P.V.B. Rao, J.
1. Defendant No. 7 in the suit is the appellant before this Court. He files this appeal against the reversing judgment of Shri R.C. Misra, District Judge, Cuttack, decreeing the plaintiffs suit to set aside certain alienations.
2. One Dharmu Acharya died in 1944. His widow was Radhi. He had a son Uchhab who died prior to 1936 and his wife is Padma who is defendant No. 1 in the case. The plaintiff's case is that Uchhab, the husband of defendant No. 1, was attacked with serious type of rheumatism and lost all hopes of procreation; that consequently he adopted the plaintiff while the latter was about one year old; and that Uchhab predeceased his father some time after the adoption, in 1936 before the Hindu Women's Right to Property Act came into force.
The plaintiff alleged that in 1941 Dharmu executed a will (Ext. 6) bequeathing all his ancestral and self-acquired properties in favour of the plaintiff and died in 1944 leaving behind him besides the plaintiff, his widow Radhi and his daughter-in-law Padma, defendant No. 1. Defendants 2, 3 and 4 are alleged to be the agnates and defendant No. 7 is the brother of Padma. The plaintiff's case further is that defendants 1 and 7 and Radhi joined hands with the agnates and sought to deprive the plaintiff of the suit properties.
When the plaintiff was a minor, one Punananda Das, his natural brother, applied to be the guardian of the person and property of the minor which was allowed and letters of administration were granted to him which is Ext. 6. It is alleged in the plaint that the two widows thereafter, that is Radhiand Padma filed a suit for partition in suit No. 17/ 103 of 1948 each claiming l/3rd share in the properties left by Dharmu alleging that to the other 1/3rd the plaintiff was entitled as the adopted son of Uchhab. The learned Additional Munsif who tried that suit found that Padma being a pre-Act widow was not entitled to a share, but only to maintenance.
Accordingly it is stated, he directed the properties left by Dharmu to be partitioned equally between Radhi and the plaintiff Ganeswar Acharya who was also the sole defendant in that suit. Ext. 3 is the judgment in the said suit. The plaintiff Ganeswar filed an appeal against the decree of the learned Additional Munsif and during the pendency of that appeal Radhi died on 18-1-49. By his order dated 25-11-49, the District Judge before whom the appeal was pending ordered that since Radhi was dead, her interest devolved upon the plaintiff and that accordingly the decree for partition which she had obtained against the plaintiff became wholly infructuous and disposed of the appeal in those terms. Ext. 5 is the judgment of the appellate court.
The plaintiff's further contention is that after the above appeal was disposed of, he alone was entitled to all the properties left by Dharmu, but that both widows began alienating the lands described in the plaint schedules Ka to Cha and that some of the sale deeds were obtained by the alienees, defendants 2 to 7, while Radhi was on her death bed, by taking her thumb marks on the documents and getting them registered through defendant No. 8, a daughter of the deceased Dharmu. Defendants 2 to 7 are therefore the alienees from the two widows.' Defendant No. 7, the appellant is an alienee of some of the properties from Radhi. The suit, as stated above, was filed to set aside the several alienations on the ground that they were benami, fraudulent and nominal and hence not binding upon the plain-tiff as they were not supported by legal necessity.
3. Defendants 1, 5 and 7 contested the plaintiffs adoption and his right to sue and stated that the alienations in their favour were all true and genuine and supported by legal necessity. They averred that after the death of Uchhab, his right, title and interest vested in Radhi, the mother.
4. From these pleadings of the respective parties it appears that the plaintiff claimed title not only on the strength of his adoption but also as the legatee under the will of Dharmu. The trial court negatived the adoption and as the bequest had been made under the will to the plaintiff not as person designate but as the adopted son of Uchhab, it held that the plaintiff's right under the will also failed. It also negatived the contention that the alienation had been affected by lis pendens. The sale deed in favour of the appellant is Ext. F dated 13-1-1949 for Rs. 300/-. It was executed by Radhi who died some days afterwards and the document was registered after her death by defendant No. 8 as the legal representative of the vendor. The learned Munsif held that Ext. F is true, genuine and for consideration and legal necessity and that the registration of the document by defendant No. 8 after the death of her mother, the vendor, was quite valid in law.
5. On appeal, the learned District Judge came to the conclusion that the plaintiff succeeded in proving the adoption; and that also the plaintiff was entitled to properties under the will. He held that in view of his finding that the plaintiff was the adopted son of Uchhab, Radhi was not entitled to 8 annas share which she secured under the partition decree, as during the pendency of the appeal by the plaintiff against; that decree she died and the appellate Court ordered that the appeal became in-fructuous as the plaintiff became entitled to the properties of Radhi. In that view of the matter, thelearned District Judge held that as Ext, F was brought into existence during the pendency of the appeal against the partition decree, the alienation was affect-ed by the doctrine of lis pendens, relying upon a case in Moti Chand v. British India Corporation Ltd., Cawnpore AIR 1032 All 210 in which it was held that the active prosecution of a suit must be deemed to continue so long as the suit is pending in appeal because the proceedings in the appellate Court are merely continuations of those in suit.
He therefore held that the alienation in favour of the appellant covered by Ext. F was invalid as it was affected by the doctrine of lis pendens. With regard to the legal necessity, the learned District Judge observed that the pleader for the plaintiff did not canvass the point and that as the learned Munsif found that the sale deed Ext. F in favour of defendant No. 7 was for legal necessity, he was of opinion that the said finding of the learned Munsif was correct on the evidence in the case. Before the learned District Judge defendant 7 contended that he could not be dispossessed from the properties on the doctrine of part performance, but the learned District Judge did not go into this contention as in his view the alienation was affected by the doctrine of lis pendens.
6. Mr. Naba Kumar Das, the learned counsel for the appellant-defendant No. 7 contends before us that the finding of the learned District Judge that the sale deed in favour of the appellant was affected by the doctrine of lis pendens is not correct. The appeal against the decree obtained by Radhi filed by the plaintiff Ganeswar was disposed of on 25-11-49. The partition decree was obtained by Radhi in suit No. 17/103 of 1948 on 28-7-48. The sale deed executed by Radhi in favour of the appellant-defendant No. 7 was on 13-1-49. It is thus apparent that the alienation by Radhi in favour of the appellant was made after she obtained the decree to 8 annas share in the properties during the period when the appeal against that decree was pending. The appeal was disposed of, as already stated, on 25-11-49 in the following terms:
'Now that the respondent No. 1 is dead her interest devolves on the appellant and as such the decree for partition which she had obtained against the appellant became infructuous since the, respondent No. 2 has no right beyond the right of maintenance. The appeal is accordingly disposed of.'
At the time when the appeal was disposed of, Radhi was dead. No legal representatives were added. The appellant submitted that he was the legal representative. Consequently the order of the appellate Court should have been that the appeal abated as it also stated in the order that Padma was entitled only to maintenance. Mr. Naba Kumar Das contends that the appellate court ought to have ordered simply that the appeal abated, and that the appellate court exceeded its jurisdiction in disposing of the appeal in the terms noted above. Consequently the learned counsel's contention is that inasmuch as Radhi possessed 8 annas share in the properties at the time of his alienation under the decree of the trial court, the alienation in favour of the appellant was valid alienation and it could not be said to have been affected by the doctrine of lis pendens as the appeal against that decree abated as his vendor died before the disposal of the appeal.
7. Section 52 of the Transfer of Property Act embodying the doctrine of lis pendens is as follows:
'During the pendency in any court having authority in the Provinces, or established beyond the limits of the Provinces by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directlyand specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose'.
An alienation pendente lite is not void ab initio. It is a voidable transaction. The effect of the doctrine of lis pendens is that such an alienation is subject to the result of the suit. Now the order passed by the appellate Court in M. A. No. 217 of .1948 is an order passed against a dead person. By that date the alienation was made by Radhi in favour of the appellant. It was incumbent upon the appellant in that appeal to bring on record the alienees of Radhi. Instead of doing so the appellant simply informed the Court that Radhi died and that her interest devolved upon him.
As already stated, even on that representation the appellate court ought to have ordered that the appeal abated. But the order quoted above disposing of the suit in terms of the order is an order made against a dead person and is of no legal effect. Consequently, in my opinion, the learned District Judge has not considered the question of applicability of the doctrine of lis pendens to the alienation in favour of the appellant-defendant No. 7 correctly in view of the circumstances noted above. He also did not consider, as already stated, the contention relating to the doctrine of part performance as he thought that in view of his finding on the question of lis pendens the consideration of the question of part performance did not arise. This question also requires consideration in view of my observation that the question of lis pendens was not properly considered by the learned District Judge.
8. In this view of the matter, I am of opinion that the learned District Judge has not disposed of the appeal properly according to law and the disposal of the appeal by him is not satisfactory. I would therefore set aside the judgment and decree of the learned District Judge, remand the appeal and direct him to dispose of the appeal according to law in view of my observations made above. It may be noted that the appellant did not challenge the adoption.
Cost will abide the result.
9. I agree.