability of the general doctrine of lis pendem to the impugned sales, the nature, the basis, and the, scope of this doctrine may be ,considered here. Ratio |
It has been pointed out, in Bennet "On lis pendens", that, even before Sir Francis Bacon framed his ordinances in 1816 " 'for the better and more regular administration of justice in the chancery, to be daily observed" stating the doctrine of lis pendens in the 12th ordinance, the doctrine was already recognized and en... |
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