Jayaram Mudaliar Vs. Iyyaswaar &
Ors  INSC 107 (12 April 1972)
SIKRI, S.M. (CJ) SIKRI, S.M. (CJ) RAY, A.N.
BEG, M. HAMEEDULLAH
CITATION: 1973 AIR 569 1973 SCR (1) 139 1972
SCC (2) 200
CITATOR INFO :
RF 1973 SC2537 (14) F 1975 SC1810 (18) D 1981
SC 981 (2,3,4,12,16)
Transfer of Property Act 4 of 1882-S.
52-Doctrine of lis pendens, applicability of-Sale during pendency of suit..
when invalid--Doctrine whether applies to
voluntary salesWhether applies to sale under Land Improvement Loans Act 19 of
Madras High Court Appellate Side Rules,
1955-Rule 28 Order IV validity of Rule.
The plaintiff-respondent filed a suit for
partition of properties menthe first defendant (plaintiff's brother) was the
Karta. After the filing of the suit the first defendant and his sons made a
voluntary sale of some of the properties in suit by sale deed Ex. B7, to the
Certain other suit properties mentioned in
Ex., B51 were sold at a public auction under the provisions of the Land
Improvement Loans Act 19 of 1883 in connection with arrears of a loan taken by
the first defendant for the purchase of a pump set. These properties were also
purchased .by the, appellant. The plaintiff-respondent challenged the validity
of the sales under Ex. B7 and Ex. B51 relying on the doctrine of lis pendens
embodied in s. 52 of the Transfer of Property Act. The .trial court held that
the sales were genuine and that the proper-ties sold were joint family
properties, negativing the claim of the first defendant that they were his
individual properties. The doctrine of his pendens held to be applicable to the
properties sold. In the decree for part however the trial court directed the
Commissioner who was to divide the properties by metes and bounds to allot to
the share of the first defendant, so far as possible, properties which were
covered by Ex. B7 and B51. The High Court in second appeal held that although
the sale under Ex. B7 was made to satisfy the decree in certain mortgage suits
it was a voluntary sale and could not be equated with sales in execution of
mortgage decrees which are involuntary. So far as the revenue sale under Ex.
B51 was concerned the High Court after setting out the terms of s. 7 of 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.
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. The High Court rejected the
application of the appellant for leave to appeal to the Division Bench on 'the
ground that no oral request immediately after delivery of judgment was made as
provided in Rule 28 Order 4 of the Madras High Court Appellate Side Rules 1965.
This Court however allowed special leave to appeal under Art. 136 of the
Constitution. Apart from the writs the Court had to consider a preliminary
objection requiring the appeal to be dismissed in limine. In this connection
the validity of Rule 28 Order 4 also fell for consideration
HELD : (i) Per Ray and Beg, JJ.-Rule 28 of
Order 4 of the Madras High Court Rules does not purport to affect the power to
give the declaration contemplated by clause 15 of the Letters Patent. It is
evident that the rule is most useful and necessary particularly when a period
of thirty days only for filing an appeal has been prescribed by the Limitation Act
1963. The judge pronouncing the judgment can decide then and there, in the
presence of the parties or their counsel, whether the case calls for a
certificate. In a suitable case, where a party is able to prove that it 140 was
prevented due to some cause beyond its control from asking for leave at the
proper time, the judge concerned may condone the delay or extend the time by
applying s. 5 of the Limitation Act. This salutary rule could not therefore be
held to be ultra vires or invalid. [143 F-H] Penu Balakrishna Iyer & Ors,
v. Sri Ariya M. Ramaswami Iyer
In the present ease although the appellant
was not shown to have attempted any explanation of failure to apply for the
certificate at the proper time, yet, the, special leave petition having been
granted and the case having passed without objection, beyond the stage of
interim orders and printing of records, the Court heard arguments on merits
[144 F-G] Per Sikri, C.J. (concurring)-The
High Court can regulate the time at which and the manner in which the
application for certificate & WI be made. Rule 28 Order 4 does not take
away any right conferred by cl. 15 of the Letters Patent.
It only regulates the manner of the exercise
of that right.
Union of India v. Ram Kanwar,  3 S.C.R.
313, referred to.
(ii) Per Ray & Beg, JJ.-Expositions of
the doctrine of lis pendens 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 the parties litigating before them may not remove any
part of the subject matter outside the power of courts to deal with it and thus
make proceedings infructuous. [153C] The purpose of s. 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. In the present case the Courts had given directions to
safeguard such just and equitable claims as the purchaser may have obtained
without trespassing on the rights of the plaintiffrespondent in the joint
property involved in the partition suit before the Court. Hence, the doctrine
of lis pendens was correctly applied.. [153H, 154A] In regard to the sale under
Ex. B7 the High Court had rightly distinguished cases cited on behalf of the
appellant before it by holding that exemption from the scope of lis pendens cannot
be extended to voluntary sales in any case.
[149 A] An examination of the sale deed Ex.
B7 disclosed that it was not confined to the satisfaction of decretal amounts.
Other items were also found in it. The sale
deed did not purport to be on behalf of the Hindu joint family of which the
plaintiff and the first defendant could be said to be members. The sons of the
first defendant were among the sellers but not the plaintiff. At most it could
be a sale binding on the shares of the sellers. The first defendant as well as
the 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.
Therefore it could not be held that the assumption of the High Court that the
voluntary sale could not bind the whole family, of which the first defendant
was the Karta, was incorrect.
Bishan Singh v. Khazan Singh,  S.C.R-.
As regards the revenue sale under Ex. B51 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) of Act 19
of 1883 is concerned. The proviso enacts that even recoveries falling under s.
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 present case 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 141 land. It did not
therefore follow that this liability was incurred On behalf of the joint family
unless it amounted to an improvement of the joint land. Every transaction of
the first defendant 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
the first defendant meant that the purchaser could enforce his rights to them
if they came to the share of the first defendant. [151D-F] Where a statutory
provision is relied upon for recovery of dues, the effect of it must be
confined to what the statute enacts. Even under the English law the terms of
the statute displace any claim based on the prerogatives of the Crown.
And in no case can the claim whatever its
basis, justify a sale of that property which does not belong to the person
against whom the claim exists. [151H] Builders Supply Corporation v. The Union
of India,  2 S.C.R. 289 and Attorney-General v. Dekerysis Royal Hotel.,
Ltd.,  A.C. 508, referred to.
Per Sikri C.J. (concurring)-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. The liability of
the land to be sold under s. 7(c) of the Act was a pre-existing charge and that
subsisted as from the date of the loans. This was not affected by the
institution of the suit for partition. This change could be enforced by the
State notwithstanding the pendency of the partition suit. No decree in the
partition suit could have affected the charge. Therefore, if the State had sold
only the property in respect of which loan was taken the purchaser was not
prejudiced by the principle of lis pendens. Therefore the direction of the High
Court was right insofar as it directed the trial court to separate the
properties for the improvement of which the loans under the Land Improvement
Loans Act were taken, from the other properties. [159H-160B] & CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2152 of 1968.
Appeal by special leave from the _judgment
and decree dated July 19, 1968 of the Madras High Court in Second Appeal No.1173
M. C. Chagla, R. Gapalakrishnan and T. L.
Garg, for the appellant.
M. K. Ramamurthi, Ramamurthy and Vineet
Kumar, for respondents Nos. 1 and 6 to 9.
The Judgment of A. N. RAY and M. H. BEG was
delivered by BEG J. SIKRI C.J. gave a separate Opinion.
Beg, J. Jayaram Mudaliar, the Appellant
before us by Special Leave, purchased some lease hold land for Rs. 10,500/from
Munisami Mudaliar and others under a sale deed of 7-7-1958 (Exhibit B-7) and
some other lands shown in a sales certificate dated 15-7-1960, (Exhibit B-51)
sold to him for Rs. 6,550/at a public auction of immovable property held to
realise the dues in respect of loans taken by Munisami Mudaliar under the Land
Improvement Loans' Act 19 of 1883.
Both Jayaram and Munisami, mentioned above,
were impleaded as co-defendants in a 142 Partition suit, in Vellore, Madras,,
now before us in appeal, commenced by a pauper application dated 23-6-1958
filed by the plaintiff-respondent Ayyaswami Mudaliar so that the suit must be
deemed to have been, filed on 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 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." But, the appellant, after
obtaining certified copies of the judgment and decree of the High Court, sent a
letter to the Registry that the case be listed again for obtaining, a
certificate of fitness to file a Letters' Patent appeal.
The case was, therefore, listed before the
learned Judge and an oral application which was then made for grant of a
certificate, was rejected on 6-9-1968 on the ground that it had not been made
at the proper time.
It was contended, on behalf of the
respondent, that, in the circumstances stated above, the appellant must be
deemed to have been satisfied with the Judgment of the High Court as his
Counsel did not ask for leave to file a Letters' Patent appeal as required by
Order IV Rule 28 of the Rules of the Madras High Court (that is to say,
immediately after the judgment has been delivered). The following observations
of this Court in Penu Balakrishna Iyer & Ors. v. Sri Ariva M.
Ramaswami lyer & Ors.(1) were cited to
contend that, the appeal before us should be rejected in limine :
(1)  7 S.C.R. 49 @ 52-53 143 .lm15
"Normally, an application for special leave against a second appellate
decision would not be granted un-. less the remedy of a Letters Patent Appeal
has been availd of. In fact, no appeal against second appellate decisions
appears to be contemplated by the Constitution .as is evident from the, fact
that Art. 133(3) expressly provides that normally an appeal will not lie to
this Court from the judgment, decree, or final order of one Judge of the High
Court. It is only where an application for special leave against a second
appellate judgment raises issues of law of general importance that the Court
would grant the application and proceed to deal with the merits of the
contentions raised by the appellant. But even in such cases, it is necessary
that the remedy by way of a Letters' Patent Appeal must resorted to before a
party comes to this Court".
In reply to the preliminary objection, Mr.
Chagla, appearing for appellant, has assailed the validity of the above
mentioned Rule 28 of Order IV itself. It is submitted that the rule conflicts
with the 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
after the judgment has been delivered. 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. 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. 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 Limitation Act.
This salutary rule could not, therefore, be
held to be ultra vires or invalid.
There is, however, another answer to the
preliminary objection. 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 Patent and it cannot be so granted, nor is it
possible to lay down an inflexible rule that if in such a case leave has been
granted it must always and necessarily be revoked. Having regard to the wide
scope of the powers conferred on this Court under Art. 136, it is not possible
and, indeed, it would not be expedient, to lay down any general rule which
would govern all cases.
The question as to whether the jurisdiction
of this Court under Art. 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".
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 exhaustedhis rights by asking for a certificate of
fitness of a case and because that case called for interference.
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 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 145 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 words "due to" must in the context,
be read as "due from"' because "falsa demostration non
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 purchaser on a bond dated
14-10-1957, by Munisami Mudaliar, Rs. 662.9 Ans. was to be set off to liquidate
another amount due to the purchaser from Munisami on account of the principal
and, interest on another bond executed by Munisami, Rs. 1250.0.0 was left to
pay off and liquidate the balance of a debt due to one Thiruvenkata Pillai from
Munisami, Rs. 100.0.0 were meant to settle a liability to the Government in
respect of a purchase of cattle and for digging of some well, Rs. 51.13 Ans.
were to go, towards settling a similar liability, and only Rs.
521.11 Ans. were paid in cash to the seller
after deducting other amounts for meeting liabilities most of which were shown
as debts to the purchaser himself. 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. Pillai. A third mortgage of the first
item of Schedule 'B' properties was executed on 27-51952 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. 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. The original
suit No. 2 of 1956 had been filed for principal and interest due on 27-51952 to
the appellant who had obtained an attachment on 5-11956 of some schedule 'B'
properties. The appellant had obtained a preliminary decree on 25-1-1956 in his
suit and a final decree on 14-9-1957. All these events had taken Place before
the institution of the partition suit on 23-6-1968.
But, the voluntary sale to satisfy decretal
amounts 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
There was nothing in the sale certificate to
show that the due for146 which properties were sold were of anyone other than
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 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.
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. 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 joint family properties of which the
defendant respondent Munisami was the karta in possession.
This finding was affirmed by the first
Appellate Court and was not touched in the High Court. 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. A karta is only
authorised to make alienations on behalf of the whole family where these are
supported by legal necessity. 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 overwhelming documentary and oral evidence to show that the sale
deed Exhibit B.7 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." 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. 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 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 different from an involuntary sale in execution of a decree in a
mortgage suit. 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. 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 of1883,
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. 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. 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.
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 rights of the purchaser in execution
of a mortgage decree date back to the mortgage itself. They are: Chinnaswami
Paddayachi v.Darmalinga Paddyachi(1) Gulam Rasool Sahib v. Hamida Bibi(2 ) ,
Baldeo Das Bajoria & Ors. v. Sarojini Dasi & Ors.,(3) Har Prashad Lal
v. Dalmardan Singh(4). Reliance was also placed on the principle laid down in
Sityam Lal & Anr. v.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.
The contention advanced on the strength of
the last mentioned case erroneously assumes that the impugned sales were on
behalf of the joint family.
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. v. Janki
Prasad & Ors.(6) (FB) :
". . . . 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 (A) and Moti Lal v. Kharrabuldin (B) followed in
numerous cases out of which mention may be made of Sukhadeo Prasad V. Jamna (C)
(A) (1888) 15 Cal. 756=15 I.A. 97 (B) (1898)
25 Cal. 179=24 I.A. 170.
(C) (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. (7) .
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, (8) by this Court as clearly of no avail against the embargo
imposed by Section 52 of the Transfer of Property Act.
(1) AIR 1932 Madras 566.
(3) AIR 1929 Calcutta 697.
(5) AIR 1928 All. 3.
(7) AIR 1952 Nag. 341, (2) AIR 1950 Madras
(4) ILR 32 Calcutta 891.
(6) AIR 1931 All. P. 466 @ 480.
(8)  2 S.C.R. 204 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. 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 creates an interest in
the property mortgaged. 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 Limitation Act and still execute his decree
if it remained unsatisfied due to failure of consideration.
An examination of the sale deed of 7-7-1958
discloses that it is not confined to the satisfaction of the decretal amounts.
Other items are also found in it. 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. It no doubt mentions the sons of
Munisami Mudaliar but not Ayyaswami, plaintiff, among the sellers. At most, it
could be a sale binding on the shares of the sellers. As already indicated,
Munisami, Defendant-Respondent, as well as Jayaram DefendantAppellant, having
denied that the, properties in dispute were joint, could not take up the
position that the sales were binding on the whole family. 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
Learned Counsel for the appellant had also
relied on Bishan Singh v. 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. 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. 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
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. On the question considered
there. the view of the East Punjab High Court in Wazir Ali Khan v. Zahir Ahmad
Khan(2) was preferred ,to the view of the Allahabad High Court in Kundan Lal v.
Amar (1)  S.C.R. 878.
(2) A.T.R. 1949 East Punj. 193.
150 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
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 Mudaliar would be excluded from the purview of the
doctrine of lis pendens. 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). 1 Here, the relevant part of Section 7, sub-s.
(1) of this Apt may be, set out. 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, name(a) from the
borrower-as if they were arrears of land revenue due by him;
(b) from his surety (if any) as if they were
arrears of land revenue due by him;, (c) out of the land for the benefit of
which the loan has been granted as if they were arrears of land revenue due in
respect of that land;
(d) out of the property comprised in the
collateral security (if any)-according to the procedure for the realization of
land revenue by the sale of immovable property other than the land on which
that revenue is due :
Provided that no proceeding in respect of any
land under clause (c) shall affect any interest in that land which existed
before the date of the order granting the loan, other than the interest of the
borrower, and of mortgages of, or persons having charges on, that interest (1)
A.I.R. 1927 All. 664.
151 and where the loan is' granted under
Section 4 with the consent of another person, the interest of that person, and
of mortgagees of, or persons having charges on, that interest." 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 and other costs due in respect to such arrears,
it shall be paid over to the defaulter unless such payment be' prohibited by
the injunction of a Court of competent jurisdiction." 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. The proviso enacts that even recoveries falling under See. 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 realise taxes due, which could obtain priority
over other claims, was traced to the prerogatives of the British crown in
India. 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. Even under the
English law, the terms of the statute displace any claim based on prerogatives
of the Crown (1)  2 S.C.R. 289.
152 vide Attorney Generalv. 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
exists. As already observed a claim under Section7(1)(a) of the Land
Improvement Loans Act of 1883 could only be made from the borrower. 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. 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
As some argument has been advanced on the
supposed inapplicability of the general doctrine of lis pendem to the impugned
sales, the nature, the basis, and the, scope of this doctrine may be ,considered
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 enforced by Common law
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. 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." 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 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)  AC 508.
(2) 2 Bell's Com. on laws of Scotland, p.
153 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
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
final judgment therein." 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 the proceedings infructuous.
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 otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other party thereto under any
decree or order which may be made there in, except under the authority of the
Court and on such terms as it may impose." 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". 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.
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. All these are matters which the Court could
have properly considered. 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.
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. 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
respect of some lands in Ozhaiyathur village in favour of Jayaram Mudaliar on
July 7, 1958. These properties comprised items 5, 15 to 19, 24 and 28 of
Schedule B. On July 15, 1960 a certificate of sale (Ex. B51) was issued stating
that Jayaram Mudaliar had purchased at public auction immoveable property
(described in the certificate) for Rs. 6,500/-. The property is stated to have been
sold for " pumpset arrears under Hire Purchase System due by Muniswami
Mudaliar". 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.
It is stated in the judgment of the Trial
Court that Jayaram Mudaliar got himself impleaded as 12th defendant. He filed a
written statement inter alia alleging that the Plaint B Schedule properties
were the sole and absolute properties of the 1st defendant. Additional issues
were framed in the suit.
It appears that by virtue of order dated
September 18, 1961, the plaint was amended and paras 24(a) and 24(b) inserted.
They read :
"24(a) The 12th defendant is a close
agnate of the son-in-law of the 1st defendant. 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. It was not acted upon. It is
the 1st defendant that continues to be in possession even now. The alleged sale
deed is not supported by consideration. The mortgage itself was brought about
to defeat any rights.
In any event on the date of the alleged sale
deed dated 7-7-1958 the mortgage decree debt was, not subsisting. 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. 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.
24(b) The revenue sale is brought about collusively
and fraudulently. There was no publication. The 12th defendant never got into
possession of any property. The possession still continues to be with the 1st
defendant on behalf of the joint family. The sale is also hit by the rule of
It also does not and cannot confer any rights
on the 12th defendant." 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 defendant in favour of the 12th defendant true, valid
and binding on the plaintiff and is affected by LIS PENDENS ? 156 (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 meaning of s. 52 of the
Transfer of Property Act". Regarding lis pendens he held that the
purchases under both Ex. B7 and Ex. B51 were affected by the rule of lis
pendens. The Trial Court passed a preliminary decree for partition of B
Schedule properties (items 2 to 31) into six equal shares. 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".
The District Judge confirmed the decree.
Before the High Court, in appeal by defendant No. 12, the only point considered
was that of lis pendens. The High Court held that Ex. B7 was a case of
voluntary alienation and was hit by lis pendens, as the sale was not in
execution of a mortgage decree. Regarding Ex. B51 the High Court, relying on
Ponnuswami v. Obul Reddy(1) held that Ex. 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. As it
had not been considered whether all the properties which were sold in revenue
sale and conveyed under Ex. B51 were, lands for the improvement of which loans
were taken, the High Court directed (1) A.I.R. 1939 Mad. 256.
157 "In the final decree proceedings,
the trial court were to consider what were the properties for the improvement
of which the loans under the Land Improvement Loans Act were taken by the first
defendant, in respect of those properties alone the doctrine of lis pendens
will not apply. In respect of other properties, the doctrine of lis, pendens
will apply. 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.
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.
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". 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.
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 High Court from a judgment of one
judge made in 158 exercise of the appellate jurisdiction in respect of a decree
or order made in the exercise of appellate jurisdiction by a court subject to
its superintendence, where the Judge who passed the judgment declares that the
case is a fit one for appeal. 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. This Court held in The Union of India v. Ram
Kanwar(1) that under el. 27 of the Letters Patent which is in similar terms as
el. 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. 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. Rule 28 of Order 4 does not take
away any right conferred by el. 15 of the Letters Patent. It only regulates the
manner of the exercise of that right. 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. 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.
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.
But this conclusion does not render the
appeal before us incompetent. Leave was given by this Court after hearing the
respondents on October 14, 1968. On April 22, 1969 the respondents obtained an
order from this Court for expediting the hearing. No application was made at
that stage to raise the point of. incompetency of appeal. In the circumstances
I consider that the appeal should be disposed of on merits.
Coming to the second point, this Court has
considered the 7scope of s. 52 of the Transfer of Property Act and the rule of
lis pendens in a number of cases. There is no difficulty in holding that Ex. B7
falls within the provisions of s. 52 of the Transfer of Property Act. But Ex.
B51 stands in a different 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 (1) 3 S.C.R. 313.
(2)  2S.C.R. 18,28.
159 through him. This principle is well
illustrated in Radhamabhub Holder v.
Monohar(1) 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 lispendens applies to such alienations.
[See Nilkant v. Suresh Chandra(2) and Motilal
v. Karrabuldin (3).] These observations were referred to with approval by this
Court in Kedar Nath Lal v. Ganesh Ram(1). 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 provisions under which the revenue sale is held. The
principle of lis pendens does not affect preexisting rights. 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. 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. Under s. 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;
(c) out of the land for the benefit of which
the loan has been granted as if they were arrears of land revenue due in
respect of that land;
The proviso to s. 7 reads "Provided that
no proceeding in respect of any land under clause (c) shall affect any interest
in that land which existed before the date of the order granting the loan,
other than the interest of the borrower, and of mortgagees of, or persons
having charges on, that interest, and where the loan is granted under Section 4
with the consent of another persons, the interest of that person, and of
mortgagees of, or persons having charges on, that interest." 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. The liability
of the land to be sold (1)15 I.A. 97. (2) 12 I. A. 171. (3) 24 I.A. 170. (4)
 2 S.C.R. 204.
160 under s. 7 (c) of the Act was a
pre-existing charge and that subsisted as from the date of the loan. This was
not affected by the institution of the suit for partition. This charge could be
enforced by the State, notwithstanding the pendency of the partition suit. No
decree in the Partition suit could have effaced the charge. Therefore, if the
State has sold only the property in respect of which loan was taken, the
purchaser-defendant No. 12-is not prejudiced by the, principle of lis pendens.
Therefore, the direction of the High Court was right insofar as it directed the
Trial Court to separate the properties for the improvement of which the loans
under the Land Improvement Loans Act were taken, from the other properties.
In the result the appeal fails and is
G C. Appeal dismissed.