Skip to content


Krishnaji Pandharinath Vs. Anusayabai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 658 of 1957
Judge
Reported inAIR1959Bom475; (1958)60BOMLR1083; ILR1959Bom94
ActsTransfer of Property Act, 1882 - Sections 52; Transfer of Property (Amendment) Act, 1929; Code of Civil Procedure (CPC), 1908 - Sections 100 - Order 9, Rule 2
AppellantKrishnaji Pandharinath
RespondentAnusayabai and anr.
Appellant AdvocateG.A. Desai and ;S.M. Mhamane, Advs.
Respondent AdvocateU.R. Lalit, Ad
Excerpt:
.....in section 52 of the transfer of property act, 1882, that the plaintiff's suit being merely a suit for maintenance, i.e., for enforcement of a personal liability of her husband to maintain her, the suit was not one in which a right to immoveable property was directly and specifically in question, and that as he was a bona fide purchaser for value without notice of the claim of the plaintiff, the plaintiff's decree was not liable to be executed against the house purchased by him:-- ;held:;that as between the date of the dismissal of the plaintiff's suit and the date of its restoration, the lis continued, the sale which was effected during this period, was affected by the rule of lis pendens contained in section 52 of the transfer of property act;;that as the plaintiff had claimed a..........purchaser krshnaji bhalwankar, has raised three contentions in support of the appeal: (1) that the suit property having been sold by sidram after the suit was dismissed under order ix, rule 2, of the civil procedure code, the sale was not affected by the rule of 'lis pendens' in section 52 of the transfer of property act.; (2) that anasuyabai's suit being merely a suit for maintenance, i.e., for enforcement of a personal liability of sidram to maintain her, the suit was not one in which a right to immoveable property was directly and specifically in question; and (3) that directly and specifically in question; and (3) that the appellant is a 'bona fide' purchaser for a value without notice of the claim of the plaintiff anasuyabai and therefore also the decree is not liable to be executed.....
Judgment:

1. This is an appeal form an order in an execution proceeding. The appellant Krishnaji Bhalwankar is a purchaser of a house standing on, C.T.S. No. 985, of Pandharpur from one Sidram Damodar Gulbile by sale deed dated 17-7-1952. Anusayabai the 1st respondent to this appeal, filed suit No. 174 of 1952 in the Court of the Civil Judge, Junior Division, at Pandharpur against her husband Sidram Damodar Gulbile for a decree for maintenance. By her plaint Anusayabai claimed charge for future maintenance and for arrears of maintenance on the property described in paragraph 1 of the plaint, i.e., house standing on C.T.S. No. 985 of Pandharpur. This suit was filed on 14-2-1950. On 15-7-1952 the suit was dismissed for non-payment of process fee. On 17-7-1952 Sidram sold the property for Rs. 8,000/- to the appellant Krishnaji Bhalwankar. On 29-7-1952 Anasuyabai applied for restoration of the suit and the suit was ordered to be restored. On 20-9-1952 a decree expert was passed against the defendant Sidram. By that decree the plaintiff Anasuyabai was awarded maintenance at the rate of Rs. 20/- per month from the date of the suit and Rs. 560/- as arrears of maintenance. The defendant was also ordered to set apart four Khans out of the property in suit for the plaintiff's residence and a charge for satisfaction of the maintenance awarded by the decree on the property described in paragraph 1 of the plaint was declared. Sidram having failed to comply with the decree Anasuyabai applied on 9-12-1952 by Darkhast No. 611 of 1952 for recovery of the amount due to her, by sale of the house standing on C.T.S. No. 985 of Pandharpur. To that Darkhast the appellant, as the purchaser of the property pendente lite was impleaded. The appellant resisted the Darkhast, and contended 'interalia' that he was a purchaser of the property for value from Sidram without notice of the plaintiff's claim and that the sale having been effected after the plaintiffs' suit was dismissed, it could not be regarded as a sale pendente lite, and the Darkhast filed by the plaintiff was not maintainable. Teh learned trial Judge held that the Darkhast was maintainable and that the plea raised by the appellant did not avail him, the transfer in his favour being 'pendente lite'. The learned Judge accordingly ordered that warrant and proclamation for sale do issue. Against that order an appeal was preferred to the District Court at Sholapur, and the learned Assistant Judge who heard teh appeal confirmed the order passed by the trial court and dismissed the appeal with costs. Against that decree this second appeal has been preferred.

2. Mr. G.A. Desai who appears on behalf of the purchaser Krshnaji Bhalwankar, has raised three contentions in support of the appeal: (1) that the suit property having been sold by Sidram after the suit was dismissed under Order IX, Rule 2, of the Civil Procedure Code, the sale was not affected by the rule of 'lis pendens' in Section 52 of the Transfer of Property Act.; (2) that Anasuyabai's suit being merely a suit for maintenance, i.e., for enforcement of a personal liability of Sidram to maintain her, the suit was not one in which a right to immoveable property was directly and specifically in question; and (3) that directly and specifically in question; and (3) that the appellant is a 'bona fide' purchaser for a value without notice of the claim of the plaintiff Anasuyabai and therefore also the decree is not liable to be executed against the property purchased by him.

3. In my view, there is no substance in the contentions raised by Mr. Desai. Section 52 of the Transfer of Property Act, in so far as it is material, provides that during the pendency in any Court having authority within the limits of Indian 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 without leave of the Court 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. That provision is followed by an Explanation which states:

'Explanation -- For the purposes of this section, the pendency of a suit of proceeding shall be deemed to commence for the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceedings has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof.'

4. It is true that in the present case the sale effected by Sidram was after the dismissal of the suit filed by the plaintiff Anasuyabai and before the suit was restored, but the alienation having been made before the final decree or order was passed and complete satisfaction or discharge of the decree was obtained, it must still be regarded as 'pendente lite'. In section 52 of the Transfer of Property Act, as it stood before it was amended by Act XX of 1929, the expression 'active prosecution of any suit or proceeding' was used. That expression has now been omitted, and the Explanation makes it abundantly clear that the 'lis' continues so long as a final decree or order has not been obtained and complete satisfaction there of has not been rendered. At page 228 in Sir Dinshah Mulla's 'Transfer of Property Act', 4th Edition, after referring to several authorities, the law is stated thus:

'Even after the dismissal of a suit a purchaser is subject to 'lis pendens', if an appeal is afterwards filed.'

If after the dismissal of a suit and before an appeal is presented, the 'lis' continues so as to prevent the defendant from transferring the property to the prejudice of the plaintiff, I fail to see any reason for holding that between the date of dismissal of the suit under Order IX Rule 2, of the Civil Procedure Code and the date of its restoration, the 'lis' does not continue.

4. I am unable to agree also with the contention that this was a suit in which a right to immoveable property was not directly and specifically in question. The plaintiff expressly claimed by her plaint a charge upon the property described in paragraph 1 of the plaint, and the Court passed a c decree declaring a charge of that property. Mr. Desai urged that a Hindu wife has no interest in the property of her husband; and that she has only a right to claim maintenance which is enforceable against her husband personally. That is undoubtedly so. It was of course open to the Court which tried the suit on that ground not to declare by the decree a charge on the property in suit in favour of the plaintiff. But the plaintiff Ansuyabai did claim a charge on the property described in the plaint and the Court did declare the charge. The application of the rule contained in S. 52 of the Transfer of Property Act has to be judged by reference to the claim made in the suit and the decree passed and not on any academic consideration as to what the true state of the law applicable to the dispute between the parties is and whether the decree was properly passed in the light of the true rule applicable.

5. My attention was invited by Mr. Desai to the judgment of the Madras High Court in Rattamma v. Seshachalam, AIR 1927 Mad 502. Mr. Justice Devadoss in that case is reported to have observed that

'under Section 52 of the Transfer of Property Act right to the immoveable property should be directly and specifically in question in the suit. When a wife brings a suit against the husband for maintenance and asks for a charge on the property belonging to him, she does not ask for any right directly and specifically in respect of the property. In order to get maintenance property paid she is entitled to ask for a charge and the Court in decreeing maintenance gives her a charge on the property. The charge so given takes only from the date of the decree.'

With the propositions so stated I am unable to agree. In Rattamma'a case, AIR 1927 Mad 502, the wife filed a suit for maintenance against her husband and obtained a decree declaring a charge on the property of the husband. During the pendency of the suit, the husband disposed of one of the items of the property in suit and thereafter the purchaser filed a suit for a declaration that he was not bound by the decree. Mr. Justice Devadoss observed that when a wife files a suit against the husband for a decree for maintenance and seeks a charge on the property belonging to him 'she does not ask for any right directly and specifically in respect of the property'. Stated in that form, the proposition involves a contradiction in terms. If a Hindu wife in a suit for maintenance against her husband expressly asks for declaration of a charge on the property belonging to her husband, it is difficult to say that she does not 'ask for any right directly and specifically in respect of the property.' With respect to the learned Judge, I am unable to accept the view expressed by him that 'lis pendens' in a suit filed by a wife against her husband for a decree for maintenance and for a charge on the husband's property for that maintenance only operates from the date on which the decree is passed by the Court and not before.

6. The contention that the appellant was a 'bona fide' purchaser for value without notice of the claim of the plaintiff is in my view futile. The application of the doctrine of lis pendens does not depend upon the purchaser having notice of the suit : even if the transferee 'pendente lite' from a party has no notice of the suit, the rights of the other party to a suit in which a right to immoveable property is directly and specifically in question under the decree cannot be prejudicially affected by the transfer. Mr. Desai urged that in this case the appellant intended to contend that the proceeding between the plaintiff Anasuyabai and Sidram the defendant was a collusive proceeding and therefore the rule of 'lis pendens' did not apply. No such plea appears to have been raised in the Courts below and it would be unjust to allow such plea to be raised for the first time in this second appeal.

7. The appeal therefore fails and is dismissed with costs.

8. Appeal dismissed.


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