1. One Raj Kishore Dubey owned certain zemindari property in mauzas Rampur and Aranwan Gulzar, pargana Kauna in the district of Azamgarh. On 1st July 1925, he transferred the property in suit with possession to one Katwaru who figures in this action as defendant 8. The document ostensibly amounted to a usufructuary mortgage for Rs. 800. Bhagirathi Dube, plaintiff-appellant instituted a suit for pre-emption on the allegation that the transaction in question was really an out and out sale but it was disguised with the outer trappings of a usufructuary mortgage.
2. The suit was resisted both by Raj Kishore Dube, the transferrer, and Katwaru, the transferee both of whom pleaded that the transaction was a usufructuary mortgage and the real consideration was Rs. 800 as set out in the document and not Rs. 200 as alleged by the plaintiff.
3. The 10th December 1925, was the date fixed for the final hearing of the case. Matters, however, took a dramatic turn, on 8th December 1925 when Raj Kishore Dube sold the property in dispute to defendants 2 to 7 On 10th December 1925, Bhagirathi Dube applied to the Court for time to reconsider his position more particularly with reference to the advisability or otherwise of impleading the vendees namely, defendants 2 to 7. On the following day, that is, on 11th December 1925, a compromise was effected between the plaintiff and Katwaru. The result of the compromise was that admitted that the transaction in reality was a sale and not a usufructuary mortgage. The parties agreed that the true consideration for the transfer was Rs. 800 and not Rs. 200 as alleged by the plaintiff. A decree in terms of the compromise was passed in favour of the plaintiff against Katwaru. Raj Kishore Dube, the original transferrer, not having appeared on that date in Court, an ex parte decree was passed against him.
4. When the plaintiff attempted to execute his decree, he was resisted by defendants 2 to 7 who set up their sale deed, dated 8th December 1925. The present suit was instituted for a declaration that this sale deed dated 8th December 1925, executed by Raj Kishore Dube in favour of Muneshar Dube and others defendants 2 to 7, was null and void and not binding upon the plaintiff. The Court of first instance dismissed the suit. The lower appellate Court has affirmed the decision. The decision of the lower appellate Court proceeds upon the finding that the suit was not a 'contentious suit' within the meaning of Section 52, T.P. Act, on 11th December when a compromise was arrived at between Bhagirathi Dube and Katwaru and the transfer by Raj Kishore to defendants 2 to 7 is unaffected by the doctrine of his pendens. This view is clearly erroneous. The words 'contentious suit' in Section 52, T.P. Act, have been used in contradistinction to a friendly suit or a collusive suit.
5. The suit for pre-emption was from its very inception a contentious suit against both the defendants who were parties to the action. It did not cease to be a contentious suit against defendant 2 merely by reason of the litigation coming to an and by means of a compromise decree against one of the defendants. The right to the property in dispute was directly and substantially in question in the pre-emption suit and pending the decision, defendant 1 was not competent to defeat the right of one of the parties by a transfer in favour of persons who were strangers to the action. Defendant 1 was no party to the compromise at all. The Courts below have failed to realize the significance and legal effect of this circumstance. Where in a contentious suit a party transfers the immovable property in favour of a person who is no party to the action, the latter can only take the property, subject to the result of the suit. Under the circumstances, defendants 2 to 7 could not, by reason of their obtaining a transfer from defendant 1, defeat the plaintiff of the fruits of his decree. We are clearly of opinion that the transfer in favour of defendants 2 to 7 was obnoxious to the provisions of Section 52, T.P. Act, and that the plaintiff's claim was well founded. We have already stated that defendant 1 was no party to the compromise. The compromise, therefore, whether collusive or not, did not, in any way improve the rights of defendant against whom an ex parte decree was passed. The suit, which was a contentious one in its inception, did not cease to be a contentious suit, either by reason of the fact that one of the parties to the suit had entered into a compromise with the plaintiff or that another party had allowed an ex parte decree to be passed against it. No fraud between the plaintiff and defendant 1 has been alleged or proved. The Courts below appear to have put themselves upon a wrong track by assuming that the compromise entered into between the plaintiff and Katwaru affects the ex parte decree against defendant 1 who was no party to the compromise. We allow the appeal, set aside the decree of the Courts below and decree the plaintiff's claim with costs throughout.