Skip to content


Gangabai Pandurang Dombe Vs. Pagubai Narayan Kore - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 11 of 1939
Judge
Reported inAIR1940Bom395; (1940)42BOMLR883
AppellantGangabai Pandurang Dombe
RespondentPagubai Narayan Kore
DispositionAppeal dismissed
Excerpt:
transfer of property act (iv of 1882), section 52-lis pendens-suit for maintenance by widow-claim to have maintenance made a change on property-property sold after filing of suit for payment of her husband's debt-validity of sale--charge by decree for maintenance on specific properly-whether takes precedence over private, or auction purchaser of that property during pendency of suit.; the principle of lis pendens, as embodied in section 52 of the transfer of property act, 1882, applies to a sale made during the pendency of a suit for maintenance by a hindu widow in which the property alienated is sought to be made a charge for maintenance. the principle applies even if the property was liable to be sold for the just and lawful debts of the widow's husband.; a charge created over..........tatya and malkarjun and his widow pagubai who was their step-mother. the two sons mortgaged the suit property to the present plaintiff for rs. 11,800 on june 1, 1922. thereafter pagubai applied for permission to file a suit for maintenance in forma pauperis and she sought to make the suit property a charge for her maintenance. the permission to sue as a pauper was granted on january 26, 1924. meanwhile, tatya having died, the surviving son mjalkarjun sold the property to the plaintiff for rs. 2,000 on june 10, 1924. thereafter pagubai obtained a decree on january 30, 1925, and the suit property was made a charge for he maintenance. she applied to execute her decree, and in execution the pro perty was sold by auction and purchased by defendant no. 2 on may if, 1926. defendant no. 2.....
Judgment:

Divatia, J.

1. The question in this appeal is whether the principle of lis pendens as embodied in Section 52 of the Transfer of Property Act applies to a sale made, during the pendency of a suit for maintenance, by a Hindu widow in which the property alienated is sought to be made a charge for maintenance. The question arises on the following facts. One Narayan died in 1920 leaving behind him two sons Tatya and Malkarjun and his widow Pagubai who was their step-mother. The two sons mortgaged the suit property to the present plaintiff for Rs. 11,800 on June 1, 1922. Thereafter Pagubai applied for permission to file a suit for maintenance in forma pauperis and she sought to make the suit property a charge for her maintenance. The permission to sue as a pauper was granted on January 26, 1924. Meanwhile, Tatya having died, the surviving son Mjalkarjun sold the property to the plaintiff for Rs. 2,000 on June 10, 1924. Thereafter Pagubai obtained a decree on January 30, 1925, and the suit property was made a charge for he maintenance. She applied to execute her decree, and in execution the pro perty was sold by auction and purchased by defendant No. 2 on May if, 1926. Defendant No. 2 sold it to defendant No. 3 on May 12, 1927. The plaintiff thereafter instituted the present suit for a declaration that her sale from Malkarjun was for valuable consideration and that the property purchased by her was not liable to be sold in execution of Pagubai's decree. She further prayed for possession of the property from defendants Nos. 2 and 3. Plaintiff's claim was awarded by the trial Court but was thrown out by the District Court in appeal. A second appeal was filed to this Court and Mr. Justice Lokur who heard the appeal confirmed the decree of the District Court and dismissed the appeal. The present appeal has been brought under the Letters Patent against that decision.

2. The main ground on which Mr. Justice Lokur confirmed the decree of the lower Court was that even though the property was sold to the plaintiff for the debts of Pagubai's husband which she may be bound under the Hindu law to pay, the alienation in favour of the plaintiff having been made during the pendency of Pagubai's suit for maintenance was subject to the principle of lis pendens, and the fact that the debts were binding on Pagubai would not make the principle of lis pendens inapplicable. The learned Judge followed a decision of the Madras High Court reported in Seelharamanujacharryulu v. Venkatasubbamma (1930) I.L.R. 54 Mad. 132. It was held therein that Section 52 of the Transfer of Property Act applied to suits for maintenance in which a charge was claimed on specific immoveable properties and created by the decree and that the charge so created operated from the date of the suit and not from the date of the decree. It was further held that an auction purchaser of specific joint family property in execution of a money decree for a debt binding on a joint Hindu family, during the pendency of a suit for maintenance claiming a charge on it, had no preferential right over a subsequent auction purchaser of the same property in execution of the. maintenance decree in which a charge was given over such property. This decision with which we agree is applicable to the facts of the present case. It is however contended on behalf of the appellant that there is one material circumstance in which the present case differs from Seetharamanujacharyulu v. Venkatasubbamma, viz. that in the latter case the debts for which the property was alienated; were not of the husband himself but were those of the joint family inasmuch as a promissory note had been passed by the brother of the deceased husband of the widow and the person holding the note sought to make all the members of the joint family liable on it. We do not think that that circumstance affects the principle laid down in Seetharamanujacharyutu v. Venkatasubbamma. As observed by Mulla in his Hindu Law at p. 601, 9th edn., debts contracted by a Hindu take precedence over the right of maintenance of his wife, or infant child, or his widow after his death. The same is true of debts contracted by the manager of the joint family of which the husband was a member, provided the debts were incurred for the benefit of the family. There is therefore no distinction between the debt of the husband and the debt of the joint family, |nd a widow would be bound by a debt of her husband as well as a debt of the joint family of which he was a coparcener. Even if the property was liable to be sold for the just and lawful debts of her husband, it would still come within the bar of lis pendens if it becomes the subject-matter of a suit for maintenance by the widow.

3. It is clear and it is also conceded that a charge created over specific property in a decree for maintenance takes precedence over the right of a private or auction purchaser of the same property during the pendency of the suit. It is true that on the general principle of Hindu law a widow is bound by the debts of her husband and in certain cases they take priority over other debts. But where a property is alienated to satisfy the debt, there is no reason why the alienation should not be governed by the principle of lis pendens when a suit is filed for creating a charge on that property. We have been referred on behalf of the appellant to a decision in Dose Thimmctnna Bhutto v. Krishna Tantri (1906) I.L.R. 29 MLJ. 508 in which it was held as follows:-

A suit in which a widow claims to get her maintenance made a charge on immoveable property is one in which a right to such immoveable property is directly and specifically in question within the terms of Section 52 of the Transfer of Pro perty Act; and any transfer of the property during the pendency of the suit, not effected for the purpose of paying off any debt entitled to priority over the claim for maintenance will be affected by the lis pendens created by the suit.

The actual decision was that the suit in which the widow claimed to have her maintenance made a charge on the property was one in which a right to immoveable property was in question. But the further remarks to the effect that the bar of lis pendens would not apply if the transfer was effected for the purpose of paying off any debt entitled to priority were clearly obiter on the facts of that case. It is stated in the judgment itself that there was no allegation by either party that the debt due to the husband was contracted for the purpose of paying off any debt entitled to any priority over the widow's claim for maintenance. The learned Judges had not therefore to decide any question relating to a debt having priority over the right to maintenance, and this decision is therefore rightly distinguished in' the later decision of Seetha-ramanujacharyulu v. Venkatasubbamma on the ground that those remarks were not necessary for the purpose of the decision. Besides, no reasons are given in support of this dictum. We agree with the reasoning of the learned Judges in Seetharamanujacharyutu v. Venkatasubbamma and hold that the. alienation of property to pay off the husband's debts is not outside the scope of Section 52 of the Transfer of Property Act in a suit where it is sought to be charged for his widow's maintenance. We think therefore that Mr. Justice Lokur was right in following the decision in Seetharammujacharyulu v. Venkatasubbamma, and this appeal is therefore dismissed with costs in favour of respondent No. 3.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //