1. This is a Letters Patent appeal brought by the plaintiffs against the judgment of a learned single Judge of this Court dismissing their appeal and confirming the decrees of the two lower Courts. The family of the plaintiffs is as follows:
--------------------| |Bhawani Prasad Raja Ram| || Sheo Parkash|--------|---------------------------------------| | | | |Ram Kishore | Jugul Kishore | Jagdish | | Kishore| |Nand Kishore Shiam Kishore
2. By a plaint filed on 16th February 1916, and registered on 18th December 1916, Raja Ram and Sheo Parkash brought a suit for partition (No. 7 of 1916) against the other members of the family. Subsequently there was a second suit for partition, No. 3 of 1918, brought by Nand Kishore which was filed on 18th December 1917. These two partition suits were tried together and a preliminary decree was passed on 6th April 1921, and a final decree on 19th September 1921. A few days after registration of the first partition suit brought by Raja Ram and Sheo Parkash, Lalta Prasad got a simple money decree against Bhawani Prasad and his son Ram Kishore on 22nd December 1916. This was in connexion with a business which was in the name of Ram Kishore alone and the name of Bhawani Prasad his father was subsequently added to the suit and a decree was given against both. On 28th August 1918, attachment was made of house No. 95 with which the present suit is concerned, and an objection was made by the present plaintiffs to the effect that the property attached was joint ancestral family property; that these suits for partition of the entire family property were pending, and that the attachment should be released, but if that prayer be not granted that this objection be postponed until determination of the two. partition cases. When the objection came . on for hearing, the vakil for the decree-holder stated that he only desired auction-sale of the right and share of the two judgment-debtors Ram Kishore and Bhawani Prasad. The vakil for the objectors admitted that the two judgment-debtors had a share in the attached property but he wanted the sale postponed for two months. The objections were disallowed, and the house in dispute in its entirety was put up for sale and purchased on 2nd June 1919, by Kedarnath father of the defendants who obtained formal possession on 5th November 1919. Kedarnath had been a tenant of the house since 1905 on a monthly rent of Rs. 17 to the joint family of which the plaintiffs were then members. In the final decree in the partition suit on 19th September 1921, the whole of the house in dispute was allotted to the four plaintiffs in equal shares, one-fourth to each plaintiff, that is, it was alloted to the branch of Bhawani Prasad and his sons with the exception of Bhawani Prasad and his son Ram Kishore who were judgment-debtors in the case of Lalta Prasad. The present case has been brought by the plaintiffs for arrears of rent from 1st August 1921 to 31st August 1924. Various grounds were taken in defence in the written statements, but the present ground with which we are concerned is that, as found by both the lower Courts, the defendants were not liable for the one-third of the rent owing to the purchase at the auction-sale by the father of the defendants, Kedarnath, of the shares of Bhawani Prasad and Ram Kishore. The question which has been argued before us is, whether owing to the rule of lis pendens contained in Section 52, T. P. Act, that purchase by Kedarnath was null and void as against the rights ,of the plaintiffs. It is clear that the auction-sale was made while both partition suits were pending. The view taken by the two lower Courts was that Section 52., T. P. Act, would not apply, because the partition suit No. 3 of 1918 was not contentious as Bhawani Prasad and Ram Kishore did not contest it, and the rights of Bhawani Prasad and Ram Kishore to a share in the house in dispute was not in question in that suit.
3. In addition to the house in dispute there was also a grove and the same decree-holder Lalta Prasad attached and purchased that grove himself. In the partition that grove was allotted to the share of Sheo Parkash, the cousin of the present plaintiffs. A suit was brought in regard to that grove and came before this Court in First Appeal No. 297 of 1924 decided by a Bench of this Court on 1st December 1927. In that suit it was held that Sheo Parkash could recover the grove. The basis of the decision was that Section 52, T. P. Act, applied and the auction-purchaser there- fore did not obtain rights which were valid against Sheo Parkash to whom the grove had been allotted in the partition suit which was pending at the time of the auction-purchase. The learned Judge of this Court alludes at some length to First Appeal No. 297 of 1924 and he distinguishes the second appeal in the present case on various grounds. He held that the present appeal was different and he went on to state:
The appellant has not even argued in second appeal that the doctrine of lis pendens is applicable.
4. Most of the grounds in the present second appeal dealt with the question of lis pendens and as the First Appeal No. 297 of 1924 was contested on the ground of lis pendens we are convinced that the learned Judge of this Court was under a misapprehension when he wrote that the question of lis pendens was not argued before him in second appeal. Consequently it is open to the plaintiffs to argue lis pendens before this Court in the Letters Patent appeal.
5. As regards the broad question as to whether Section 52, T. P. Act, applies to a partition suit, there is a ruling of this Court in Tara Chand v. Bachnun Singh  18 I.C. 492 which states that an assignment of a mortgage debt during a partition suit by a party comes under Section 52, T. P. Act. We agree with the principle of that ruling that partition cases come within the meaning of contentious suits under Section 52, T. P. Act. Some argument has been made on the meaning of the word 'contentious,' and the learned advocate for the respondent has endeavoured to support the finding of the lower appellate Court that the present suit was not contentious, because Bhawani Prasad and Ram Kishore did not contest it. In the Privy Council case in Faiyaz Husain Khan v. Parag Narain  29 All. 339, it was laid down at p. 345 that where a suit is contentious in its origin and nature, it is not necessary that summons should have been served to make it contentious. Further it was held in P. Kathir v. C. Mare-madissa  38 Mad. 450 that a contentious suit in Section 52, T. P. Act, means every suit other than a friendly suit. It was further argued by the learned Counsel for the respondent that in a partition suit a right to immovable property is not directly and specifically in question, because apparently it is admitted by the parties that the joint family possessed the property in question. But we consider that the question in the partition suit is how that immovable property should be divided and those rights apportioned. Consequently we consider that a partition suit does come under Section 52, T. P. Act. Accordingly, differing from the learned single Judge of this Court, we hold that the plaintiffs in the present suit are entitled to claim that the rule of lis pendens would apply to a partition suit and would negative the effect of an auction-purchase made during the pendency of a partition suit.
6. One further question of fact remains for decision. In the written statement there were various pleas of fraud raised in paras. 19, 21 and 22, and although the trial Court did not directly frame an issue on the subject of fraud, the trial Court considered those pleadings under issue 1:
Are the plaintiffs the owners of the whole house in dispute
7. The trial Court came to this finding:
The plaintiffs, thereafter, seem to have taken to another course to defraud the creditor, the course being the non-allotment of the house actually sold to the share of the judgment-debt-.018 on partition.
8. Ground 3 of appeal to the District Judge stated that no evidence was produced to prove any fraud or collusion, and the lower Court was not at all justified in importing allegations of fraud in its judgment quite beyond the pleadings of the parties. The lower appellate Court mentioned that six grounds had been taken in appeal and that the Court need not take them one by one as they seem to overlap one another. In the end the lower appellate Court dismissed the appeal of the plaintiffs on different grounds and did not come to any finding on the question of fraud. As we have differed from the lower appellate Court on the ground on which it set aside the decree of the trial Court, it is necessary for us to remand an issue to the lower appellate Court on the question of fraud. It is also necessary to remand an issue in regard to the amount of the shares of Bhawani Prasad and Ram Kishore, because although it was found by both the lower Courts that the shares amounted to one-third of the house in question and before the lower appellate Court it was stated that that point was not congested, still it has been contested in this Court that those two shares together will amount to one-sixth and not one-third. The reason for this is that the branch of Bhawani Prasad and the branch of his brother Raja Ram would have on partition one-half share each, and, therefore, the half-share of Bhawani Prasad divided between himself and his five sons would become one-twelfth each and not one-sixth each. Accordingly we remand the two following issues for decision by the lower appellate Court and return within the period of two months. No evidence need be taken in regard to these issues. But it will be open to the Court to send for the partition records if required.
1. Did the plaintiffs fraudulently conceal the fact that the shares of Bhawani Prasad and Ram Kishore in house No. 95 had been sold in auction-sale and did the plaintiffs fraudulently obtain a final decree in partition allotting the whole house No. 95 to the plaintiffs in order to defeat the auction-purchaser?
2. If the partition is not binding, what were the shares of Bhawani Prasad and Ram Kishore in house No. 95 on the date of the auction-purchase?
9. Ten days will be allowed for objections on the findings. (On receiving the findings the Court allowed the appeal.)