1. This is a connected batch of Letters Patent Appeals against the Judgment of Subba Rao. L.P.A. Nos. 67 and 73 to 81 of 1954 are against A.S. Nos. 199 of 1948 and A.S. Nos. 352 to 359 and 360 of 1950 on the file of the High Court of Madras which arise out of O.S. No. 16 of 1947 and other 9 connected suits On the file of the Sub-Court, Tenali. Letters Patent Appeals Nos. 68 to 72 of 1954 are against the decision in Civil Miscellaneous Appeals Nos. 442 to 446 of 1948 which arise out of the decision of the learned Subordinate Judge of Bapatla dismissing E.A. Nos. 27ft to 287 of 1945. L.P. As. Nos. 33 and 34 of 1955 are against the decision of Subba Rao, C. J., in S. As. Nos. 100L and 1130 of 1950 arising out of A.S. Nos. 505 and 506 of 1948 on the file of the District Judge, Guntur against O.S. Nos. 59 and 60 of 194T on the file of the Sub-Court, Bapatla.
2. Though the questions raised in these appeals-are common,, it would be convenient to deal with them separately. We will first deal with L.P.A. Nos. 67 and 73 to 81 of 1954.
2A. It would be necessary to set out in brief outline the essential facts of this protracted and complicated litigation.
3. One Nawab Nazim-Ud-Dowla described as the Nawab of Bandar was possessed of considerable properties including those in question in these appeals. He died in 1898 leaving behind him a number of wives and children by them. One of his sons filed a suit for partition and separate possession of the properties in the District Court of Guntur numbered as O.S. No. 17 of 1906.
The suit was transferred to the Temporary Subordinate Judge's Court at Guntur and numbered as O.S. No. 2.1 of 1909. A preliminary decree was, passed on 21-7-1910 and eventually the final decree was passed on 19-7-1911. Under the final decree, Hussain All Khan the 1st defendant to the partition action obtained about 124 acres of land in Cheruvu village for his shore.
All the heirs of the late Nawab were added ad parties to the suit including one Shaukat Begam the 7th defendant who was stilted to be one of the Nawab's wives. However, in the suit, it was found that she was not shadi wife but that her marriage was performed in the mutta form and so she was not given any share in the partition decree.
The said Shoukat Begum thereupon filed O.S. No. 14 of 1914 on the file of the Sub-Court, Masulipatnam for a declaration that the decree in O.S. No. 21 of 1909 was obtained by fraud in so far as her interests were concerned and she prayed for a declaration that she was shadi wife of the late Nawab and as such entitled to l/8th share. She also made a claim as the heir of her deceased daughter and in all to 103/768th share of the properties described in all the schedules annexed to the plaint and for past and future profits.
4. During the pendency of the suit, Shaukat Begum died and her son Sulaiman Ali Khan who was the 1st defendant in the suit was transposed as plaintiff No. 1 as the legal representative of the deceased Shoukat Begum. Sulaiman Ali Khan also died pending the suit and so his legal representatives Ahmed Ali, Murdadi Begam and Imadi Begum the appellants in this batch of Letters Patent Appeals were added as the legal representatives of the 2nd plaintiff Sulaiman Ali Khan.
On 30-9-1924 a decree was passed declaring that the decree obtained in O.S No. 21 of 1909 an the file of the Sub-Court of Guntur was not binding on the plaintiffs, that the deceased Shaukat Begam was a lawfully wedded wife of the late Nawab, that she was entitled as such to a l/8th share in the plaint properties and that as the heir of her deceased daughter, she was entitled to 7/768th share, in all aggregating to 103/768th share in the plaint properties.
A direction was also given for an enquiry into mesne profits under. Order 20 Rule 12 of the Code of Civil Procedure. An enquiry into mesne profits was made and eventually a final decree for mesne profits was passed on 16-9-1926 in favour pf the present appellants.
5. Meanwhile, by an instrument of sale dated 5-2-1920 Hussain Ali Khan one of the defendants in O.S. No. 14 of 1914 sold an extent of about Ac. 112.26 acres out of the lands in Cheruvu village that fell to his share to Utla Veerayya and Panguluri Venkata Appayya for a consideration of Rs. 45,000/- (Ex. A-2). Though the sole deed was executed only in favour of the last mentioned two persons, it is not in dispute that the purchase was also made for the benefit of five other persons viz., P. Venkata Ratnam, K. Bollayya, G. Nagabhushanam, Neelamraju Kotayya and Vutla Ankamma. Conveyances were duly executed to the five others and subsequently the alienees under Ex. A-2 had made subsequent alienations and some of the plaintiffs in this batch of suits are such, subsequent alienees.
6. One Tadepalli Subba Rao obtained against the late Nawab and his son Hussain Ali Khan the vendor of Ex. A-2, three money decrees in O.S. Nos. 741 and 742 of 1910 on the file of the District Munsifs Court, Bandar for Rs. 2,300/- and rs. 2,000/- respectively and another decree for Rs. 8,000/-in O.S. No. 77 of 1910 on the file of the District Court, Bandar. In execution of the aforesaid decrees he got some of the lands covered by Ex. A-2 attached in March, 1922.
The alienees preferred claim petitions. The claim petitions filed in O.S. Nos. 741 and 1742 of 1910 were dismissed when the claim petition filed in O.S. No. 77 of 1910 was allowed. Thereupon, Tadepalli Subba Rao the attaching decree-holder filed a suit O.S. No. 8 of 1924 on the file of the Sub-Court, Bapatla under Order 21 Rule 63 C. P. C. The unsuccessful claimants likewise filed suits under Order 21 Rule 63 C.P.C
All the suits were heard together and were decided in favour of the alienee and against the attaching decree-holder Subba Rao. Thereupon he filed three appeals to the High Court of Madras A.S. Nos. 131 of 1926, 348 and 349 of 1927. By a judgment dated 4-4-1929, the High Court of Madras upheld the contentions of the attaching decree-holder and allowed the appeals by decreeing O.S No. 8 of 1924 in the terms asked for and dismissing O.S. Nos. 88 and 89 of 1924.
7. It had already been stated that the present appellants obtained a decree for partition and mesne profits. They were allotted for their share some of lands set out in schedule to the plaint in O.S. No. 14 of 1914 and it is admitted that no portion of the properties covered by Ex. A-2 was affected by the share that was allotted to the appellants. In respect of the mesne profits decreed, the present appellants got the properties in question in the present suits attached on 15-1-1939 in E.P. No. 83 of 1938.
8. It had already been stated that the original purchasers under Ex. A-2 had conveyed the lands purchased by them in different lots to various persons including the plaintiffs in the present batch of suits. On the strength of these sales, the plaintiffs filed claim petitions E. A Nos. 54, 57, 59, 61, 65, 67, 101, 134, 142 and 158 of 1945 in the Sub-Court, Bapatla for raising the attachment. On 26-3-1945, the learned Subordinate Judge dismissed the claim petitions.
After the dismissal of the claim petitions, the attached properties were sold in court auction and were purchased by various persons. The defeated claimants filed suits under Order 21 Rule 63 of the Code of Civil Procedure. Those suits are O.S. Nos. 38 and 68 of 1945 on the file of the Sub-Court of Bapatla and O.S. Nos. 147, 149, 150 and 265 of 1945 and 73, 74, 75 of 1946 and 293 of 1945 on the file of the District Munsifs Court, Bapatla.
All these suits were transferred by the orders of the District Court, Guntur to the Sub-Court, Tenali where they were numbered as O.S. Nos. 15, 16, 26, 28, 29, 30, 31, 32 and 33 of 1947. In all the said suits, the plaintiffs are the alienees whose claim petitions were dismissed. The defendants 1 to 3 are the present appellants and the defendants 4 to 9 are the legal representatives of the original vendor Hussain Ali Khan.
Except in the case of O.S. No. 31 of 1947, the 10th defendant in every suits is the court auction purchaser. By consent of parties, all the suits were tried together as a batch and evidence was recorded in O.S. No. 16 of 1947. By a judgment dated 30-9-1947, the learned Subordinate Judge upheld the contentions of the plaintiffs and decreed the suits in terms prayed for.
9. It is against the decision in O.S. No. 18 of 1947, that A.S. No. 199 of 1948 has been filed in the High Court of Madras. In all Other suits on account of the valuation being less than Rs. 5,000/-, appeals were filed by the present appellants in the District Court of Guntur. By an order of the High Court of Madras, the appeals filed in the District Court were transferred to the High Court of Madras to be heard and disposed of along with Appeal Suit No. 199 of 1948.
These appeals were heard by Subba Rao J. Before the learned Judge, the main points argued on behalf of the appellants were (1) that the decree of the Madras High Court in A.S. No. 131 of 1926 operated as res judicata; (2) that since Ex. A-2 was executed during the pendency of O.S. No. 14 of 1914 the sale was affected by the doctrine of lis-pendens; (3) that the finding of the trial court that the vendees and their successors-in-interest had effected their title by adverse possession is erroneous; and (4) that Ex. A-2 executed by Hussain Ali Khan was for the purposes of delaying and defeating the creditors and therefore not binding. The learned Judge Held that there was no substance in any one of the contentions and consequently dismissed the appeals in and by his judgment dated 5-10-1953. These Letters Patent Appeals are against that judgment.
10. Before us, the same points were urged by Mr. Venkatarama Sastry and Mr. Nethi Subrahmanyam, the learned counsel for the appellants and we propose to deal with them in the same order. The first point raised before us is that the decision of the High Court of Madras in Appeal Suit No. 131 of 1926 operates as res judicata and that therefore the present suits are barred.
11. In Ramireddi v. Bichalu, : AIR1952Mad837 to which one of us was party, it was held that the observations in the Full Bench decision in Narsimhachariar v. Raghava Padayachi, JLR 1946 Mad 79: (AIR 1945 Mad 333) would not lend themselves to the interpretation that hi no case will the decision given in a suit under Order 21 Rule 63 of the Civil Procedure Code with reference to title to property would operate as res judicata in a subsequent suit, and that if the necessary conditions of Section 11 of the Civil Procedure Code are complied with, a suit under Order 21 Rule 63 C. P. C., would also operate as res judicata. We have therefore to see whether in the present case the necessary elements to constitute res judicata are present.
12. In the suit in O.S. No. 8/1924 which was carried in appeal in A.S. No. 131 of 1926, the defendants were Vatla Veerayya and Panguluri Venkata Appayya, the vendees and Hussain Ali Khan, the vendor. The present appellants, i.e., Ahmed Ali Khan, Imadi Begam and Muradi Begum or their predecessors-in-interest were not made parties. There cannot be a bar of res judicata, if the parties in the subsequent suit are different from those in the former suit; Vide Radha Binode Mandal v. Gopal Jiu, Thakur, AIR 1927 PC 128 and Secretary of State v. S. Ahmed Badsha Sahib, ILR 44 Mad 778: 14 Mad L W 128: (AIR 1921 Mad 248 (FB)).
In the latter case it was held that a former Judgment which was not between the same parties or their privies cannot operate as bar to the trial of the subsequent suit though it may be received in evidence. In that case, the plaintiff filed a suit against the Government for the recovery of an office and certain emoluments attached thereto. In a prior litigation, to which however the Government was not a party, between the plaintiff and another, the plaintiff's claims were negatived for the same office.
In the subsequent suit, filed by the plaintiff for the recovery of the office against the Government, one of the defences was that the former suit was bar to its maintainability. The Full Bench of the Madras High Court held that the plaintiff was not precluded from re-asserting his title to the office, as in the former action, the Government was not a party.
13. The learned Subordinate Judge observed in paragraph 24 of the Judgment that in view of the decision of the Full Bench referred to supra, the counsel for the defendants i.e., the appellants herein, conceded that he could not sustain the plea of res judicata. It is however contended before us, as before Subba Rao, J. that even though the present appellants were not eo nomine parties to O. S No. 8 of 1924 on the file of the Sub-Court, Bapatla, they must nevertheless be deemed to be litigating in the right of the plaintiff therein on the footing that the suit filed by Tadepalli Subbarao was a representative action instituted on behalf of all creditors, present and future.
It therefore falls to be considered whether O.S. No. 8 of 1924 was a representative action. Whether a suit has been filed in a representative capacity or for the vindication of one's own personal lights, can only be determined with reference to the nature of the plaint, the allegations made therein end the precise reliefs sought for. It is not in dispute that Subba Rao cad not file the suit after obtaining the permission of the Court under Order 1 Rule 8 of the Code of Civil Procedure.
In the plaint, there are no allegations that he was representing the general body of the creditors. No other creditor was made a party to the suit. The plaintiffs main allegation was that Hussain Ali Khan was indebted in a sum of Rupees 39,000/-, that of the 8 creditors only 4 had been mentioned in the sale deed and that therefore the object of the sale was to defeat the claims of the creditors not mentioned therein.
Of the 4 debts, not specified, 3 debts were payable to the plaintiff himself and the remaining one payable to one Kotayya was paid and discharged before the decree. So, on the date of the decree, the only debts that stood unprovided for in the sale deed were the debts due and owing to the plaintiff. In those circumstances, the prayer in the plaint was that Ex. A-2 was not binding on him. In appeal, the precise terms of the declaration granted to the plaintiff were:
'We accordingly grant the plaintiff a declaration that the sale deed is not binding as against him.'
In these circumstances, we are unable to appreciate the contention that Subba Rao's suit was a representative action and that the relief sought for was on behalf of all the creditors of the Nawab present and future.
14. The suit was instituted prior to the amendment of Section 53 of the Transfer of Property Act by Act 20 of 1929 which made it mandatory that the suit filed for the purpose of avoiding a transfer under Section 53 should be instituted on behalf of and for the benefit of the entire body of the creditors. Prior to this amendment, there was a conflict of judicial opinion as to whether a suit to set aside a transfer on the ground that it was made to defeat the creditors should be filed in a representative capacity or not.
At any rate as pointed out by Leach, C. J., in Madina Bibi v. Ismail Durga Association, AIR 1940 Mad 789 the Madras High Court took the view that it was not necessary for such a creditor to sue is a representative capacity as held in Puthiyapurayil Pokker v. C. Kunhamad, ILR 42 Mad 143: (AIR 1919 Mad 257) and Ramaswami Chettiar v Mallappa Reddiar, ILR 43 Mad 760: (AIR 1920 Mad 748) (FB). in the case above-referred to in ILR 42 Mad 143 at p. 153 : (AIR 1919 Mad 257 at p. 261) quite apart from the nature of the action under Section 53 of the Transfer of Property Act, Krishnan J. observed as follows:
'In this case, however, the decree of the lower Court can be supported on a much narrower ground as well; for the plaintiff here is not merely a creditor but an attaching decree-holder who was the defeated party in a claim petition filed by the transferee defendant under Order 21, Rule 60 Civil Procedure Code. I have already pointed out that adopting the English rule he will have, as attaching decree-holder, a personal right to sue by himself to avoid the transfer. Again as the defeated party in a claim-petition, he has a statutory right of suit given to him under Rule 63 and that suit must necessarily be one brought by himself alone and is not a representative suit. Under that rule he can sue to establish the right which he claims to the property in dispute and that right is that it can he attached and sold for his decree. The present suit is exactly that suit and it cannot therefore be defeated by any rule of practice which has no statutory basis.'
It is not necessary to refer to the amendment to Section 53 of the Transfer of Property Act and of the impact of that amendment on the nature of a suit filed by defeated attaching creditor for the purpose of avoiding a transfer as being effected with intent to delay or defraud the creditors for the simple reason that the suit was filed long prior to the amendment and as the law then stood it was not obligatory on the part of a plaintiff in a suit under Order 21 Rule 63 C. P. C. to sue in a representative capacity.
15. Tadepalli Subba Rao did not in fact sue in a representative capacity and secondly there was no statutory obligation on his part to sue in a representative capacity. In those circumstances, we are of the opinion that there is no substance in the contention that O.S. No. 8 of 1924 must be deemed to be a representative action so as to enure to the benefit of the present appellants.
16. Mr. Venkatarama Sastry, the learned counsel for the appellants argued that even though the decision in A.S. No. 131 of 1926 could not operate strictly as res judicata it would at least constitute estoppel by judgment. In support of his contention, he cited a decision of the Supreme Court in Sailendra Narayana Bhanja Deo v. State of Orissa, : 1SCR72 .
In that case, the Raja of Kanika sued for a declaration that the Orissa Estates Abolition Act of 1951 was in its application to the Raj invalid and inoperative on the ground that the Kanika Raj was not an estate. One of the defences of the State was that the plaintiff was estopped by the compromise decree passed by the Patna High Court from contending that the Raj was not an estate.
The suit that ended in the compromise was filed by the Raja for a declaration of his title to the beds of certain rivers by reason of grants from the East India Company, express and implied, and for other reliefs. At the appellate stage, there was a compromise between the holder of the Raj and the Government wherein the plaintiff expressly admitted title of the State to the disputed river beds, while it was also agreed that the holder of the Raj should be declared as the owner of the fisheries in the said rivers and entitled to an unobstructed and exclusive enjoyment of the same.
It was contended before the Supreme Court on behalf of the State of Orissa that the compromise was based upon reciprocal admissions and promises, that in the acknowledgment of the State's rights to the beds of the rivers is implicit in the admission that the Raj was an estate and that the Raja was not entitled to resile from it. This plea was affirmed by the Supreme Court which also held that even a compromise decree could operate as an estoppel by judgment.
17. The essence of estoppel by judgment is that a party cannot be allowed to say one thing at one time and another at later time. It will be seen that the estoppel pleaded and upheld by the Supreme Court was an estoppel between parties to the prior action. There was no question of that judgment being pleaded as an estoppel against third parties. A judgment could be an estoppel only as between the parties to it, unless it is a judgment in rem which is binding against all the world.
In Srinivasa Aiyangar v. Srinivasa Aiyangar, ILR 33 Mad 483 and Ramamurthi Dhora v. Secy. of State, ILR 36 Mad 141 following certain observations in Bigelow on Estoppel and certain dicta of Lord Coke, it was held that judgments in personam could also create an estoppel against strangers. Those two decisions were dissented from in Peari Mohan Shaha v. Durlavi Dassya, 18 Cal WN 954: (AIR 1914 Cal 281) and they were expressly overruled by the Full Bench of the Madras High Court in 14 Mad LW 128 : (AIR 1921 Mad 248) (FB).
That judgments in personam cannot be construed as being conclusive against persons not parties thereto, is borne out by the scheme of the Indian Evidence Act from Sections 40 - 44. Only judgments referred to in Section 41 constitute conclusive proof of what they contain and Section 43 in terms provides that judgments not referred to in Sections 40, 41 and 42 are irrelevant unless the existence of such judgments is a fact in issue or relevant under some other provisions of the Act.
Even if they are relevant, this would not be conclusive. In these circumstances, we are not able to see how the decision in A.S. No. 131 of 1926 would create an estoppel against any, but the parties thereto. The present lis is not between the parties to the prior litigation. It is between some of the parties thereto and strangers and no question of estoppel can therefore arise.
18. Mr. Nethi Subrahmanyam who followed Mr. Venkatarama Sastry argued that this case would fall within the scope of Explanation VI to Section 11 of the Civil Procedure Code. He contends that the expression 'creditor' is of a wide import and would take in also the future creditors. That being so, it is urged that Tadepalli Subba Rao must be deemed to have been litigating for rights common to all creditors.
He referred us to certain observations in the decision of the Privy Council in Kumaravelu Chettiar v. Ramaswami Ayyar, ILR 56 Mad 657: (AIR 1933 PC 183). In that case, certain members of the Vaniya community filed a suit with the permission of the court under Order 1 Rule 8 C. P. C., for establishing their right to worship in the inner precincts of the temple at Tiruchendur. They were met by a defence that the suit was barred by res judicata by reason of a decision rendered in 1877.
The High Court of Madras took the view that the suit was barred and that Order 1 Rule 8 C. P. C., does not control Explanation VI to Section 11. The Privy Council reversed the decision of the full Bench of the Madras High Court and held that a judgment in order that it may bind persons who were not the parties thereto must conform strictly to the provisions relating to the representative suits and that inasmuch as the former suit was not filed in conformity with the procedure governing the filing of the representative suits, it could not be held to bar the trial of the later suit which was tiled in accordance, with Order 1 Rule 8 C. P. C. However Mr. Subrahmanyam relies on an observation of Lord Balanesburgh at page 677 (of ILR Mad) : (at p. 190 of AIR)
'...... they would not exclude the possibility of a decree being within the benefit of the explanation where the litigation having been bona fide the omission to comply with the conditions of the rule has been inadvertent, and no injury from the omission has been sustained by the plaintiff in the second suit.'
All that the passage could possibly mean is that where actually representative action has been instituted bona fide and on account of some inadvertence there has not been strict technical compliance with the procedure governing the institution of the representative suits, Explanation VI to Section 11 C. P. C. could be invoked.
Here, there is no such question. Tadepalli Subbarao did not purport to litigate for the rights of I anybody but himself. In that litigation, no relief on behalf of the creditors was asked; and none was given. The passage referred to in the judgment of the Privy Council has obviously no application. The decision in Bishen Singh v. Bakhshish Singh, AIR 1936 Lah 13 which follows the decision of the Privy Council is also of no assistance to the appellants.
19. In the circumstances, we are in agreement with Subba Rao J. and hold that there is no substance in the contention that the decision in A. S, No. 131 of 1926 operates as res judicata so as to bar the trial of the present suits.
20. The second point argued is that Ex. A-3 is affected by the doctrine of lis pendens embodied in Section 52 of the Transfer of Property Act. The suit O.S. No. 14 of 1914 was instituted in 1914. The preliminary decree for partition in the suit was made on the 30th of September, 1924 and the final decree for mesne profit was obtained on the 16th of September, 1926.
Therefore, it cannot be disputed that the sale deed Ex. A-2 dated 5-2-1920 was executed during the pendency of O.S. No. 14 of 1914. The question is whether on the facts of the case Ex, A-2 is affected by the principle of lis pendens. In Faiyaz Hussain Khan v. Prag Narain, ILR 29 All 3.39 (PC) Lord Macnaghten quotes with approval the statement of the doctrine by Cranworth, L. C., as being
'pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent.'
The principle of lis pendens enforced in England both by courts of law and equity is embodied in Section 52 of the Transfer of Property Act. The Section does not declare that all the transfers made pendente lite are null and void: but what is provided for is that such transfers will he subject to the decree or order passed or made In the suit. In other words, the transfer will be subservient to the decree or order.
21. In Rangaswami Nadar v. Sundarapandia Thevar, AIR 1928 Mad 615 a bench of the Madras High Court held as follows: --
'With regard to alienation pendente lite the rule is not that the alienation is absolutely void, but the transfer will not affect the rights of any party thereto under any decree or order which may be made in the suit, In other words, the transfer will be available and valid subject, however, to the result of the suit during the pendency of which the transfer is made.'
To the same effect are the observations in Nachappa Goundan v. Samiappa Goundan, AIH 1947 Mad 18 and of Pal J., in Muhammad Juman Mia v. Akali Mudiani, AIR 1943 Cal 577 and also of Amir Ali J., in Ramdhone v. Kedarnath, AIR 1938 Cal 1. It is needless to add to the citation in support of a principle which is so well established and recognised. As observed by Subba Rao J., as a corollary to the position above stated, it follows that if the decree or order does not create a right in any party in respect of any specific property transferred, no question of lis pendens can possibly arise.
22. It has, therefore, to be seen whether the decree obtained by the appellants in O.S. 14/1914 creates in them a right in respect of specific property transferred under Ex. A-2.
23. It was admitted in the trial Court and before Subba Rao J. that the properly covered by Ex. A-2 was not affected by the partition decree in favour of the appellants and that no part of the property allotted to the plaintiffs was from and out of the properties covered by Ex. A-2.
24. It is however contended by Mr. Venkatarama Sastry that the ascertainment of mesne profits are proceedings in continuation of the suit for partition. The real question in this case is not whether the proceedings for mesne profits culminating in the decree are the continuation of the suit for partition, but whether the decree for mesne profits as ultimately passed is such that could specifically be enforceable against the properties covered by Ex. A-2.
25. We will now deal with the cases cited on behalf of the appellants. Strong reliance was placed on the decision in Midnapore Zamindari v. Naresh Narain Roy, ILR 39 Cal 220. In that case, the facts arc that a decree for possession and mesne profits was obtained in 1906 against Messrs. Robery Watson and Co., Ltd. During the pendency of the suit, the Midnapore Zamindari Company purchased certain properties in dispute. They did not apply to have their names added as defendants in the pending action.
In 1909 the decree-holder applied for execution of the decree both in regard to possession and for assessment of mesne profits. The alienees pendente lite objected to the execution on the ground that the execution proceedings could not be continued against them because they were not legal representative of the vendors and therefore the decree for mesne profits could be enforced against them. This contention was repelled.
It was held that as purchasers pendente lite the proceedings could be continued against them. The question that falls to be determined in this case viz., whether the decree for mesne profits which does not create a charge is enforceable against the specific property covered by the sale did not arise for determination in this case. Mr. Venkatarama Sastry cited the decision of the Privy Council in Puran Chand v. Monmotho Nath. AIR 1928 P C 38.
The point decided there was that during the pendency of a suit for the construction of a trust deed and for directions for the administration of the trust, one of the beneficiaries executed a mortgage and it was held that the mortgage would be subject to the ultimate orders of the court in the suit pending. In Veerayya v. Bommadevara Venkata Bhashyakaralarao, AIR 1936 Mad 887, the son of a zamindar filed a suit for partition and claimed a share in the home-far lands.
Pending the suit the father granted a patta of the home-far lands. Subsequently in the decree, the home-farm lands were allotted to the son. It was held that the patta could not prevail over the decree. In ILR 29 All 339 (PC), the facts were that after the institution of a suit on a mortgage the mortgagor executed a second mortgage and it was held by the Privy Council that the second mortgage was affected by the doctrine of lis pen-dens.
In Seetharamanujacharyulu v. Venkatasubbamma, AIR 1930 Mad. 824, a widow sued for maintenance against her husband's brother and other alienees of joint family property, for the maintenance to be charged on certain specific items of immoveable property and got a decree accordingly. Before the passing of the decree, the creditor of the husband executed a decree obtained against him and brought to sale one of the items charged for the maintenance due to the widow, purchased it and sold it in his turn to the plaintiff.
It was held in that case that the sale was hit by Section 52 of the Transfer of Property Act. The cases cited are clear cases where there has been a conflict between the alienation on the one side and the ultimate decree or order of the court in the suit on the other. In such cases there is no difficulty as the law is well established that the decree prevails over the transfer. In this case, the question is whether the decree for mesne profits should prevail over the alienation.
It has been held in Basavayya v. Guravayya. 1951-2 Mad LJ 176 : (AIR 1931 Mad 938) (FB) that a tenant-in-common who filed a suit for partition, seeks a partition not only of his share of the properties forming the subject-matter of the suit, but also his share of the profits accruing from those properties during the pendency of the suit or till he is put in possession of his share. He cannot anticipate how long the suit would be pending or estimate even approximately what amount of profits would be realised during the period.
He need not therefore specifically ask for any relief in respect of the future profits, the prayer for general relief being sufficient to enable the court to award him such profits. If during the pendency of the suit one or some of the co-sharers receive or realise the entire profits or more than their share of the profits of the common property they have to account to the other sharers for the excess.
It the collecting co-sharer or tenant-in-common is not in a position to bring into the hotchpot his realisations subject to all just allowances in his favour, the Court will, when passing a final decree deprive him of a sufficient portion of the properties allottable to his share and allot the portion so taken away to the other sharers so as to give them the equivalent of their share of the profits in the shape of property. Or the Court may impose a charge on the share of the defaulting tenant-in-common for the amount for which he is accountable to the other sharers and thus equalise the shares.'
26. It will be seen that in this case no charge was created. The decree for mesne profits, as it is, is nothing more than a simple decree for money. It is not enforceable against any specific property. It is certainly enforceable against the judgment-debtors personally and against their other properties. In the case of Barned's Banking Co., In re; Ex parte, Thornton, 1867-2 Ch. 171 at p. 178, Lord Cairns said ;
'Then the lis pendens being a technical expression well known, it seems to me to be perfectly clear that it always implied a claim of right, or a claim to charge some specific property.'
We are of opinion that the decree for mesne profits is only a money decree and as such is not specifically enforceable against the properties covered by Ex. A-2 and therefore there is no question of the decree prevailing over the transfer under Ex. A-2.
27. The third question raised by the learned counsel for the appellant is as to limitation. A large part of 'the argument was devoted to showing that the findings of the trial court as affirmed by Subba Rao J. that the alienees had perfected their title by adverse possession is erroneous. It may he recalled that Hussain Ali Khan sold the property under Ex. A-2 on 5-2-1920.
The plaintiffs in the present suit purchased the properties in or about 1922 and there is overwhelming evidence that they and their predecessors took possession of the properties in 1922 itself and had been in uninterrupted possession and enjoyment of the lands in their own right for about 25 years. Prima facie, therefore the alienees would appear to have perfected their title by adverse possession.
But what is contended is that no question of adverse possession could arise so long as the appellants have a right to challenge the alienation. It is contended that Article 120 of the First Schedule to the Indian Limitation Act would apply to this case and the period of limitation for a creditor impeaching the alienation would commence from the date on which he chose to exercise the option to impeach the sale.
In this case, it is stated that option was exercised by effecting the attachment on 15-1-1938. In Venkateswara Aiyar v. Somasundaram Chettiar. 7 Mad LW 280 : (AIR 1918 Mad 76), Phillips J. held that a suit for declaration that a an alienation is not binding on a creditor under Section 53 of the Transfer of Property Act is governed by Article 120 of the Limitation Act and the cause of action does not arise on the date of the alienation but on the date when the creditor (who ?) seeks to set aside the alienation knows that he had been defrauded, defeated or delayed.
It was further held that though the residuarv Article 120 is not expressly confined to suits based on fraud, still the time when the rights to sue accrues must he determined in consonance with the principles governing other specific suits based on fraud, i.e., the time when the fraud becomes known. Ayling J. though doubtful on the question of limitation was not prepared to dissent from the opinion of Phillips J.
The above case was considered in Narasimham v. Narayana Ban, AIR 1926 Mad 66. Madhavan Nair J. accepted the view laid down in 7 Mad LW 280 : (AIR 1918 Mad 76). But Venkata Subba Rao J. was inclined to the view that in suits under Section 53 of the Transfer of Property Act which are governed by Article 120 of the Limitation Act, the starting point of the limitation is the date on which the plaintiff decides to exercise his option of avoiding the transfer.
In Synabhog Marthandu Rao v. Chenna Bassappa, : AIR1951Mad388 , Raghava Rao J. declined to decide which of the two views expressed in AIR 1926 Mad 66, was correct. In that state of authorities Subba Rao J. felt bound by the decision of the Bench in 7 Mad LW 280 : (AIR 1918 Mad 76).
28. It has been strenuously contended by Mr. Nethi Subrahmanyam that the decision in 7 Mad LW 280 : (AIR 1918 Mad 76) was really not an agreed decision in that Ayling J. was doubtful on the question of limitation. His argument is based upon a misapprehension. The decision is an agreed decision, because Ayling J. expressly stated that he was not prepared to dissent from Phillips J. Learned counsel referred to Abdallakhan Daryakhan v. Purshottam Damodar, 49 Bom LR 875 : (AIR 1948 Bom 265).
It was held in that case that a suit by a creditor to avoid an alienation under Section 53, of the Transfer of Property Act is governed by Article 120 and not by Article 91 of the Indian Limitation Act, We are unable to see how this case can be of any assistance to the argument of the learned counsel.
It was expressly held there that the view that the starling point for filing a suit under Section 53 of the Transfer of Property Act starts from the date when the creditor chooses to exercise his option is no longer correct, in view of the decision of the Privy Council in O. Rm. C. M. Sp. (Finn) v. Nagappa Chettiar, ILR 1941 Mad 175 : (AIR 1941 PC 1), to the effect that a suit to recover trust property on the foot of a breach of trust is governed by Article 120 and that time begins to run from the date of the plaintiff's knowledge of the transaction,
29. That the view expressed by Phillips J. in 7 Mad LW 280 : (AIR 1918 Mad 76) and of Madhavan Nair J. in AIR 1926 Mad 66, finds support in a latter decision of the Madras High Court in Official Receiver of South Arcot v. Alagappa Chettiar, AIR 1946 Mad 236 at p. 238. Rajamannar J., as he then was, observed as follows : --
'The general consensus of opinion among Judges with the exception of one learned Judge appears to be to hold that 'knowledge' is a factor which should determine the starting point of limitation for a suit under Section 53 T. P. Act. Venkatasubba Rao J. alone was of opinion that the starling point of limitation was the date when the plaintiff exercised his option to avoid the transfer ; vide AIR 1926 Mad 66 ; 22 Mad LW 592. That was a Letters Patent Appeal against the decision of Krishnan J., in second appeal. Venkata Subba Rao J. thought that his view was the view that Krishnan J. intended to hold: but we are unable to agree. Madhavan Nair J. differed from Venkatasubba Rao J. on this point. We are clearly of opinion that the date of the exercise of the option cannot be regarded as the starting point of limitation for a suit under Section 53, T. P. Act. The fact that the exercise of such option can be by the institution of the suit itself shows that this could not be the starring point. With great respect to the learned Judge, we consider that he erred in thinking that the option mentioned in Section 53 could be exercised at any time and that it was the exercise of his option that gave him a right to sue. What gives him a right to sue is the fact that the transfer was made with intent to defeat or delay the creditors. What the section says is that such a transfer is not ipso facto void but voidable if any creditor desires to avoid it. A person may have a right but may not choose to enforce it. But when he enforces it, time should commence to run from the time when he could first have enforced that right and not from the time when he first decides to enforce that right. No authority has been cited before us to support the view of Venkatasubba Rao J.'
We are in respectful agreement with the above view.
30. On the facts of this case, there can be no doubt that the Appellants had known about the alienation in Ex. A-2 even in 1924. D.W. 1 the 1st defendant in the case and the 1st appellant herein expressly stated in his evidence that he had knowledge of the circumstances in which Hussain Ali Khan sold property and that he knew it even in 1922. That being so, it is obvious that the 1st defendant and his father knew about Ex. A-2 and the litigation initiated by Tadepalli Subba Rao in 1922 or 1924.
The mesne profits decree was obtained on the 16th of September, 1926 and yet till the 15th of January, 1939 no steps were taken by the appellants. The alienees under Ex. A-2 sold the lands to various persons and ever since 1922 all the alienees and their alienees have been in enjoyment of the properties in their own right. The right of the appellants to avoid a sale under Ex. A-2 was barred. On the other hand, the respondents had perfected their right by adverse possession by being in enjoyment of the lands for over 25 years. We are therefore of opinion that the view taken by Subba Rao J. on this part of the case is correct.
31. It is next contended that in any event, it is open to the appellants to show that Ex. A-2 was really executed to defeat and delay the creditors und that they could do so as defendants. In Palaniandi Chetty v. Appavu Chettiar, 30 Mad LJ 565 ; (AIR 1917 Mad 519) Coutts Trotter and Seshagiri Aiyar JJ. held that a fraudulent transfer within the meaning of Section 53 could only be avoided by a suit. That decision was affirmed by a Full Bench of the Madras High Court in Subramania Ayyar v. Muthia Chettiar, ILR 41 Mad 612 : (AIR 1918 Mad 421).
A later Full Bench of 5 Judges in ILR 43 Mad 760 : (AIR 1920 Mad 748) (FB). over-ruled 30 Mad LJ 565 : (AIR 1917 Mad 519) and ILR 41 Mad 612 : (AIR 1918 Mad 421) (FB). It was held in the later Full Bench case that it is open to an attaching creditor to plead in defence that the transfer was in fraud of creditors. Therefore, the appellants are entitled to show that Ex. A-2 is liable to be avoided as being a transfer for defeating or delaying the creditors.
32. Before the trial Court, considerable evidence was let in on this question and the learned. Judge has discussed the entire evidence oral and documentary and has come to the conclusion that Ex. A-2 was not a document executed with the intention of delaying or defrauding the creditors within the meaning of Section 53 of the Transfer of Property-Act.
33. The sale deed Ex. A-2 recites that the consideration agreed to was Rs. 45,000/- of which only Rs. 500/- was to be paid to the vendor for the family expenses and another sum of Rs. 500/-for expenses for court proceedings. There is an endorsement of the Sub Registrar that Rs. 1000/-was paid. With respect to the balance of Rs. 44,000/- it is specifically provided in the sale deed that it should be utilised for discharging the debts due to T. Hanumantha Rao, Majeti Subbarao, Nethi Somayajulu and Yarlagadda Rangayya.
It was further recited that steps should be taken to avoid the lease in favour of Hanumantha Rao and get the nominal sale deed executed in favour of Marem Bi duly cancelled. The balance if any was to be kept with the vendees for meeting the necessary expenses in respect of the various proceedings.
34. It is not suggested that the four debts are by any means fictitious debts. They were real and subsisting debts. There is a large mass of evidence showing that the alienees paid the debts to the creditors in the manner stipulated for in Ex. A-44 is the receipt for the discharge of a debt of Rs. 18,315-5-4. Exs. A-42 and A-43 are similar receipts of the discharge of the respective debts. Ex. A-40 is yet another receipt.
Similarly there are other receipts for the payments and expenses. The total of the payments made as per the directions is Ex. A-2 comes to Rs. 42,000/-. Further, the alienees had taken steps to get the sale deed in favour of Mariam Bi cancelled and also to avoid the lease in favour of Hanumanthrao. Taking those amounts also into consideration the alienees are found to have spent much more than Rs. 45,000/-.
35. The suggestion that Ex. A-2 is a nominal transaction executed for screening the property and the real beneficiary thereunder is the vendor himself is absolutely without foundation. There is unimpeachable evidence which has not been challenged in the trial court nor before us that the alienees have been in effective possession and enjoyment since the date of the sale.
36. ft is then contended that the sale price viz., Rs. 45,000/- was grossly inadequate and that the lands are worth more than a lakh of rupees and the inadequacy of the consideration raises a presumption that the transaction should have been fraudulent. The trial court after a careful analysis of all the documents bearing upon the price has come to the conclusion that the price was not inadequate. The price stipulated in Ex. A-2 would work out at Rs. 400/- per acre.
Ex. A-67 dated 20-9-1919 i.e., a few months before Ex. A-2, which is of an extent of Ac. 122-49 cents of the connected land was sold for Rs. 51,000/-, the vendor being the uncle of Hussain AH Khan. Another sale deed of the like property is Ex. A-68 dated 1-12-1919 which show that Ac. 31.95 cents was sold for Rs. 13,259-4-0. Exs. A-69 and A-70 relate to lands adjacent to those in Ex. A-2.
It is true that the 1st defendant as D.W. 1 stated in his oral evidence that he sold 50 acres for Rs. 60,000/- in 1922 and sold about Ac. 30-00 for Rs. 26,600/- in 1924. But curiously enough no documents have been produced for these sales. There is no evidence also that the lands alleged to have been sold by D.W. 1 and that lands cover-ed by Ex. A-2 are of the same quality. Strong reliance has been placed on the circumstance that within 2 years after Ex, A-2 the purchasers sold Acres 66.00 for Rs, 50,000.
The learned Subordinate Judge rightly points out that the high prices paid may be due to the fact that the lessees who were in possession of those lands wanted to acquire those lands and there was nothing strange in their having agreed to pay a high price. The learned Subordinate Judge, after a detailed review of the evidence, held that the price was not inadequate. Subba Rao J. has agreed with that view. We see no reason to take a contrary view.
37. Mr. Subrahmanyam, contended that the purchasers under Ex. A-2 must be deemed to hold the sale price in trust for all the creditors not only those then in existence, but all subsequent creditors. In support of that proposition he referred to a decision of the Calcutta High Court in Aftabuddin Chowdhury v. Basanta Kumar, 22 Cal WN 427: (AIR 1918 Cal 82), where it has been held that a transferee who is not himself a creditor and who takes the transfer with full knowledge of the fraudulent intention of the transfer to defeat his creditors is not a transferee in good faith and such a transfer is void against the creditors even if ho had paid the full value of the property purchased by him.
We are unable to see the application of this decision. We have taken the view that that alienees under Ex. A-2 had no knowledge of any fraudulent intention on the part of Hussain All Khan and in fact there was none. That being so, the decision cited by Mr. Subrahmaniam can have no application whatever,
38. For these reasons, we are of the opinion that there is no substance in the appeals and they are herewith dismissed.