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TMI Blog1972 (4) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... that date. The plaintiff respondent before us had challenged, by an amendment of his plaint on 18-9-1961, the validity of the sales of land mentioned above, consisting of items given in schedule B to the plaint, on the ground, inter-alia, that these sales, of joint property in suit, were struck by the doctrine of lis pendens embodied in section 52 of the Indian Transfer of Property Act. As this is the sole question, on merits, raised by the appellant before us for consideration, we will only mention those facts which are relevant for its decision. Before, however, dealing with the above-mentioned question, a preliminary objection to the hearing of this appeal may be disposed of. The Trial Court and the Court of first appeal having held that the rule of lis pendens applied to the sales mentioned above, the appellant purchaser had filed a second appeal in the High Court of Madras, which was substantially dismissed by a learned Judge of that Court, on 19-7-1968, after a modification of the decree. Leave to file a Letters Patent appeal was not asked for in the manner required by Rule 28, Order IV of the Rules of Madras High Court, which runs as follows 28. When an appeal agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of clause 15 of the Letters Patent of the Madras High Court requiring only that the Judge who passed the Judgment should declare that the case is fit one for appeal as a condition for appealing. It was urged that the period of limitation for filing an appeal should not, in effect, be cut down by a rule such as the one found in Rule 28, Order IV of the Rules of Madras High Court. It was urged that, before article 117 of the Limitation Act of 1963 introduced a period of thirty days from a decree or order for filing a Letters Patent appeal, the period of limitation for such appeals fell under the residuary article 181 of the old Limitation Act. As applications for certification fen outside the provisions of the Civil Procedure Code and there was no specific provision for them in the Limitation Act the High Court could frame its own rule prescribing the mode and time for making such applications. Rule 28 of Order IV of the Madras High Court does not purport to affect the power to give the declaration contemplated by clause 15 of the Letters Patent,. In some High Courts, there is no rule of the Court laying down that the application should be oral and made immediately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usted before coming to this Court had been really complied with. Each. case must, we think, be decided upon its own facts. 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, we have heard arguments on merits, also. The merits may now be considered. 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 three minor sons Jagannathan, Duraisami alias Thanikachalam, and Vijayarangam in favour of the defendant appellant; and, secondly, there was the sale evidenced by the,. sale certificate (Exhibit B. 51) of 15-7-1960 showing that the auction sale was held in order to realise certain, arrears under hire purchase system due to Shri O. D. Munisami Mudaliar. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts was executed after this date. 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. There was nothing in the sale certificate to show that the due for- which properties were sold were of anyone other than Munisami individually. 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. 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. It was urged that where properties are liable to be sold for, payment 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded the, properties covered by the two impugned sales evidenced by Ex. B.7 and B.5 1, yet, the Commissioner who was to divide the properties by metes and bounds, was directed to allot to Munisami s share, so far as possible, properties which were covered by Exhibit B.7, and B.51. 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. 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. 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. The High Court of Madras had described the sale of 7-7-1958 as a voluntary alienation , and, thereby, placed it on a footing differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . . . . the language of S. 52 has been held to be applicable not only to private transfers but also to Court sales held in execution of decrees. S. 2 (d) does not make S. 52 inapplicable to Ch. 4, which deals with mortgages. This is now well-settled : vide Radhama dhub Holdar v. Manohar Mukerji (1888) 15 Cal. 756=15 I.A. 97 and Moti Lal v. Kharrabuldin (1898) 25 Cal. 179=24 I.A. 170 followed in numerous cases out of which mention may be made of Sukhadeo Prasad V. Jamna 1901) 23 All. 60=(1900) A.W.N. 199 . But, as we have no actual sale in execution of a mortgage decree, this question need not be decided here. Another decision to which our attention was drawn was : Maulabax v. Sardarmal Anr. AIR 1952 Nag. 341 . The suggestion made on behalf of the appellant, that attachment 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. A contention of this kind was, repelled, in K. N. Lal v. Ganeshi Ram, [1970] 2 S.C.R. 204 at 21 by this Court as clearly of no avail against the embargo imposed by Section 52 of the Transfer of Property Act. The High Court had rightly disting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. On the question considered there. the view of the East Punjab High Court in Wazir Ali Khan v. Zahir Ahmad Khan A.T.R. 1949 East Punj. 193 was preferred ,to the view of the Allahabad High Court in Kundan Lal v. Amar Singh.(1) The observations made by this Court with regard to the doctrine of lis pendens when a plaintiff is enforcing a right of preemption must, we think, be confined to cases of sales which could defeat preemptors claims. 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. 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. 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 Muda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 7 ( 1 ) (c) do not affect prior interests of, persons other than the borrower or of the party which consents to certain loans. 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. 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. Every transaction of Munisami or in respect of joint property in his possession could not affect rights of other members. It was for this reason that Section 7 (1) (a) was not specifically applied by the High Court,. 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. 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 v. The Union of India(1) In that case, the origin of the paramount right of the State to rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned 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 from being alienated). Bell, in his commentaries on the lows of Scotland(1) said that it was grounded on the,maxim: Pendente lite nibil innovandum . 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) [1920] AC 508. (2) 2 Bell s Com. on laws of Scotland, p. 144. vest the property or obtain the possession of real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced. 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 fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n suit before the Court. Hence, the doctrine of lis pendens was correctly applied. For the reasons given above, there is no force in this appeal which is dismissed with costs. Sikri, C. J.-I have had the advantage of perusing the judgment 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. I may give a few facts to, make the judgment self sufficient. 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. / 2 Def. 3 Def. 4 Def. / 5 12th Def. (Jayaram Mudaliar)-alinee of Def. No. 1. On June 23, 1956 Ayyaswami (Plaintiff) filed a pauper petition No. 137/1958. 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. While this suit was pending, defendant No. 1-Muniswami Mudaliar-and four of his sons executed a sale deed (Ex. B7) in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 defendant in favour of the 12th defendant true, valid and binding on the plaintiff and is affected by LIS PENDENS ? (4) Whether the Revenue sale by the Collector dated 16-3-1960 is liable to be questioned by the plaintiff ? (5) Is the suit without impleading the Government liable to be questioned by the plaintiff ? (6) Is the sale of pump set by the 1st defendant to the 12th defendant true, valid and binding on the plaintiff ? (7) Whether the plaintiff and other members became divided from the 1st defendant after 1939 ? (8) To what equities, if any, is the 12th defendant entitled ? (9) Is the plaintiff estopped from questioning the alienations and claiming any right in the B Schedule properties ? We are only concerned with issues 3 and 4 above. The Trial Court held that the sale deed, Ex. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 under clause 15 of the Letters Patent shall be made orally and immediately after the judgment has been delivered. This Court granted special leave. 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. The learned counsel for Defendant No. 12 urged that Rule 28 of Order 4 was ultra vires. 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 Ex. B7 and Ex. B51 hit by the rule of lis pendens ? Clause 15 of the Letters Patent inter alia provides for an appeal to the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent position. It was held in Samarendra Nath Sinha Anr. v. Krishna Kumar Nag(1) that the principle of lis pendens applies even to involuntary alienations like court sales. 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. This principle is well illustrated in Radhamabhub Holder v. Monohar 15 I.A. 97. where the facts were almost similar to those in the instant case. It is true that S. 52 strictly speaking does not apply to involuntary alienations such as court sales. But it is well-established that the principle of lis- pendens applies to such alienations. [See Nilkant v. Suresh Chandra 12 I. A. 171 and Motilal v. Karrabuldin 24 I.A. 170.] These observations were referred to with approval by this Court in Kedar Nath Lal v. Ganesh Ram 15 I.A. 97.. If the principle of lis pendens applies to court auctions there is no reason why it should not apply to revenue sales. But the effect of the application of the principle may vary according to the nature of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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