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Attarbai W/O Ratansingh Vs. Mishrilalsa Son of Siwasa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 258 of 1961
Judge
Reported inAIR1966MP318
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11, 100 and 101 - Order 2, Rule 2 - Order 23, Rule 3; Transfer of Property Act, 1882 - Sections 52 and 100
AppellantAttarbai W/O Ratansingh
RespondentMishrilalsa Son of Siwasa and ors.
Appellant AdvocateJ.V. Jakatdar, Adv.
Respondent AdvocateRameshwar Prasad Verma, Adv. for Respondent No. 1
DispositionAppeal dismissed
Cases ReferredBellamy v. Sabina
Excerpt:
.....but the equity in the decree-holder. in that case, the full bench took the view that though a charge created by a decree is like any other charge and is not enforceable against a transferee for consideration without notice where the decree directs the sale of the property, the property can be sold in execution even in the hands of a transferee from the judgment-debtor and the transferee cannot plead that he had no knowledge, that a decree for sale had been passed against his transferor. it is well settled that in all these three cases, the judgment is binding not only against the judgment-debtor but also against his privies. attar bai creating the charge on the property in suit along with certain other properties was passed on 24-11-55-the plaintiff could not be said to be unaware..........it was also prayed that the defendant be permanently restrained from putting to sale the suit property.4. the trial court dismissed the plaintiff's claim holding that it had not been proved that he was a bona fide purchaser with consideration without notice of the charge in respect of the said house. in appeal, the learned district judge took the view that the plaintiff was a bona fide purchaser for value without notice of smt. attarbai's charge on the suit house and, therefore, he was protected by the provisions of section 100 of the transfer of property act. it is against this decision that this appeal has been filed by smt. attarbai.5. the argument advanced by shri j.v. jakatdai, learned counsel for the defendant-appellant, is that the charge in favour of the appellant, smt,.....
Judgment:

S.P. Bhargava, J.

1. This appeal has been filed by the defendant 1 Smt. Attar Bai against whom the plaintiffs claim for declaration that she had no right to get the disputed house sold in execution of her decree for maintenance has been decreed by the lower appellate Court after reversing the judgment of the trial Court.

2. Briefly stated, the facts are that Smt. Attar Bai is the widow of one Batan Singh who had two other brothers Nawal Singh and Gangaram. On the death of Ratan Singh, Smt. Attarbai instituted Civil Suit No. 53-A of 1955 in the Court of the Civil Judge Class I, Khandwa, on 23-10-54, against Nawal Singh and Gangaram who were impleaded in the suit out of which this appeal arises as defendants 2 and 3 claiming arrears of maintenance and future maintenance. She also claimed in the plaint that the amount of maintenance, both of arrears and future, be declared as a charge on the joint family property. With the plaint, she filed Schedule 'B' containing the list of the joint family properties. Item No. 4 in that list is a house which was later on sold by Nawal Singh to the plaintiff Seth Mishrilal Sa for Rs. 1250/- under a registered sale deed, dated 15-12-1956. In Attarbai's suit, there was a compromise between the parties and there was a compromise decree, dated 24-11-1955, in terms of the compromise, passed by the Civil Judge Class IT, to the following effect:

'It is ordered and decreed in terms of the compromise arrived at between the parties as noted below:

(a) The defendants shall pay to the: plaintiff Rs. 150/- per year as maintenance, coming from 31-3-56 and payable by the same date during each ol the succeeding years.

(b) The defendants shall give to the plaintiff one chasma house out of the house detailed as item No. 5 in schedule 'B' on the reverse.

(c) In default of any of the maintenance amount due, the plaintiff shall have the right to recover the same by getting the property detailed in schedule 'B' (shown on the reverse) sold i.e. the property of schedule B shall remain under charge for payment of the maintenance amount.

(d) The defendants shall pay plaintiff's costs Rs. 63-10-0 of the suit. Defendants shall bear their own costs Rs. 6.8.0. Court fees Rs. 350/- on the plaint shall be recovered half and half from plaintiff and defendants. ... .'

3. As the amount of maintenance which fell due to the appellant was not paid to her by Nawal Singh and Gangaram she took steps to have the house, referred to above, sold in execution of her decree. Seth Mishrilal Sa then instituted Civil Suit No. 12-A of 1960 in the Court of the Civil Judge Class I, Khandwa, claiming thai he was the bona fide purchaser for value of the suit house without any notice of Smt. Attar Bai's charge of maintenance amount on the said house. It was urged that neither the compromise nor the decree or the copies thereof were registered nor had the plaintiff any notice of the litigation between Smt. Attar Bai on the one hand and Nawal Singh and Gangaram on the other. The plaintiff respondent No. 1, therefore, urged that it be declared that the house property purchased by him was not liable to be sold in execution of the decree in Civil Suit No. 53-A of 1955 of the Court of the Civil Judge Class II, Khandwa, dated 24-11-1955. It was also prayed that the defendant be permanently restrained from putting to sale the suit property.

4. The trial Court dismissed the plaintiff's claim holding that it had not been proved that he was a bona fide purchaser with consideration without notice of the charge in respect of the said house. In appeal, the learned District Judge took the view that the plaintiff was a bona fide purchaser for value without notice of Smt. Attarbai's charge on the suit house and, therefore, he was protected by the provisions of Section 100 of the Transfer of Property Act. It is against this decision that this appeal has been filed by Smt. Attarbai.

5. The argument advanced by Shri J.V. Jakatdai, learned counsel for the defendant-appellant, is that the charge in favour of the appellant, Smt, Attarbai, was created by a decree of the Court passed in her Civil Suit; that the decree was binding not only on the defendants in that suit but also on their privies; that the plaintiff, Seth Mishrilal Sa, was a privy of Nawalsingh because he claimed title in the suit house through Nawal Singh only and that as the charge was not only declared by the decree but as the decree itself provided for the recovery of the maintenance amount which was due at the time of the execution by proceeding with the sale of the house, the plaintiff was stopped from challenging the charge and was as much bound by it as Nawal Singh and Gangaram (respondents 2 & 3) themselves were. It may here be mentioned that Nawalsingh sold the house because in a partition between him and Gangaram, that house had fallen to his share. The decisions in Ahsan Hussain v. Maina, ILR (1938) Nag. 431: (AIR 1938 Nag 129) and Ghasiram v. Mst. Kundanbai, ILR (1941) Nag 513: (AIR 1940 Nag 163) were relied on.

6. In the alternative, it has been argued by Shri Jakatdar that Smt. Attarbai had filed her suit on 23-10-1954 and in her suit, the compromise decree was passed creating the charge on the suit house along with some other properties on 24-114955. The plaintiff Seth Mishrilal Sa purchased the house from Nawalsingh on 15-12-1956. The decree which had been passed on 24-11-1955 was not only a decree for the arrears of maintenance but for future maintenance also which accrued due from year to year and, therefore, the sale made in favour of the plaintiff Seth Mishrilal Sa by Nawal Singh was hit by the principle of lis pendens as enunciated in Section 52 of the Transfer of Property Act.

7. On the other hand, it has been contended by Shri R.V. Verma, learned counsel for the plaintiff-respondent, that the charge did not create any legal estate in the property charged in favour of the charge-holder; that under Section 100 of the Transfer of Property Act, the charge which was created under a compromise decree was a charge created by act of parties because even when the contract between the parties resulted into a compromise decree, it still possessed all the characteristics of a contract; that as the final court of facts had found that the plaintiff Seth Mishrilal Sa had purchased the house bona fide for value without notice of the charge, the charge of the plaintiff could not be enforced against him. It is further contended that in the plaint, Smt. Attar Bai had only prayed for a charge being declared and the compromise decree had gone beyond that in permitting her to proceed in execution by getting the charge-properly sold and so the real nature of that decree against the plaintiff-respondent was only that of a declaratory nature. It was also contended that in no circumstances could it be said that the house was a subject-matter of the litigation in Smt. Attar Bai's maintenance suit and, therefore, the appellant could not succeed because she had failed to prove that the plaintiff had notice of her charge.

8. With regard to the alternative contention about the doctrine of lis pendens, ft has been urged by Shri Verma that the plea of lis pendens has never been raised or relied upon by Ihe appellant in her written statement; that both the Courts below had not considered this plea in their judgments and that if the plea were allowed to be urged for the first time in this appeal, the plaintiff would be entitled to meet it by advancing fresh pleas which would necessitate the reopening of the entire case including the amendment of the plaintiff's plaint and adducing of further evidence by both the parties. It was, therefore, pressed that the plea of lis pendens should not be allowed to be raised at this stage. The learned counsel placed reliance on Ramayya v. Rangaraju, AIR 1937 Mad 504, Maheshpuri v. Ramchandra, ILR 1943 Nag. 713: (AIR .1944 Nag. 1), Bapurao v. Narayan, ILR (1949) Nag. 802: (AIR 1950 Nag. 117), Mahesh Prasad v. Mt. Mundar, AIR 1951 All. 141 (FB), and Manmohandas v. Bahaudclin, (S) AIR 1957 All 575.

9. Before considering the legal arguments which have been advanced by the learned counsel, it would be proper to mention that the question of the plaintiff being the bona fide purchaser for value and without notice is a question of fact. It has been decided in favour of the plaintiff by the lower appeal Court. The finding of the lower appeal Court being based on appreciation of evidence is binding in this second appeal and, therefore, very rightly, Mr. Jakatdar, learned counsel for the appellant, did not challenge this finding of fact.

10. It cannot be disputed that to some extent there is a conflict of opinion in the authorities of this Court on which reliance has been placed by the learned counsel for both the parties. In ILR (1938) Nag. 431: (AIR 1938 Nag. 329) (sup. cit), this principle has been laid down that where a charge is created by a decree apart altogether from the consideration whether or not the charge amounts to an interest in the property, the charge created by the decree must bind the person who claims through the party against whom the decree has been passed although such person acquires the property without notice of the charge. In support of the dictum enunciated by the Court, it has been said that when a decree has been passed in a suit, the cause of action merges in the decree. This known as transit in rem judicatam. The after, the rights which founded the relief claimed far-over go and they are replaced by the rights treated by the decree. After the decree, the old rights are replaced by the new and the new rights spring from the decree. It has also been emphasized in that case that the Transfer of Properly Act does not purport to cut down estoppels by record and that a decree binds both She parties and their privies and it has been explained that the term 'privy' means a partake who is not a party and includes all who claim or derive title from one who is party to the suit. In ILR (1941) Nag. 513: (AIR 1940 Nag 163) above referred to, the view taken is that a charge created by a decree is neither by act of parties nor by operation of law and, therefore, is not governed by Section 100 of the Transfer of Property Act which is limited to charges created by act of parties or by operation of law. It has further been held in this case that in cases of executable decrees, the principle of estoppel by record or judgment applies.

11. In a Full Bench decision of the Andhra Pradesh High Court reported in Naganna Naidu v. J.K. Rangarao, AIR 1959 Andh Pra 622 (FB), following the decision in AIR 1051 All Ul (FB), Thangavelu v. Thirumal Swami AIR 1956 Mad 67 and Seethalakshmi Animal v. Srinivasa, AIR 1958 Mad. 23 and placing reliance on a decision of a Division Bench or this Court in ILR 1941 Nag 513: (AIR 1940 Nag 163), it has been held that S. 100 of the Transfer of Property Act is restricted in its operation to two categories of charges, namely, those created by act of parties and those created by operation of law. It has been specifically held that charges created by decrees of court are not included, in these two categories, and such charges are not charges created by operation of law, In paragraph 18 of the judgment, the opinion in AIR 1951 All 141 (FB), (sup. cit) expressed by Malik, C. J., and Agarwala J., was cited with approval and it was stated that the words 'operation of law' could not comprehend within their compass a charge created by a Court. The expression 'operation of law' connotes a legal consequence following something happening without the intervention of any agency. Agarwala J., has pointed out the distinction between the two categories of charges by referring to Section 2(d) of the Transfer of Property Act itself, which vecites: 'Save as provided by Section 57 and Chapter IV of this Act, any transfer by operation of law or by or in execution of a decree or order of Court of competent jurisdiction . .. . ..'

12. On the contrary, in ILR (1943) Nag. 713: (AIR 1944 Nag 1) it has been held that a charge created by act of parties is one contemplated by Section 100 of the Transfer ot Property Act. In case of decrees based on compromise, the compromise decree is nothing more than a contract between the parties and is subject to all the provisions regarding contract. It has further been held in that case that as against such a charge, a transferee for value without notice is protected and the charge-holder cannot claim priority. In ILR (1949) Nag. 802: (AIR 1950 Nag. 117), Hidayatullah J., (as he then was) expressed himself fully in support of the view which was taken in ILR (1943) Nag. 713: (AIR 1944 Nag. 1) (sup. cit.). The learned Judge clearly said that the phrases 'act of party' and 'operation of law' in Section 100 of the Transfer of Property Act must be read as exhaustive of all ways in which rights of parties can be affected. A decree could not be said to be outside the pale of 'operation of law' within the meaning of Section 100 of the Transfer of Property Act and the doctrine of notice normally applied to decree or orders creating charges. Explaining the implications of charge, it was said by his Lordship in that case that a charge-holder did not hold any legal estate in the language of the English Lawyer but held only an equity in his favour. If the full ownership still vested in the owner of the property, he could properly convey that full ownership to others. Equity never fastened liability upon an innocent transferee for value and when such a transferee successfully pleaded want of notice to him, it was not the decree that was defeated but the equity in the decree-holder. Reliance was placed in that case on a decision in Abdul Ghaffar Khan v. Ishtiaq Ali, ILR 19 Luck 1 : (AIR 1943 Oudh 354) (FB).

13. However, as the decisions in ILR (1938) Nag 431: (AIR 1938 Nag 129) and ILR (1941) Nag 513: (AIR 1940 Nag 163) above referred to, were not referred to a larger Bench for reconsideration in spite of the learned Judges who decided the subsequent cases having a feeling that they required some reconsideration, the position is that the decisions in these two cases are the authorities holding the field in the cases which fall directly within the principle enunciated in those cases. Further, I may with respect point out that the decision in Abdul Gaffar Khan's case, ILR' 19 Luck 1: (AIR 1943 Oudh 354) (FB) which was relied upon in ILR (1949) Nag 802: (AIR 1950 Nag 117) has been dissented from in AIR 1951 All 141 (FB) by a Full Bench of the Allahabad High Court. In that case, the Full Bench took the view that though a charge created by a decree is like any other charge and is not enforceable against a transferee for consideration without notice where the decree directs the sale of the property, the property can be sold in execution even in the hands of a transferee from the judgment-debtor and the transferee cannot plead that he had no knowledge, that a decree for sale had been passed against his transferor.

14. If the decision in the instant case hinged solely on the question whether the charge created by the decree was a charge under Section 100 of the Transfer of Property Act or was a charge outside the scope of that Section, possibly I would have been required to refer the question to a larger Bench in view of the divergence of opinion on this question in this Court. However, it is not necessary to do so because, in my opinion, if it could be held in the instant case that right to immovable properties which were included in Schedule 'B' was directly and specifically in question in the suit filed by the appellant, Smt. Attar Bai, the said decree must be held to be binding against the plaintiff-respondent also, he being a privy of the original judgment debtor, Nawal Singh.

15. There cannot be any doubt that a charge is certainly a 'right'. The charge which is claimed in a maintenance suit is a right to receive payment of the maintenance amount out of a particular property. That this right was directly and specifically in question in Attar Bai's suit, in my opinion, does not admit of any doubt. Smt. Attar Bai claimed the right to a charge on the immoveable properties mentioned in Schedule 'B'. The right was contested by the defendants in the beginning but in the compromise on the basis of which the decree, dated 24-11-1955, was passed, this right was conceded. It was specifically said in the operative portion of the decree that in default of any of the maintenance amount due, the plaintiff Smt. Attar Bai shall have the right to recover the same by getting the property detailed in the Schedule 'B' sold. The claim with regard to a charge in respect of specific immovable property must be held to be a right to immovable property and, therefore, directly and specifically in question in this suit. That was the view) taken by their Lordships of the Judical Committee in Bazayet Hossein v. Dooli Chund, (1879) 5 Ind App 211 (PC). In that case, a Mohammadan widow claimed right of maintenance out of certain properties which were specified in the plaint. She also claimed that a charge be created on those properties. The property was transferred in disregard of the charge created in favour of the widow by the decree. She, in those circumstances, wanted to follow the property. Their Lordships held that the doctrine of lis pendens applied to the case. Phear J. delivering the judgment of the High Court said:-

'I need hardly say that a decree of this kind, directing the person in whose hands the property was to account for it in order that it might be applied for the purpose of discharging the debts due from Khorshed Ali, was a decree against that property and operative to bind it in the hands of Najmooddin with notice of the decree or under such circumstances as to make him affected by the doctrine of lis pendens'.

Their Lordships of the Privy Council agreed with the view and held that the transferee was bound by the decree even though he has no notice of the charge created by the decree. This view has been taken in a large number of cases which have been referred to in paras. 56 and 57 of the judgment in AIR 1951 All 141 (FB) though in some cases a divergent opinion was also expressed. The main cases in which this divergent opinion was expressed are (i) Indra Narain v. Mohamad Ismail, ILR (1939) All 885: (AIR 1939 All 687), ILR 19 Lack 1: (AIR 1943 Oudh 354) (FB), Mst. Basumati Kuer v. Mst. Harbansi Kuer, ILR 20 Pat 86: (AIR 1941 Pat 95) and Mst. Indrani v. Maharaj Narain, ILR 13 Luck 101 : (AIR 1937 Oudh 217) (FB). However, the view taken in ILR (1939) All 885: (AIR 1939 All 687) (Supra) and ILR 19 Luck 1: (AIR 1943 Oudh 354) (FB) was expressly dissented from in Mahesh Prasad's case, AIR 1951 All 141 (FB) above referred to, and the view expressed in ILR 20 Pat 86: (AIR 1941 Pat 95) (Supra) did not find support in a later decision of that Court reported in Prem Kuer v. Ram Lagan, AIR 1948 Pat 199.

16. In ILR (1949) Nag 802 at p. 817 : (AIR 1950 Nag 117 at p. 123) it has been observed :

'In some cases [e.g. Seetharamanuja Charyulu v. Venkatasubbamma, ILR 54 Mad 132t (AIR 1930 Mad 824) and Mst. Maina v. Ahsan, (1936) 19 Nag LJ 2541 the claim to be maintained out of some property has been held to be a proceeding in which a right to immovable property is 'directly and specifically' in question, while in others [e.g. ILR 19 Luck 1 : (AIR 1943 Oudh 354) (FB)] it is held not to be so. In the former cases, the words 'directly and specifically have not received their true and adequate meaning, but I need not discuss this question. This point is not material here, and no question of lis pendens really arises. '

But, in Nagubai v. Shama Rao, AIR 1956 SC//19 IN THE SUPREME COURT OF INDIA 693 the controversy has been settled by their Lordships of the Supreme Court by laying down that when a suit is filed for maintenance and there is a prayer that it be charged on specific properties, it is a suit in which right to immovable property is directly in question and the lease commences on the date of the plaint and not on the date of the decree which creates the charges. Thus, the observations to the contrary, which are of an obiter nature in ILR (1949) Nag 802: (AIR 1950 Nag 117) (Supra) cannot be given effect to, and as the decree in the instant case directed the sale of the property which was charged, the property can be sold in execution of the decree in the hands of the plaintiff-transferee and he cannot plead that he had no knowledge that the decree for sale had been passed against his transferor.

17. It is significant to note that in the instant case, the decree is not merely declaratory creating a charge but is an executable decree under which the charge can be enforced by getting the property charged sold. As the decree contains the direction with regard to sale of the property, it cannot be urged that it was binding only against the judgment-debtor, Nawal Singh, but not against his privies including the purchaser for value without notice.

18. The binding nature of judgment or decree can be considered from three aspects. In the first place, it may be considered as a decision on a matter which was directly and specifically in issue in the suit between the parties. The decision of such an issue is conclusive in a second action between the same parties or their representative-in-interest who has claimed under the same title. This question has been dealt at length in Section 11 of the Code of Civil Procedure. Secondly, it may be that former proceedings on the same cause of action by the same plaintiff resulted in defendant's favour. The second proceeding on the same cause of action is barred by reason of the previous judgment. This question has been dealt with under O. 2, R. 2 of the Code of Civil Procedure. Lastly, a decree is always binding on the judgment-debtor and he cannot challenge its correctness in execution. It is well settled that in all these three cases, the judgment is binding not only against the judgment-debtor but also against his privies. It has been explained in AIR 1951 AIL 141 (FB), (sup. rat), that the privies are of three classes--(i) privies in blood, as ancestors and heirs, (ii) privies in law, as executor or official receiver, in bankruptcy and (iii) privies in estate as testator and revisee, vendor and purchaser, lessor and lessee,--. There cannot be any doubt that in the present case, the plaintiff was a privy in estate.

19. The two decisions which have been relied upon by the learned Judge of the lower Appellate Court reported in ILR (1943) Nag. 713 : (AIR 1944 Nag 1) and ILR (1949) Nag 802: (AIR 1950 Nag. 117) were the cases in which the claim was for money simpliciter and no right to immoveable property was in dispute in the suits. In both the cases, by an agreement between the parties, later on a charge was made upon the immoveable property. However, the present case cannot be said to be of that type. In Smt. Attar Bai's suit from the very beginning, a charge was claimed on the property and was created by the decree which was passed on compromise. It is true that a compromise decree has all the elements of a contract being based on a contract and, therefore, can always be attacked by raising those pleas against it which could be validly urged against a contract but it cannot also be disputed that so long as it has not been so attacked and it continues to be binding, it has all the force and characteristics of a decree.

20. As regards the alternative argument that the sale made by Nawal Singh in favour of Seth Mishrilal Sa was affected by the principle of lis pendens, I am of the view that the contention advanced on behalf of the respondent that the plea of lis pendens should not be allowed to be raised at this stage had no merit. The plaintiff-respondent filed his suit after purchasing the property from Nawalsingh on 15-12-1956. The decree in favour of Smt. Attar Bai creating the charge on the property in suit along with certain other properties was passed on 24-11-55-The plaintiff could not be said to be unaware of the decree when he unsuccessfully tried to avoid in the execution proceedings started by Smt. Attar Bai that the house purchased by him should not be proceeded against in execution. Being aware of the fact before the institution of the suit, it was his duty to plead how the sale in his favour was not adversely affected by the principle of lis pendens. Actually, he could attack the decree by pleading that on the frame of that particular suit and looking to the relief claimed in that suit, a decree directing sale of the property in execution on failure of payment of arrears of maintenance which had accrued due or would accrue due could not be passed but no such plea was taken by him. In other words, the plaintiff, when he filed the present suit, said nothing to suggest that he felt dissatisfied by the decree itself. His only ground for avoiding execution of the decree was that he was a bona fide purchaser for value of the property without notice of the decree. The principle of lis pendens is not based upon notice. In the leading case of Bellamy v. Sabina, (1857) 1 De G & J 566 at p. 578 Cranworth L. C., observed:

'It is not correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Court, often so describes its operation. It affects him not because it amounts to a notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.

Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the Court in the suit shall be binding, not only on the litigant parties, but also on those who derive title under them, by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end.'

21. It is too late for the respondent (plaintiff) now to say that if the plea of lis pendens had been advanced specifically in the written statement, he would have tried to show that the suit was collusive and that there were other defences open to him which would have avoided the case tailing within the purview of Section 52 of the Transfer of Property Act. The transferee would be bound by the principle embodied in Section 52 provided it could be found that there was a right to immoveable property directly and specifically in question in that suit and I have already found this fact in favour of the appellant in what I have said above.

22. In the result, as the decree in the present case is executable by the sale of the property charged and as the plaintiff was bound asa privy by the said decree, the decision of thetrial Court dismissing the plaintiff's suit wasright. Thus, this appeal succeeds. The decreepassed by the lower Appellate Court is set asideand that of the trial Court restored. However,considering the intricate nature of the controversy, involved between the parties, and theother circumstances, I leave the parties to beartheir costs throughout.


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