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Gangubai Pandurang Dombe Vs. Pagubai Narayan Kore - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 735 of 1936
Judge
Reported inAIR1939Bom403; (1939)41BOMLR815
AppellantGangubai Pandurang Dombe
RespondentPagubai Narayan Kore
DispositionAppeal dismissed
Excerpt:
.....for maintenance-claim to have maintenance made a charge on property-property sold after filing of suit-sale whether valid-administration of hindu's estate-binding debts-claims for maintenance or residence-precedence of debts.;the doctrine of lis pendens applies to a suit for maintenance by a hindu widow in which she claims to have her maintenance made a charge on specific immoveable property and a decree is passed creating a charge on such property. an alienation during the pendency of the suit without the court's permission is vitiated under section 52 of the transfer of property act, 1882.;seetharamanujacharyulu v. venkatasubbamma (1930) i.l.r. 54 mad. 132, followed.;in the administration of a hindu's estate, binding debts take precedence over mere claims for maintenance, or..........deed of 1922 and rs. 200 paid in cash in the presence of the sub-registrar. in her maintenance suit pagubai obtained a decree on january 30, 1925, and the amount of her maintenance was made a charge on the property in suit. before the decree was passed the plaintiff's name was struck off. in execution of the decree in darkhast no. 59 of 1935 pagubai got the property in suit sold by auction and it was purchased by defendant no. 2 on may 10, 1926. defendant no. 2 sold it to defendant no. 3 on may 12, 1927, and he took possession of the property. the plaintiff instituted this suit for a declaration that her sale-deed from malkarjun was for valuable consideration and taken in good faith, and that the property mentioned in the sale-deed was not liable to be sold in execution of pagubai's.....
Judgment:

Lokur, J.

1. The facts out of which this second appeal arises are undisputed. The property in dispute belonged to one Narayan Dada Kore who died about the year 1920 or 1921, leaving behind him two sons Tatya and Malkarjun, and his widow Pagubai, the step-mother of Tatya, and Malkarjun. He had left some debts, to satisfy which Tatya and Malkarjun mortgaged the property in suit to the plaintiff for Rs. 1,800 on June 1, 1922 (exhibit 84). Thereafter their step-mother Pagubai filed a suit for maintenance on April 11, 1923, in which the plaintiff also was impleaded as defendant No. 3. She claimed that her maintenance should be a charge on the property in suit. She asked for permission to file the suit in forma pauperis. The permission was granted on January 26, 1924, and the suit was duly registered. Thereafter Tatya having died, Malkarjun sold the property to the plaintiff for Rs. 2,000 on June 10, 1924 (exhibit 85). That consideration was made up of Rs. 1,800 due under the mortgage deed of 1922 and Rs. 200 paid in cash in the presence of the Sub-Registrar. In her maintenance suit Pagubai obtained a decree on January 30, 1925, and the amount of her maintenance was made a charge on the property in suit. Before the decree was passed the plaintiff's name was struck off. In execution of the decree in darkhast No. 59 of 1935 Pagubai got the property in suit sold by auction and it was purchased by defendant No. 2 on May 10, 1926. Defendant No. 2 sold it to defendant No. 3 on May 12, 1927, and he took possession of the property. The plaintiff instituted this suit for a declaration that her sale-deed from Malkarjun was for valuable consideration and taken in good faith, and that the property mentioned in the sale-deed was not liable to be sold in execution of Pagubai's maintenance decree. She also asked for possession of the property from defendants Nos. 2 and 3. The trial Court awarded the plaintiff's claim; but the lower appellate Court held that the plaintiff's sale-deed was affected by the doctrine of lis pendens, reversed the decree of the trial Court and dismissed the suit with costs throughout.

2. On these facts it is now urged on behalf of the plaintiff-appellant that as the consideration of her sale-deed was utilized for the satisfaction of the debts of Narayan Dada Kore, the sale-deed took priority over the auction sale in execution of Pagubai's maintenance decree. There is no doubt that when the plaintiff purchased the property from Malkarjun in 1924 under exhibit. 85, Pagubai's suit for maintenance was pending. Ordinarily; a suit by a Hindu wife for maintenance against her husband is a personal suit, and any purchaser of the family property during the pendency of the suit is not affected by the rule of lis pendens. But the doctrine of lis pendens does apply to a suit for maintenance by a Hindu widow in which she claims to have her maintenance made a charge on specific immoveable property and a decree is passed creating a charge on such property Seetharamanujacharyulu v. Venkatasubbamma I.L.R. (1930) Mad. 132. It is, however, urged that as the debts contracted by Narayan Dada Kore took priority over the right of maintenance after his death, the plaintiff's purchase ought to take precedence over the sale in execution of Pagubai's maintenance decree. As observed in Somasundaram Chetty v. Unnamalai Ammal I.L.R. (1920) Mad. 800 it may be stated as a general proposition that in the administration of a Hindu's estate, binding debts would take precedence over mere claims for maintenance, or residence, on the part of the female members of the family; but there is no clear authority for the proposition that a charge bona fide created for maintenance can be defeated by a creditor who has lent money for family purposes. The real question in this case is whether the doctrine of lis pendens affects the plaintiff's purchase of the property on which a charge was created by the decree in that suit. The principle of lis pendens is based on the maxim ut lite pendente nihil innovatur, which means that during a litigation nothing new should be introduced. So far as the mortgage of 1922 is concerned, as the property was mortgaged for the satisfaction of ancestral debts binding on the family and the mortgage was effected before Pagubai's suit for maintenance was filed, any subsequent charge created on that property for Pagubai's maintenance cannot affect the mortgage. But by selling that property Malkarjun curtailed the right of the Court to create the charge which was prayed for in that suit. As observed by Sir George Rankin C.J. in Sudhirendra v. Ranendra : AIR1930Cal539 (p. 543), 'The basis of the doctrine [of lis pendens] is that parties to a suit cannot be allowed to shorten the arms of the Court in dealing with the suit [by transfers to a third party].' That is what Malkarjun did in this case by absolutely transferring the property to the plaintiff when Pagubai's suit for maintenance asking for a charge on the property was pending. The plaintiff had already a mortgage on that property which may be said to have priority over Pagubai's claim for maintenance. If a further alienation had to be created during the pendency of her suit, then the proper remedy for Malkarjun and the plaintiff was to approach the Court for permission to do so. Section 52 of the Transfer of Property Act provides that during the pendency of any suit or proceeding which is not collusive and in which any right to immoveable 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 therein, except under the authority of the Court and on such terms as it may impose. Assuming that the debts of Narayan Dada Kore which had to be paid had a priority over Pagubai's claim for maintenance, still when Pagubai filed a suit asking for a charge on the property, the property became the subject-matter of that suit and even a party who has to satisfy a debt having a priority over the claim for maintenance had to alienate the property under the authority of the Court and on such terms as it might impose. If the party fails to obtain the authority of the Court for the purpose, then the alienation will be subject to the final decree in that suit. The decree in Pagubai's suit ultimately charged her maintenance on the property in suit, and for the recovery of that, the property was sold by auction. The plaintiff is therefore bound by that auction sale although his mortgage was prior to the institution of the maintenance suit and may have precedence over the claim in that suit. The present suit is based entirely on the strength of the sale-deed. How the rights of the plaintiff under the mortgage deed can be enforced need not be discussed here; but so far as the alienation during the pendency of the suit is concerned, it must be held to be subject to the result of the maintenance suit and the reliefs prayed for by the plaintiff cannot therefore be granted. The decree of the lower appellate Court is confirmed, and I dismiss the appeal with costs.


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