1. In this case the plaintiff brought a suit against his brother Basangowda on August 2, 1918, for a partition of joint family property. On August 10, 1918, Basangowda sold the property in suit, which was included in the claim of his brother, to defendants Nos. 1 and 2. Basangowda died before the suit could be determined, and his widow and children were brought on the record in his place, Eventually a decree was passed under a compromise which inter alia awarded the plaintiff' half of the suit property. In 1923 he brought a suit against defendants Nos. 1 and 2, to whom Basangowda had sold the property, and two others to recover possession of this half of the suit property, namely Survey No. 408.
2. The trial Court dismissed his suit holding that the decree was invalid for certain reasons, On appeal the District Judge of Dharwar held that Section 52 of the Transfer of Property Act applied to the sale in favour of defendants Nos. 1 and 2, and that they were bound by the consent decree. He allowed the appeal and awarded the plaintiff half of S.N. 408 with mesne profits.
3. The defendant No. 2 appeals from this decree. On his behalf two main contentions were set up: (1) that defendants Nos. 1 and 2 should have been made parties to the suit of 1918, and not having been so joined the decree is not binding upon them; (2) that even if they are bound by the decree they were 'representatives' of Basangowda within the meaning of Section 47, Civil Procedure Code, and that the present suit is barred under that section, because the plaintiff should have asked for possession of the property in execution proceedings,
4. As to the first point it is clear that defendants Nos. 1 and 2 should not have been joined in the suit in view of the terms of Section 52 of the Transfer of Property Act, and the reason for the rule about transfers pendente lite. It is sufficient for me to refer to Court's Law of Transfer, 5th Edition, Vol. I, Article 930, at p. 592, and the leading case in this High Court of Gulabchand Manikchand v. Dhondi valad Bhau (1873) 11 B.H.C.R. 64, which was confirmed in the Full Bench case of Lakshmandas Sarupchand v. Dasrat. I.L.R (1880) Bom. 168, In those two cases the decision in Bellamy v. Sabine (1857) I De G. & J. 566, is quoted as a leading authority on the subject of Us pendens, and the view is there expressed that it was immaterial whether the alienees pendente lite had or had not notice of the pending proceedings, for if this were not so there would be no certainty that the litigation would ever come to an end. In such cases the Courts do not recognise the alienations pendente lite as affording any proper ground for staying the suit. This view was confirmed by the Privy Council in Faiyaz Husain Khan v. Prag Narain I.L.R (1907) All. 339, where this same case of Bellamy v. Sabine is referred to and their Lordships say (p. 345) : 'The correct mode of stating the doctrine, as Lord Cranworth L.C. observed in the same case, is that' pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponents.'' The subsequent death of Basangowda can make no difference to this principle.
5. As to the second contention, it is to be noted that the point is raised for the first time in this second appeal; but it is one of law affecting the Court's jurisdiction, and so it must be considered. Section 52 of the Transfer of Property Act says as plainly as possible that a transfer pendente lite cannot affect the rights of any other party to the suit 'under any decree or order which may be made therein.'
6. Apart from the special provisons of Section 47, Civil Procedure Code, the plaintiff would have a right to sue to remove obstruction to his obtaining possession of the land and to the execution of his decree: cf. Takhuroodeen Mahomed Eshan Chowdry v. Kurimbux Chowdry (1865) 3 W.R. 20, and also the Privy Council case of Faiyaz Husain Khan v. Prag Narain I.L.R(1907) All. 339, that I have already referred to, where such a suit against the transferee succeeded.
7. To treat defendants Nos. 1 and 2 as 'representatives' of Basangowda under Section 47, Civil Procedure Code, directly affects this right of suit, and in my opinion the transfer cannot be recognised by the Court as giving them any right to be regarded as 'representatives' for the purpose of attaching plaintiff's right to sue. There is no authority cited for the proposition that transferees pendente lite are 'representatives' within the meaning of Section 47 except Madho Das v. Ramji Patak I.L.R (1894) All. 286, and Sheo Narain v. Chunni Lal I.L.R (1900) All. 243. The decision in the latter case explains the remarks in the former case, and the judgment limits the decision to regarding the transferee as a representative of the alienor only (p. 246) 'in the sense that, being bound by the decree afterwards passed, he is competent under Section 244 (now Section 47) of the Code, to raise in the execution of that decree any of the questions mentioned in that section.' (See Sheo Narain v. Chunni Lal I.L.R(1900) All. 243. That is a very different thing to holding that in all eases a transferee pendente lite is a 'representative' of his transferor under Section 47. It merely holds that the transferee can himself move the executing Court and may raise objections to the execution of the decree, if he thinks fit.
8. We are not concerned with that question. Here defendants Nos. 1 and 2 want to use Section 47 as a shield to debar the plaintiff from his ordinary rights under his decree, and in such a case Section 52 applies, in my opinion, to forbid their doing so. The transferee pendente lite cannot be recognised by the Court for such a purpose, and defendants Nos. 1 and 2 cannot therefore be treated as 'representatives' of Basangowda under Section 47.
9. Authorities regarding an ordinary purchaser and not one pendente lite such as Veyindramuthu Pillai v. Maya Nadan I.L.R (1919) Mad. 107, cited by appellant's pleader, do not bear on this point.
10. I would, therefore, dismiss the appeal with costs.
11. I agree.