1. The question is whether the plaintiffs mortgage is affected by the Lis pendens created by the suit brought by a Hindu widow against the mortgagor for the recovery of the amount due to her for maintenance. That suit was filed on the 10th January 1888, and there was a distinct prayer that her maintenance should be made a charge on the property which was afterwards mortgaged by the defendants in that suit to the plaintiff on the 23rd January 1889. On the 31st, a decree was passed 'on the responsibilities of the properties' sued for.
2. It is argued before us on behalf of the plaintiff that this was not a sufficient Lis pendens as against him.
3. It is not alleged that so far as the property in dispute before us is concerned, the mortgage debt due to him was contracted for the purpose of paying off any debt entitled to any priority over the widow's claim for maintenance, or already due by the mortgagor.
4. In the case of Bazayet Hossein v. Dooli Chund I.L.R(1878) C 404 the widows of one Khorshed Ali brought a suit against his heir Najmooddin to recover the dower due to them and they prayed that the dower should be paid out of the estate of the deceased. A decree was passed for an account declaring the liability of the defendant to pay the amount decreed out of the assets that might have come into his hands. The Privy Council held that a purchaser under the decree upon a mortgage bond executed during the pendency of that suit was bound by the decree of the widow. They agreed in the view of the law laid down by Mr. Justice Phear in these terms : '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, and therefore of any other person who took from Najmooddin with notice of the decree or under such circumstances as to make him affected by the doctrine of Lis pendens'.
5. It is contended before us that in the above case there was a prayer by the plaintiff's widows for possession of the property in dispute, and that, therefore, the right to immoveable property was directly and specifically in question within the terms of Section 52 of the Transfer of Property Act. We do not think that this fact makes any difference. There was no decree for possession and their Lordships of the Privy Council had reference to the decree that was actually passed in so far as it granted the relief that was prayed for. No question of Lis pendens can arise with reference to a prayer that has been disallowed. This is also the view taken by the Allahabad High Court in Yasinkhan v. Muhammad Yar Khan I.L.R(1897) 19 A. 504.
6. A suit in which a widow claims to get her maintenance made a charge on immoveable property, is one in which in our opinion a right to immoveable property is directly and specifically in question.
7. The case before us is stronger than Bazayet Hossein v. Dooli Chund I.L.R(1878) C. 404 above referred to. Here the claim is not simply to recover out of the property in the possession of the defendant, but it was to charge a particular estate. The plaintiff is, therefore, bound by the Lis pendens.
8. It is pointed out that even in this view the plaintiff's prayer should not have been entirely dismissed so far as item No. 1 is concerned as the 3rd defendant who now stands in the shoes of the decree-holder claims only as mortgagee. This is so. The plaintiff is entitled to recover his debt out of the property subject to the 3rd defendant's mortgage right.
9. With this modification the decree of the Court below will be confirmed. As the appellant has substantially failed he will pay the 3rd respondent's costs.