1. Defendant 2, who is the appellant in this second appeal, is the wife of defendant 1, and defendants 3, 4 and 5 are her brothers. The plaintiff brought a suit against all the defendants for recovery of possession of three items of the plaint schedule property and for mesne profit's claiming that he had purchased those items under two registered sale deeds dated 6-3-45 and 13-7-45 from defendant 1 and that by those purchases he could claim priority over a charge for maintenance which had been created in a maintenance suit which defendant 2 had filed against her husband. The suit was dismissed by the Munsiff and on appeal has been decreed as prayed for except for mesne profits.
2. So far as item 1 of the plaint schedule property is concerned, its sale in favour of the plaintiff was on 6-3-45 and that was before defendant 2 filed her in 'forma pauperis' suit :n Misc. 159 of 44-45 on 18-5-45, as well as the attachment which was also before these miscellaneous proceedings i.e. on 7-7-45 as per Ext. V. The ground on which the learned Munsiff found against the plaintiff even as regards that sale deed was that defendant 1 had purported to sell the same in favour of one Nanjappa by an earlier 'sale deed. It is not now seriously disputed that the item sold to Nanjappa was not item 1 but some other property as found by the learned Subordinate Judge and moreover defendant 2 did not plead that Nanjappa was the owner of the suit properties. Nanjappa was not examined and defendant 2 has let in no evidence that he had any substantial right, title and interest in item 1.
3. As regards items 2 and 3 the matter is not so simple. Those items were conveyed by defendant 1 in favour of the plaintiff under Ext. F on 13-7-45 for Rs. 1,000/-. The sale was in pursuance of a prior agreement of sale Ext. D dated 15-5-45 entered into by defendant 1 in favour of the plaintiff. Under that agreement defendant 1 agreed to sell those two items to plaintiff for Rs. 1,000/- in order to pay off one Junjappa alias Puttaswamiah, the. holder of an earlier mortgage decree against defendant 1 in O. S. No. 108/37-38. After receiving that amount, the decree-holder in that suit filed a memo on 15-5-1845 reporting receipt of the full decree amount with solatium; and full satisfaction was accordingly entered against that decree and the court sale was cancelled.
Earlier defendant 1 had paid in court Rs. 200/- towards the same decree on 6-3-45 and secured postponement of the sale which was to be held in execution of that decree. This sum of Rs. 200/- was obviously the amount raised by the sale of item 1 under Ext. B. It cannot, therefore, be urged that the sale under Ext. F was in any way not bona fide or supported by consideration. It was clearly made with a view to save not merely items 1 to 3 but several other properties which had been mortgaged by defendant 1 in favour of Junjappa and in respect of which he had filed a suit O.S. 108/37/38. He had taken out execution earlier in Exn. 564 of 41-42 and had subsequently filed Exn. 496 of 43-44, on 19-6-44 and applied for sale of the mortgaged properties.
On 6-3-45 defendant 1 had paid Rs. 200/- as already noticed and got the sale adjourned to 27-3-45; on 27-3-45, he offered a sum of Rs. 80/- towards the decree and prayed for further time. The Court rejected his application and directed the sale to proceed on 31-3-45. On 31-3-45, the sale was held and the decree-holder purchased all the items of mortgaged properties for the decree amount with the permission of the Court. By the deposit of the decree amount and solatium, and the cancellation of the sale, items other than items 1 to 3 also wore saved for defendant 1 and the plaintiff has been able to secure a charge on those items.
4. But nevertheless, it is contended for the appellant that as the sale in favour of the plaintiff was after the filing of. the suit in 'forma pauperis' in Mis. 159 of 48-49 and after the attachment was effected on 7-7-45 the sale cannot take precedence over the charge in favour of the plaintiff. The question of attachment cannot be seriously pressed for two reasons. First it is doubtful it an attachment before judgment could have been ordered in the forma pauperis proceedings; secondly the attachment would be subject to the legal rights created in favour of the plaintiff under the prior agreement of Sale Ex. D.
If defendant 1 had received Rs. 1,000/- and had agreed to sell the property to the plaintiff, the attachment which took place subsequently could not avail either defendant 1 or defendant 2 so as to defeat the rights of the plaintiff to ask for the enforcement of that agreement. It is not even alleged that the sale was for any low consideration, nor is it contended before me that the Sale was unnecessary or collusive. Without such sale of the two items of properties, all the rest of family properties including their dwelling house would have been irretrievably lost and the defendant 2 would have been thoroughly unable to enforce her rights to maintenance against them.
5. It has also been contended for the plaintiff that he was a bona fide purchaser for value without notice of the attachment and even of the suit. Apart from the legal results which may or may not follow on account of that circumstance, there is no doubt that the plain-lift' has apparently acted in a perfectly 'bona fide' way and it is very doubtful if he had any notice of the impending suit or attachment at the time of Ext. D.
It is also doubtful if he had any such notice of those proceedings even at the time of the sale under Ext. F though i he ha entered into an agreement and had parted with Rs. 1,000/- to defendant 1 under Ext. D it is difficult to see how or why he should have refrained from taking a sale deed Ext. F. The learned Subordinate Judge has in this connection relied on a case reported in -- 'Athinarayana Konar v. Subramania Ayyar AIR 1942 Mad 67 (A), where it has been held under similar circumstances that an attaching creditor can proceed against the attached property only subject to a prior obligation incurred by his debtor.
6. Mr. Sadanandaswamy, learned Counsel for the appellant, has Strenuously contended that the sale under Ext. F is subject to the rule of lis pendens. For the position that in such a case the rule of lis pendens will apply when there is a transfer of property over which a charge has been sought in a suit for that purpose initiated in 'forma pauperis', he has relied on a case of this Court reported in -
'Andanappa v. Kenchavva', 19 Mys LJ 266 (B). He has also relied on a recent case of the Madras High Court reported in -- 'Subbayya v. Rama Laxmi', 1951 MWN 78 (C), where it was held by a single Judge of that Court that whether the suit for maintenance is by a widow or by a wife if a charge is asked for in respect of a specified property and a decree is made creating a charge, Section 52, T. P. Act would apply so as to protect the plaintiff against transfers effected pendente lite.
In that case he has refused to follow an earlier case pi the same Court in -- 'Pattamma v. Seshachalam' AIR 1927 Mad 502 (D), on the ground that it has been subsequently dissented from by other later Bench decisions. The question whether under Section 39, T. P. Act, the right of a Hindu wife may be enforced against a transferee from a husband or whether her right to claim maintenance from her husband is only a personal right for which there is no lien or a charge against his property has been the subject of some conflicting decisions.
It is, however, unnecessary on this occasion to decide that question though the view in --1951 Mad WN 78 (C), appears to be, if I may say so with respect, a reasonable one. Though a wife may have a personal claim against her husband for maintenance there appears to be no reason, based on any principle, why if she does ask in a proper and 'bona fide' and not a collusive suit and is found entitled to obtain a charge on certain specified immovable properties that charge should not be treated as being on a par with a charge created under similar circumstances in favour of a widow of the family. But nevertheless, in my opinion, the plaintiff in this case is bound to succeed on another ground.
7. There is no doubt that the debts contracted by a Hindu take precedence over the maintenance of his wife or widow; see Maync's Hindu Law, 11th Edn., page 835 In -- 34 Mys CCR 62 (E), at page 65 Doreswamy Iyer J, observed that debts binding on the family estate take precedence over a right to maintenance and consequently where there is both obligation to pay a binding debt and to pay maintenance, until either of them assumes the shape of a definite charge on the property the obligation to pay the debt must take precedence over the other. In that case, the right to maintenance was made a specific charge on the property only subsequent to the impugned transfers made by the husband and which transfers had been found to be for consideration and with no intention to defeat the right of the wife for maintenance. In that case the transfers were upheld as against the charge for maintenance.
8. In this connection, Mr. Sadanandaswamy has relied on a case in -- 'Gangubai v. Pagu-bai' AIR 1939 Bom 403 (F), which was confirmed in anneal in -- 'Gangabai v. Pagubai' AIR 1940 Bom 395 (G). In that case, the plaintiff to whom the properties had been mortgaged was impleaded as a defendant in the maintenance suit and during the pendency of that suit the plaintiff purchased the property, the consideration for the sale being the amount due on the mortgage deed plus a small amount paid in cash. Subsequently, a decree for maintenance was passed and a charge was created on the properties in suit. But before the decree was actually passed the plaintiff's name was struck off from the file.
Lokur, J. observed that there was no doubt that when the plaintiff purchased the property the maintenance suit was pending and that the doctrine of lis pendens itself applied to a suit for maintenance by a Hindu widow in which she claims to have her right to maintenance made a charge on specific immoveable property and a decree is passed creating a charge on such property and he observed that though it may be stated as a general proposition that binding debts would take precedence over mere claims for maintenance, a charge bona fide created for maintenance could not be defeated by a creditor who has lent money for family purposes. The sale in favour of the plaintiff in that case was therefore held subject to the result of the maintenance suit.
That was not a case of a Hindu wife suing her husband; though according to the Bench which decided AIR 1940 Bom 395 (G) that circumstances need not make any difference, I think in 34 Mys CCR 62 (E) and 50 Mys HCR 39 (H) our Court has taken a somewhat different view. The transferee in that case was a party to the widow's suit when the transfer was effected. The collusive charge obtained on these three suit items in favour of defendant 2 without contest behind the back of the present plaintiff and of Junjappa, the previous mortgagee decree-holder auction purchaser, cannot be said to be a bona fide charge. These considerations distinguish that case from the present.
9. In -- 'Radhabai Gopal v. Gopal Dhondo' AIR 1944 Bom 50 (I), Divatia and Lokur JJ. recognized that under Hindu Law the debts contracted by a Hindu takes precedence over the right to maintenance by his wife and the purchaser of property sold to discharge the debts of a husband acquires a good title against a wife who seeks to charge it with her maintenance unless it has been already done.
10. In 50 Mys HCR 39 (H) also, a Full Bench of this Court has held that under the Hindu Law the debts of the husband take precedence over the right of maintenance of his widow and the creditor is entitled to seize and sell his share in the joint family property. According to the facts of the present case, the mortgagee had purchased the properties himself in Court auction. By such sale the rights both of the mortgagor and the mortgagee had vested in him; see -- 'Ramkabala Dasi v. Nagendra Das' : AIR1939Cal655 . Only by depositing the decree amount and solatium into Court the sale was cancelled and the properties became available for creating a charge in favour of the plaintiffs. The amount required for doing so was got by the sale in favour of the plaintiff.
If the present plaintiff had at least been impleaded in that suit he might have easily been able to represent these facts and got defendant 2's charge restricted to the other items. The Court directing such a charge was not bound to create one on all the items of defendant 1's. properties. Defendant 1 though he was made a party in that in 'forma pauperis' suit appears to have consented to defendant 2 being allowed to sue as a pauper and then merely filed some defence and subsequently absented himself; he took no steps to contest her suit, became ex parte and allowed an ex parte decree to be passed.
The plaintiff has alleged that he fraudulently got the maintenance suit filed by his wife. It is difficult to resist the conclusion that he was colluding with her in the later stages of that suit, and had ceased to contest his wife's claim and allowed all the items of properties to be charged after he had himself secured full benefit under Exts. D and F. In these circum-stances, the charge which was created subsequently in favour of defendant 2 cannot be allowed to prevail over the plaintiff's superior 'rights.
11. The plaintiff as a person who had sufficient interest to claim redemption under Section 91 T. P. Act could, it may well be argued, by reason of the payment made by him, claim a right by way of subrogation under Section 92 and defendant 2's charge could only be subordinated to those rights. Defendant 2 has not offered to pay even the amount due under the mortgage decree which was one clearly binding on the properties subject only to which her charge to maintenance could have been made and she did not implead even Junjappa the mortgagee decree-holder auction purchaser in her suit for maintenance which clearly shows a lack of bona fides.
12. The learned Counsel for the respondent contends that his client is entitled to succeed on another ground also. He urges that though the sale under Ext. F was subsequent to the maintenance suit, the agreement Ext. D under which defendant 1 received the full amount of consideration for the proposed sale and agreed to convey the properties -- items 1 and 2 - --was prior to that suit. He argues that the operation of the 'lis' could only be subject to the prior rights -- it may be 'in personam', created by that agreement in favour of the plaintiff; defendant 2 could not have attacked that agreement in any way and its genuineness and bona fides is beyond question as the consideration was directly to Junjappa the decree-holder in O. S. 103 of 37-38.
In this connection, he has referred to a Patna case -- 'Narayana Prasad v. Raj Kishore' AIR 1951 Pat 613 (K). In that case under an unregistered agreement A agreed to grant a lease to B of certain premises and B entered into possession and effected the necessary repairs to make it fit for a cinema theatre which, it had been agreed upon, B should make. During the pendency of a suit which was subsequently filed by one C who had notice of this contract for specific performance of a rival agreement which he claimed A had entered into to lease the same premises to himself, A executed a registered lease deed in favour of B.
On a contention that that lease in favour of B was subject to the rule of 'lis pendens' it was held that under Section 52, Transfer of Property Act protection, is given only to the rights of the parties as they existed when the suit was commenced and find embodiment in the decree in the suit; while nothing done by a party during the pendency of a suit could affect the rights of the other party, still if a right existed in a stranger from before in relation to the property it could not be affected merely because the title to the property in pursuance of that right was perfected during the pendency of the suit.
It was held further that if B had been impleaded in C's suit for Specific performance B could have been able to rely on Section 53A, T. P. Act. and the fact that while standing in this position B took a lease from A could not worsen his position; and that he could therefore resist the execution of the decree obtained by C. I think that case has been decided mainly on its facts and is based on a clear finding that B was in possession, that C had notice of his rights and that B could in any case rely on Section 53A of the Transfer of Property Act; and it cannot be applied to the present case.
In my opinion, however, too wide a recognition of a mere contract to sell which the Transfer of Property Act has specifically declared does not of itself create any interest in or charge on such property might be engrafting a rather too extensive an exception and making a rather dangerous inroad into the beneficial and vitally necessary operation of the rule of 'lis pendens' as defined in Section 52, T. P. Act, and may not be justified by the wording of that section. That section lays down that no property concerned directly in a suit can be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party thereto except under the authority of the Court on such terms as it may impose.
13. In the result this appeal fails and is dismissed with costs.
14. Appeal dismissed.