1. In 1862, one Virasami Nayudu instituted a suit on the Equity Side of the late Supreme Court of Madras for a partition of the family property held jointly by him and others.
2. An injunction issued to Venkatasami Nayudu, his brother, inhibiting him from intermeddling with the property pending the suit.
3. On the 12th May 1863, the injunction was continued. By the decree the master was directed to sell the property and distribute the proceeds.
4. On the 7th July 1866, the property was sold, and one Arunachala Mudali became the purchaser on behalf (as is alleged) of one Virji Lal. The latter left a widow Devaki Bhai and a daughter Jamuna Bhai. Arunachala left a will appointing Shanmuga Mudali and Ekambaram Mudali his executors. On the 24th March 1873, they conveyed the property purchased by Arunachala at the Court-sale to the widow of Virji Lal, Devaki Bhai. The latter died in 1875, leaving a will in which she appointed the plaintiffs as her executrixes; and the suit arises out of the claim they prefer to the property. Defendants are: in possession.
5. The Court of First Instance and the Lower Appellate Court have given judgment for plaintiffs. At the appeal hearing, the defendants resisted the claim on the following grounds:
6. On the 9th September 1865, Venkatasami and his son, second defendant,, mortgaged the property to first defendant.
7. The first defendant instituted Suit 30 of 1871 on the mortgage-bond against Venkatasami and the present second defendant and Gopalayi and Arunachalam. Arunachalam died before he could be served. His widow was substituted as a defendant. A decree was passed directing the sale of the property. On the 22nd August 1877, the property was purchased by first defendant, the mortgagee, who has held possession ever since. As to the objection that the mortgage by Venkatasami was made pendente lite the answer made by first defendant is that he is in possession, and. that the sale by the Master of the late Supreme Court to Arunachalam through whom the plaintiffs derive their title was null and void, as it was a sale without jurisdiction.
8. The suit in which the sale took place in execution of the decree of the High Court was instituted in the late Supreme Court, the local jurisdiction of which was confined to the limits of Madras. The High Court took the place of the Supreme Court in 1862, just after the suit was filed, but it was not until 1865, that by the second Letters Patent, it was enabled to take cognizance of suits-for immoveable property, situated partly within and partly without the ordinary local limits of the jurisdiction, and the High Court, it was contended had no power to pass a decree binding the property in a suit which had commenced in the Supreme Court or the High Court in 1862, and had no authority to proceed to execute a decree having relation to property beyond its local limits even in cases in which, under the provisions of the amended Letters Patent of 1865, it had accorded leave for the institution of a suit, and had passed a decree in the suit binding the property.
9. It was then argued that, assuming that the injunction bound Venkatasami not to deal with the property pending the suit, it only bound him to the extent that he could not deal with the entire property by way of mortgage or sale, but was not precluded from alienating it to the extent of his share or interest in the property.
10. It was further contended, that this was a suit to set aside a sale, and' that Article 12 of the limitation Act, allowing a period of only one year, was a bar to the present suit.
11. It was also urged that plaintiffs' sale-certificate was not registered and was inadmissible in evidence.
12. First defendant further sets up a jus tertii. It is alleged that Arunachalam executed a conveyance, Exhibit K, in favour of Virji Lal, but they both died. before it could be registered. The executors to carry out Arunachalam's intention, executed Exhibit B, the conveyance, to the widow of Virji Lal.
13. The District Munsif believed the evidence of the plaintiff in this respect,--the District Judge apparently did not. He considered that the transmission of the property by Arunachalam's executors to the widow of Virji Lal was without consideration and might be disputed by Arunachalam's widow. Then, as the injunction of the Supreme Court was directed only against Venkatasami and not against his son, the alienation of the son's interest would be upheld, even though that by Venkatasami of his own interest was held to be bad; and plaintiff, therefore, at most was only entitled to one-half.
14. For the plaintiffs, Mr. Branson points out that neither Arunachalam nor Arunachalam's executors, through whom plaintiffs derive their title, were parties to Suit 30 of 1871, and that the widow of Arunachalam, though a party to the suit, did not represent him as the executors had the representative title. He contends, therefore, that plaintiffs are not estopped by the decision in that suit in favour of the first defendant.
15. He urges that Arunachalam's representatives have never come forward to claim the property as they would have done had they any interest in it. As to the argument that plaintiffs must support their title by a certificate of sale duly registered, Mr. Branson contended that, had it been necessary for the plaintiffs to put forward the certificate of sale, it might have been necessary that it should appear that that certificate was registered, but it was not necessary to put it forward as first defendant admits it; and that Section 259 of the old Civil Procedure Code merely requires the Court to grant the certificate, but that the failure to do so will not affect the rights of the purchaser.
16. As to limitation, Mr. Branson submitted that plaintiffs were within time, as the suit was instituted within 12 years of the date of the cause of action.
17. I have no doubt that the suit is within time. Article 12 of the 2nd Schedule to the Limitation Act does not apply to suits in which the plaintiff was not a party to, and not bound by the sale it is sought to set aside. It is clear that plaintiffs were neither personally nor derivatively parties to the Suit 30 of 1871, and as their suit is a suit for the recovery of immoveable property, they had the period of twelve years and are in time. It is said that Venkatasami had no power to deal with the property, pending the litigation, and that no effect can be given to his mortgage. The doctrine of lis pendens is contained in the maxim nihil innovetur.' That is to say--' Let no change in the rights of the property be introduced, but let it all abide the result of the decree.' If the suit was one by a decree in which Venkatasami could properly be bound, then he had no power after the commencement of the suit to charge any specific portion of the property involved in the suit in favour of strangers to that suit, and so endeavour to frustrate the exercise of the Court's discretion in apportioning the property. After the erection of the High Court in 1862, and until the new Letters Patent in 1865, a suit for land relating to property partly beyond the local jurisdiction of the Court, could not have been entertained so as to affect such property as was outside the limits, and it was in view of the difficulty arising from this defect in the Court's jurisdiction under the first Letters Patent that the 12th section was amended in the second Letters Patent. The difficulty arose upon the language of the 12th section of the first Letters Patent which confined the Court's jurisdiction in reference to suits for land to suits in which the land claimed was wholly situated within the local limits. It has been frequently held by the Calcutta High Court and by this Court that suits for partition of family property, consisting wholly or partly of land or immoveables, were suits for land within the meaning of the Letters Patent, and it would appear from the case Stephen Lazar v. Colla Ragava Chitty 2 M.I.A. 84 that the Supreme Court would have no jurisdiction over property beyond its local limits in such cases.
18. A point taken on behalf of plaintiffs in the District Munsif's Court and elaborately considered by the District Munsif was that first defendant by his purchase at the Court-sale in execution of the decree in Original Suit 30 of 1871 acquired only an equity to a partition, and that as Venkatasami had died before first defendant had enforced his equity, no title remained in first defendant to enforce.
19. The term 'An equity to a partition' is one of those vague phrases which only tend to obscure the nature of the question in the discussion of which they are employed. What is an equity to a partition? It is a right to apply to a Court of Equity for a partition with a reasonable expectation that the application will be complied with. Whence arise this right to apply and this reasonable expectation? They must arise from the existence of aright in the plaintiff to a partition, and it is very clear that this right arises from his having become the transferee of the rights of the coparcener. It has been often observed that a coparcener cannot introduce a stranger to the enjoyment of any portion of the property belonging to the coparcenery body, but if a Court, when applied to, will recognize the so-called equity to a partition, and will portion off to the transferee the share of the transferor, it is plain that the Courts do recognize the right of a coparcener to transfer his unascertained interest, and that a right to a partition and not an equity to a partition is the proper description of the interest transferred. What reason then is there for saying that this right, when once acquired, is not. transmitted to heirs and representatives? None whatever. The point was not argued before us in appeal, and I only notice it because it is important that the inconvenience of the use of the term, an equity to a partition, should be fully understood. If Venkatasami and second defendant were in a position to mortgage the property, the first defendant by the subsequent decree and sale became the purchaser of whatever interest they had in the property at the date of the mortgage.
20. Whether they were in a position to mortgage, and what their exact interest in the property may be, it will not be necessary to ascertain, as first defendant is in possession, and it is for plaintiffs to make out their title, and, as will appear further on, plaintiffs have failed to establish it. As to the alleged necessity that plaintiff should be able to adduce a duly registered certificate of sale, it may be well to refer to Mussumat Buhuns Kowur v. Lalla Buhooree Lall 14 M.I.A. 496 the Judicial Committee observe--' Section 259, requiring the Court to grant a certificate to the person declared to be the purchaser of land at the sale, and directing that such certificate shall be taken and deemed to be a valid transfer of the debtor's right and interest, does no more than create statutory evidence of the transfer in place of the old mode of transfer by Bill of sale.'
21. If this be the effect of the grant of the certificate, it is clear that such certificate is not necessary to pass the title. But then the question comes whether a purchaser at a Court-sale can recover in a suit without producing such a certificate? If it is admitted, as is the case here, that the Court auction did take place, and that the property was sold to the person whom plaintiffs now represent, that would seem to be a sufficient admission that the title passed to that person, i.e., such title as the proceedings in the sale were capable of giving him.
22. The sale of the property in execution of the decree of the late Supreme Court beyond the local limits of the High Court's jurisdiction was a proceeding which, as was held in the case already quoted, Stephen Lazar v. Colla Ragava Chitty, was ultra vires, and must be treated as ineffective against first defendant. It is clear that as to the interest conveyed by second defendant at least plaintiffs could have no claim. Second defendant was not a party to the equity suit, nor was he bound by the decree or the subsequent sale.
23. On the ground that the property never passed to Arunachalam by the sale, as the Court had no jurisdiction to entertain a suit for property situated beyond its local limits, and that the sale itself was a nullity, as the High Court could not give itself jurisdiction to execute the decree of the late Supreme Court in the Chingleput District, I am of opinion that the plaintiffs' title is not made out and I would, therefore, reverse the decrees of the Courts below and dismiss the suit with costs throughout.
Muttusami Ayyar, J.
24. I concur.