1. This case raises an interesting question as to the effect of lis pendens.
2. The facts require to be stated in some detail.
3. The plaintiff herein is a Marwari Hajarimal Multanchand. There are three defendants (1) Nana, (2) Nathaji Anandrao and (3) Balubai. Defendant 1 is the son-in-law of defendant 3. Defendant 2 is the adopted son of one Anandrav deceased, the husband of Gangabai also deceased who was the mother of Balubai.
4. The plaintiff sues to recover possession of Survey No. 161 at Ranjangaon upon the ground that he purchased the said survey number from Balubai by virtue of a sale-deed dated the 14th April 1886, Exhibit 19.
5. It appears that in 1885 Nathaji the adopted son of Gangabai sued to recover possession of his adoptive father's estate which included inter alia the Survey No. 161. He claimed this both as adopted son and by virtue of a lease executed in his favour by Balubai herself. It will be seen then that the plaintiff herein purchased Survey No. 161 during the pendency of that suit which was 53 of 1885. In her defence to that suit Balubai denied both the lease and the adoption and claimed that she inherited some of the estate in question viz., Survey No. 161 and another Survey No. 162 as her Stridhan inasmuch as those survey numbers had been acquired by Gangabai as her self-acquired property after the death of Nathaji's adoptive father Anandrao; The Court of first instance dismissed the suit holding that neither the lease nor the adoption was proved. Nathaji appealed and the District Court found that the lease and adoption were both proved and that ' the property in dispute descended from Balubai to the plaintiff, ' who was awarded possession of the land. Appeal 826 of 1890 was preferred to the High Court against the decree of the District Court. In their judgment, their Lordships said: 'The District Judge has found the karanama proved and no legal objections arising out of the provisions of Chapter VIII of Act XVII of 1879 can, we think, be taken to it. That decision, as he says, is sufficient for plaintiffs case, but he has also found the plaintiff's adoption proved and concludes that the plaintiff hafi in consequence proved his title to inherit the property of his adoptive parents, but this would not be so if the property were Gangabai's. As the District Judge has not discussed this question we cannot assume that he intended to decide that the property was Anandrao's. We cannot, therefore, accept his finding on the fourth issue, but subject to that we confirm the decree.' It appears that the High Court decree was passed in 1892. Balubai and Nana on the 29th October 1895 filed suit 404 of 1895 against Nathaji. In this suit they alleged that the lands Nos. 161 and 162 were the self-acquired property, of Gangabai and were inherited as stridhan by her daughter Balubai and they claimed possession. On the 28th June 1897 that suit was decided in favour of Balubai and Nana and possession was awarded to them. Nathaji appealed to the District Court. No. 137 of 1897- but the parties cams to a settlement whereby the lands in question were divided between them, that is to say, Survey No. 161 was given to the appellant Nathaji and Survey No. 162 was given to the respondents Balubai and Nana.
6. The position, therefore, at this point is a curious one, for we find that Balubai is a party to a transaction whereby she agrees to hand over to Nathaji Survey No. 161 which she had sold to the present plaintiff the Marwari and the question arises :- What is the true effect of the Us pendens in the year 1886 when the plaintiff bought from Balubai Survey No. 161 ?
7. Section 52 of the Transfer of Property Act provides as follows :-
During the active prosecutionin any Court havingauthority in British India, orestablished beyond the limits ofTransfer of property British India by the Governorpending General in uncil, of a contentioussuit relating thereto suit or proceeding in which anyright to immoveable property isdirectly and specificallyin question, the propertycannot be transferred orotherwise dealt with byany party to the suit orproceeding so as to affectthe rights of any otherparty thereto under anydecree or order whichmay be made therein,except under the authorityof the Court and on suchterms as it may impose.
8. In my opinion the High Court by its decree expressly except-ed from the operation of the suit any property which might turn out to have been Gangabai's separate property and thus with regard to that property there was no lis pendens. Further the plaintiff's claim in the suit no doubt was for possession as owner, i.e., as adopted son but this claim so far as it related to Survey No. 161 and Survey No. 162 was expressly reserved by the High Court. So that we have 'the authority of the Court' for such property not being affected by the decree. The claim of Balubai to Survey Nos. 161 and 162 being expressly excepted and reserved, it cannot be said to have 'interfered with the plaintiff's title in the pending litigation. ' See Turner L.J.'s judgment in Bellamy v. Sabine (1857) 1 De G. & J. 585. 'No case, so far as I am aware, has yet occurred in which the doctrine has been applied so as to affect the title of the alienee of a defendant by virtue of a claim not interfering with the title of the plaintiff in the pending litigation.'
9. It will of course be remembered that the doctrine of lit pen-dens is not based on the equitable doctrine of notice but on the ground that it is necessary to the administration of justice that the decision of the Court in a suit should be binding not only on the litigant parties but on those who derived title from them pendente lite whether with notice of the suit or not-see Bellamy v. Sabine (1857) 1 De. G. & J. 566. This being so no question of priority can arise to defeat the plaintiff's claim herein ' pending litigation.'
10. The authorities are clear that the conveyance to the plaintiff herein pendente lite cannot be said to be void ab initio. If that had been intended Section 52 must have been differently worded whereas the section expressly says that 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. The effect of the doctrine is not to annul the conveyance but only to render it subservient to the rights of the parties to the litigation. Thus, the Master of the Rolls said in The Bishop of Winchester v. Paine (1805) 11 Ves. 197 'Ordinarily, it is true, the decree of the Court binds only the parties to the suit. But he, who purchases during the pendency of the suit, is bound by the decree, that may be made against the person, from whom he derives title. The litigating parties are exempted from the necessity of taking any notice of a title, so acquired. As to them it is as if no such title existed. Otherwise suits would be indeterminable : or which would be the same in effect, it would be in the pleasure of one party, at what period the suit should be determined.' And the Vice-Chancellor in Metcalfe v. Pulvertoft (1813) 2 Ves. & B. 204 says:-'The effect of the maxim, pendente lita nihil innovetur,' understood as making the conveyance wholly inoperative,not only in the suit depending but absolutely to all purposes in all future suits and all future time, is founded in error. '
11. In Landon v. Morris (1832) 5 Sim, 263 it is said : 'The principle of the decision in The Bishop of Winchester v. Paine is admitted, that a purchaser pendente lite, is bound by the decree made against the person from whom he purchases.' And it must be remembered that Cranworth L.C. in Bellamy v. Sabine (1857) 1 D G. & J. 580 says 'pendente lite neither party to the litigation can alienate the property in suit so as to affect his opponent.'
12. It follows therefore that if Balubai was the owner of Survey No. 161, the present plaintiff acquired an absolute title to it under his purchase from her in 1886: and there is manifestly nothing in the subsequent litigation between his vendor and the adopted son, to which he was not a party, which can in any way affect his title. He is therefore entitled to succeed in the present suit provided he first proves that the land was Balubai's at the date of his purchase. That she should subsequently have consented to cede to Nathaji property of all interest in which she had already divested herself is a circumstance that has no bearing on his claim. But it is essential that he should shew that his vendor had a good title to the property at the date when he purchased it from her; and this is a matter which has received no attention in the lower Courts. The appellate Judge observes indeed that 'the land did belong to Balubai absolutely,' but this is an assertion at apparent variance with the consent decree and one which Nathaji is entitled to controvert. We must, therefore, remand the suit for evidence and finding on the following issue:-
Was Balubai the owner of Survey No, 161 at the date of plaintiff's purchase?
To be returned within four months.