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Smt. Sayar Bai Vs. Smt. Yashoda Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 148 of 1981
Judge
Reported inAIR1983Raj161; 1982()WLN621
ActsTransfer of Property Act, 1882 - Sections 52; Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 97; Limitation Act, 1963 - Articles 134 and 144
AppellantSmt. Sayar Bai
RespondentSmt. Yashoda Bai and ors.
Appellant Advocate Kamal Lal Paneri and; M.C. Bhandari, Advs.
Respondent Advocate H.M. Parekh, Adv.
DispositionAppeal dismissed
Cases ReferredSaniarendra Nath Sinha v. Krishna Kumar Nag
Excerpt:
.....the mahendra sabha, nor any such pre-existing rights vested in the auction purchasers, as even the mortgagee rights, which they purchased at the auction sale, were transferred to them pendente lite by means of the sale certificate dated november 27, 1943.;(c) adverse possession - suit for redemption of mortgage already pending--held, no question arises of acquiring rights in property by adverse possesssion;as sri kishan's suit for redemption of mortgage was already pending at the time when hiralal purchased the property in dispute from damodar and ramesh chandra, there was no question of hiralal acquiring any rights in the said property against sri kishan by adverse possession.;(d) transfer of property act - property acquired pendente lite--held, transferee is bound by claims pronounced..........counsel for the appellant submitted that sohanlal, after purchasing the mortgagee rights in the suit property from pannalal and shankerlal had made an application in the trial court to the effect that he may be added as a party defendant in the suit, but his application was rejected and as he was not made a party to suit, he was not bound by the decree for redemption passed in that suit and for the same reason neither, hiralal not sayar bai were bound by the said decree. this submission cannot be accepted because sohanlal was a purchaser pendente lite. as already stated above, the suit for redemption of mortgage was filed on may 31, 1941 and the oral sale in favour of sohanlal is alleged to have been made on nov. 19, 1945, while a sale-deed was registered in his favour on april 6,.....
Judgment:

Dwarka Prasad, J.

1. The question which arises for determination in this appeal is that as to when a larger interest in immovable property than possessed by the transferor is sought to be transferred by him whether the transfer would not be affected by the principle of lis pendens or such a transferee would still be a re-presentative-in-interest of the judgment-debtor, in execution of the decree passed against the predecessor-in-interest of the transferor.

2. The facts which have given rise to these proceedings are that Shri Kishan mortgaged with possession the property in dispute with Chaganlal, Paras Ram and Mool Chand. Gordhanlal, Pannalal and Shankar Lal had claim for money against Mool Chand and they obtained a money decree against Moolchand with the stipulation that the decretal amount shall be realised from the property of Moolchand. The mortgagee rights in the disputed property were attached in execution of the decree obtained by Gordhanlal and others and were sold at an auction sale. Gordhanlal. Pannalal and Shankarlal decree-holders purchased the mortgagee rights of Moolchand in the aforesaid property and a sale certificate was issued in favour of the auction-purchasers. On November 27, 1943, Gordhanlal and others, who had purchased the mortgagee rights in the disputed property were put into possession of the said property. Pannalal and Shankerlal, auction purchasers, subsequently sold the mortgagee rights by an oral sale on November 19, 1945 to Sohanlal who is the son of Chhaganlal. A sale-deed in respect of the aforesaid transfer was subsequently executed on April 6, 1950, and the same was duly registered and thereby the mortgagee rights in the disputed property were transferred to Sohanlal. After' the death of Sohanlal, his sons Damodar and Naresh Chandra, sold the entire property in dispute to Hiralal on August 21, 1957 by executing a sale deed in his favour. Sayar Bai appellant is the widow of Hira Lal.

3. One fact which requires specific mention here is that Shri Kishan mortgagor filed a suit on May 31, 1941 for redemption of mortgage against Pannalal and his brother Moolchand. That suit lingered on for several years and ultimately a decree for redemption of mortgage was passed on April 27, 1972, which was confirmed on appeal by this Court on September 22, 1977. Thereafter, the trial Court passed a final decree for redemption on September 22, 1978. When the decree for redemption was sought to be executed by the plaintiff decree-holder the same was resisted by Hiralal, who set up the case that he was the purchaser of all rights in the entire property, by means of a registered sale-deed dt. August 21, 1957 from Damodar and Nareshchandra and that he was in possession of the disputed property in his own right and not on behalf of the judg-ment-deblor. The objections were raised under Order 21 Rule 97 C. P. C. but the executing Court rejected the objections by its order dated September 25, 1981. An appeal preferred by Sayar Bai, widow of Hiralal who had expired by then, was dismissed by the District Judge, Udaipur by his order dated December 1, 1981. Hence this second appeal has been filed by Sayar Bai.

4. In the first place, learned counsel for the appellant submitted that Sohanlal, after purchasing the mortgagee rights in the suit property from Pannalal and Shankerlal had made an application in the trial Court to the effect that he may be added as a party defendant in the suit, but his application was rejected and as he was not made a party to suit, he was not bound by the decree for redemption passed in that suit and for the same reason neither, Hiralal not Sayar Bai were bound by the said decree. This submission cannot be accepted because Sohanlal was a purchaser pendente lite. As already stated above, the suit for redemption of mortgage was filed on May 31, 1941 and the oral sale in favour of Sohanlal is alleged to have been made on Nov. 19, 1945, while a sale-deed was registered in his favour on April 6, 1950 and thus the transfer was hit by the doctrine of lis pendens. Sohanlal undoubtedly filed an application on April 17, 1950 in that suit for being added as a party defendant in the suit, but that application was rejected by the trial Court. Learned counsel relied upon a decision of this Court in Bhagwali Lal v. Jhamak Lal, 1982 Rai LW 463, in support of his contention that Sohanlal should have been made a party defendant in the suit. In the aforesaid case it has been held that unless there were exceptional circumstances the Court should ordinarily allow the assignee or the transferee to take part in the further proceedings in the suit and allow him to take up the further prosecution of the case in his hands, if he so likes, in order to protect his newly acquired interest in the property, which was the subject matter of the suit, but it has not been held in Bhagwatilal's case that if the Court refuses to allow an application filed under Order 22, Rule to C.P.C. by the assignee or transferee pendente lite, to become a party defendant in the suit, then such a transferee or assignee shall not be bound by the decree passed in the suit or that the provisions of Section 52 of the T. P. Act would not be applicable to such a transferee. It would have been more appropriate for the trial Court to allow Sohanlal to take part in the further proceedings in the suit, when he desired to become a party defendant after purchasing the mortgagee rights in the suit property. But Sohanlal does not appear to have pursued the matter further when his application for being added as a party defendant in the suit was rejected and he apparently felt contented by throwing his lot with that of the vendor and the original mortgagee. It would not be out of place to mention here that Sohanlal was the son of Chhaganlal, who was one of the mortgagees and Chaggan-lal was made a party defendant to the suit in that capacity. After Chagganlal's death, Damodar, and Ramesh-chandra, sons of Sohanlal were brought on the record of the suit on account of their being sons of a predeceased son of Chhaganlal, because Sohanlal had expired some time prior to Chhaganlal. Thus, Damodar and Ramesh Chandra and other legal representatives of Sohanlal were brought on the record of the suit as party defendants, although in a different capacity, yet they could have taken all the legitimate defences which were open to them, even as transferees pendente lite. Hiralal was a transferee pendente lite from Damodar and Ramesh Chandra by means of a sale-deed Ex. 3 dt. August 21, 1957. It is apparent from the aforesaid facts thaf Sohanlal was fully alive to the situation and he was well aware of the fact that a suit for redemption was filed by Shri Kishan against the original mortgagee and that the same was pending before the Court and neither he nor his legal representatives, Damodar and Ramesh Chandra nor their transferee pendente lite. Hiralal and his legal representative Smt. Sayar Bai could be absolved from the disability arising on account of the provisions of Section 52 of the T. P. Act, Hiralul's predecessor-in-title, Damodar and Ramesh Chandra were present on the record of the suit for redemption as defendants and Hiralal is for that reason also bound by the decree for redemption passed against his transferors, Damodar and Ramesh Chandra.

5. Learned counsel for the appellant then submitted that the order passed by the Mahendra Sabha of the former State of Mewar on Jan. 7, 1936 in the suit filed by Shankar Lal and Pannalal created a charge on the property in dispute and as the said charge was a pre-excising right, which could not be wiped away by the subsequent suit for redemption filed by Sri Kishan on June 1, 1941 and the same could not be affected by the dectrine of pendente lite. Learned counsel placed reliance on the decision of the case in Jayaram Mudaliar v. Ay-yaswami, AIR 1973 SC 569 to support the aforesaid proposition, in which it was held that the principle of lis pen-dens does not affect pre-existing rights. It was observed by their Lordships of the Supreme Court in the aforesaid case that if there was a valid charge or mortgage on a property, the same does not vanish because the property becomes the subject matter of a subsequent suit. In that case a valid charge subsisted on the basis of a loan on the land, which became subject matter of a subsequent suit for partition, by virtue of the provisions of the Land Improvement Loans Act. In this context their Lordships of the Supreme Court observed as under (at p. 574) :--

'The liability of the land to be sold under Section 7(c) of the Act was a preexisting charge and that subsisted as from the date of the loan. This was not affected by the institution of the suit for partition. This charge could be enforced by the State notwithstanding the pendency of the partition suit. No decree in the partition suit could have affected the charge. Therefore, if the State has sold only the property in respect of which loan was taken, the purchaser-defendant No. 12 is not prejudiced by the principle of lis pendens.'

6. A copy of the judgment of the Mahendra Sabha is oh the record and it shows that Shankerlal and Pannalal merely obtained a money decree against Moolchand and the Court further directed that the money decree may be satisfied out of Moolchand's property. Thus, no charge as such was created on the property in dispute by the money decree obtained by Shankerlal and Pannalal. As a matter of fact, even if there was any charge, the same was fully satisfied when the mortgagee rights in the property in dispute were sold by public auction in execution of the decree and the same were purchased by Pannalal and Shankailal decree-holders. As there was no charge actually created by the decree, the question of any preexisting right does not arise. Moreover, only the mortgagee rights of Moolchand, judgment debtor in that case, could only be passed on to the auction purchasers, Pannalal and Shankarlal as a result of the court sale and on the basis of the sale certificate Ex. 4 dated November 27 1943, Moolchand was possessed only of the mortgagee rights in the property in dispute and such rights alone could have been validly transferred to the auction purchasers Pannalal and Shankerlal. The sale certificate Ex. 4, also clearly recites that the mortgagee rights to the extent of the share of the judgment-debtor Moolchand were passed on to the auction purchasers by means of the auction sale. gds eqrfguku cfgLrs en;wuke-. Thus, the interest of Moolchand who was represented by his sons, Inderlal, Chha-ganlal and Laxmilal was conveyed to the auction purchasers Pannalal and Shankar Lal by means of the aforesaid sale. Thus no pre-existing rights were ever created by the decree passed in the money suit, which was ultimately decided by the Mahendra Sabha, nor any such pre-existing rights vested in the auction purchasers, as even the mortgagee rights, which they purchased at the auction sale, were transferred to them pendente lite by means of the sale certificate dated November 27, 1943.

7. The next argument, advanced by the learned counsel for the appellant was that Damodar and Rameshchandra had sold the entire property to Hiralal and thus Hiralal was possessed of all the rights in the disputed property and not only the mortgagee rights but also the mortgator's rights vested in him and that as the mortgagor Shri Kishan was well aware of the sale made by Damodar and Rameshchandra in favour of Hiralal, the latter became full owner of the entire property by adverse possession. Learned counsel relied upon the decision of the Madras High Court in Natesa Thevar v. Narayanswami Padayachi, AIR 1952 Mad 844, in support of the aforesaid contention. It was held in that case that the sale of both the mortgagee's and mortgagor's interest, in execution of the decree against the mortgagee and the dispossession of the mortgagee from the mortgaged properties in consequence thereof could be adverse to the mortgagor also, if the mortgagor has knowledge of the hostile acts or of adverse possession. It was observed by their Lordships that Article 144 of the Limitation Act was applicable to cases where the mortgaged properties were sold as absolute properties of the mortgagee, without any limitation on the interests thus sold and subsequently the vendee enjoyed the properties in his own right and to the knowledge of the mor-gagor, beyond the prescribed period. It was argued by the learned counsel that Hiralal had filed an application for making constructions before the Municipal Council, Udaipur on the basis of the sale effected in his favour and in those proceedings Sri Kishan filed objections on the ground that the properly belonged to him and not to Hiralal. It was argued by learned counsel that from the proceedings before the Administrator, Municipal Council, it was clear that Sri Kishan was aware of the sale of the property in dispute in his favour. In the first place, the order of the Additional Collector, Udaipur, as Administrator of the Municipal Council, dated June 22, 1970 (Ex. 2) does not show that Hiralal had claimed his rights in the property in dispute on the basis of sale of the entire property in his favour by Damodar and Rameschandra. It cannot be lost sight of the Hiralal was a transferee from Damodar and Ramesh Chandra, who were grandsons of Chhaganlal and Hiralal could be in possession of the property in dispute as a transferee of the mortgagee rights. Moreover, the suit for redemption was already pending since 1941 and adverse possession of Hiralal, if any, could have only begun after the sale of the entire property in dispute in his favour came to the notice of Sri Kishan. As Sri Kishan's suit for redemption of mortgage was already pending at the time when Hiralal purchased the property in dispute from Damodar and Ramesh Chandra, there was no question of Hiralal acquiring any rights in the said property against Sri Kishan by adverse possession.

8. Learned counsel for the appellant also placed reliance upon the following observation of their Lordships of the Supreme Court in Nani Bai v. Gitabai, AIR 1958 SC 706, in this context (at p. 710).

'Article 134 of the Limitation Act contemplates a sale by the mortgagee in excess of his interest as such. The legislature, naturally, treats the possession Of such transferees as wrongful, and therefore, adverse to the mortgagor if he is aware of the transaction. Hence, the longer period of 60 years for redemption of the mortgaged property in the hands of the mortgagee or his successor-in-interest, is cut down to the shorter period of 12 years' wrongful possession if the transfer by the mortgagee is in respect of a larger interest than that mortgaged to him. In order, therefore, to attract the operation of Article 134, the defendant has got affirmatively to prove that the mortgagee or his successors-in-inte rest has transferred a larger interest than justified by the mortgage. If there is no such proof, the shorter period under Article 134 is not available to the defendant in a suit for possession after redemption.'

Undoubtedly if the larger interest is sold by the mortgagee in the mortgaged property and if the transferee conies into possession or continues to remain in possession of the mortgaged property as the full owner thereof to the knowledge of the mortgagor, then the period of limitation for filing a suit for redemption or possession would be reduced from 60 years to 12 years, as the transferee would become owner of the property by adverse possession on the expiry of 12 years. But the aforesaid principle laid down by their Lordships of the Supreme Court has no application to the facts of the present case, because of the fact that a suit for possession by redemption had already been filed by Shrikishan in the year 1941, to which Hiralal's vendors, Damodar and Rameshchandra were parties.

9. Similarly, a reference was also made by the learned counsel for the appellant to the decision of their Lordships of the Supreme Court in Rajendra Singh v. Santa Singh, AIR 1973 SC 2587. In that case, a decree for possession was passed in favour of the plaintiff earlier but thereafter the defendants had illegally and forcibly obtained possession of the disputed property and continued to remain in possession thereof for a period of more than 12 years. In such circumstances, their Lordships of the Supreme Court held that the pendency of fresh suit would not arrest the running of the period of limitation which had started earlier. It was observed by their Lordships in the aforesaid case as under (at p. 2542):--

'It is very difficult to view the act of taking illegal possession of immoveable property or continuance of wrongful possession, even if the wrong doer be a party to the pending suit, as a 'dealing with' the property otherwise than by Us transfer so as to be covered by Section 52 of the Transfer of Property Act The prohibition which prevents the immovable property being 'transferred or otherwise dealt with' by a party is apparently directed against some action which would have an immediate effect, similar to or comparable with that of transfer, but for the principle of lis pendens taking of illegal possession or its continuance neither resemble nor are comparable to a transfer. They are one sided wrongful 'acts and not bilateral trans-actions of a kind which ordinarily constitute 'deals' or dealings with property (e. g. contracts to sell). They cannot confer immediate rights on the possessor. Continued illegal possession ripens into a legally enforceable right only after the prescribed period of time has elapsed. It matures into a right due to inaction and not due to the action of the injured party which can approach a Court of appropriate jurisdiction for redress by a suit to regain possession. The relief against the wrong done must be sought within the time prescribed, This is the only mode of redress provided by law for such cases. Section 52 of the Transfer of Property Act was not meant to serve, indirectly, as a provision or a substitute for a provision of the Limitation Act to exclude time.'

10. As observed by their Lordships of the Supreme Court in the aforesaid passage, only unilateral transactions such as taking illegal or forcible possession of the property can ripen into a legally enforceable right after the expiry of the prescribed period of time. But so far as bilateral transactions are concerned, when property is transferred by one person to another by contract or the like, the transferee is undoubtedly bound on account of the provisions of Section 52 of the Transfer of Property Act by the decree or order, which may be passed against his transferor, in respect of the property in dispute. Section 52 of the Transfer of Property Act is not intended to strike at the running of the period of limitation in case of taking of illegal or forcible possession of the property, which is the subject matter of litigation by a stranger because such possession does not confer any immediate right on the trespasser. It is only after the expiry of the period provided in the Limitation Act that the right of the trespasser could ripen into that of an owner, during which period the original or lawful owner has ample opportunity to institute a suit for obtaining redress against the wrongdoer or trespasser. As a matter of fact, the doctrine of lis pendens is intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of the Court, when a dispute in respect of any right or interest, in immovable property is pending. A party to the litigation cannot by private dealings remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute or to frustrate the decree that may be passed in the suit. It could be effective against such third parties who are dealing with parties to the pending litigation, But it could not affect strangers who acquire possession on their own, by forcible or unlawful act on their part, and not on account of a transfer or dealing with a party to the pending litigation.

11. It is well-established that the principle of lis pendens is applicable not only to private transfers inter vivos but also to Court sales, as has been held by their Lordships of the Privy Council in Radhamadhub Holdar v. Manohur Mookerji, (1887-88) 15 Ind App 97, Moti-lal v. Karrabuldin, (1897) 24 Ind App 170) and Nilakant Banerji v. Sureth Chunder Mullick, (1884-85) 12 Ind App 171. In Motilal's case it was held by their Lordships that a defendant in a suit for possession was bound by the decree obtained by the mortgagee against the mortgagor as the sale was made pendente lite and it was observed that the result could not be avoided even if the mortgagee decree-holder had attached the land in dispute prior to the suit by the plaintiff vendor. The same view was taken by their Lordships of the Supreme Court in Saniarendra Nath Sinha v. Krishna Kumar Nag, AIR 1967 SC 1440 and in Kedarnath Lal (dead) by his legal representatives v. Sheonarain, AIR 1970 SC 1717. It was held in Samarendra Nath's case that although Section 52 of the Transfer of Property Act did not strictly apply in terms to involuntary alienations like Court sales, but the principle thereof applies to such alienations. In Kedarnath Lal's case their Lordships of the Supreme Court observed as under (at p. 1721):--

'If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment. Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, Section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation.'

The same principle was also laid down in Jayaram Mudaliar's case, (AIR 1973 SC 569) where their Lordships of the Supreme Court recognised the general principle that during the pendency of an action, of which the object is to vest the property or obtain the possession of real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and would be bound by the claims which shall ultimately be pronounced. When a suit is filed in respect of immovable property, the jurisdiction, power or control over the property involved in the suit is acquired by the Court, pending the continuance of the action and until the final judgment is pronounced and any transaction or dealing of the property by the parties to the suit or proceedings would not affect the decree or order which may be passed by the Court.

12. In view of the aforesaid discussion, there is no merit in this appeal and the same is dismissed. The parties are, however, left to bear their own costs of this appeal.


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