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Bacon 's ordinance on the ,Subject said : "No decree bindeth any that commeth in bona fide, by conveyance from the, defendant before the bill exhibited, and is made no party, neither by bill, nor the order; but, where he comes in pendente life, and, while the suit is in full prosecution. Ratio |
and without any colour of allowance or privity of the court, there regularly the decree bindeth; but, if there were any intermissions of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice. Ratio |
" The doctrine, however, as would be evident from Bennet 's work mentioned above, is derived from the rules of jus gentium which became embodied in the Roman Law where we find the maxim: "Rem dequa controversia prohibemur in acrum dedicate" (a thing concerning which there is a controversy is prohibited, during the suit... |
Bell, in his commentaries on the lows of Scotland(1) said that it was grounded on the,maxim: "Pendente lite nibil innovandum". Ratio |
He observed "It is a general rule which seems to have been recognized in all regular systems of jurisprudence, that during the pendence of an action., of which the object is to (1) ; (2) 2 Bell 's Com. on laws of Scotland, p. 144.153 vest the property or obtain the possession of real estate, a purchaser shall be held t... |
" In the Corpus Juris Secundum (Vol.LIV P. 570), we find the following definition : "Lis pendens literally means a pending suit; and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in suit, pending the continuance of the action, and until... |
" Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject matter of litigation so that parties litigating before it may not remove any part of the subject matter outside the power of the court to deal with it and thus make th... |
It is useful to remember this background of Section 52 of our Transfer of Property Act which lays down : "During the pendency in any Court. of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherw... |
" It is evident that the doctrine, as stated in Section 52, applies not merely to actual transfers of rights which are subject matter of litigation but to other dealings with it "by any party to the suit or proceeding, so as to affect the right of any other party thereto". Ratio |
Hence, it could be urged that where it is not a party to the litigation but an outside agency, such as the tax Collecting authorities of the Government, which proceeds against the subject matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Ratio |
Again, where all the parties which could be affected by a pending litigation are, themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation, the Court may bind them to their own acts. Ratio |
All these are matters which the Court could have properly considered. Ratio |
The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to, which claims are put forward. Ratio |
11 1208S ipCT/72 154 In the case before US, the Courts had given directions to safeguard such just and equitable claims as the purchaser appellant may have obtained without trespassing on the rights of the plaintiff respondent in the joint Property involved in the partition suit before the Court. Ratio |
Hence, the doctrine of lis pendens was correctly applied. Ratio |
For the reasons given above, there is no force in this appeal which is dismissed with costs. RPC |
Sikri, C. J. RPC |
I have had the advantage of perusing the judg ment prepared by my brother, Beg J., but as I arrive at the same conclusion by a slightly different route I am writing a separate judgment. Ratio |
I may give a few facts to, make the judgment self sufficient. Ratio |
The following pedigree may enable us to appreciate the facts Muniappa Mudaliar Doraiswamy Mudaliar ChidambaraGovindaswamy Muda (died on 4 9 1937) Mudaliarliar (died 1940) wife 6th Def.(died pendingAnnammal 10th Def.suit) Muniswami Ayyaswami Def.7 Def8 Def. 9 Mudaliar (1st Def.Mudaliar died pending suit) (Plaintiff) Def... |
On June 23, 1956 Ayyaswami (Plaintiff) filed a pauper petition No. 137/1958. FAC |
In the plaint he claimed a partition of B Schedule properties which, according to him belonged to Joint Hindu Family consisting of himself and the defendants. FAC |
While this suit was pending, defendant No. 1 Muniswami Mudaliar and four of his sons executed a sale deed (exhibit B7) in respect of some lands in Ozhaiyathur village in favour of Jayaram Mudaliar on July 7, 1958. FAC |
These properties comprised items 5, 15 to 19, 24 and 28 of Schedule B. FAC |
On July 15, 1960 a certificate of sale (exhibit B51) was issued stating that Jayaram Mudaliar had purchased at public auction immoveable property (described in the certificate) for Rs. 6,500/ . FAC |
The property is stated to have been sold for " pumpset arrears under Hire Purchase System due by Muniswami Mudaliar". FAC |
Exhibit B 51 covered items 4, 18, 20, 23 to 27 and 155 31.It is common ground that these properties were included in the B Schedule mentioned in the plaint. FAC |
It is stated in the judgment of the Trial Court that Jayaram Mudaliar got himself impleaded as 12th defendant. FAC |
He filed a written statement inter alia alleging that the Plaint B Schedule properties were the sole and absolute properties of the 1st defendant. FAC |
Additional issues were framed in the suit. FAC |
It appears that by virtue of order dated September 18, 1961, the plaint was amended and paras 24(a) and 24(b) inserted. FAC |
They read : "24(a) The 12th defendant is a close agnate of the son in law of the 1st defendant. FAC |
He executed the sham and nominal sale deed dated 7 7 1958 in favour of the 12th defendant to defeat the plaintiff 's rights and to secrete the properties. FAC |
It was not acted upon. FAC |
It is the 1st defendant that continues to be in possession even now. FAC |
The alleged sale deed is not supported by consideration. FAC |
The mortgage itself was brought about to defeat any rights. FAC |
In any event on the date of the alleged sale deed dated 7 7 1958 the mortgage decree debt was, not subsisting. FAC |
The plaint was filed in forma pauperis as O.P. 137 of 1958 on the file of this Hon 'ble Court on 23 6 1958. FAC |
Thus in any event the sale is, hit by the rule of lis pendens and the sale deed dated 7 7 1958 cannot and does not confer any rights on the 12th defendant. FAC |
24(b) The revenue sale is brought about collusively and fraudulently. FAC |
There was no publication. FAC |
The 12th defendant never got into possession of any property. FAC |
The possession still continues to be with the 1st defendant on behalf of the joint family. FAC |
The sale is also hit by the rule of lis pendens. ARG |
It also does not and cannot confer any rights on the 12th defendant. ARG |
" Following additional issues were raised out of the pleadings of the 12th defendant : (1) Whether the plaint B Schedule properties are joint family properties ? (2) Whether the plaintiff is entitled to question the, alienations in favour of the 12th defendant ? (3) Whether the sale deed dated 7 7 1958 by the 1st defen... |
The Trial Court held that the sale deed, exhibit B7, and the revenue sale "are all true and supported by consideration and that the 12th defendant would be entitled to them, if these sales were not affected by the rule of 'lis pendens ' within the meaning of section 52 of the Transfer of Property Act". FAC |
Regarding lis pendens he held that the purchases under both exhibit B7 and exhibit B51 were affected by the rule of lis pendens. FAC |
The Trial Court passed a preliminary decree for partition of B Schedule properties (items 2 to 31) into six equal shares. FAC |
It protected the interest of the 12th defendant by stating that "as far as possible the Commissioner appointed in the suit for division of the properties will allot to the plaintiff 's share such of the properties which are not covered by Exs.B 7 and B 51". FAC |
The District Judge confirmed the decree. FAC |
Before the High Court, in appeal by defendant No. 12, the only point considered was that of lis pendens. FAC |
The High Court held that exhibit B7 was a case of voluntary alienation and was hit by lis pendens, as the sale was not in execution of a mortgage decree. FAC |
Regarding exhibit B51 the High Court, relying on Ponnuswami vs Obul Reddy(1) held that exhibit B51 would not be affected by lis pendens, as the loans were granted under the Land Improvement Loam Act to the extent that the loans were taken for the improvement of the properties. FAC |
As it had not been considered whether all the properties which were sold in revenue sale and conveyed under exhibit B51 were, lands for the improvement of which loans were taken, the High Court directed (1) A.I.R. 1939 Mad.157 "In the final decree proceedings, the trial court were to consider what were the properties f... |
In respect of other properties, the doctrine of lis, pendens will apply. FAC |
The trial court take evidence for the purpose of deciding the properties in respect of which the loans under the Land Improvement Loans Act were taken." With this modification the High Court dismissed the appeal. FAC |
Defendant No. 12 applied for a certified copy of the Judgment and Decree on July 22, 1968, and these were made ready on August 9, 1968 and delivered on August 12, 1968. FAC |
Defendant No. 12 moved the High Court by letter dated August 22, 1968 "requesting the posting of the appeal for being mentioned for the purpose of the issue of the Certificate for leave to appeal under the Letter Patent". FAC |
The learned Judge who heard the appeal by his order dated September 6, 1968 refused the leave on the ground that the leave was not asked for immediately on delivery of judgment and that it could not be asked for afterwards. FAC |
Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side, 1965 under which the leave asked for was refused reads "28. When an appeal against an appellate, decree or order has been heard and disposed of by a single judge, any application for a certificate that the case is a fit one for further appeal u... |
This Court granted special leave. FAC |
At the outset, Mr. Chagla raised the preliminary objection that the appeal was incompetent as Defendant No. 12 failed to ask for certificate orally and immediately after the judgment was delivered. ARG |
The learned counsel for Defendant No. 12 urged that Rule 28 of Order 4 was ultra vires. ARG |
Two points thus arise out of the contentions of the parties : (1) Is Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side ultra vires ? (2) Are the Sales by exhibit B7 and exhibit B51 hit by the rule of lis pendens ? Clause 15 of the Letters Patent inter alia provides for an appeal to the High Cou... |
Clause 37 ,of the Letters Patent confers powers on the High Court to make rules and orders for the purpose of regulating all proceedings in civil cases. Ratio |
This Court held in The Union of India vs Ram Kanwar(1) that under el.27 of the Letters Patent which is in similar terms as el. Ratio |
37 mentioned above, the High Court of Judicature at Lahore had the power to make a rule prescribing the period of limitation in respect of appeals from Orders made by that Court in exercise of its original jurisdiction to a Division Bench ,of that Court. Ratio |
It seems to me that the High Court can equally frame a rule regulating, the 'time at which and the manner in which the application for a certificate shall be made. Ratio |
Rule 28 of Order 4 does not take away any right conferred by el. 15 of the Letters Patent. Ratio |
It only regulates the manner of the exercise of that right. Ratio |
It was said that the rule unduly restricts the right of the litigant to peruse the judgment and make, up his mind whether to appeal or not. Ratio |
But if the declaration is made immediately by the Judge that the case is fit one for appeal there is nothing to prevent the litigant ;from not filing the appeal if he considers it inadvisable to do so. Ratio |
I need not discuss the point whether the Judge will have the right to condone a breach of the Rule because no application seems to have been made to condone the breach of the Rule. Ratio |
But this conclusion does not render the appeal before us incompetent. Ratio |
Leave was given by this Court after hearing the respondents on October 14, 1968. Ratio |
On April 22, 1969 the respondents obtained an order from this Court for expediting the hearing. Ratio |
No application was made at that stage to raise the point of incompetency of appeal. Ratio |
In the circumstances I consider that the appeal should be disposed of on merits. Ratio |
Coming to the second point, this Court has considered the 7scope of section 52 of the Transfer of Property Act and the rule of lis pendens in a number of cases. Ratio |
There is no difficulty in holding that exhibit B7 falls within the provisions of section 52 of the Transfer of Property Act. Ratio |
But exhibit B51 stands in a different position. Ratio |
It was held in Samarendra Nath Sinha & Anr.vs Krishna Kumar Nag(1) that the principle of lis pendens applies even to involuntary alienations like court sales. PRE |
Shelat J., observed : "The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to, it so must it bind the person deriving his right, title and interest from or through him. PRE |
This principle is well illustrated in Radhamabhub Holder vs Monohar(1) where the facts were almost similar to those in the instant case. Ratio |
It is true that section 52 strictly speaking does not apply to involuntary alienations such as court sales. Ratio |
But it is well established that the principle of lis pendens applies to such alienations. Ratio |
[See Nilkant vs Suresh Chandra(2) and Motilal vs Karrabuldin (3).] These observations were referred to with approval by this Court in Kedar Nath Lal vs Ganesh Ram(1). Ratio |
If the principle of lis pendens applies to court auctions there is no reason why it should not apply to revenue sales. Ratio |
But the effect of the application of the principle ' may vary according to the nature of the provisions under which the revenue sale is held. Ratio |
The principle of lis pendens does not affect pre existing rights. Ratio |
If there is a valid charge or mortgage on a property, this does not vanish because the property becomes the subject matter of a partition suit. Ratio |
In this case according to defendant No. 12 a valid charge subsisted on the lands by virtue of the provisions of the Land Improvement Loans Act. Ratio |
Under section 7 of the Land Improvement Loans Act loans are recoverable by the Collector in all or any of the following modes, namely: (a) from the borrower as if they were arrears of land revenue due by him; (b). . (c) out of the land for the benefit of which the loan has been granted as if they were arrears of land r... |
" Section 42 of the Madras Revenue Recovery Act provides that all lands brought to sale on account of arrears of revenue shall be sold free of all encumbrances. STA |
The liability of the land to be sold under section 7 (c) of the Act was a pre existing charge and that subsisted as from the date of the loan. PRE |
This was not affected by the institution of the suit for partition. Ratio |
This charge could be enforced by the State, notwithstanding the pendency of the partition suit. Ratio |
No decree in the Partition suit could have effaced the charge. Ratio |
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